9th Circuit – Page 19 – immigrationcourtside.com

DIANNE SOLIS @ DALLAS MORNING NEWS DETAILS GONZO’S ALL-OUT ASSAULT ON INDEPENDENCE OF U.S.IMMIGRATION JUDGES AND DUE PROCESS IN OUR IMMIGRATION COURTS –“Due process isn’t making widgets,” Schmidt said. “Compare this to what happens in regular courts. No other court system operates this way. Yet the issues in immigration court are life and death,” he said, referring to asylum cases.”

https://www.dallasnews.com/news/immigration/2018/04/10/immigration-judges-attorneys-worry-sessions-quotas-will-cut-justice-clogged-court-system

Dianne writes:

“A case takes nearly 900 days to make its way through the backlogged immigration courts of Texas. The national average is about 700 days in a system sagging with nearly 700,000 cases.

A new edict from President Donald Trump’s administration orders judges of the immigration courts to speed it up.

Now the pushback begins.

Quotas planned for the nation’s 334 immigration judges will just make the backlog worse by increasing appeals and questions about due process, says Ashley Tabaddor, Los Angeles-based president of the National Association of Immigration Judges.

Quotas of 700 cases a year, first reported by The Wall Street Journal, were laid out in a performance plan memo by U.S. Attorney General Jeff Sessions. They go into effect October 1.

Some have even called the slowdown from the backlog “de facto amnesty.”

“We believe it is absolutely inconsistent to apply quotas and deadlines on judges who are supposed to exercise independent decision-making authority,” Tabaddor said.

“The parties that appear before the courts will be wondering if the judge is issuing the decision because she is trying to meet a deadline or quota or is she really applying her impartial adjudicative powers,” she added.

. . . .

Faster decision-making could cut the backlog, but it also has many worried about fairness.

The pressure for speed means immigrants would have to move quickly to find an attorney. Without an attorney, the likelihood of deportation increases. Nationally, about 58 percent of immigrants are represented by attorneys, according to Syracuse’s research center. But in Texas, only about a third of the immigrants have legal representation.

Paul Schmidt, a retired immigration judge who served as chairman of the Board of Immigration Appeals for immigration courts for six years, says he saw decisions rendered quickly and without proper legal analysis, leaving it necessary for many cases to be sent back to the immigration court for what he called “a redo.”

“Due process isn’t making widgets,” Schmidt said. “Compare this to what happens in regular courts. No other court system operates this way. Yet the issues in immigration court are life and death,” he said, referring to asylum cases.

Schmidt said there are good judges who take time with cases, which is often needed in asylum pleas from immigrants from countries at war or known for persecution of certain groups.

But he also said there were “some not-very-good judges” with high productivity.

Ramping up the production line, Schmidt said, will waste time.

“You will end up with more do-overs. Some people are going to be railroaded out of the country without fairness and due process,” Schmidt said.

. . . .

“It doesn’t make any sense to squeeze them,” said Huyen Pham, a professor at Texas A&M University School of Law in Fort Worth. “When you see a lot more enforcement, it means the immigration court will see a lot more people coming through.”

Lawyers and law school professors say the faster pace of deportation proceedings by the U.S. Immigration and Customs Enforcement spells more trouble ahead. Immigration courts don’t have electronic filing processes for most of the system. Many judges must share the same clerk.

For decades, the nation’s immigration courts have served as a lynchpin in a complex system now under intense scrutiny. Immigration has become a signature issue for the Trump administration.

Five years ago, the backlog was about 344,000 cases — about half today’s amount. It grew, in part, with a rise in Central Americans coming across the border in the past few years. Most were given the opportunity to argue before an immigration judge about why they should stay in the U.S.

This isn’t the first time the judges have faced an administration that wants them to change priorities. President Barack Obama ordered that the cases of Central American unaccompanied children to be moved to the top of docket.

“Our dockets have been used as a political tool regardless of which administration is in power and this constant docket reshuffling, constant reprioritization of cases has only increased the backlog,” Tabaddor said.

The quota edict was followed by a memo to federal prosecutors in the criminal courts with jurisdiction over border areas to issue more misdemeanor charges against immigrants entering the country unlawfully. Sessions’ memo instructs prosecutors “to the extent practicable” to issue the misdemeanor charges for improper entry. On Wednesday, Sessions is scheduled to be in Las Cruces, New Mexico, to speak on immigration enforcement at a border sheriffs’ meeting.

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Judge Ashley Tabaddor, President of the National Association of Immigration Judges (“NAIJ” — for the record, I’m a retired member of the NAIJ) hits the nail on the head. This is about denying immigrants their statutory and Constitutional rights while the Administration engages in “Aimless Docket Reshuffling” (“ADR”) an egregious political abuse that I have been railing against ever since I retired in 2016.

Judge Tabaddor’s words are worth repeating:

“Our dockets have been used as a political tool regardless of which administration is in power and this constant docket reshuffling, constant reprioritization of cases has only increased the backlog,” Tabaddor said.

In plain terms this is fraud, waste, and abuse that Sessions and the DOJ are attempting to “cover up” by dishonestly attempting to “shift the blame” to immigrants, attorneys, and Immigration Judges who in fact are the victims of Session’s unethical behavior. If judges “pedaling faster” were the solution to the backlog (which it isn’t) that would mean that the current backlog was caused by Immigration Judges not working very hard, combined with attorneys and immigrants manipulating the system. Sessions has made various versions of this totally bogus claim to cover up his own “malicious incompetence.”

Indeed, by stripping Immigration Judges of authority effectively to manage their dockets; encouraging mindless enforcement by DHS; terminating DACA without any real basis; insulting and making life more difficult for attorneys trying to do their jobs of representing respondents; attacking legal assistance programs for unrepresented migrants; opening more “kangaroo courts” in locations where immigrants are abused in detention to get them to abandon their claims for relief; threatening established forms of protection (which in fact could be used to grant more cases at the Asylum Office and by stipulation — a much more sane and legal way of reducing dockets); canceling “ready to hear” cases that then are then “orbited” to the end of the docket to send Immigration Judges to detention courts where the judges sometimes did not have enough to do and the cases often weren’t ready for fair hearings; denying Immigration Judges the out of court time necessary to properly prepare cases and write decisions; and failing to emphasize the importance of quality and due process in appellate decision-making at the BIA, Sessions is contributing to and accelerating the breakdown of justice and due process in the U.S. Immigration Courts.

PWS

04-11-18

BIA WRONG AGAIN – 9TH CIR. VACATES MATTER OF G-G-S-, 26 I&N DEC. 339 (BIA 2014) (“PARTICULARLY SERIOUS CRIME”) — GOMEZ-SANCHEZ V. SESSIONS – As Jeff Sessions Plans To Speed Up The System, Rig Law Against Individuals, & Undermine Due Process, The “REAL” Courts Continue To Highlight Serious Substantive Flaws In Immigration Court System That Sessions Is Attempting To Cover Up!

GGS,9TH14-72506

Gomez-Sanchez v. Sessions, 9th Cir., 04-06-18, Published, vacating Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014)

COURT STAFF SUMMARY:

The panel granted Guillermo Gomez-Sanchez’s petition for review of the published decision of the Board of Immigration Appeals, Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014), which concluded that Gomez-Sanchez was statutorily ineligible for withholding of removal because he was convicted of a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B), and vacated and remanded.

Gomez-Sanchez was convicted of assault with a non- deadly firearm weapon in violation of California Penal Code § 245(a)(1), which the BIA concluded constituted a particularly serious crime that prevented Gomez-Sanchez from being eligible for withholding of removal. In reaching this decision, the BIA held that a petitioner’s mental health could not be considered when addressing whether he had committed a particularly serious crime.

