"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Judge Garland & Secretary Mayorkas continue to abuse asylum seekers at the Southern Border & in the U.S. Albrecht Dürer, Public Domain, via Wikimedia CommonsKevin Sieff Latin American Correspondent, Washington Post
MATAMOROS, Mexico — Carolina had memorized the date, but she triple-checked her documents just to make sure. For months, her life had revolved around the court hearing at which she could finally make her asylum claim.
Like tens of thousands of asylum seekers who reached the U.S. border during the Trump administration, the 36-year-old from Honduras had been sent to wait in Mexico for her immigration hearing. She was told to return to the border on her court date.
So on Feb. 26, 2020, she woke up early and put on her best blouse. She said a short prayer. But not long after her bus left for Laredo, Tex., gunmen stopped the vehicle. They kidnapped Carolina and her 15-year-old daughter, took them to a stash house packed with other kidnapped migrants and demanded thousands of dollars in ransom.
By the time they were released a few days later, Carolina had missed her day in court.
Her asylum case, it turned out, had been closed in absentia because she hadn’t shown up. Of the 68,000 asylum cases processed under the Trump-era Migrant Protection Protocols, the policy also know as “Remain in Mexico,” 28,000 were closed for the same reason: Because asylum seekers didn’t present themselves.
. . . .
“MPP deprived people of due process and fundamental fairness,” she said. “In order to restore access to asylum in a meaningful way, the Biden administration needs to reopen cases for people ordered removed under MPP and allow them to pursue their claims safely from within the United States.”
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Read Kevin’s full article at the link.
The last statement, from Haiyun Damon-Feng, the director of the Adelante Pro Bono Project and assistant director of the William H. Gates Public Service Law Program at the University of Washington School of Law, sums it up. It’s not rocket science! It’s basic “Con Law 101” with some common sense and human decency thrown in! It’s also an essential part of the Biden Administration fulfilling basic campaign promises! Folks like Damon-Feng are the ones who should be running this system, solving the problems, and reconstructing the legal asylum system!
In what kind of “court” system are kidnapped individuals, some of them minors and children, further penalized and the Government allowed to get away with not keeping accurate addresses of individuals in their process and of knowingly sending them into danger zones? The victims remain in limbo and suffering while the perpetrators of these illegal outages — both current and former government officials — have not been held accountable. This is a national disgrace compounded by the fact that neither Judge Garland nor Secretary Mayorkas have taken corrective actions. Nor have they cleaned out the deadwood from their own legally and morally bankrupt systems and put competent individuals in charge!
Qualified Immigration Judges and competent administrators at the DOJ and DHS could have started solving these problems beginning the day after the inauguration. That 100 days into the Biden Administration this system is still operating illegally and taking a human toll is both a betrayal of campaign promises and an abuse of humanity! It’s also horrible and clearly illegal policy!
How does an Administration that is actively engaged in “Dred Scottifying” people of color at the border and in their wholly owned Immigration “Courts” — actually modern day “Star Chambers” — have any “legitimate voice” on racial justice in America?
“Justice” Star Chamber Style
🇺🇸⚖️🗽Due Process Forever! Human lives matter! The Constitution matters! Asylum law matters!
Don Ayer American Lawyer Former U.S. Deputy Attorney GeneralHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report”reports:
Hi Everyone,
I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.
For immigration practitioners in particular, Session 4will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”
It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.
New York City Bar Association Announces Five-Part Forum on the Rule of Law
Fall Series to Feature Former Officials, Judges, Scholars and More
New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)
The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov,Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”
All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):
Session 1: Threats to the Rule of Law in America: A Survey
(Sept 15, 1:00 p.m. – 4:00 p.m.)
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information
(Sept 22, 1:00 p.m. – 4:00 p.m.)
Session 3: Interference with Judicial Independence and Local Law Enforcement
(October 8, 11:00 a.m. – 2:00 p.m.)
Session 4: Threats to Individual and Societal Rights
(Oct 21, 1:00 p.m. – 4:00 p.m.)
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?
(Nov 18, 1:00 p.m. – 4:00 p.m.)
“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”
“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”
In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).
Full Schedule:
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.
Introduction: Sheila S. Boston, President, New York City Bar Association
Keynote Speaker: TimothySnyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom
Dennis Parker, Director, National Center for Law and Economic Justice
Cass Sunstein, Professor of Law, Harvard Law School
Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama
This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.
Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.
Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”
Mitchell Bernard, Executive Director, National Resources Defense Council
Preet Bharara, former U .S. Attorney for the Southern District of New York
Daniel Goldman, Counsel to the House Intelligence Committee
Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan
This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.
Keynote Speaker: Charles Fried,Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan
Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York
This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.
Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union
Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program
David McCraw, Senior Vice-President and Deputy General Counsel, New York Times
Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice
Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges
Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union
This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.
Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School
Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.www.nycbar.org
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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!
Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.
Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”
In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.
Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.
Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.
In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mockingthe Constitutional guarantees of “equal justice for all.”
I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.”It targets people of color, particularly immigrants and asylum seekers.
Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it:from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!
We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for allunder our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).
For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”
As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.
Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴☠️
You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.
The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.
Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions!Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?
This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.
How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.
I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences ofwhat another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!
Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴☠️👎
“Due Process of Law”
As Reenvisioned By Trump & Billy Barr
This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Former Secretary of Defense James Mattis condemned President Trump for making a “mockery of our Constitution” in a statement to The Atlantic on Wednesday, saying he was “appalled” at the president’s response to mass protests in the wake of George Floyd’s killing.
Why it matters: Trump’s former defense secretary had refrained from publicly criticizing his former boss since resigning in 2018.
Full statement:
“I have watched this week’s unfolding events, angry and appalled. The words “Equal Justice Under Law” are carved in the pediment of the United States Supreme Court. This is precisely what protesters are rightly demanding. It is a wholesome and unifying demand—one that all of us should be able to get behind. We must not be distracted by a small number of lawbreakers. The protests are defined by tens of thousands of people of conscience who are insisting that we live up to our values—our values as people and our values as a nation.
When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens—much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.
