immigrationcourtside.com

USG Bid To Max Criminal Deportation Law May Be On The Rocks Before The Supremes!

http://www.latimes.com/politics/la-na-supreme-court-deport-burglars-20170117-story.html

David G. Savage writes in the L.A. Times:

“The law in this area is not entirely clear. Beginning in 1988, Congress ordered deportation for noncitizens who are convicted of an “aggravated felony,” and it cited specific examples such as murder and rape. Later the law was expanded to include a general category of “crimes of violence.” This was defined to include offenses that involve a use of physical force or a “substantial risk” that force would be used.

Judges have been divided as to what crimes call for deportation. Looming over Tuesday’s argument was an opinion written two years ago by the late Justice Antonin Scalia. He spoke for an 8-to-1 majority in striking down part of a federal law known as the Armed Career Criminal Act. It called for extra years in prison for people convicted of more than one violent felony.

In that case, the extra prison term was triggered by the defendant’s possession of a shotgun. In frustration, Scalia and his colleagues said the law was unconstitutionally vague because they could not decide whether gun possession is itself evidence of a violent crime.

“You could say the exact same thing about burglary,” Justice Elena Kagan said Tuesday. A midday burglary of a home could result in violence, she said, but perhaps not if it were an empty garage or an abandoned house. “So it seems like we’re replicating the same kind of confusion,” she said.

Justice Stephen G. Breyer said judges have no way to decide which crimes typically or usually involve violence. “We’re just left guessing,” he said, suggesting a better approach would be “look at what the person did.”

But Deputy Solicitor Gen. Edwin Kneedler said a home burglary poses a risk of violence. And he said the court should defer to the government on matters of immigration. The law, he said, calls for a “broad delegation” of authority to executive officials.

This is the argument government lawyers made in defense of President Obama’s use of executive authority to try to shield millions of immigrants from deportation. It is also the argument that would call for upholding an aggressive deportation policy if pursued by the Trump administration.”

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Interesting juxtaposition here! The key opinion relied on by the immigrant is an 8-1 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), written by conservative judicial icon Justice Antonin Scalia in which he ripped apart on constitutional vagueness grounds a provision of the Armed Career Criminal Act that is virtually identical to the deportation statute.

The Obama Administration reacted by vigorously reasserting in the lower courts and the Immigration Courts its right to ignore Justice Scalia’s reasoning in the civil deportation context and continue to deport individuals convicted of residential burglary.

But, liberal judicial icon Judge Stephen Reinhardt and one of his colleagues on the Ninth Court of Appeals seized on Scalia’s opinion and applied it to the immigration law to block such deportations. The Seventh Circuit followed suit, but the Fifth Circuit did not, thereby setting up a “circuit split” — something that often convinces the Supreme Court to exercise its discretionary authority to intervene by granting a “writ of certiorari.”

The case is Lynch v. Dimaya, No. 15-1498 which, as pointed out by David Savage, will soon morph into Sessions v. Dimaya. Stay tuned for the results!

Did you know that: The Government’s lawyer in Dimaya, career Deputy Solicitor General Edwin Kneedler, a friend and an outstanding public servant, has argued more than 125 U.S. Supreme Court cases during his distinguished Government career, more than any other living lawyer!

Wow! Most lawyers would feel lucky and privileged to argue a single case before the Supreme Court. I know I sure would. Just think of the hours of preparation spent in preparing to argue well over 100 cases!

When I was Deputy General Counsel and Acting General Counsel of the Legacy INS, I used to help the Solicitor General’s Office prepare for oral arguments in immigration cases. So, I know how intensive the preparation process is.

At least once, I was asked to sit with the Deputy SG arguing the case at counsel table in the Court. That was as close as I ever got to appearing before the Court.

I remember one case that I observed — I can’t remember if I was at counsel table or in the audience — was the immigration classic INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) establishing the generous “well-founded fear = reasonable likelihood” standard for asylum, which I ended up having to apply thousands of times as a trial and appellate judge in the Immigration Courts. That day, however, we were on the “losing” side of the argument, having presented the case for a more stringent standard. Nevertheless, I think the Court got it completely right.

The “winning” lawyer before the Court that day was a young immigration attorney from San Francisco, Dana Marks Keener, now known as Judge Dana Leigh Marks of the San Francisco Immigration Court and the President of the National Association of Immigration Judges. Since then, of course, Dana and I have become judicial colleagues and great friends. I often refer to her as “the founding mother of modern U.S. asylum law.”

Small world.

PWS

01/18/17

Washington Post: What’s It Really Like To Be A Syrian Refugee In America?

https://www.washingtonpost.com/local/were-definitely-scared-a-refugee-family-contemplates-president-trump/2017/01/17/237983ee-d6a0-11e6-9a36-1d296534b31e_story.html?hpid=hp_local-news2_refugee-915am%3Ahomepage%2Fstory&utm_term=.9b3146fad22d

Justin Wm. Moyer writes in today’s Post:

“In Daraa, Syria, their home town about 70 miles south of Damascus, they huddled in a makeshift shelter as the city exploded around them. Their infant daughter, sick with a virus and smoke inhalation, had to be hospitalized. Even after horror upon horror — trigger-happy soldiers at checkpoints, barrel bombs — they tried to convince themselves that they could stay until they fled in 2013.