The panel held that Matter of G-G-S- was not entitled to deference under Chevron U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837 (1984). Under step one of Chevron, the panel concluded that Matter of G-G-S-’s blanket rule against considering mental health is contrary to Congress’s clearly expressed intent that the particularly serious crime determination, in cases where a conviction falls outside the only statutorily enumerated per se category of particularly serious crimes, requires a case-by-case analysis. The panel also concluded that, even if Matter of G-G-S- were to survive step one of Chevron, it would fail at step two because the BIA’s interpretation is not reasonable in that the BIA’s two rationales for its broad rule – 1) that the Agency could not reassess a criminal court’s findings, and 2) that mental health is never relevant to the particularly serious crime determination – are unpersuasive and are inconsistent with the law of this Circuit and the BIA’s own decisions.

*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

PANEL:

Before: Kim McLane Wardlaw* and Michelle T. Friedland, Circuit Judges, and Janet Bond Arterton,**District Judge.

* This case was submitted to a panel that included Judge Kozinski, who recently retired. Following Judge Kozinski’s retirement, Judge Wardlaw was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Wardlaw has read the briefs, reviewed the record, and listened to oral argument.

** The Honorable Janet Bond Arterton, United States District Judge for the District of Connecticut, sitting by designation.

OPINION BY:

Judge Janet Bond Arterton

KEY QUOTES:

Against this backdrop, the BIA here announced and applied a blanket rule against considering an individual’s mental health as a factor when deciding whether his or her crime of conviction is particularly serious. Matter of G-G-S-, 26 I. & N. Dec. at 339, 347.4 This decision is contrary to Congress’s clearly expressed intent that the analysis of whether a crime is particularly serious “requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress,” Blandino- Medina, 712 F.3d at 1345, because such categorical rules undermine the ability of the agency to conduct a case-by- case analysis in each case, see Konou, 650 F.3d at 1128; see also Arteaga De Alvarez, 704 F.3d at 740.

. . . .

Here, the Board cited In re N-A-M- approvingly, as if applying it. See Matter of G-G-S-, 26 I. & N. Dec. at 343. However, in reality, its decision to constrain the evidence IJs may consider when making a particularly serious crime determination is at least inconsistent with, if not directly in contradiction with its earlier holding permitting consideration of “all reliable information.” See In Re N-A- M-, 24 I. & N. Dec. at 338, 342. Petitioner’s case makes this inconsistency clear—despite not disputing the reliability of the information Petitioner submitted concerning his mental illness, the Board entirely precluded consideration of that evidence. Given that the Board made no attempt to address the apparent inconsistencies between its earlier rule and the rule at issue here, we find its current interpretation to be unreasonable and thus decline to afford it deference. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (“[A]n ‘[u]nexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice,’” and thus finding that the interpretation is not entitled to Chevron deference. (quoting Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)));see also Marmolejo-Campos v. Holder, 558 F.3d 903, 920 n.2 (9th Cir. 2009) (en banc).

Given the severe repercussions of being found to have committed a particularly serious crime, the risk of precluding relevant evidence that might alter that determination is unreasonable. Furthermore, this risk is readily avoided by permitting the IJ to use his or her discretion in weighing relevant, reliable evidence of mental health rather than categorically barring this evidence in all cases.

For all of these reasons the Board’s interpretation of the INA does not warrant deference under Chevron.

. . . .

We find the Board’s conclusion to be unreasonable because it is inconsistent with its own precedent recognizing the relevance of motivation and intent to the particularly serious crime determination. See Alphonsus, 705 F.3d at 1048 (“The BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasoned explanation for doing so.” (quoting Israel v. I.N.S., 785 F.2d 738, 740 (9th Cir. 1986))). In Matter of L-S-, the Board found significant that an individual convicted of alien smuggling did not intend to harm the victim. 22 I. & N. Dec. 645, 655–56 (BIA 1999). Indeed, the Government concedes that a particularly serious crime analysis permits consideration of an individual’s motivation. See Alphonsus, 705 F.3d at 1048 (finding no intent to harm either the arresting officer or members of the public).

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The BIA got it wrong in just about every conceivable way, including ignoring and misapplying its own precedents, in trying to reach a result unfavorable to the respondent. Against this backdrop of serious substantive problems (and, frankly, anti-respondent bias) permeating the entire U.S. Immigration Court System, from top to bottom, Sessions outrageously is trying to speed up the system without regard to quality or due process.

Suppose you inherited a factory that was producing defective cars. Would you solve the problem by speeding up the assembly line, forbidding the workers to think about their job functions, and denying them necessary training and equipment. No, that would produce even more defective cars, likely putting your company out of business. So, how is Session’s “just pedal faster” approach to assembly line justice acceptable? Obviously, it isn’t!

Sometimes, it doesn’t take a Government Accountability Office study to ferret out waste, fraud, and abuse. In this case, Jeff Sessions is right out there in public view intentionally and maliciously destroying a key part of the U.S. justice system. Why is Congress standing by and letting him get away with it? Why is the taxpayers’ money being wasted on illegal, illogical, and totally counterproductive actions? Whatever happened to effective oversight?

PWS

04-06-18

JUDGE STEPHEN REINHARDT 1931-2018 – Stalwart Defender Of US Constitution, Due Process, & Individual Rights Dies At 87 – “Unapologetic Liberal” Jurist Stood On Principle, Unfazed By Grenades Constantly Lobbed His Way By Right Wing & Supremes!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=92a5fc77-cf2b-4fbf-ac39-2ef3b89812fa

Maura Dolan reports for the LA Times:

By

Judge Stephen Reinhardt, the liberal face of the 9th U.S. Circuit Court of Appeals, died Thursday afternoon, a court spokesman said. He was 87.

The spokesman said Reinhardt died of a heart attack during a visit to a dermatologist in Los Angeles.

“All of us here at the 9th Circuit are shocked and deeply saddened by Judge Reinhardt’s death,” 9th Circuit Chief Judge Sidney R. Thomas said. “We have lost a wonderful colleague and friend.”

Thomas called Reinhardt “deeply principled, fiercely passionate about the law and fearless in his decisions.”

“He will be remembered as one of the giants of the federal bench. He had a great life that ended much too soon,” Thomas said.

Reinhardt, an appointee of former President Carter, was dubbed the “liberal lion” of the federal circuit courts.

His rulings in favor of criminal defendants, minorities and immigrants were often overturned by the more conservative U.S. Supreme Court.

Many lawyers have joked that Reinhardt’s name on a ruling was probably enough to get the attention of the conservatives on the Supreme Court. In 1996, after Reinhardt was reversed several times by the Supreme Court, The Times asked him if he was upset.

“Not in the slightest!” he boomed. “If they want to take away rights, that’s their privilege. But I’m not going to help them do it.”

No matter how many reversals he endured, Reinhardt used the bench to try to help the underdog. Just a few months ago, he called The Times to read a reporter a letter from a woman who had just been released from prison and who wanted to thank him for ruling in her favor.

“He was a giant not just on the 9th Circuit but within the law,” UC Berkeley law school Dean Erwin Chemerinsky said. “He also was a judge with a particular vision of the law, based on enforcing the Constitution to protect people.”

Reinhardt joined another judge in ruling that the words “under God” in the Pledge of Allegiance were unconstitutional, a decision that was later overturned.

He wrote a ruling that said laws prohibiting physician-assisted suicide were unconstitutional and another that overturned California’s previous ban on same-sex marriage.

Reinhardt also lamented Supreme Court rulings that limited judges’ ability to overturn convictions and sentences on habeas corpus and complained about the flaws in death penalty cases.

He was among the federal judges who decided that overcrowding in California’s prison system was unconstitutional.

“His view was to decide cases as he believed the law required, not to predict what the Supreme Court would do,” Chemerinsky said. “He was unapologetic about that.”