We must reject any thinking of our cities as a “battlespace” that our uniformed military is called upon to “dominate.” At home, we should use our military only when requested to do so, on very rare occasions, by state governors. Militarizing our response, as we witnessed in Washington, D.C., sets up a conflict—a false conflict—between the military and civilian society. It erodes the moral ground that ensures a trusted bond between men and women in uniform and the society they are sworn to protect, and of which they themselves are a part. Keeping public order rests with civilian state and local leaders who best understand their communities and are answerable to them.
James Madison wrote in Federalist 14 that “America united with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat.” We do not need to militarize our response to protests. We need to unite around a common purpose. And it starts by guaranteeing that all of us are equal before the law.
Instructions given by the military departments to our troops before the Normandy invasion reminded soldiers that “The Nazi slogan for destroying us…was ‘Divide and Conquer.’ Our American answer is ‘In Union there is Strength.’” We must summon that unity to surmount this crisis—confident that we are better than our politics.
Donald Trump is the first president in my lifetime who does not try to unite the American people—does not even pretend to try. Instead he tries to divide us. We are witnessing the consequences of three years of this deliberate effort. We are witnessing the consequences of three years without mature leadership. We can unite without him, drawing on the strengths inherent in our civil society. This will not be easy, as the past few days have shown, but we owe it to our fellow citizens; to past generations that bled to defend our promise; and to our children.
We can come through this trying time stronger, and with a renewed sense of purpose and respect for one another. The pandemic has shown us that it is not only our troops who are willing to offer the ultimate sacrifice for the safety of the community. Americans in hospitals, grocery stores, post offices, and elsewhere have put their lives on the line in order to serve their fellow citizens and their country. We know that we are better than the abuse of executive authority that we witnessed in Lafayette Square. We must reject and hold accountable those in office who would make a mockery of our Constitution. At the same time, we must remember Lincoln’s “better angels,” and listen to them, as we work to unite.
Only by adopting a new path—which means, in truth, returning to the original path of our founding ideals—will we again be a country admired and respected at home and abroad.”
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Better late than never. But, what if Mattis had spoken out earlier and helped lead the opposition to Trump. Would things be different now? Where was his leadership when the GOP was ignoring the evidence and failing to vote to convict and remove Trump for clear abuse of his office?
“We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny. … Accordingly, we affirm the grants of declaratory relief as to the declarations that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a), in attaching the challenged conditions to the FY 2017 and FY 2018 grants, and that the Attorney General’s decision to attach the conditions to the FY 2017 and FY 2018 Byrne JAG grants violated the constitutional principle of separation of powers. In light of our determination as to the language in § 10153, it is unnecessary to reach the constitutionality of § 1373 under the anticommandeering doctrine of the Tenth Amendment. We affirm the district court’s grant of injunctive relief as to the application of the challenged conditions to the Byrne JAG grant program-wide now and in the future, which included enjoining the Attorney General from denying or delaying issuance of the Byrne JAG award to grants in FY 2017, FY 2018, FY 2019 and any other future program year insofar as that denial or delay is based on the challenged conditions or materially identical conditions. We remand for the district court to determine if any other injunctive relief is appropriate in light of our determination that § 10153 cannot be used to incorporate laws unrelated to the grants or grantees. Finally, because the injunctive relief is necessary to provide complete relief to Chicago itself, the concern with improperly extending relief beyond the particular plaintiff does not apply, and therefore there is no reason to stay the application of the injunctive relief.”
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The complete 111-page decision is available at the above link.
The 7th Circuit Panel was BAUER, MANION, AND ROVNER, Circuit Judges. The opinion is by Judge Rovner. Judge Manion filed a separate opinion concurring in the legal analysis, but dissenting from the nationwide scope of the injunction.
Some Federal Courts stand up for our rights in the face of Trump’s tyranny; others “roll over.” History will be their judge!
That being said, I wouldn’t be surprised to see the “JR Five” on the Supremes — who seldom see a White Nationalist abuse of authority picking on immigrants that they aren’t willing to validate — will “torque the law and the facts as necessary” to further the regime’s scofflaw, xenophobic agenda.
History eventually will catch up with them too. History recognizes neither life tenure nor “absolute immunity.”
TUCSON — A federal judge in Tucson ruled that the temporary U.S. Border Patrol holding facilities for migrants detained in southeastern Arizona, sometimes known as hieleras or iceboxes,”are presumptively punitive and violate the Constitution.”
U.S. District Judge David Bury issued his ruling on Wednesday granting plaintiffs a permanent injunction with additional requirements for Border Patrol.
The ruling follows a seven-day trial last month detailing overcrowding, inadequate food and medical care, as well as prolonged detention for migrants arrested in the Tucson Sector, which covers Cochise, Santa Cruz and Pima counties.
“The Plaintiffs, who are civil detainees in (Customs and Border Protection) holding cells, face conditions of confinement after 12 hours which are substantially worse than detainees face upon commitment to either a civil immigration detention facility or even a criminal detention facility, like a jail or prison,” the judge’s ruling said.
Bury said the “undisputed” evidence showed criminal inmates in jails and even migrants in longer-term civil detention are kept in better conditions than migrants in Border Patrol custody, including “an opportunity for uninterrupted sleep,” a second layer of clothing to keep warm, and a greater variety of food beyond frozen burritos, juice and crackers.
As part of the permanent injunction, the court ordered the Border Patrol to not hold migrants who have already been processed for more than 48 hours after they were initially booked.
The only circumstances under which Border Patrol can hold migrants for an extra 24 hours is “unless and until CBP can provide conditions of confinement that meet detainees’ basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessment performed by a medical professional,” Bury said.
By law, the Border Patrol is allowed to hold migrants for up to 72 hours at its holding facilities before transferring them to another federal agency, such as Immigration and Customs Enforcement.
During the trial, Border Patrol officials testified about the challenges they face in meeting that legal standard.
The average time in custody for migrants in 2019 was nearly 54 hours, according to the agency. But of the nearly 63,000 migrants processed in the Tucson Sector that year, more than 12,000 were held longer than the 72 hours allowed.