“The hardest thing we ever had to do was leave,” Jbawi said.

Then came purgatory: a month in a refugee camp followed by three years in Jordan as they waited for placement. There were background checks and interviews with U.S. officials before the relocation application was approved.

“This is your chance to make your life better,” Jamal Jbawi, Nadia’s husband, recalled being told.

Now comes Trump. Jamal Jbawi, 39, said the family has experienced no racism since their arrival. Not everything can change on Inauguration Day. Can it?

. . . .

Four years ago, Jamal Jbawi was teaching English literature to teenagers in Syria. Shakespeare was his favorite, particularly “King Lear” and “Hamlet” — the latter for its depiction of the “conflict between good and evil,” he said.

After surviving a civil war, he makes a living in quality control for Danko Arlington, a 97-year-old aluminum sand foundry. Without a car, he wakes at 4:30 a.m. and takes a 90-minute bus ride to the factory in Baltimore’s rugged Arlington neighborhood.

“Public transportation is very bad,” he said.

Jamal Jbawi inspects airplane parts for $11 per hour, working four, 10-hour shifts per week. Just getting back to work — any kind of work — after years in Jordan is a blessing.

“The factory is very kind,” he said.”

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This is a great article that emphasizes some thing things about refugees that often are overlooked or distorted.

First, as I’ve said many times, “nobody wants to be a refugee.” It just happens. And, frankly, it could happen to any of us, at any time, particularly when we least expect it. All of us who have the great fortune not to be refugees should be thanking our lucky stars every day! It’s a matter of luck, not merit on our part.

Most refugees, like the Jbawis, were leading stable, productive, and often prosperous lives in their home countries. They had to leave everything they knew and had worked so hard for behind. Like most of us, they never expected that events beyond their control would force them to flee to a strange and new foreign land, no matter how hospitable that land might prove to be.

Second, the article confirms something that always struck me when hearing asylum cases at the Arlington Immigration Court: the extreme amount of abuse that many refugees would accept to avoid leaving their home countries.

After graphic stories of brutal arrests, imprisonments, repeated beatings, torture, and death threats, the question often came up “why didn’t you leave sooner?” Sometimes it was just a question of not having the opportunity to leave. Other times, people were reluctant to leave behind, family, friends, jobs, churches, and community.

But, a surprising number of people, particularly political dissidents and religious dissenters, expressed an unusual degree of optimism that things were going to change for the better, that their party would win the elections, that the government would eventually allow them to worship, or that the government would forget about them and move on to heap abuse on another disfavored group. This was true even when all of the objective evidence suggested that their torment would have no happy ending.

In other words, they were in denial. Their innate desire to avoid disruptive change outweighed the objective evidence that they would be better off going sooner rather than later.

It’s hard to get people to make fundamental changes in their established living patterns. That’s why refugees are exceptional individuals: risk takers, resourceful, courageous, ambitious, hard working, and flexible. That’s exactly the kind of person America needs to build an even greater future for all of us.

PWS

01/18/17

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

The Refugee Ball

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21^st President –— at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System. With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection. For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)

Washington Post: U.S. & Mexican Officials Allegedly Flout U.S. Asylum Law (And International Treaties) At Southern Border!

https://www.washingtonpost.com/world/the_americas/us-border-officials-are-illegally-turning-away-asylum-seekers-critics-say/2017/01/16/f7f5c54a-c6d0-11e6-acda-59924caa2450_story.html?utm_term=.4f9b23834fc7

Joshua Partlow writes in the Washington Post:

“I am fleeing my country,” the policeman later recalled telling the guards, explaining that he had survived two attempts on his life. “I am being persecuted in a matter of life and death.”

The policeman said he was told he needed to see Mexican immigration authorities, who would put him on a waiting list to make his case to U.S. officials. But Mexican authorities refused to add him to the list, the policeman said, and he has been stuck in northern Mexico.

The Guatemalan is one of hundreds or perhaps thousands of foreigners who have been blocked in recent months from reaching U.S. asylum officials along the border, according to accounts from migrants and immigration lawyers and advocates.

The details of their cases vary. At the U.S. border crossing between Tijuana and San Diego, numerous asylum seekers from Central America and Mexico have been referred to Mexican authorities for an appointment with U.S. officials — but Mexican authorities often turn them down, according to migrants and immigration lawyers. In other places, migrants have been told by U.S. border agents that the daily quota for asylum cases has been reached or that a visa is required for asylum seekers, a statement that runs contrary to law, immigration advocates say.”

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The law is very clear: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . . .” 8 U.S.C. 1158(a).

Also, without getting too much into the particular facts, it appears that the former Guatemalan policeman described in the quote above could have a strong case for asylum under the BIA’s long-standing precedent decision Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988), finding that “former policeman” could potentially be a “particular social group” for asylum purposes.

Part of the problem here is that the U.S. does not have a meaningful “overseas refugee program” for the Northern Triangle. If the present, quite restrictive, program were expanded in both numbers and scope, and if the processing were more timely, more people would probably apply and be screened abroad, rather than coming directly to the border to apply. The U.S. could actually do Northern Triangle refugee processing in Mexico.

Additionally, the U.S. could encourage the Mexican Government to establish a program of temporary protection, similar to our “Temporary Protected Status,” so that individuals from the Northern Triangle who faced death or danger upon return could remain in Mexico even if the did not satisfy all of the technical requirements for refugee status.