Conservatives often railed against Reinhardt, calling him lawless. They accused him of never voting to uphold a death sentence. Reinhardt, asked about that, said he was not sure.

He was particularly close to former 9th Circuit Judge Alex Kozinski, considered a conservative with libertarian views. They were dubbed the “odd couple.”

When Kozinski retired under pressure in December in response to sexual harassment allegations, Reinhardt bemoaned the departure. He said he kept a photograph of Kozinski planting a kiss on his cheek in his chambers.

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Read Dolan’s complete obit on Judge Reinhardt at the above link.

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My friend and former BIA colleague Judge Lory Diana Rosenberg added this heartfelt tribute:

I am heartbroken to learn of Judge Reinhardt’s dying. Just knowing he was alive and participating in our courts gave me deep hope that justice would prevail, at least in some quarters. I am so fortunate to have known him and to have spent a tiny bit of time with him and his wife at an international meeting years ago. He is a giant among judges. I will miss him.

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Here’s an excerpt from my favorite Judge Reinhardt concurring opinion in Magna-Ortiz v. Sessions:

The government’s insistence on expelling a good man from the country in which he has lived for the past 28 years deprives his children of their right to be with their father, his wife of her right to be with her husband, and our country of a productive and responsible member of our community. Magana Ortiz, who first entered the United States at 15, is now 43 years old, and during his almost three decades here has raised a family and built a successful life. All of his children, ages 12, 14, and 20, were born in this country and are American citizens, as is his wife. His eldest daughter currently attends the University of Hawaii, and he is paying for her education.

. . .

President Trump has claimed that his immigration policies would target the “bad hombres.” The government’s decision to remove Magana Ortiz shows that even the “good hombres” are not safe.3 Magana Ortiz is by all accounts a pillar of his community and a devoted father and husband. It is difficult to see how the government’s decision to expel him is consistent with the President’s promise of an immigration system with “a lot of heart.” I find no such compassion in the government’s choice to deport Magana Ortiz.

We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

2 The family’s right to occupy their home will terminate upon Magana Ortiz’s removal.

3 On January 25, 2017, the President signed a series of executive orders dismantling the system of priorities that had previously guided Immigration and Customs Enforcement and Border Patrol in determining whom to deport. The orders also gave far greater authority to individual agents and officers, who are now removing non-citizens simply because they are here illegally, regardless of whether they have committed any offense. In light of the breadth of these orders and the lack of any apparent limit on agents’ discretion, the undocumented must now choose between going to work, school, hospitals, and even court, and the risk of being seized. See James Queally, ICE Agents Make Arrests at Courthouses, L.A. Times, March 16, 2017.

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I must say that I had the same feelings as Judge Reinhardt on a number of occasions in my judicial career, although I never expressed them as eloquently as he did.

The wastefulness and futility of spending Government time, money, and authority removing fine people who were making remarkable contributions to our country, our economy, and our society certainly was apparent at the Immigration Court level. That this Administration has cynically chosen to aggravate this inhumane and quite frankly stupid situation rather than to attempt to fix it is most disheartening as is the fact that by placing them and retaining them in power we all become complicit in their bias and injustice! Harm to the most vulnerable among us is harm to all!

You can read the 9th Circuit’s complete decision in Magana Ortiz v. Sessions including Judge Reinhardt’s concurrence at this link:

Magana-Ortiz-9thReinhardt17-16014

PWS

03-30-18

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

https://www.jeffreyschase.com/blog/2018/3/21/amicus-brief-filed-in-cjlg-v-sessions

Mar 21 Amicus Brief Filed in C.J.L.G. v. Sessions

On March 15, lawyers with the firm of Simpson, Thacher & Bartlett filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit on behalf of 11 former immigration judges and BIA Board members in the case of C.J.L.G. v. Sessions. The case involves a child from Honduras who appeared in immigration court accompanied only by his mother. As the respondent could not obtain a lawyer in the time afforded, the immigration judge went forward with the hearing, informing the mother that she would “represent” her son.

The respondent is an asylum applicant whose gang-related claim rested on his ability to precisely delineate a particular social group pursuant to requirements complex enough to stump most attorneys. As his mother lacked any legal training, his hearing did not go well. On appeal, the BIA affirmed the IJ’s denial of the claim. In its decision, the BIA determined that the respondent did not suffer past persecution when at the age of 13, members of MS-13, a brutal, multinational gang, threatened to kill him, his mother, and his aunt if he refused to join their ranks, put a gun to his head to emphasize their point, and told him that he had one day to decide. The BIA also found the hearing before the IJ to have been fair, and that the respondent was not denied due process because the immigration laws do not require the appointment of counsel in removal proceedings.

Hon. Dana Marks, an outstanding jurist and president emeritus of the National Association of Immigration Judges, often states that immigration judges hear “death penalty cases under traffic court conditions.” What she means by this is that a genuine asylum seeker who is denied relief and deported faces the risk of death in the country from which he or she fled. Yet the conditions under which such life-or-death claims are heard are inadequate; the limited time and resources afforded to the judges hearing such claims are better suited for a court hearing much lower stakes matters such as traffic tickets. Courts hearing cases involving matters of life and liberty have a higher obligation to afford due process. First and foremost, a defendant facing criminal charges in a state or federal court is entitled to assigned counsel. However, although the stakes may be higher in an asylum case, respondents in immigration court have no such entitlement. Although the respondent in C.J.L.G. may face death if deported, having a judge determine it was fine to proceed, and telling his mother that she would represent him sounds like something that might be appropriate in traffic court.

A three-judge panel of the Ninth Circuit denied the respondent’s petition for review. Interestingly, the respondent was found credible in his recounting of the death threats he suffered and as to his fear of return; the court accepted the statistics provided by respondent’s counsel that unrepresented respondents succeed on their claims only 10 percent of the time, whereas as represented minors enjoy a 47 percent success rate. The court also assumed that the respondent qualifies as an indigent (due to his mother’s inability to afford private counsel), and that ordering him removed would send him “back to a hostile environment where he has faced death threats in the past implicates his freedom.” The court further acknowledged that the immigration laws and regulations include assuring minors “the right to a ‘full and fair hearing,’ which includes the ‘opportunity to present evidence and testimony on one’s behalf,’ cross-examine witnesses, and examine and object to adverse evidence.” It would be difficult to argue that an unrepresented minor is capable of exercising such rights.

In spite of this, the court denied the petition, determining that there was no Constitutional right to assigned counsel at government expense to minors in removal proceedings. The court further found that the respondent had not demonstrated prejudice, as he had not established a nexus to a protected ground as required to establish eligibility.

The ACLU has filed a petition for the Ninth Circuit to rehear the case en banc. It is in support of this latest petition that the latest amicus brief was filed. I am one of the former IJs included in the brief; I join my colleagues in being proud to assist in such a noble effort as securing assigned counsel for immigrant children facing the legal complexities and dire consequences of immigration proceedings. In a nutshell, the brief argues that the efforts of an immigration judge to provide a fair hearing is no substitute for counsel. Immigration judges can only do so much faced with “overburdened and growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy.”

The problem is compounded in cases in which the asylum claim is based on membership in a particular social group. The BIA has recently held that an asylum applicant must specifically delineate such group, a requirement that is clearly beyond the ability of a child (or his or her mother) to do. As the brief points out, in this case, the respondent “ and his mother showed no understanding of why a gang-related threat alone would not warrant asylum, but the IJ’s cursory inquiry ended without seeking the motivation for the threat.”

Of course, the entire issue could be resolved by the Department of Justice choosing to do what is right by agreeing to provide assigned counsel at government expense to this most vulnerable group.