In 2016, Bury issued an injunction requiring Border Patrol officials in Tucson to provide clean sleeping mats and Mylar blankets to migrants held for longer than 12 hours.
The court added requirements forbidding migrants from sleeping around toilet areas of holding cells, noting that “being forced to sleep in a toilet area due to overcrowding offends the notions of common decency; it is unsanitary and degrading for all detainees who either have to sleep in the toilet area or try to use the toilet when others are sleeping there,” the ruling stated.
One of the witnesses during the trial, a 20-year-old woman from Honduras, described her experience in Border Patrol detention in April 2019. Identified as Witness B, the woman was pregnant at the time and talked about how she was nauseous and vomiting while in detention.
During the time she was in custody, she slept in a holding room so crowded that the only space to lay down was next to the toilet, she described on Wednesday during a conference call where she was joined by the attorneys who represented her in the case.
“That whole night I was vomiting, I felt really sick. I was very worried because I didn’t know how my baby was doing,” the woman said. “Then they took me to the hospital, there they treated me and they told me that my baby was doing OK.”
After she was released from the hospital, agents returned her to a holding cell, where she said she continued feeling sick. Agents didn’t give her the medication doctors had prescribed until the morning she left the Border Patrol facility, she said.
Bury’s ruling notably found no evidence that Border Patrol’s parent agency, Customs and Border Protection, had purposely created the punitive conditions. Instead, he pointed out that the agency has stretched resources to “provide the best conditions” under current circumstances.
“A presumption, however, exists that the challenged conditions of confinement are punitive because, in the context of CBP operations, there is no legitimate governmental interest for the extended detentions currently occurring at CBP facilities,” the ruling said.
The judge further defined what type of showers Border Patrol needs to allow migrants to take. “A shower is a bath in which water is showered (as in to wet with a spray, fine stream, or drops) on the body,” the ruling said. “A ‘paper-shower’ or ‘shower-wipe,’ by definition, is not a shower.”
Border Patrol officials from the Tucson Sector did not respond to a request for comment.
The legal advocacy groups and private law firms that filed the lawsuit in 2015 celebrated Bury’s decision Wednesday, pointing to potential implications beyond the Tucson Sector.
“What the Constitution requires for individuals who are held in a pre-trial capacity, that has a much broader implication,” said Caroline Walters of the American Immigration Council, one of the groups that filed the lawsuit. “What the judge’s decision did today is sort of lay the groundwork for what these minimum standards should be.”
Walters said the group expects to hear more detail from Bury about implementing his permanent injunction.
“After several years we’re seeing that CBP has not changed the way that it treats people in confinement unless a court orders it,” said Alvaro Huerta, a staff attorney with the National Immigration Law Center. “And so we’re ecstatic that the court has finally recognized and made CBP change the way that it’s going to do its work.”
The Honduran woman who testified in court said she felt good knowing her testimony helped convince the judge to require the U.S. government to improve conditions for migrants like her.
“A lot of people from my country are still coming here because of the situation we are going through in my country,” she said. “So I feel really happy knowing that they will have better conditions.”
Vice President Mike Pence toured a Border Patrol facility in Texas after reports that migrants detained are being held in dangerous conditions. USA TODAY
So, under Trump we treat asylum seekers worse than convicted criminals. But, don’t worry. Enabled by the Article III Courts, the regime is reducing the Gulag population and shrinking “Let ‘Em Die in Mexico” by simply abrogating asylum laws and the Constitution and sending folks to Guatemala, a dangerous country with no functioning asylum system, where they won’t get a fair chance to apply for asylum and will either be forced back to the countries they fled or forced to fend for themselves in a failed state. https://www.washingtonpost.com/immigration/remain-in-mexico-deportation-asylum-guatemala/2020/02/20/9c29f53e-4eb7-11ea-9b5c-eac5b16dafaa_story.html
Some might survive, some won’t. But, we don’t really care because it’s “out of sight, out of mind.”
I actually think that Judge Bury got part of this case wrong by incorrectly absolving the Border Patrol of intentionally abusing these individuals. Wrong! Essentially, this is the old “Good enough for Government work” cop out.
There are always alternatives to unconstitutional and punitive detention. The most obvious being releasing folks on bond if there is no constitutionally compliant alternative. Like other Government employees, Border Patrol Officers take an oath to uphold the Constitution. When tasked by the regime with carrying out Constitutional abuses, they actually have a duty to “just say no” even if that means resigning their jobs.
And, on a larger scale, it’s clear that the regime has chosen to waste money on unneeded and unauthorized walls, unneeded detention, frivolous legal actions, and details of Border Patrol personnel to punish cities that won’t go along with some of their unlawful behavior. That money could and should have been used to improve detention conditions to meet constitutional minimums. In simple terms, the regime made a conscious choice to violate the Constitution as part of its illegal and immoral “deterrence” program. It’s time for Article III Courts to stop enabling and papering over false, illegal “choices” by a scofflaw Administration.
Joel Rubin and Brittany Mejia report for the LA Times:
A federal judge in Los Angeles upends the way ICE may use local police to detain people it suspects of being in the country illegally.
A federal judge in Los Angeles this week issued his final judgment in a long-running immigration case, upending the way Immigration and Customs Enforcement uses local police to detain people it suspects of being in the country illegally.
The judgment filed Wednesday by U.S. District Judge Andre Birotte formalized a ruling he made in September that included a permanent injunction barring ICE from using error-prone databases when issuing so-called detainers, which are requests made to police agencies to keep people who have been arrested in custody for up two days beyond the time they would otherwise be held.
The earlier ruling also blocked ICE from issuing such requests to state and local law enforcement in states where there isn’t an explicit statute authorizing police to arrest someone or keep them in custody on an immigration detainer.
The ruling, which applied to ICE activity in all but a few states, appeared to have enormous implications for how the government targets people for deportation. However, attorneys from the U.S. Department of Justice and civil rights groups that brought the case disagreed over whether the injunction went into effect immediately, and ICE gave no indication it had changed its practices.
Last fall, an ICE spokesman said the agency was “reviewing the ruling and considering our legal options.”