Moreover, like the U.S., Mexico is a signatory to the U.N. Convention and Protocol on Refugees, but apparently has not done a particularly effective job of carrying it out. Why not work with the Mexican Government not just on law enforcement initiatives, but also on training adjudicators to provide fair hearings to individuals seeking protection under the Convention?

It might also be possible to work with other “stable” democratic governments in the Americas to share the distribution of those from the Northern Triangle who need protection.

Last, but certainly not least, as the incoming Secretary of Homeland Security, Gen. John Kelly, has suggested, it is important for a more permanent solution to work with governments in the Northern Triangle to provide stability and the rule of law in those “sending countries.”

We know that just throwing more money, personnel, walls, sensors, helicopters, detention centers, moats, etc. at the problem won’t effectively address the continuing flow of “desperate people fleeing desperate circumstances.” And, as our law provides, whether they come to our borders and turn themselves in or enter, legally or illegally, they actually have a right to seek asylum in the United States.

Isn’t it time to try some “smart strategies,” rather than just doubling down on the same old “enforcement only” approaches that have failed in the past and will continue to do so in the future?

PWS

01/17/17

Why The U.S. Immigration Court In NYC Is Overwhelmed: Listen & Read WNYC/NPR Senior Reporter Beth Fertig’s Report (Quoting Me) Here! Without Reforms, Due Process Is In Peril! Why Not “Give Due Process A Chance?”

http://www.wnyc.org/story/why-new-yorks-immigration-courts-are-so-busy/

“This is why experts say it’s hard to imagine Donald Trump deporting more criminal immigrants than Obama. “I think this administration already takes a fairly broad view of who is a criminal,” said Paul Wickham Schmidt, who was an immigration judge in Arlington, Virginia for 13 years.

Trump has claimed there are two to three million undocumented immigrants with criminal convictions. The government has said that number is actually just below 2 million and includes non-citizens who are in the country legally (like Bilanicz), as well as undocumented immigrants.

The government has put more resources into immigration enforcement. But Schmidt said it hasn’t done enough to help the court system meet the growing demand. There were fewer than 300 immigration judges for the whole country last year, and they were hearing more than 220,000 cases. Schmidt said even 100 additional judges would barely keep up with incoming cases, let alone the backlog.

“If you start doing the half million cases that are pending then you’re going to fall behind on the incoming cases,” he said.

. . . .

Judges have also complained that the government fast-tracked unaccompanied minors and families from Central America and Mexico who crossed the border in a “surge” a couple of years ago. These recent arrivals got priority over immigrants who had been waiting years for their hearings or trials, leading to bigger backlogs.

. . . .

The whole [Master Calendar] process took about five minutes for each case, and [Judge Amiena] Khan was scheduling future court appearances as late as August of 2018. This isn’t so bad given, that Schmidt said he was scheduling hearings for 2021 before retiring last summer. But one lawyer in court that morning, Shihao Bao, agreed the system couldn’t possibly handle more cases unless Trump wanted to “take away due process.”

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To paraphrase Chief Justice John Robert’s spot-on observation in the immigration case Nken v. Holder, 556 U.S. 418, 421 (2009), providing due process in an individual case takes time: “[S]ometimes a little; sometimes a lot.” As I have said numerous times on this blog, the “just peddle faster approach” to due process in the U.S. Immigration Courts, unsuccessfully tried by past Administrations, isn’t going to “cut it” for due process.

And, cutting corners is sure to be more expensive to the taxpayers in the long run when Article III U.S. Courts of Appeals inevitably intervene and use their independent authority to stop the “assembly line” approach to justice and force the return of numerous cases to the Immigration Courts for “redos,” sometimes before different Immigration Judges.

I’m relatively certain that some of the Ashcroft-era cases “bounced back” by the Courts of Appeals are still kicking around the Immigration Courts somewhere without any final resolutions. With the help of the local immigration bar and the ICE Office of Chief Counsel I finished up a fair number of these “oldies” myself during my time at the Arlington Immigration Court. By the time the cases finally got to my Individual Hearing calendar, most of the individuals involved had qualified for relief from removal or, alternatively, had established lengthy records of good behavior, tax payment, contributions to the community, and U.S. family ties that made them “low priorities” for enforcement and resulted in an offer of “prosecutorial discretion” from the Assistant Chief Counsel.

In the Arlington Immigration Court, the Office of Chief Counsel had a strong sense of justice and practicality and was a huge force in helping to get “low priority” cases off the docket whenever possible consistent with the needs and policies of their DHS client. But, I know that the Offices of Chief Counsel in other areas did not perform at the same consistently high level.

Rather than having enforcement efforts stymied and having to redo cases time and time again to get them right, why not invest in providing really great fairness and due process at the “retail level” of our justice system: the United States Immigration Courts? Getting it right in the Immigration Courts would not only save time and money in the long run by reducing appeals, petitions for review, and actions for injunctions directed to higher courts, but would also produce a due process oriented Immigration Court system we could all be proud of, that would have great credibility, and that would serve as an inspiring example of “best practices” to other courts and even to immigration systems in other countries. After all, the “vision” of the U.S. Immigration Courts is supposed to be: “Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.” Why not “give due process a chance?”