Heartfelt thanks to partner Harrison J. “Buzz” Frahn and associate Lee Brand of the law firm of Simpson Thacher & Bartlett for their dedication and effort in drafting the excellent brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE
Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog Archive Contact

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As pointed out by Jeffrey, this is an incredibly important case for Due Process under our Constitution! Let’s hope that the en banc Ninth gives it a close look.

PWS

03-22-18

RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!

FIRST, AND FOREMOST, A BIG THANKS TO THE “REAL HEROES” AT SIMPSON THACHER & BARTLETT LLP, SAN FRANCISCO, AND THEIR OUTSTANDING SUPPORT TEAM, WHO DID ALL THE “HEAVY LIFTING:”

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

TABLE OF CONTENTS Page

IDENTITY AND INTEREST OF AMICI CURIAE ………………………………………….. 1 SUMMARY OF ARGUMENT ……………………………………………………………………… 3 ARGUMENT ………………………………………………………………………………………………. 4

I. Immigration Judges Cannot Independently Develop a Child’s Case to Permit the Fair Adjudication that Due Process Requires ……………………………………..

4 A. Immigration Judges Are Overwhelmed ………………………………………… 5

B. DOJ Policy Mandates Efficiency and Skepticism ………………………….. 7

C. Immigration Law Is Exceedingly Complex …………………………………… 9

D. Counsel Dramatically Improve Outcomes …………………………………… 12

II. The Panel Vastly Overstates the Value of Existing Procedures for Unrepresented Minors ……………………………………………………………………….. 13

A. The Duty to Develop the Record Does Not Obviate the Need for Counsel …………………………………………………………………………………… 13

B. A Parent Does Not Obviate the Need for Counsel ………………………… 17

C. A Pro Bono List Does Not Obviate the Need for Counsel …………….. 18

CONCLUSION ………………………………………………………………………………………….. 19

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are former Immigration Judges (IJs) who collectively have over 175 years’ experience adjudicating immigration cases, including thousands of cases involving children. A complete list of amici is as follows:

Sarah M. Burr served as an IJ in New York from 1994 to 2012 and as Assistant Chief Immigration Judge for New York from 2006 to 2011. She currently serves on the board of Immigrant Justice Corps.

Jeffrey S. Chase served as an IJ in New York from 1995 to 2007 and as an advisor at the Board of Immigration Appeals (BIA) from 2007 to 2017. Previously, he chaired the Asylum Reform Task Force of the American Immigration Lawyers Association (AILA) and received AILA’s pro bono award.

George T. Chew served as an IJ in New York from 1995 to 2017. Previously, he served as a trial attorney at the INS.

Cecelia M. Espenoza served as a member of the BIA from 2000 to 2003 and as Senior Associate General Counsel at the Executive Office for Immigration Review (EOIR) from 2003 to 2017.

Noel Ferris served as an IJ in New York from 1994 to 2013 and as an advisor at the BIA from 2013 to 2016. Previously, she led the Immigration Unit of the U.S. Attorney’s Office for the Southern District of New York. 2

John F. Gossart, Jr. served as an IJ from 1982 to 2013. Previously, he served in various positions at the INS. Judge Gossart served as president of the National Association of Immigration Judges, co-authored the National Immigration Court Practice Manual, and received the Attorney General Medal.

Eliza Klein served as an IJ in Miami, Boston, and Chicago from 1994 to 2015.

Lory D. Rosenberg served as a member of the BIA from 1995 to 2002. Previously, she served on the board of AILA and received multiple AILA awards. Judge Rosenberg co-authored the treatise Immigration Law and Crimes.

Susan G. Roy served as an IJ in Newark. Previously, she served as a Staff Attorney at the BIA and in various positions at the INS and its successor Immigration and Customs Enforcement.

Paul W. Schmidt served as chair of the BIA from 1995 to 2001, as a member of the BIA from 2001 to 2003, and as an IJ in Arlington from 2003 to 2016. Previously, he served as acting General Counsel and Deputy General Counsel at the INS.

Polly A. Webber served as an IJ in San Francisco from 1995 to 2016, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she served a term as National President of AILA. 3

Amici have dedicated their careers to improving the fairness of the immigration system, particularly in the administration of justice to children. In amici’s personal judicial experience, children are incapable of meaningfully representing themselves in this nation’s labyrinthine immigration system. Absent legal representation, IJs cannot independently develop a child’s case to permit the fair adjudication that due process requires. Accordingly, amici have a profound interest in the resolution of this case.1

SUMMARY OF ARGUMENT

Respectfully, the Panel erred in determining that IJs can and will ensure the due process rights of pro se children without the aid of counsel. This error is painfully clear from the vantage point of IJs, who face overburdened and ever-growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy. As such, and as demonstrated by the impact of counsel on a child’s likelihood of success in immigration court, IJs lack the necessary time, resources, and power to ensure that unrepresented minors receive meaningful adjudication of their eligibility to remain in this country. 1 No party’s counsel authored this brief in whole or in part; no party, party’s counsel, nor anyone other than amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief. 4

The Panel further erred in vastly overstating the value to pro se children of certain extant procedural safeguards. While the Panel correctly identifies an IJ’s duty to develop the record, it fails to understand the practical and procedural limits of this duty in the context of an adversarial proceeding, and wrongly transforms it into a cure-all for the otherwise overwhelming lack of due process an unrepresented minor would receive. The Panel similarly holds up the hypothetical availability of pro bono counsel as a potential due process panacea, and Judge Owens’s concurrence suggests the same of the presence of a parent. But these factors also fall far short of remedying the basic unfairness of forcing children to represent themselves in immigration court.

If the Panel’s decision is not revisited, thousands of minors will be forced to navigate the complex immigration system without representation. In many instances, these children will be returned to life-threatening circumstances despite their eligibility to legally remain in this country. It is hard to imagine a question of more exceptional importance.

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

2018.03.15 CJLG Amicus Brief of IJs

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

A special “shout out” of appreciation to my 10 wonderful colleagues who joined in this critically important effort. It’s an honor to work with you and to be a part of this group.

DUE PROCESS FOREVER!

PWS

03-20-18

SUPREMES AGREE TO TAKE ANOTHER DETENTION CASE — This One Involves The “When Released” Issue For Mandatory Detention – Nielsen v. Preap, 9th Cir.

http://www.scotusblog.com/case-files/cases/nielsen-v-preap/

SCOTUS BLOG REPORTS

Nielsen v. Preap

Docket No. Op. Below Argument Opinion Vote Author Term

16-1363 9th Cir. TBD TBD TBD TBD OT 2018

Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

SCOTUSblog Coverage

Justices decline to weigh in on constitutionality of death penalty (Amy Howe)

Petitions of the day (Aurora Barnes)

Date Proceedings and Orders

Mar 31 2017 Application (16A944) to extend the time to file a petition for a writ of certiorari from April 11, 2017 to May 11, 2017, submitted to Justice Kennedy.

Apr 07 2017 Application (16A944) granted by Justice Kennedy extending the time to file until May 11, 2017.

May 11 2017 Petition for a writ of certiorari filed. (Response due June 12, 2017)

May 18 2017 Order extending time to file response to petition to and including July 12, 2017, for all respondents.

Jun 26 2017 Order further extending time to file response to petition to and including August 11, 2017.

Aug 08 2017 Brief of respondents Mony Preap, et al. in opposition filed.

Aug 23 2017 DISTRIBUTED for Conference of 9/25/2017.

Aug 23 2017 Reply of petitioners Elaine C. Duke, Acting Secretary of Homeland Security, et al. filed. (Distributed)

Feb 27 2018 DISTRIBUTED for Conference of 3/2/2018.

Mar 12 2018 DISTRIBUTED for Conference of 3/16/2018.