This week’s judgment erased any ambiguity.
Under the judgment, ICE has three months to “adopt and implement any policies, practices, trainings, and systems changes necessary to ensure consistent and effective compliance” with the judgment, Birotte wrote. The judge ordered government lawyers to provide him with evidence it had implemented new policies.
“This judgment ensures that ICE has to comply with the court’s findings that the program it’s had for decades is grounded in unconstitutional practices that have to end,” said Jennie Pasquarella, an attorney with the American Civil Liberties Union, who helped argue the case.
The class-action lawsuit alleged that the databases that agents consult to issue detainers are so badly flawed by incomplete and inaccurate information that ICE officers should not be allowed to rely on them as the sole basis for keeping someone in custody.
In September, the judge agreed with that assessment, finding that the databases often contained “incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability.”
These errors, according to that decision, have led to arrests of U.S. citizens as well as noncitizens in the country lawfully. From May 2015 to February 2016, of the 12,797 detainers issued in that period, 771 were lifted, according to ICE data. Of those 771, 42 were lifted because the person was a U.S. citizen.
In the years since the lawsuit was filed, ICE has amended its policies, saying the changes made the process for issuing detainers more rigorous.
Previously, for example, agents would check individual databases in search of evidence of someone being in the country illegally. But three years ago, the agency launched a new system, in which 10 databases are automatically queried. A supervisor is required to sign off on decisions to issue detainers.
Birotte said in his judgement this week that conducting interviews with people suspected of being in the country illegally and checking the hard copy files the government keeps on immigrants is the most reliable source of information for issuing detainers.
The judge’s decision affects any detainer requests issued by an ICE officer in the federal court system’s Central District of California. That designation is significant because it includes the Pacific Enforcement Response Center, a facility in Orange County from which ICE agents send out detainer requests to authorities in 43 states, Guam and Washington, D.C.
Dozens of deportation officers and contract analysts work in shifts around the clock every day at the center. In 2018, the center issued 45,253 detainers and alerted agents at field offices to more than 28,000 additional people released from law enforcement custody before ICE could detain them.
If ICE tries to move its detainer operation to another facility, Birotte said, it must alert him in advance and the injunction would follow it to the new location.
All existing detainers issued by the enforcement center were also nullified by the judge’s ruling. Pasquarella said it was unknown how many people that affects, but said it is in “the thousands.”
Finally, Birotte gave ICE a month to alert the thousands of local and state police departments to which it sent detainer requests of his judgment and “its impact on detainers issued by ICE.” He ordered ICE to post its notice prominently on its website and said the agency “shall specifically inform these agencies that a detainer does not provide the legal authority for a state or local law enforcement officer to make a civil immigration arrest.”
The detainer process begins when police arrest and fingerprint a person. The prints are sent electronically to the FBI and checked against the prints of millions of immigrants in Homeland Security databases. If there is a match — such as someone who applied for a visa or was apprehended by Border Patrol — it triggers a review process, which often culminates with an agent at the center deciding whether to issue a detainer.
Approximately 70% of the arrests ICE makes occur after the agency is notified about someone being released from local jails or state prisons. In fiscal year 2019, ICE had lodged more than 160,000 detainers with local law enforcement agencies, according to the agency.
An ICE spokeswoman declined to comment on the judgment and would not say whether ICE had yet changed its practice of issuing detainer requests. Instead, she referred reporters to a statement released Thursday by the White House.
“A single, unelected, district judge in the Central District of California issued a legally groundless and sweeping injunction that — if not immediately lifted — will guarantee the release of innumerable criminal illegal aliens into our communities putting citizens at dire risk,” the statement said. “This ruling undermines the pillars of immigration enforcement and blocks traditional and vital law enforcement cooperation that has occurred for decades.”
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Judge Andre Birotte found that the ICE detainer program is riddled with legal errors. Not too surprising. In addition to using DHS’s inherently unreliable databases, immigration “detainers” are issued by immigration agents, not neutral and detached magistrates as they should be, which makes them constitutionally suspect and has led to rulings across the country that they should not be honored.
If I were the ACLU, however, I wouldn’t “do the victory dance” yet. Led by the complicit “J.R. Five,” the Supremes often have shown themselves to be willing, sometimes enthusiastic, enablers of the regime’s White Nationalist campaign to dehumanize and “Dred Scottify” immigrants under our laws.
As the ACLU accurately has stated: “The fundamental constitutional protections of due process and equal protection embodied in our Constitution and Bill of Rights apply to every person, regardless of immigration status.”
Unfortunately, the “J.R. Five” has ignored the rule of law and our Constitution when it comes to protecting the rights of immigrants. They have managed to “tune out” their own immigration heritages, their own good fortune and privileged positions, and turn a deaf ear to humanity and its unnecessary suffering. Instead they have allied themselves with Trump, Stephen Miller, and the other White Nationalists in subjecting immigrants and other people of color to the “New Era of Jim Crow.”
Someday, if America survives as a democracy, we will get “regime change.” But, the problems of a life-tenured judiciary infected with too many at its highest levels who are unwilling to stand up for human rights and/or who are driven by a twisted far-right ideology incorporating many of the worst aspects of white supremacy and its abuses of power over history will not necessarily disappear overnight.
Andrew Johnson pioneered the recalcitrant racism and impeachment-worthy subterfuge the president is fond of.
By Manisha Sinha
Ms. Sinha is the author of “The Slave’s Cause: a History of Abolition.”
Nov. 29, 2019
Last week, in defense of her father, Ivanka Trump tweeted out a quotation she wrongly attributed to Alexis de Tocqueville: “A decline of public morals in the United States will probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office.”
The misquotation came from an opinion essay in The Wall Street Journal that has since been corrected. What is fascinating about this incident though, is that the quotation actually comes from an 1889 book, “American Constitutional Law,” that defends Andrew Johnson against his impeachment in 1868. By the time the book was written, emancipation and the attempt to guarantee black rights lay in shambles, and conservatives rallied to the defense of Johnson, one of the most reviled presidents in American history.