PWS

01/17/17

Out Of Africa? Trump Transition Team Appears Indifferent To The Fate Of The 1.3 Billion Residents Of Continent — Recurring Themes: What’s In It For Us? Why Should We Care?

https://www.nytimes.com/2017/01/13/world/africa/africa-donald-trump.html?ribbon-ad-idx=2&rref=world&module=Ribbon&version=origin®ion=Header&action=click&contentCollection=World&pgtype=article&_r=0

“A four-page list of Africa-related questions from the transition staff has been making the rounds at the State Department and Pentagon, alarming longtime Africa specialists who say the framing and the tone of the questions suggest an American retreat from development and humanitarian goals, while at the same time trying to push forward business opportunities across the continent.

“How does U.S. business compete with other nations in Africa? Are we losing out to the Chinese?” asks one of the first questions in the unclassified document provided to The New York Times.

That is quickly followed with queries about humanitarian assistance money. “With so much corruption in Africa, how much of our funding is stolen? Why should we spend these funds on Africa when we are suffering here in the U.S.?”

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Wonder what JFK would think? Will cutting aid make us more competitive with China?

PWS

01/17/17

Packer Receiver Randall Cobb Says AR Threw Out The Play Book On “Play Of The Game!”

http://www.nfl.com/news/story/0ap3000000775045/article/aaron-rodgers-magic-makes-believers-of-all-in-victory?campaign=Ext_Email_NL_REG_19_20170116_GB&cvosrc=Ext_Email.Epsilon.NL_REG_19_20170116_GB

Remember when you were a kid playing touch football all in the back yard? Your quarterback takes a twig and sketches out the play — “you go short, you go medium, and you stop then run like hell for the garage and I’ll hit you!” Well, that’s just about how the incomparable Aaron Rodgers reportedly did it on the key completion of the game — a 36-yard dart to Jared Cook on third and twenty from his own 32, a play that started with just 12 seconds left in the game and set up the game-winning field goal kick by Mason Crosby to lift the Pack to a 34-31 victory over the Dallas Cowboys yesterday.

Packer wideout Randall Cobb later told a reporter: “the final play was essentially written up in the dirt by Rodgers before the snap, with the quarterback telling each receiver where to go.”

AR and the Pack will match up with the Atlanta Falcons and their red-hot QB Matt Ryan in Atlanta this coming Sunday with a trip to the Super Bowl on the line. Expect the air to be filled with footballs in a high-scoring contest.

PWS

01/17/17

Rappaport — Trump Will Inherit A Mess In the U.S. Immigration Courts — Former GOP Hill Staffer Peter Levinson Tells Us In One Sentence Why The Current System Is “Built To Fail” — Can Anyone Fix this Mess Before It’s Too Late For Our Country And The Millions Whose Lives And Futures Depend Our Immigration Court’s Ability To Guarantee Fairness And Deliver Due Process? Read My Commentary — “We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?” — Below!

http://thehill.com/blogs/pundits-blog/immigration/314238-our-immigration-court-crisis-will-be-trumps-lasting-headache

We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?

By Paul Wickham Schmidt

Writing in The Hill, my friend Nolan Rappaport says:

“President-elect Donald Trump will have to deal with this situation before he can begin his promised enforcement program.
Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.”

That makes lots of sense to me. It will certainly help the Immigration Courts to quickly remove many “non priority” cases from the docket without compromising due process. But, it’s not a complete solution to the problems facing our Immigration Courts.

And, well-respected scholar, gentleman, and former GOP Hill Immigration Staffer Peter Levinsion succinctly tells us why just fiddling around with the administrative process within the DOJ won’t get the job done:

“”The Attorney General’s ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board’s stature generally.””

Yup, folks, the U.S. Immigration Courts, including the all-important Appellate Division (the Board of Immigration Appeals, or the “BIA”), where hundreds of thousands of individuals are awaiting the fair, independent due process hearings guaranteed to them by the U.S. Constitution, are actually a wholly owned subsidiary of the chief prosecutor and law enforcement officer of the U.S. — the Attorney General.

Who wouldn’t like to own a court system where your only client — the U.S. Government — is an interested party in every single case? Who wouldn’t, indeed, unless that court system is in the sad circumstances of the current U.S. Immigration Court system — overworked, understaffed, over-prioritized, under-appreciated, laboring under outdated systems and technology abandoned by most other courts decades ago, and generally out of control. Other than that, what’s the problem?

The answer, as proposed by Nolan and Peter, and many others including the Federal Bar Association, the American Bar Association, the National Association of Immigration Judges, and many other nonpartisan judicial experts is an independent Article I (or even Article III) Immigration Court, including the Appellate Division.

“Impossible,” you say, “Congress and President Trump will never go for it. Nobody in the Washington ‘power curve’ could sell this idea.” But, I beg to disagree.

There is one person in Washington who could sell this long overdue idea to President Trump and legislators from both sides of the aisle. His name is Jeff Sessions. And, he’s about to become the next Attorney General of the United Sates.

Why would Attorney General Jeff Sessions suddenly become an advocate for due process and “good government?” Well, I can think of at least three obvious reasons.