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
16-1363	9th Cir.	TBD	TBD	TBD	TBD	OT 2018

Date	Proceedings and Orders
Mar 31 2017	Application (16A944) to extend the time to file a petition for a writ of certiorari from April 11, 2017 to May 11, 2017, submitted to Justice Kennedy.
Apr 07 2017	Application (16A944) granted by Justice Kennedy extending the time to file until May 11, 2017.
May 11 2017	Petition for a writ of certiorari filed. (Response due June 12, 2017)
May 18 2017	Order extending time to file response to petition to and including July 12, 2017, for all respondents.
Jun 26 2017	Order further extending time to file response to petition to and including August 11, 2017.
Aug 08 2017	Brief of respondents Mony Preap, et al. in opposition filed.
Aug 23 2017	DISTRIBUTED for Conference of 9/25/2017.
Aug 23 2017	Reply of petitioners Elaine C. Duke, Acting Secretary of Homeland Security, et al. filed. (Distributed)
Feb 27 2018	DISTRIBUTED for Conference of 3/2/2018.
Mar 12 2018	DISTRIBUTED for Conference of 3/16/2018.

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

Supremes have taken lots of immigration detention cases. The results have been all over the place, but generally more favorable to migrants than to the Government. However, in the last case, Jennings v. Rodriguez, not so much. Stay tuned.

PWS

03=20-18

NEW BIA PRECEDENT EXPLAINS WHY IN SOME CASES THE ATTEMPT MIGHT BE WORSE THAN THE CRIME – MATTER OF CERVANTES NUNEZ, 20 I&N DEC. 238 (BIA 2018)

3920

Matter of CERVANTES NUNEZ, 20 I&N Dec. 238 (BIA 2018)

BIA HEADNOTE:

The crime of attempted voluntary manslaughter in violation of sections 192(a) and 664 of the California Penal Code, which requires that a defendant act with the specific intent to cause the death of another person, is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2012), notwithstanding that the completed offense of voluntary manslaughter itself is not such an aggravated felony.

PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, Wendtland

OPINION BY: Judge Roger A. Pauley

KEY QUOTE:

“Although perhaps counterintuitive, we therefore hold that the respondent’s offense of attempted voluntary manslaughter under sections 192(a) and 664 of the California Penal Code is categorically a crime of violence under § 16(a). Unlike the completed crime of voluntary manslaughter under California law, which encompasses reckless conduct and is therefore not categorically a crime of violence under Ninth Circuit law, attempted voluntary manslaughter requires the specific intent to kill. Although “physical force” is not an express element of attempted voluntary manslaughter, we deem it evident under Ninth Circuit law that the offense, which requires a “volitional,” or intentional, mental state and contemplates a direct act on the part of the accused that is capable of causing the death of another person, inherently presupposes the use of “physical force.” Since the respondent’s offense necessarily involves the intentional use of physical force, it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a).”

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

In this particular case, the respondent was convicted of both the completed crime of voluntary manslaughter and the attempt under California law. But, there could be cases where in negotiating a plea bargain, counsel would be better off from an immigration standpoint pleading her client to the completed crime, not the attempt.

PWS

03-18-18

VICTORY ON THE WESTERN FRONT: “Western Brigade Of The NDPA” (A/K/A Pangea Legal Services) wins Key Bond Battle! — “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice. . . . We hope Floricel’s case serves as a lesson for all immigration judges across the United States.”

https://static1.squarespace.com/static/50b1609de4b054abacd5ab6c/t/5aab2aac758d467bf8761e84/1521167020690/Habeas+Order,+Floricel+Liborio+Ramos+v.+Sessions,+2018.03.13.pdf

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FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

March 15, 2018
by Pangea Team

On Wednesday, March 14, 2018, Pangea client, Floricel Liborio Ramos, was freed from immigration detention after substantial litigation, multiple appeals, and requests for her release. Today, on her first day free after 11 months, Floricel came out to speak in gratitude for the massive community love and support she received throughout her detention. We hope that her case can set a positive example for judges and courts across the United States. Read the Federal District Court’s order here.

Community members from Faith in Action, RISE, California Immigrant Youth Justice Alliance, the Immigrant Liberation Movement, and others out in support of Floricel’s hearing at the Federal District Court in Northern California (San Francisco, March 13, 2017)

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

IMMIGRANT RIGHTS ACTIVISTS CELEBRATE THE MOMENTOUS REUNITING OF FLORICEL LIBORIO RAMOS WITH HER FAMILY AFTER ORDER BY UNITED STATES DISTRICT COURT JUDGE JON S. TIGAR REQUIRING HER RELEASE. THE ORDER SHOULD SERVE AS A LESSON TO IMMIGRATION JUDGES THAT THEY CANNOT DENY BOND TO IMMIGRANTS SIMPLY BECAUSE OF A DUI.

WHAT: Press conference in celebration of Floricel’s returning home to her children after over 11 months in immigration custody

WHERE: Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94111

WHEN: 11:30am on Thursday, March 15, 2018

WHO: Floricel, immigrant rights activists, faith leaders and other supporters

San Francisco, CA- Immigrant rights activists hold press conference at SF Federal District Court Building welcoming Floricel Liborio Ramos after she was released on Wednesday following a District Court order granting her immediate release from the West County Detention Facility. Ms. Liborio Ramos detention comes to a celebrated closure after District Court Judge Jon S. Tigar ruled that the Government failed to meet its burden to demonstrate by clear and convincing evidence that Ms. Liborio Ramos poses a threat to the community.

Judge Tigar found Immigration Judge Burch had erred when she unfairly ruled that Floricel was a danger to the community given her previous DUIs, “The IJ’s decision not to release Liborio Ramos rests firmly on Liborio Ramos’s two DUI convictions.[…] while an immigrant’s criminal history is relevant, ‘criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness.’”

“[T]wo non-violent [DUI] misdemeanors in which no one was injured, in light of the other facts in this record, simply do not justify indefinite detention,” Judge Tigar’s ruling continued. In a few days, Ms. Liborio Ramos would have been detained for nearly a year, more than the longest sentence she could have served under California law for a misdemeanor DUI.

“We’re seeing undocumented immigrants punished twice by the immigration courts,” claimed Jehan Laner Romero, Ms. Liborio Ramos’ attorney at Pangea Legal Services. “This was the case with Floricel, who was complying with the criminal court order for her prior DUI conviction.”

Community supporters of Ms. Liborio have much to celebrate after 8 months of arduous efforts to support her case by packing the courtroom during her hearings, holding rallies and uplifting their support for Floricel. Immigration Judge Valerie A. Burch had denied her bond on two different occasions, even though the Government failed to sustain its burden to prove Ms. Liborio Ramos was a danger to the community. To many, this only highlights the unjust practices of some immigration courts — and the importance of higher courts and community members to hold immigration judges accountable. “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice,” said Blanca Vazquez, one of the organizers supporting Ms. Liborio Ramos’ case with the Immigrant Liberation Movement. “We hope Floricel’s case serves as a lesson for all immigration judges across the United States.”

Floricel speaks at press conference before the court that ordered her release (San Francisco, March 15, 2018)

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STEVE VLADECK @ JUST SECURITY: 9th Circuit Expedited Removal Case Might Further The “Dredscottification” Of Migrants — Are They Becoming “Non-Persons” Under Our Constitution? – What’s The Ultimate Cost To Us Of “Selective Application” Of Constitutional Protections?

https://www.justsecurity.org/53822/trouble-undocumented-immigrants-suspension-clause/

Steve writes:

“Back in August 2016, I wrote a lengthy post about the Third Circuit’s decision in Castro v. Department of Homeland Security, which held that recently-arrived undocumented immigrants, who are physically but not lawfully within the territorial United States, are not protected by the Constitution’s Suspension Clause—and therefore have no right to judicial review of their detention (or removal). Among many other problems with the Third Circuit’s analysis (see my original post for more), it created the anomalous result that enemy combatants held at Guantánamo, who have never set foot on U.S. soil, have more of an entitlement to judicial review than Central American women and their minor children in immigration detention in the United States who are seeking asylum (the petitioners in Castro).