Much more than impeachment connects the presidencies of Andrew Johnson and Donald Trump. No one expected either man to enter the White House. Both presidencies began with a whiff of illegitimacy hanging over them: Johnson’s because he became president when Lincoln was assassinated, Mr. Trump’s because he won the Electoral College despite having nearly three million fewer popular votes than his opponent, the largest losing margin of any president who actually won the election. The size of the gap did not bode well for American democracy.
Historical parallelism rarely works in a simplistic manner. But it does work when historians discern broad similarities and patterns that link our present moment to the past. Many fallible men have inhabited the office of the presidency. Only a handful have been so oblivious to the oath they took that they have met the constitutional standard for impeachment.
The first president against whom impeachment proceedings were considered was John Tyler, who like Johnson became president after an untimely death, that of President William Henry Harrison. A proslavery zealot, Tyler has the unique distinction so far of being the only president to commit treason against his country. He voted for Virginia’s secession from the Union.
Unlike Tyler, Johnson refused to go with his state, Tennessee, when it seceded from the Union. For this, he was appointed military governor of Tennessee and then rewarded with the vice-presidential spot on the National Union Party presidential ticket headed by Lincoln in 1864. Johnson came closest to being removed from the presidency when his conviction fell one vote short of the required two-thirds majority needed in the Senate.
If the recent House impeachment hearings have revealed anything, it is that Mr. Trump’s actions clearly meet the criteria laid out in the impeachment clause, “Treason, bribery or other High Crimes and Misdemeanors.” While Mr. Trump’s criminality is of the same order as Richard Nixon’s, trying to interfere in a presidential election, like Johnson, he exhibits no public or private decorum.Johnson’s and Mr. Trump’s biographies could not be more different but their lack of presidential demeanor was evident from the start. As the historian Eric Foner has put it, “Americans, more often than not, choose mediocre presidents, but require of them a decorum foreign to other aspects of their life.” Johnson, a poor white Southerner, became a slaveholder and successful politician, occupying local, state and national office. Mr. Trump, brought up in the corrupt and highflying world of New York’s real estate business, is an oddly successful political neophyte.
Both Johnson and Mr. Trump amply displayed their unfitness for the presidency before getting the job. Johnson so fortified himself with whiskey on taking his oath of office for the vice presidency that his rambling, drunken speech mortified all who were present. Lincoln, who gave his memorable Second Inaugural Address the same day, noted, “This Johnson is a queer man.” Mr. Trump is a teetotaler but ran a presidential campaign full of grotesque insults, ridicule, lies and vulgarity. His crude and cruel pronouncements after his ascent to the presidency are too many to recount. Ambassador Gordon Sondland, a Trump pick, in his testimony at the impeachment hearings in the House, uses the term “TrumpSpeak”: profanity-laced language that guided a personal political agenda and undermined United States foreign policy and national security. Both Johnson and Mr. Trump, neither blessed with literary or oratorical skills, succeeded two of the most gifted presidential wordsmiths.
But most significantly, both men made an undisguised championship of white supremacy — the lodestar of their presidencies — and played on the politics of racial division. For Johnson, it was his obdurate opposition to Reconstruction, the project to establish an interracial democracy in the United States after the destruction of slavery. He wanted to prevent, as he put it, the “Africanization” of the country. Under the guise of strict constructionism, states’ rights and opposition to big government, previously deployed by Southern slaveholders to defend slavery, Johnson vetoed all federal laws intended to protect former slaves from racial terror and from the Black Codes passed in the old Confederate states. This reduced African-Americans to a state of semi-servitude. Johnson peddled the racist myth that Southern whites were victimized by black emancipation and citizenship, which became an article of faith among Lost Cause proponents in the postwar South.
It is a myth that Mr. Trump seems to have fully bought into, given his defense of “beautiful” Confederate statues and monuments. Like Johnson, he uses derogatory language for people of color and he has expressed his preference for Nordic immigrants. Mr. Trump’s handpicked man in charge of immigration policy, the brain behind the separation of families in immigration detention camps, is Stephen Miller, who has recently been publicly revealed to be a white nationalist. The abolitionist feminist Frances Ellen Watkins Harper called Johnson an “incarnation of meanness,” words that are still applicable today.
Both Johnson’s and Mr. Trump’s concept of American nationalism is narrow, parochial and authoritarian. Johnson opposed the 14th Amendment, ratified in 1868, that guarantees equality before the law to all persons and citizenship to all born in the United States. Mr. Trump has threatened both to revoke its constitutional guarantee of national birthright citizenship and have the entire amendment overturned. Johnson’s highhanded actions and disregard of Congress led to Thomas Nast’s famous “King Andy” cartoon in Harper’s Weekly. Today Mr. Trump’s unaccountable style of governing reflects his Attorney General William Barr’s doctrine of unitary executive power, oblivious to the checks and balances and separation of powers in the Constitution.
The American republic was founded on the repudiation of the divine right of kings to rule. That is the reason that the impeachment clause of the Constitution holds elected officials, including the president, accountable for bribery and criminal wrongdoing.
Johnson and Mr. Trump not only managed to diminish their office but also engaged in actions that have dangerous repercussions for American democracy. Their crimes are not just specific impeachable acts but also the systematic undermining of the rule of law, democratic governance, human rights and the national interest. Johnson pardoned nearly all high-ranking Confederates who had taken up arms against the United States government. In one case, he also pardoned a white Virginian who murdered a black man in broad daylight and looked the other way at reports of massacres of freed people and harassment of Southern white unionists. Mr. Trump, against the advice of the Defense Department and the Navy, has just pardoned a Navy SEAL, Edward Gallagher, who violated the military’s rules of conduct. He has even hinted that he wants the disgraced Chief Gallagher at his rallies.