First, being the “father” of an Article I Immigration Court would be a lasting positive contribution to our system of justice — not a bad legacy for a man who has been “on the wrong side of history” for much of his four decades of public service. Second, it would silence many of the critics who have doubted Sessions’s claims that he can overcome his “out of the mainstream” views of the past and protect and vindicate the rights of everyone in America, particularly in the sensitive areas of immigration and civil rights. Third, and perhaps most important, by creating an independent, credible, modern, due process oriented Immigration Court outside the Department of Justice, Sessions would pave the way for a more effective immigration enforcement strategy by the Administration while dramatically increasing the likelihood that removal orders will pass muster in the Article III Courts.

Sure sounds like a “win-win-win” to me. I’ve observed that the majority of the time, people act in accordance with their own best interests which frequently line up with the best interests of our country as a whole. Yes, there will always be a substantial minority of instances where people act against their best interests. Usually, that’s when they are blinded by an uncompromising philosophy or personal animus.

I can’t find much of the latter in Senator Sessions. He seems like a genuinely genial personality who makes it a point to get along with folks and treat them politely even when they disagree with his views. The former could be a problem for Sessions, however. Can he get beyond his highly restrictive outlook on immigration and adopt big-picture reforms? Only time will tell. But there is a precedent.

EOIR was actually created during the Presidency of Ronald Reagan. It was two “strong enforcement types,” then INS Commissioner Al Nelson and General Counsel “Iron Mike” Inman, Jr., part of the so-called “California Mafia,” who persuaded then Attorney General William French Smith to remove the Immigration Judges from the “Legacy INS,” and combine them with the Board of Immigration Appeals to form EOIR, with then-BIA Chairman David Milhollan as the first EOIR Director. Smith selected as the first Chief Immigration Judge a well-respected (even if not universally beloved) apolitical Senior Executive, William R. Robie, who had run the Department’s Office of Attorney Personnel Management and had a well-deserved reputation in the Washington legal community for “getting the trains running on time.”

It was one of the few times in my more that three decades in Government that I witnessed Senior Political Executives actually arguing for a needed transfer of functions and personnel out of their own agency. Traditionally, agency heads battled furiously to hang on to any piece of “turf,” no matter how problematic its performance or how tangental it was to the agency’s mission. But, Nelson and Inman, who were litigators and certainly no “softies” on immigration enforcement, appreciated that for victories in Immigration Court to be meaningful and to stand up on further judicial review, the Immigration Court needed to be a level playing field that would be credible to those outside the Department of Justice.

Unfortunately, the immediate improvements in due process and court management achieved by making the Immigration Courts independent from the “Legacy INS” have long since “played out.” The system within the DOJ not only reached a point of diminishing returns, but has actually been spiraling downward over the past two Administrations. Sadly, Nelson, Inman, Milhollan, and Robie have all died in the interim. But, it would be a great way to honor their memories, in the spirit of bipartisan reform and “smart government,” if an Article I Immigration Court were high on Attorney General Sessions’s agenda.

PWS

01/17/17

Crosby Kicks Game Winner — AR, Jared Cook Make It Happen, As Pack Down Boyz In Divisional Thriller — Falcons Last Hurdle To Super Bowl! Greatest Pack Game Ever? Open For Debate, But It Was One Of The All-Time Best!

Green Bay Packer veteran kicker Mason Crosby had a genuinely horrible year in 2012. Notwithstanding his 80% career accuracy, Crosby missed more that one-third of the field goals he attempted. Even for a popular veteran player who does much for the community, that normally would be the end of the line; younger, stronger legs with much lower salaries were readily available. Most teams would have made the switch.

But, Packer management was unusually reticent to pull the plug. They viewed 2012 as an aberration in an otherwise sterling career. Crosby was resigned for 2013, and it payed off. He returned to form and has been golden when it counts ever since.

Tonight, that confidence paid off, big time! Crosby hit a 56-yarder to give the Pack a short-lived lead; then, he pushed two game winners, the second one, the only one that counted, barely inside the left upright to clinch the win and send the Pack into the NFC Championship game against the Atlanta Falcons. For Crosby, it was an NFL record 23rd consecutive made field goal in playoff competition!

Crosby’s heroics were set up by superstar QB Aaron Rodgers (“AR”) and wide receiver Jared Cook. Following the Boyz game-tying FG by Dan Bailey, the Pack took over on their own 25-yard line with 35 seconds left. On a first down play from the Pack 42-yard line, AR was brutally sacked by the Boyz for a ten-yard loss. Most NFL QB’s would have coughed up the ball, setting up the Boyz for a 39-yard chip shot game winner. But, AR not only held onto the ball, but also had the presence of mind to call the Pack’s final timeout.

Then, on third and 20 from the 32, Rodgers drilled a bullet to Cook, who made a spectacular catch with two feet just barely in bounds at the Dallas 32 for a 36-yard gain. Although the pass originally was signaled incomplete, the call was reversed. Crosby then kicked the 51-yard game winner. But, Cowboy coach Jason Garrett absurdly was allowed to call a last second timeout. Fortunately, Crosby kicked it through again, although not by much. The Pack celebrated and are moving on to Atlanta for the NFL Championship game, one step from the Super Bowl.

The amazing AR thus led his team to a eighth consecutive victory following a 4-6 start. While he threw his first interception in 319 attempts, he finished 28 for 43 with 2 TDs and one INT, and the game-winning drive. On the negative side, the Pack blew a seemingly insurmountable 18 point lead, and AR’s single interception cost the Pack an almost sure touchdown that would have ended the game much earlier.