The one saving grace to Castro was that it was only the law of the Third Circuit—Delaware, New Jersey, Pennsylvania, and, yes, the U.S. Virgin Islands. But a new case flying almost entirely under the radar in the Ninth Circuit has raised the same issue, and, thus far, has produced results no different from Castro. As I explain in the brief post that follows, if the Ninth Circuit disagrees with the Third Circuit’s deeply problematic reasoning in Castro, and believes that undocumented immigrants seeking asylum have a right to meaningful judicial review of their asylum claim before their removal, it needs to stay the removal of Vijayakumar Thuraissigiam, and use his case to give plenary review to the jurisdictional (and constitutional) question.

Thuraissigiam is a Tamil from Sri Lanka who was tortured in his home country by individuals he has identified as government intelligence officers before fleeing and eventually attempting to enter the United States—surreptitiously—across the U.S.-Mexico border. He was apprehended shortly after crossing the border (on U.S. soil), and then issued an expedited removal order after the government determined (with no judicial review) that he didn’t have a credible fear of persecution if returned to Sri Lanka.

Thuraissigiam attempted to challenge his expedited removal (and the credible-fear determination) through a habeas petition, and also sought an emergency stay of removal pending the disposition of his habeas petition. On March 8, the district court dismissed the petition for lack of jurisdiction, holding that the unavailability of habeas for non-citizens subject to expedited removal did not violate the Suspension Clause, largely because of Castro, the “analysis and ultimate conclusion [of which] are incredibly persuasive to the Court.” And because the court lacked jurisdiction over Thuraissigiam’s habeas petition, it also denied his motion for an emergency stay of removal.

Thuraissigiam appealed to the Ninth Circuit and renewed his motion for an emergency stay of removal. On March 12, a two-judge motions panel (Silverman & Christen, JJ.) denied the motion without meaningful discussion, leaving intact the original appellate briefing schedule (which would have opening briefs due on May 8). Of course, it’s possible that, once the case is fully briefed and argued before a merits panel, the Ninth Circuit will have a full opportunity to consider Castro‘s many flaws—and to hold that the Suspension Clause requires meaningful judicial review of these kinds of asylum claims, even when brought by undocumented immigrants who surreptitiously enter the United States.

The problem is that the case may well be moot by then, as, without a stay of removal, Thuraissigiam could well be sent back to Sri Lanka in the interim. And although Thuraissigiam sought reconsideration en banc, the Ninth Circuit’s General Orders only require such requests to be referred to staff attorneys, not to the full court. So it was, late last night, that the two-judge panel noted that the motion for en banc reconsideration was “referred to the Court” and denied.

That leaves emergency relief from Justice Kennedy (or the full Supreme Court) as the only remaining means for Thuraissigiam to stay his removal pending the Ninth Circuit’s resolution of the merits. (The Ninth Circuit could also expedite its consideration of the merits to moot the need for a stay, but it hasn’t yet…) Unless such relief is granted, the Ninth Circuit may never have a proper opportunity to decide whether or not to follow the Third Circuit down Castro‘s rabbit hole. And without such a ruling, it stands to reason that there will be more cases like Thuraissigiam’s, in which Castro serves to practically foreclose review, even if it’s not the law of the relevant circuit.

That’s no way to run a railroad, especially when the result is to send individuals back to countries in which they very well may credibly fear persecution (or worse).

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

The only thing I take issue with in Steve’s outstanding analysis is his statement in the last paragraph “That’s no way to run a railroad!”

No, that exactly how Jeff “Gonzo Apocalypto” Sessions wants to and is running the “Deportation Railroad.” He’d love to apply “expedited removal” with no due process and no review to everyone in the United States.

I figure that once he gets done “crashing” the U.S. Immigration Court system, he’ll be asking Congress for “Universal Summary Removal,” having proved that due process for foreign nationals, or those believed by DHS to be foreign nationals, is simply too convoluted and impractical. This ties in nicely with the Administration’s view that the Due Process clause protects only the U.S. Government and Administration political officials.

Disturbingly, to date, I can find little evidence that the Courts of Appeals or the majority of the Supremes care about what happens to asylum applicants at the border and whether they are imprisoned or railroaded while here and sent back to death or torture abroad. As long as nobody on the Court of Appeals or nobody that they care about or consider human is affected, the Constitutional problems appear to be “out of sight, out of mind.”

Now, that might be “No way to run a railroad.”

PWS

03-15-18

GONZO’S WORLD: APOCALYPTO BLASTS FEDERAL JUDGES WHO STAND UP TO ADMINISTRATION’S LAWLESS BEHAVIOR — Expresses Confidence That GOP’s “Bought & Paid For” Justices On Supremes Will Crush Rule Of Law & Stomp Out Judicial Independence!

https://www.politico.com/story/2018/03/10/jeff-sessions-federal-judges-trump-agenda-453116

Brent D. Griffiths reports for Politico:

. . . .

A former conservative stalwart in the Senate, the attorney general acknowledged that some Republicans sought similar legal battles on friendly turf, in states like Texas, during Obama’s time in office, in a process known as forum shopping. But with Trump now in the White House, it is liberals who are hoping for advantages in places like California and Hawaii. The Obama administration failed to convince the Louisiana-based Fifth Circuit Court of Appeals to strike down an injunction against DACA with a similar argument.

The Supreme Court has not weighed in definitely on the topic of nationwide injunctions; instead justices have ruled on the particulars of a specific case. But Sessions is optimistic that the highest court in the land will soon issue a brush back to would-be legal resisters. A federal appeals court can overturn or limit the scope of an injunction.

“We are hopeful that the Supreme Court will soon send a clear message to the lower courts that injunctions ought to be limited to the parties of the case,” he said.

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

Read the complete article at the link.

I don’t remember Ol’ Gonzo giving impassioned speeches on the floor of the Senate against a single Federal Judge’s decision to block the Obama DAPA plan!

So, according to Gonzo, every individual who suffers from the Administration’s daily misinterpretations and intentional misapplications of the Constitution and Federal statutes should have to bring an individual suit. Sounds like a judicial nightmare and a way for the Executive to co-opt the Federal Courts, the only branch of Government that their patsies and sycophants don’t yet control (but the Administration is certainly working on “dumbing down” the Federal Judiciary with its appointees).

As I’ve pointed out before, the GOP appointees to the Supremes have a choice to make. Trump, Sessions, the Koch Bros, and other GOP bigwigs are publicly making it clear that the GOP considers them to be “bought men” (no women in this group) who can be counted on to dance to the tune of their benefactors.

The Supremes turn down of Gonzo’s outrageous scofflaw request to short-circuit the legal system on Dreamers gave the Court a little momentary credibility. But, that’s been offset by their handling of the travel ban cases and their shrug-off of the major Constitutional violations in the “New American Gulag” in Jennings v. Rodriguez.

In particular, the obtuse, tone-deaf, legally bankrupt position of Justices Thomas and Gorsuch in Jennings showed an unseemly eagerness to stomp on the individual rights of the people to please their Fat Cat political “handlers.” America deserves better from two of the life-tenured judges serving on our highest Court! Perhaps if they or their families had spent some time in “the Gulag” it would help “clarify” their fuzzy thinking and get them over some of their highly bogus jurisdictional roadblocks to doing justice . . . .