What Mr. Trump and his enablers call the “deep state” is nothing but the rules and norms of democratic government. It has become clear from the testimony of upstanding national security and foreign service officials like Ambassadors Marie Yovanovitch and William R. Taylor, Lt. Col. Alexander Vindman, Fiona Hill and David Holmes that he undermined the very fabric of the United States government in seeking to profit personally from the conduct of foreign policy, by withholding aid from a democratically elected anti-corruption Ukrainian government unless its officials investigated his domestic political rivals, the Bidens. Over 150 years ago, the testimony before Congress of ordinary patriotic Americans, former slaves, Southern unionists, Northern travelers to the post war South, Union Army officers and federal officials completely discredited Johnson’s racist policies.
Mr. Trump openly invites and, now we know, privately demands foreign interference in our elections, a scenario that the men who founded the American Republic and wrote its Constitution repeatedly warned against. He attacks his opponents and even supporters who do not agree with him on Twitter. Johnson, too, loved to vilify his opponents, like Frederick Douglass and Radical Republican congressmen. Both presidents precipitated a constitutional crisis that could be solved only through an impeachment process. The author Brenda Wineapple has written that Johnson was “the chief architect” of his own impeachment. The same is true of Mr. Trump.
Unlike with Nixon and Mr. Clinton, attempts to impeach Johnson and Mr. Trump preceded the actual impeachment inquiry because both systematically undermined federal laws and democratic institutions the moment they took office. Their personal narcissism and disregard for the principles of democratic governance led to early calls for impeachment. In Johnson’s case, violation of the Tenure of Office Act when he removed Lincoln’s Secretary of War, Edwin Stanton, led to his impeachment. While this law encroached on executive privilege, it was intended to prevent Johnson’s interference in congressional Reconstruction and his increasingly dangerous obstructionism. It was the law of the land when Johnson violated it by firing Stanton. Similarly, while it is certainly a president’s prerogative to appoint and fire American ambassadors, the removal of Ambassador Yovanovitch was the result of a sleazy attempt to pressure Ukraine’s government.
In 1866, a Northern public sickened by Johnson’s antics and vitriolic rhetoric elected a thumping majority of his opponents. In 2018, the country handed a rebuke to Mr. Trump by electing a Democratic majority in the House of Representatives, which has now begun impeachment proceedings against him. Trump has handed his own smoking gun to them, his infamous call with President Volodymyr Zelensky of Ukraine. Johnson removed and belittled Union Army officers. The Purple Heart-wearing Lt. Col. Vindman has been subject to nativist, anti-Semitic slurs and death threats after his moving testimony.
Johnson’s defenders, like Senator Willard Saulsbury of Delaware, the one man who could drink him under the table, and Senator Garrett Davis of Kentucky, were as oblivious to facts, reason and propriety as their modern counterparts, Senator Lindsey Graham and Representatives Devin Nunes and Jim Jordan. The vote to convict Johnson lost as a handful of moderate Republicans voted to acquit when he promised not to interfere in Reconstruction any longer, though he remained unrepentant, continuing to criticize the attempt to establish black citizenship until the day he died in 1875. But Johnson was damaged goods after impeachment, and neither the Republicans nor the Democrats wanted him anywhere near their presidential tickets in 1868.
House Democrats face a different scenario today given a Republican majority in the Senate. The likelihood of convicting Mr. Trump is much lower than it was for Johnson. The Republican Party, no longer the party of Lincoln, refuses to be persuaded, even in the face of overwhelming evidence. Like the Republicans in 1868, House Democrats are not waiting for a presidential election to send a rebuke to a president who behaves with impunity against his country, its ideals and interests. The House Judiciary Committee would do well to develop articles of impeachment not just on narrow legalistic grounds but also on the broad ground of violation of the Constitution and the undermining of American democracy.
In drawing up 11 articles of impeachment against Johnson, House Republicans focused narrowly on violation of the Tenure of Office Act in the first nine. But the last two articles accused Johnson of opposing Reconstruction and bringing “disgrace, ridicule, hatred, contempt and reproach,” onto “the Congress of the United States” and for his “intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled in hearing,” language that could be used verbatim against Mr. Trump. As Representative George Julian pithily put it, Johnson ought to be impeached for “his career of maladministration and crime.”
Some of the most damning testimony against Mr. Trump has come from impressive women like Ambassador Yovanovitch and Fiona Hill. Their 19th-century counterparts were abolitionists like the stalwart Lydia Maria Child, who wrote words as true today as then: “Every true lover of the country must want to creep into a knot hole and hide himself, wherever the name of our president is mentioned.” Johnson and Mr. Trump are both authoritarian demagogues who threatened the world’s longest lasting experiment in democratic republicanism. Democrats must convince the American people not only of Mr. Trump’s specific crimes, but of the very real danger that his continuing presence in office presents to the Republic.
Manisha Sinha, a professor of history at the University of Connecticut, is the author of “The Slave’s Cause: A History of Abolition.”
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A Federal Judge Orders Sweeping Changes To Bond Hearings In Boston Immigration Court
A federal judge in Boston ruled Wednesday that it’s unconstitutional for the federal government to place the burden of proof on undocumented immigrants in bond hearings. The decision from U.S. District Court Judge Patti Saris will usher in sweeping changes to the way bond hearings are administered in Boston immigration court.
Saris ruled that asking an undocumented immigrant who is eligible for bond to prove why they are neither a flight risk nor a threat to the community violates the individual’s due process.
Moving forward, the burden of proof will be placed instead on federal immigration officials, similar to how bond hearings are decided in criminal court proceedings. The ruling also mandated that immigration judges in Boston consider the individual’s ability to pay when setting a bond amount above $1,500. Saris additionally ordered immigration judges to consider alternative conditions to detention, like GPS monitoring and orders of supervision that require regular check-ins with U.S. Immigration and Customs Enforcement (ICE).
The ACLU of Massachusetts filed the class action suit in June arguing the government is constitutionally required to prove why an individual should be deprived of liberty.
With her ruling Wednesday, Judge Saris agreed with that argument. The ACLU estimated hundreds of immigrants detained in New England could be affected by the ruling, and, for some, the decision would result in new bond hearings.
In her ruling, Saris ordered the Boston immigration court to notify non-criminal immigrants currently in detention of her decision — both those individuals who have already received a bond hearing and those awaiting a bond hearing.