My brother, Jim, suggested that this was “the greatest Packer victory ever.” I countered with “what about the Ice Bowl in 1967” where the Packers bested the Cowboys on a famous last-second TD “sneak” by QB Bart Starr behind guard Jerry Kramer. Jim’s response: “As good as Starr was, I don’t think he could have pulled off some of the AR plays.” OK, I agree. But, it only makes a difference if they win the Super Bowl!

Check out the game-winner, set to music from “Titanic,” below.

RULES CHANGE NOTE: The ability of coaches to call last second timeouts from the sidelines when the ball is ready to be snapped, thus causing the kicker to kick twice, is a travesty that is both unsportsmanlike and dilutes the integrity of the game. It must be eliminated! The defensive team should not be allowed to call a timeout after the ball has been whistled “ready for play.”

But, hey, I’m only a retired judge. What do I know?

PWS

01/15/17

http://ftw.usatoday.com/2017/01/green-bay-packers-mason-crosby-field-goal-titanic-music-dallas-cowboys-nfl-playoffs

“Full Frontal’s” Samantha Bee Discovers SHOCKING Truth: Obama & Trump Share Similar Views On Immigration Enforcement! — Also Introducing Late-Nite TV’s Newest Superstar, Retired USIJ Bruce Einhorn!

Check out this video link from last night’s Full Frontal With Samantha Bee” on TBS:

http://www.vox.com/culture/2017/1/12/14250148/samantha-bee-obama-trump-deportation

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Yup, that’s right Sam, for years the Obama Administration has been going after foreign nationals with criminal records, even though, as illustrated by the young lady you profiled, some of them are nonviolent, have paid for their crimes, have rehabilitated themselves, and are productive, law-abiding, tax-paying members of their communities — many with U.S. citizen families — by the time ICE Enforcement shows up.

Perhaps realizing that, contrary to campaign rhetoric, President Obama has already implemented a “get tough” immigration enforcement program, Trump spokesman Kris Kobach promises to expand (by Executive Fiat, mind you) the definition of “criminal” to include foreign nationals who have merely been charged or arrested, not necessarily convicted of any crime. Hey, what’s the presumption of innocence anyway? To paraphrase another great American thinker, “If they were’t criminals, they wouldn’t be in court.” Perhaps the next logical step will be anyone who has ever thought of violating the law or watched a TV crime show!

I think it is safe to predict that many of those who would fall within Kobach’s ever-expanding concept of “criminal” will eventually prove not to be removable under the laws of the United States. Even now, that’s the case in a remarkable number of prosecutions brought by the Obama Administration’s ICE (“Immigration and Customs Enforcement”).

That’s why we need a strong, independent, impartial, expert United States Immigration Court (including the “Appellate Division,” the “BIA”) to insure that fairness and constitutional Due Process are always at the forefront and that any Administration’s enforcement initiatives comply with the law. And, any Administration would find that final orders of removal achieved through such a due-process oriented court system would have great credibility (sadly, not necessarily the case now and particularly in the recent past) and would stand up to judicial review by the Federal Courts of Appeals.

Finally, my friend and former colleague Judge Einhorn has proved what I’m finding out — there is lot’s of “life” out here after retiring from the Immigration Bench, and it’s pretty much “all good.” Will SNL be the next stop for Judge Einhorn? Stay tuned!

Go Pack Go!!!!!🏈🏈🏈

PWS

01/15/17

WSJ Editorial: Keep DACA, Can DAPA — Half Right Is Better Than All Wrong — But, Why Not Do The “Smart” Thing And Keep Them Both?

http://www.wsj.com/articles/trumps-immigration-chance-1484266731

“Donald Trump will have a busy first day repealing President Obama’s executive orders, and here’s a suggestion to lighten the work load and win some goodwill in the bargain: Don’t revoke the Deferred Action for Childhood Arrivals immigration order.

DACA is the 2012 order granting temporary safe harbor for illegal immigrants who arrived as minors with their parents. That order is distinct from the 2014 Deferred Action for Parents of Americans (DAPA) order, which exempts from deportation some four million illegal immigrants.

Mr. Trump should repeal DAPA, a sweeping usurpation of Congress’s power to write immigration laws. The Fifth Circuit Court of Appeals blocked DAPA at the request of 26 states, and the Supreme Court voted 4-4 to uphold the injunction. DAPA was among Mr. Obama’s most cynical executive actions, at once poisoning the chances for serious immigration reform while trying to pit minorities against Republicans for political purposes.

DACA is also an executive action, but its repeal now would harm innocent men and women. The order is limited to children brought illegally to the U.S. before the age of 16 who are attending school or have graduated, and who have continuously resided in the U.S. since at least 2007. About 741,000 immigrants have applied for DACA’s reprieve, which lets them obtain work permits that must be renewed after two years for a nontrivial fee of $465.

DACA applicants must undergo background checks, and they cannot have a felony or serious misdemeanor record. They can’t collect federal benefits or vote. DACA essentially offers the right to work and pay taxes in the U.S., and many applicants have served in the military. If DACA is repealed, Homeland Security’s tracking will end as tens of thousands slip into the shadows to avoid deportation to “home” countries where they are strangers.