PWS

03-11-17

NOLAN @ THE HILL: IF CA WINS “SANCTUARY CASE” THEY MIGHT REGRET IT — The Wrath & Vengeance Of Trump, Sessions, & DHS Could Be Devastating To Communities & Undocumented Populations!

http://thehill.com/opinion/immigration/377605-even-without-trumps-lawsuit-california-may-have-to-abandon-sanctuary

This case is very risky for Trump. He is likely to lose in the Ninth Circuit, and it is difficult to predict how the Supreme Court would handle this federal vs. state rights issue. Immigration experts on both sides say this lawsuit takes the sanctuary-cities debate into uncharted territory.

The only certainty is that a loss would clear the way for the enactment of more sanctuary laws in California and other states.

Ironically, California’s sanctuary policies make it easier for ICE to find undocumented aliens.

Instead of being spread out across the United States, a quarter of the nation’s undocumented aliens are living in California. California’s labor force has 1.75 million undocumented aliens. Nearly 10 percent of its workers are undocumented aliens. And in 2014, more undocumented aliens lived in Los Angeles County, Calif., than in any other county in the United States.

This would make it easy for Trump to carry out a successful, large-scale enforcement campaign in California to arrest undocumented aliens and impose sanctions on the businesses that employ them, which is likely to be his next step if the lawsuit fails.

California could end up having to abandon its sanctuary policies to protect its undocumented population.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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

Go on over to The Hill at the link for Nolan’s complete article.

Putting together Nolan’s analysis with that of Professor Peter Markowitz in the preceding article, one can conclude that both sides are likely to come out losers in this contest. We’ll see.

PWS

03-10-18

PETER MARKOWITZ IN THE NYT: CA Can Thank The Late Justice Scalia For Likely Win On Sanctuary Case!

https://www.nytimes.com/2018/03/09/opinion/trump-california-sanctuary-movement.html

The Justice Department lawsuit emphasizes that immigration is a federal matter, that we must have a uniform scheme to oversee it and that this scheme is being undermined by sanctuary laws. In most states, federal immigration authorities are able to leverage state and local criminal justice systems. The Justice Department is arguing that California’s refusal to participate requires it to adapt and employ different enforcement strategies.
It is fair to ask whether states should have the power to abstain from federal law enforcement programs that they view as immoral or adverse to their local interests. It is not, however, a new question.
In fact, the question was decisively answered by the Supreme Court in 1997 in a case called Printz v. United States. That case involved a challenge to the federal Brady Act, which required local sheriffs to conduct background checks for gun purchasers. Some sheriffs resisted because they objected to the federal regulation of firearms. The Supreme Court, in a decision written by Justice Antonin Scalia, made clear that the sheriffs, and states generally, have a right to abstain from federal law enforcement schemes with which they disagreed.
It is this principle that distinguishes California’s decision to opt out of deportation efforts from Arizona’s decision to opt in.
The Justice Department is correct that the regulation of immigration is a federal matter. That’s why the Supreme Court made clear in the Arizona case that states may not insert themselves into immigration enforcement by directing its officers to arrest people on immigration charges. California, far from inserting itself, has extracted itself from federal immigration enforcement efforts in precisely the same way that the sheriffs in Printz extracted themselves from the federal effort to regulate the purchase of firearms.
Attorney General Sessions’s attempt to spin his attack on sanctuary laws as a logical extension of the Supreme Court’s Arizona decision is a transparent attempt to sidestep the clear rule established in Printz.
As California’s attorney general, Xavier Becerra, recently explained, “California is in the business of public safety, not in the business of deportations.” By exercising their constitutional right to stay out of the business of deportation, California and other sanctuary jurisdictions have been able to strengthen ties between local law enforcement and immigrant communities. Those ties, in turn, mean that immigrant witnesses and victims of crime are not fearful of coming forward to assist the local police. That is why a recent report by the Center for American Progress demonstrated that, contrary to Mr. Trump and Mr. Sessions’s heated rhetoric, sanctuary laws improve public safety by driving down overall crime rates.
This is precisely the type of legitimate justification for local abstention that the Supreme Court established as a bedrock principle of our federal system of government over two decades ago.
Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and sign up for the Opinion Today newsletter.
Peter L. Markowitz is a professor at the Benjamin N. Cardozo School of Law.

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Interesting point. Strange bedfellows. Read the rest of Professor Markowitz’s article at the link.

PWS

03-10-18

SPLIT 9TH CIR. SLAMS BIA ON CREDIBILITY — Dissenting Circuit Judge Trott Slams Colleagues — Ming Dia v. Sessions

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/09/ca9-on-real-id-credibility-dai-v-sessions.aspx

Dan Kowalski reports from LexisNexis Immigration Community:

CA9 on REAL ID, Credibility: Dai v. Sessions

Dai v. Sessions, Mar. 8, 2018 – “Ming Dai is a citizen of China. He testified that he was beaten, arrested, jailed, and denied food, water, sleep, and medical care because he tried to stop the police from forcing his wife to have an abortion. The Board of Immigration Appeals (BIA) nevertheless found that Dai was not eligible for asylum or withholding of removal.

There is one clear and simple issue in this case: neither the Immigration Judge (IJ) nor the BIA made a finding that Dai’s testimony was not credible. Under our well-established precedent, we are required to treat a petitioner’s testimony as credible in the absence of such a finding. We adopted this rule before the REAL ID Act and reaffirmed it after its passage. The dissent clearly disapproves of our rule. We are, however, bound to follow it. We might add, though it does not affect our holding in this case, that we approve of it. We
think it not too much to ask of IJs and the BIA that they make an explicit adverse credibility finding before deporting someone on that basis. In any event, under our well-established rule, Dai is unquestionably entitled to relief”

[Hats off to David Z. Su!]

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Go on over at LexisNexis Immigration Community at the above link for a link to the complete decision!

PWS

03-09-18

APOCALYPTO NOW! — CAL TO GONZO: “BRING IT ON, BABY!”

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

From the LA Times Editorial Board:

Jeff Sessions vs. California
Ironically, the attorney general’s lawsuit could help dispel myths about ‘sanctuary state’ laws.
Atty. Gen. Jeff Sessions warned California on Wednesday that “there is no secession” from federal jurisdiction as he appeared before members of the California Peace Officers Assn. in Sacramento to announce a lawsuit against three so-called sanctuary state laws. His claims drew immediate rebukes from state officials, with Gov. Jerry Brown’s initial response after the suit was filed late Tuesday standing as one of the better jabs: “At a time of unprecedented political turmoil, Jeff Sessions has come to California to further divide and polarize America. Jeff, these political stunts may be the norm in Washington, but they don’t work here. SAD!!!” He followed it at a news conference with another shot at Sessions, a former U.S. senator: “A fellow from Alabama talking to us about secession?” Grab the popcorn; this could get interesting.

Oddly, we (sort of) welcome the Trump administration’s legal challenge in hopes that it will clarify not just for state officials but for the federal government where the lines of responsibility and culpability might lie. We suspect the courts will side with California on most if not all of the legal issues Session’s lawsuit raises, and in the process could underscore the reality that California’s menu of state and local laws limiting involvement with federal immigration enforcement do not offer anyone anything remotely like sanctuary.

Just consider the statistics provided in its lawsuit. Last year, 14% of Immigration and Customs Enforcement arrests occurred in California. So far this year, the state accounts for 13% of the national total. So the laws at issue don’t seem to have done much to hinder enforcement here.

The federal challenge hinges on the Constitution’s “supremacy clause,” which says federal laws take precedence over state laws. That’s true, but that doesn’t mean the federal government can dragoon state authorities into enforcing federal statutes. Similarly, states should not craft laws on immigration policy — that’s a federal responsibility — and should not undermine the federal government as it enforces its own immigration codes. But the state laws at issue here do not set immigration policy. As the news website Vox points out, the federal lawsuit isn’t really about restoring ICE’s abilities, “but rather about making it easier for the agency to do its job.” California isn’t stopping federal enforcement (a recent series of raids up and down the state are proof of that); it is saying that it won’t help.