Additionally, Saris mandated the federal government identify and locate all eligible immigrants who already have received a bond hearing under the previous process and remain detained as a result.
Saris also agreed with an additional argument made by the ACLU in the case.
She ruled the Board of Immigration Appeals (BIA), the top court in the immigration system, also violated the Administrative Procedures Act (APA) with its 1999 decision, which switched the burden of proof in bond hearings to the detainee.
The APA provides guidelines for federal agencies when developing and issuing regulations, like allowing the public to comment on proposed changes and overall transparency in the rule-making process. It’s important to note that Saris’ consideration of the APA’s guidelines for the Board of Immigration Appeals could set a powerful precedent for others seeking to challenge similarly broad decisions.
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You can read Chief Judge Saris’s opinion in Brito v. Barr at the first link in the text of Shannon’s original article (go to link above). Her Due Process analysis is clear, logical, succinct, and straightforward. None of the legal gobbledygook and turgid prose too often used by the Supremes and Federal Appellate Judges struggling for ways to uphold Trump’s unconstitutional and illegal immigration agenda.
Indeed, it’s the type of clear Due Process analysis that could and should have been applied long ago to hold the entire Immigration Court system unconstitutional because it is run by a biased prosecutor who controls the judges and can change results. This is clear violation of the Due Process requirement for a fundamentally fair process for determining deportability that must provide a fair and impartial decision maker. End of decision.
Interestingly, the 1999 BIA precedent rejected by Chief Judge Saris, Matter of Adeniji, 22 I&N Dec. 1122 (BIA 1999) was decided while I was BIA Chair. I actually dissented. However, my dissent did not challenge the burden or standard of proof – just its misapplication by my colleagues in the particular case then before us.
Unfortunately, this great decision only applies within the jurisdiction of the Boston Immigration Court right now. But, it’s certainly something that the New Due Process Army can build upon in the future!
PANEL: GREGORY, Chief Judge, and DIAZ and HARRIS, Circuit Judges.
OPINION BY: PAMELA HARRIS, Circuit Judge
KEY QUOTE:
Sindy Marilu Alvarez Lagos testified credibly that she and her then-seven-year-old daughter, natives and citizens of Honduras, were threatened with gang rape, genital mutilation, and death if they did not comply with the extortionate demands of a Barrio 18 gang member. Unable to meet those demands and fearing for their lives, Alvarez Lagos and her daughter fled to the United States, where they sought asylum, withholding of removal, and protection under the Convention Against Torture.
Now, almost five years later, an immigration judge and the Board of Immigration Appeals have issued a total of three separate decisions denying Alvarez Lagos’s claims. The government defends none of those decisions, including the most recent, which came after we agreed, at the government’s request, to remand the case for reconsideration. Instead, the government admits that errors remain, but argues that we should leave them unaddressed and simply remand once again so that the agency may have a fourth opportunity to analyze Alvarez Lagos’s claims correctly.
We decline that request. A remand is required here on certain questions that have yet to be answered, or answered fully, by the agency. But we take this opportunity to review the agency’s disposition of other elements of Alvarez Lagos’s claims. For the reasons given below, we reverse the agency’s determination with respect to the “nexus” requirement for asylum and withholding of removal. And so that they will not recur on remand, we identify additional errors in the agency’s analysis of the “protected ground” requirement for the same forms of relief, and in the agency’s treatment of Alvarez Lagos’s claim under the Convention Against Torture.
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It’s partially on the Article IIIs. Great decision in many ways. But, this type of injustice occurs daily in our unconstitutional U.S. Immigration Courts. How many Central American asylum applicants get this type of representation—Steve Shulman of Akin Gump for a pro bono lawyer, Tom Boerman as an expert? Not very many.
How many can be this persistent, particularly if detained or sent to Mexico to wait? Almost none! I think that if these respondents were in “Return to Mexico” they would have long ago been forced to give up and accept “Death Upon Return.”
This case should have been a “no brainer grant” five years ago. Could have been done at an Asylum Office (under a more rational system) or by DHS stipulation. THIS abuse of the legal system and gross waste of public resources by DHS and DOJ is the reason why we have unmanageable Immigration Court backlogs, not because asylum applicants and their representatives assert their legal rights.
The Office of Immigration Litigation (“OIL”) didn’t even bother to defend any of the EOIR actions here! So, after five years why is it “Due Process” for the Fourth Circuit to give the BIA yet another opportunity to come up with bogus reasons to deny asylum.
An Article III Court fulfilling its oath to uphold the laws and Constitution could have ordered this case to be granted and either exercised contempt authority against those at DOJ responsible for this mess or ordered an independent investigation into the judicial incompetence and bias evident here. At the least, the court should have removed any judge having had a role in this abomination from any future proceedings involving these respondents.
Cases such good as this also illustrate the continuing dereliction of duty by Article III Courts who continue to “go along top get along” with the absurdly unconstitutional position that unrepresented asylum applicants can receive “Due Process” in today’s overtly unfair and biased Immigration Courts. The Due Process clause applies to all persons in the U.S., and the right to a fair asylum hearing exceeds the rights at stake in 98% of the civil litigation and most of the criminal litigation in the Federal Courts. If the Article III Courts actually viewed asylum applicants as “persons,” that is “fellow human beings,” rather than dehumanized “aliens,” this farce would have ended decades ago! Folks represented by Steve Schulman and Akin Gump can’t get a “fair shake” from EOIR; what chance does any unrepresented applicant have?
You reap what you sow, and what goes around comes around! If Article III Courts want to be taken seriously and respected, they must step up to the plate and stop the systematic bias against asylum applicants (particularly women and children from Central America) and the abuses like this occurring every day in our unconstitutional U.S. Immigration Courts!
History is watching and making a record, even if those wronged by the Article IIIs all too often don’t survive or aren’t in a position to confront them with their dereliction of legal duties and the obligations human beings owe to each other.
Asked about Trump’s threat to declare a national emergency on the southern border so that he can order his wall built without congressional approval, Lessig told MSNBC: “The man is using words that have no connection to reality.”