The Fifth Circuit dismissed a legal challenge to DACA by Kansas Secretary of State Kris Kobach for lack of standing. We’d prefer if Congress codified DACA, and a bipartisan coalition of Senators wants to do so. This could be included if legislation moves this year to tighten immigration enforcement.

The main issue is fairness, as Mr. Trump has recognized. He told Time magazine in December that these young illegals were “brought here at a very young age. They’ve worked here, they’ve gone to school here.” He added that “they’re in never-never land because they don’t know what’s going to happen” and “on a humanitarian basis, it’s a very tough situation.” He’s right, which is why we hope he’s willing to forbear on DACA while a legislative solution can be worked out.

No one doubts Mr. Trump’s resolve to reduce illegal immigration, and repealing DAPA would honor that campaign promise. But minors brought to the U.S. illegally aren’t responsible for that decision. Giving them a deportation reprieve would show that Mr. Trump’s immigration policy is aimed at enforcing the law, not at punishing minorities or any ethnic group. We can’t think of another early decision that would send a comparable message of inclusion and largeness of presidential spirit.”

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I agree on DACA, disagree on DAPA. The reasons for going forward and implementing the DAPA program are almost as strong as for retaining DACA.

DAPA’s proposed beneficiaries — parents of U.S. citizens and green card holders — probably aren’t going to be removed anyway under the DHS priorities as initially described by soon to be DHS Secretary Gen. John Kelly. They need to be taken off overcrowded Immigration Court dockets if the Trump Administration wants to pursue its version of “criminal removal” as a priority (although I note that this is essentially the same priority as the Obama Administration had). Instead of just leaving the DAPA folks “in limbo,” why not get them registered, documented, checked for criminal record, working legally, and make it easier for them to pay taxes, without handing out green cards or any other type of permanent status? It would be good for America.

PWS

01/13/17

Good News For Dreamers? — Speaker Paul Ryan (R-WI) Recognizes Moral, Human, And Practical Imperatives In Retaining DACA!

https://www.washingtonpost.com/blogs/plum-line/wp/2017/01/13/in-remarkable-exchange-with-undocumented-mom-paul-ryan-exposes-cruelty-of-trumpism/?utm_term=.01a68f26de2a

As reported by Greg Sargent in his “The Morning Plum” in today’s Post, speaker Ryan had an exchange with an undocumented mother which got right to the heart of the human beings whose lives are in play in the DACA debate:

“In a remarkable exchange with an undocumented mother last night at a CNN town hall, House Speaker Paul Ryan strongly suggested to her that the revocation of protections for the DREAMers brought here as children will not be carried out. That’s newsworthy on its own. But beyond that, the exchange also exposed the cruelty of stepped-up mass deportations for many other low-level undocumented offenders:

It’s a powerful moment, but the policy details lurking underneath the emotion are also extremely important. A woman brought here illegally as an 11-year-old child “through no fault of her own,” as CNN’s Jake Tapper put it, asked whether she and “many families in my situation” should face deportation. “No,” Ryan responded. After noting her love for her daughter, Ryan added:

“What we have to do is find a way to make sure that you can get right with the law. And we’ve got to do this so that the rug doesn’t get pulled out from under you and your family gets separated. That’s the way we feel. And that is exactly what our new, incoming president has stated he wants to do….I’m sure you’re a great contributor to [your] community.”

This might be a reference to the fact that Trump recently seemed to back off his pledge to reverse President Obama’s executive action protecting DREAMers from deportation, saying instead that “we’re going to work something out” for them. Indeed, under subsequent questioning from Tapper, Ryan explicitly said he and the Trump transition team were working on a “good, humane solution” for the hundreds of thousands currently benefiting from that executive action.”

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

I hope that Speaker Ryan, a powerful person on the Washington scene, will be able to follow through on persuading President Trump and his GOP Congressional colleagues to “do the right thing” here. Combined with soon to be DHS Secretary Gen. John Kelly’s non-polemical statements on DACA and enforcement priorities, there seems to be some hope of a reasonable solution to this difficult human situation.

PWS

01/13/17

House GOP Ramps Up Assault On Our Government — Bill Would End Merit Civil Service And Reinstate Spoils System And Political Hackery — “Draining The Swamp?” — Heck No, The Alligators Are Crawling Out Of The Swamp And Threatening To Chew Up The Foundations Of Our Democracy!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/12/new-feds-could-be-fired-for-no-cause-at-all-under-planned-legislation/?hpid=hp_regional-hp-cards_rhp-card-fedgov:homepage/card&utm_term=.ceb404b7559d

Here’s what Post Fed columnist Joe Davidson had to say about Rep. Todd Rokita’s (R-IN) bill to stifle the Federal workforce:

“Rokita’s bill makes the meaning of at-will status clear: “Such an employee may be removed or suspended, without notice or right to appeal, from service by the head of the agency at which such employee is employed for good cause, bad cause, or no cause at all.”

Think about that.

Political appointees could fire civil servants for “no cause at all.”

That’s dangerous.

Civil service procedures can be long and frustrating, but they are designed to guard against arbitrary actions. Federal law governing the workforce permits disciplinary actions for “such cause as will promote the efficiency of the service.” At odds with the “at-will” power Rokita advocates, among the government’s long-standing merit system principles is one designed to “protect employees against favoritism, political coercion and arbitrary action and prohibit abuse of authority.”