That’s more than just a legitimate position — it’s one that local law enforcement officials insist is better for public safety. There’s research to back them up, too. When local communities view police, who are responsible for enforcing criminal laws and protecting public safety, as immigration enforcers in a different uniform, fewer crimes get reported and fewer witnesses come forward. That undermines community safety and the criminal justice system.

Do some specific elements of the state laws at issue cross the line from non-involvement to impediment? That’s a good question for the courts. One of the laws tells businesses that they can’t voluntarily cooperate with immigration agents, which could be an overstep — what right does a state have to tell a private business when it can and can’t offer information to federal officials? But another law targeted by Sessions helps the state carry out its duty to ensure the safety of public facilities. That measure establishes a state inspection regimen of facilities with which the federal government contracts to house detainees. The vast majority of those, including the Adelanto Detention Facility in San Bernardino County, are owned and operated by private corporations, and the state has a responsibility to make certain such facilities meet state health and safety codes even if the sole customer is the federal government.

What this lawsuit really is about is politics. California political leaders have persistently challenged a wide range of Trump administration policies. Brown is the main figure in a global coalition of sub-national governments seeking to meet global-warming emissions under the Paris Agreement that Trump is walking away from. State Atty. Gen. Xavier Becerra has sued the administration over the suspension of the Deferred Action for Childhood Arrivals program, the travel ban, a Trump rule allowing more employers to stop offering insurance coverage for birth control, and on and on.

For the administration, liberal and ethnically diverse California is the America its political supporters hate, and this lawsuit is another front in our ongoing culture wars. So as state Senate President Pro Tem Kevin de León tweeted, “bring it on.” Clarifying these lines of responsibility just might do everyone some good.

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

Jeff “Gonzo Apocalypto” Sessions might wish he hadn’t started this civil war. California doesn’t have much to lose by defending its laws. But, Gonzo could see all or part of his attack on American communities go down in flames!

As this editorial suggests, it’s probably time to have this fought out in court, rather than in the battle of words and insults.

On the other hand, at a time when the country is faced with many other real problems, this kind of unnecessary fight picked by Sessions on behalf of Trump and the White Nationalists seems like a waste of time and resources that could be better spent elsewhere. But, wasting the taxpayers’ money while lining the pockets of the rich is one of the hallmarks of the Trump Administration.

PWS

03-08-18

GONZO’S WORLD: WHILE PUTIN DISMANTLES US DEMOCRACY, GONZO ATTACKS CAL. – Gov. Brown Calls DOJ Suit “Political Stunt!”

https://www.huffingtonpost.com/entry/doj-sanctuary-cities-suit_us_5a9ec5a4e4b0e9381c12c0e8

Elise Foley reports for HuffPost:

WASHINGTON — The Trump administration will ramp up its fight against so-called “sanctuary” policies by filing a lawsuit on Tuesday against the state of California over its laws meant to protect undocumented immigrants.

The lawsuit, which Attorney General Jeff Sessions will formally announce on Wednesday, is the latest in a string of moves by the White House, Department of Justice and Department of Homeland Security to combat local efforts to limit police cooperation with deportation. Thus far, this has largely involved condemnations and threats, including the withholding of federal funds and prosecuting public officials.

Now, the administration is seeking to block three California laws by arguing that they violate the Constitution and federal law.

“The Department of Justice and the Trump administration are going to fight these unjust, unfair and unconstitutional policies that have been imposed on you,” Sessions is expected to tell law enforcement officers during a speech on Wednesday, according to prepared remarks. “We are fighting to make your jobs safer and to help you reduce crime in America. And I believe that we are going to win.”

To make its case, the DOJ is in part pointing to a ruling on a very different state-level immigration law: Arizona’s SB 1070, which was meant to expand local police efforts to find and arrest undocumented immigrants. The Supreme Court sided with the Obama administration by striking down major provisions of that law in 2012.

The Trump administration plans to argue that California is similarly overstepping its authority, senior DOJ officials said Tuesday. The lawsuit will challenge three laws that DOJ officials say hurt the government’s ability to carry out immigration enforcement.

Supporters of the California laws and “sanctuary” policies in general argue that they make communities safer by allowing local police to work better with immigrant communities and focus time and resources on duties other than immigration matters. (“Sanctuary” policies differ widely from place to place and there is no set definition for the term.)

California Gov. Jerry Brown (D) responded to Sessions’ suit Tuesday evening, calling it a “political stunt.”

“At a time of unprecedented political turmoil, Jeff Sessions has come to California to further divide and polarize America,” he said in a statement. “Jeff, these political stunts may be the norm in Washington, but they don’t work here. SAD!!!”

. . . .

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

Read Elise’s full article at the above link.

So far, Gonzo hasn’t had much luck on his anti-Sanctuary Cities campaign. But, sooner or later, if he keeps filing suits, he’ll probably get a Federal Judge who agrees with at least part of his position.

The suit has little if anything to do with effective law enforcement and everything to do with right-wing politics. Strangely, for one who is so disdainful of lawyers and their functions in society, Gonzo’s regime has been essentially a “full employment for lawyers” boon. And, of course, “Chuckie” Cooper is on Gonzo’s personal retainer, trying, so far successfully, to keep him out of jail in the Russia investigation.

PWS

03-07-18

Tag: 9th Circuit

JUDGE STEPHEN REINHARDT 1931-2018 – Stalwart Defender Of US Constitution, Due Process, & Individual Rights Dies At 87 – “Unapologetic Liberal” Jurist Stood On Principle, Unfazed By Grenades Constantly Lobbed His Way By Right Wing & Supremes!

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

SUPREMES AGREE TO TAKE ANOTHER DETENTION CASE — This One Involves The “When Released” Issue For Mandatory Detention – Nielsen v. Preap, 9th Cir.

Nielsen v. Preap

SCOTUSblog Coverage

NEW BIA PRECEDENT EXPLAINS WHY IN SOME CASES THE ATTEMPT MIGHT BE WORSE THAN THE CRIME – MATTER OF CERVANTES NUNEZ, 20 I&N DEC. 238 (BIA 2018)

FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

SANTA CLARA OFFICE

SAN FRANCISCO OFFICE

STEVE VLADECK @ JUST SECURITY: 9th Circuit Expedited Removal Case Might Further The “Dredscottification” Of Migrants — Are They Becoming “Non-Persons” Under Our Constitution? – What’s The Ultimate Cost To Us Of “Selective Application” Of Constitutional Protections?

GONZO’S WORLD: APOCALYPTO BLASTS FEDERAL JUDGES WHO STAND UP TO ADMINISTRATION’S LAWLESS BEHAVIOR — Expresses Confidence That GOP’s “Bought & Paid For” Justices On Supremes Will Crush Rule Of Law & Stomp Out Judicial Independence!

NOLAN @ THE HILL: IF CA WINS “SANCTUARY CASE” THEY MIGHT REGRET IT — The Wrath & Vengeance Of Trump, Sessions, & DHS Could Be Devastating To Communities & Undocumented Populations!

PETER MARKOWITZ IN THE NYT: CA Can Thank The Late Justice Scalia For Likely Win On Sanctuary Case!

SPLIT 9TH CIR. SLAMS BIA ON CREDIBILITY — Dissenting Circuit Judge Trott Slams Colleagues — Ming Dia v. Sessions

APOCALYPTO NOW! — CAL TO GONZO: “BRING IT ON, BABY!”

GONZO’S WORLD: WHILE PUTIN DISMANTLES US DEMOCRACY, GONZO ATTACKS CAL. – Gov. Brown Calls DOJ Suit “Political Stunt!”

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Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

DUE PROCESS FOREVER!

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SCOTUSblog Coverage

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FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

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