The protections are not just there to protect federal employees. In fact, the most important beneficiaries of these protections are the nation’s citizens, taxpayers and residents. Civil service protections are designed to protect everyone against favoritism by political officials and politicized agencies. While political appointees carry out policies designed by elected leaders, federal agencies are charged with serving everyone without regard to their political affiliations. Allowing political officials to fire feds for no reason seriously damages the principle of a nonpartisan civil service.

Rokita introduced the legislation last year and said he plans to offer substantially the same measure soon.

Rep. Elijah E. Cummings (D-Md.), the top Democrat on the Oversight Committee, called the bill a “shortsighted, blatant attempt to undermine a merit-based workforce that would … usher in a return to the spoils system and mean the end of a professional, non-partisan federal workforce dedicated to serving everyone, not just political allies.”

Rokita argued that at-will employment is how the rest of America works. But the federal government is not just another enterprise. The government is a monopoly providing services, many involving life and death, to and funded by all Americans. They cannot take their business elsewhere if treated badly because they are blue when the red team is in power — or vice versa.”

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

So, while middle class Feds works hard every day to keep Social Security, health care, law enforcement, justice, transportation safety, financial accountability, recreation, education, etc. flowing out to the public at large, the guys who are supposed to be in charge of the “big picture” spend their time dissing, undermining, attacking and trying to create a system where tax dollars can be handed out to their cronies in a non-merit-based spoils system.

I remember when I was growing up, Federal Government employment was looked at as a model, with merit based selection and career advancement, decent, predictable benefits, reasonable, but by no means extravagant, pay, good working conditions, and overall teamwork between civil servants and their political leaders that should set an example for state and local governments and other American employers to emulate. Today’s GOP advocates a “race to the bottom” approach whereby the Feds should adopt the least attractive practices of private industry to drive the best people into the private sector, thereby leaving the remaining jobs for GOP politicos to fill with their chosen hacks. And this is “progress?”

PWS

01/13/17

After More Than A Decade Of Leftist Misrule, Once Prosperous Venezuela Is Crumbling In A Violent Dance Of Death And Disorder — Refugees Will Be Fanning Out Across The Americas

https://www.washingtonpost.com/news/in-sight/wp/2017/01/09/caracas-by-day-torments-and-by-night-terrifies/

“Venezuela is a country that seems to be at war with itself. It’s not always clear who is who. It’s hard to know who to trust or who your enemy is, so you’re always looking over your shoulder, waiting for the next blow, unsure of where it will come from. Violence has so saturated life here that people have begun to see it as normal.

Most of the time, the people who are supposed to protect are the ones who harm civilians. The police and the military are without a doubt involved in kidnapping, extortion and even robbery. One night, a couple of photographers and I go with the police on a night patrol. It quickly becomes obvious that they were putting on a show for us. But after the patrol, I see two plainclothes officers interrogating a couple of guys outside a liquor store, slapping them when they give answers they didn’t like.”

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Lots of pictures in the full story at the link. Very sad story. What’s our response going to be when refugees show up here?

PWS

01/13/17

Senator Grassley Asks About BIA Review At Sessions’s Confirmation Hearing

http://immigrationimpact.com/2017/01/12/jeff-sessions-affirms-anti-immigrant-views-confirmation-hearing/

Joshua Briesblatt over at Immigration Impact gives us this interesting nugget from the Sessions Confirmation hearing:

“Lastly, Senator Grassley asked Senator Sessions if he would review all the decisions coming out of the Board of Immigration Appeals (BIA). The Attorney General has the authority to unilaterally revoke decisions of the BIA. Much of current asylum law is based on decisions by the BIA including those that determine what groups must receive protection from persecution in their home. As Attorney General, he would have the authority to make asylum vastly more difficult for those around the world who flee to the United States to avoid violence. Senator Sessions said that he “does appear” to have that authority and that he has “not thoroughly studied” the issue.”

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

Interesting. Was Chairman Grassley (R-IA) actually trying to suggest that this is something Senator Sessions should undertake as AG? Actually, I think that if and when he gets around to studying it, AG Sessions will find that he does, in fact, have authority to review any BIA decision. But, if he reviewed all of them — that would be about 35,000 per year — I don’t think he’d have much time left over for anything else, including sleeping and eating. Most AG’S review, at most, one or two BIA decisions per year.

Still, it indicates a fundamental due process problem with having the Immigration Courts and the BIA lodged in the Department of Justice. As the chief law enforcement officer and litigator for the U.S., the Attorney General has no business reviewing any BIA decision — it’s a colossal conflict of interest, even by today’s evolving ethics standards. That’s why the Immigration Court System must, at some point, become truly independent which means removing it from the DOJ and establishing it as some type of independent entity — an independent agency or and Article I or Article III Court. Until then, true due process in the Immigration Courts may be elusive.

Notably, notwithstanding lots of recent publicity about the exploding docket and the problems crippling the nation’s Immigration Courts, neither Chairman Grassley nor Senator Sessions seemed to be particularly “up” on the issue or to have much idea of the reality of life in the Immigration Courts. That’s not very encouraging.

PWS

01/13/17

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