“He says we have a national crisis … a national emergency. I agree we have a national emergency, but the emergency is this president,” Lessig added. “The emergency is the fact we don’t have an executive who’s exercising his power in a responsible way.”
Lessig said the president can’t build his wall without the backing of Congress.
“Ultimately he has no constitutional authority to exercise the power to build this wall without Congress’ approval,” Lessig said. “These statutes were certainly not written with the intent to give a man like Donald Trump the power that he’s now claiming.”
In an opinion piece Lessig published in The Guardian on Friday, he said the Constitution would not uphold the actions of a president who shut down the government to insist on a program that was not supported by the public. Lessing referred to the situation as a “veto-ocracy,” ruled by “petulance” rather than “principle.”
If the Republicans support Trump in this, they are saying that any president can “support whatever policy he likes,” including, say, to nationalize health insurance.
“The fools are they who enable this constitutional immorality,” Lessig wrote. “Those fools are the Senate Republicans, who have placed party over country, and President Trump over the Republican Party.”
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Part of the blame for this unprecedented national disaster belongs to the Supremes’ majority for their shockingly spineless performance in the “Travel Ban Case.” By failing to stand up for the Constitution in the face of Trump’s clear record of religious and racial bias and the rest of his White Nationalist hokum, their message was clear.
Whenever Trump doesn’t want to follow the law or is thwarted by Constitutional separation of powers, all he needs to do is declare another totally bogus “national emergency.” Will the GOP appointees keep looking away while the Constitution and our republic crumble before this unscrupulous madman? Or, will Chief Justice Roberts and some of the “Gang of Five” make good on Roberts’s recent claim that “there are no GOP or Democratic Federal Judges?”
Last time it was Muslims and refugees; this time, it’s asylum seekers, kids, and families in Trump’s crosshairs; next time, maybe he’ll come for the Supremes themselves. If so, they shouldn’t look to the immoral and cowardly GOP Senate for any help!
DID ACTING attorney general Matthew G. Whitaker examine the memo that special counsel Robert S. Mueller III released Tuesday? Has he seen the material that Mr. Mueller redacted from the document? Has he sought the advice of Justice Department ethics experts on how much he should be involved in the Russia investigation? If so, what did those experts say?
A month into Mr. Whitaker’s reign as the nation’s chief law enforcement officer, these and other questions remain unanswered. A Justice Department spokeswoman declined to answer when we put them to her on Wednesday. Also mysterious is when President Trump intends to nominate a permanent attorney general. The White House did not respond when we asked. And then there’s the still-contested question of whether Mr. Whitaker’s appointment violated the Constitution.
All of these questions matter, because Mr. Mueller’s investigation continues, and Mr. Whitaker had previously attacked the probe. His past statements alone would raise questions about his judgment and the reasoning behind Mr. Trump’s desire for him to lead the Justice Department. Though Deputy Attorney General Rod J. Rosenstein remains in charge of the Mueller investigation, it is unclear whether the acting attorney general has butted in or intends to. Senators have pushed to pass a bill that would protect Mr. Mueller from improper firing, the approval of which would send a message to Mr. Trump and Mr. Whitaker to keep their hands off. But Senate Republicans have blocked it, and Mr. Whitaker might find subtle ways of undermining the probe.
Mr. Whitaker does not belong at the top of the Justice Department, regardless of his stance on Mr. Mueller. His résumé would be thin even for an inferior post at the department. His past involvement with a company the Federal Trade Commission accused of being a scam raises further red flags. He holds crackpot views on judicial power. His primary qualification seems to be that he gets along with Mr. Trump and other White House staff, while Mr. Rosenstein, whom the Senate has vetted and who should be running the department right now, does not. There is a reason the Constitution bars the president from appointing anyone he wants at any time to top executive-branch positions: to prevent the Mr. Whitakers of the world from suddenly controlling one of the most powerful governmental organizations on the planet.
Yet, if the Trump administration’s view of the law holds, Mr. Whitaker could wield the powers of the attorney general’s office for most of the rest of Mr. Trump’s term. Senate Democrats are upset at the lack of vetting, sending a letter to the department on Tuesday noting that ethics officials only just got through certifying Mr. Whitaker’s financial disclosures, and that “the Department has not produced prior versions of Mr. Whitaker’s financial disclosures, any ethics agreements he entered into with the Department, or any other ethics-related counseling he has received.” Senate Republicans, on the other hand, have mostly insisted that the president will appoint a permanent replacement soon.
It has already been a month. Mr. Whitaker should not have been acting attorney general for a day. It is time the Senate demands a reasonable replacement.
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Here’s my post yesterday about the letter by members of “Our Gang” of retired Immigration Judges and other DOJ employees: https://wp.me/p8eeJm-3mr
Like this editorial, I think Whitaker’s qualifications and resume wouldn’t have gotten him into the “Attorney General’s Honors Program” nor would it have gotten him to the “Interview Round” for selection as a U.S. Immigration Judge. It’s worth remembering that among the many other “trivializations of justice at Justice” during his tenure, Sessions made this supremely unqualified and unethical guy his “Chief of Staff.” It’s the “Ethically and Professionally Challenged” advising the “Morally and Legally Challenged.”
It does seem to me that former AG Bill Barr would be capable of bringing ethics and professionalism back to the DOJ. My only questions are 1) why would he want the job; and 2) why would Trump want a “real” Attorney General who knows that he works for “We the People,” not Donald Trump, the Trump family, or their corrupt cronies and who, while staunchly conservative, is not known as a racist, misogynist, or xenophobe? Unlike Sessions, Barr also has a reputation as a capable and experienced manager who can see that justice is dispensed in a fair and unbiased manner, both of which are an anathema to guys like Sessions and Trump.
One thing I remember learning abut Bill Barr “after the fact” was that following the 1992 election (when I was in private practice), he reportedly specifically refused pressure to make some key high level career “midnight appointments” at EOIR, saying that it properly should be left for his successor in the Clinton Administration. That turned out to be Attorney General Janet Reno (who eventually appointed me to the position of BIA Chair, although that was not one of the then-existing vacancies involved).
It was the silence and simplicity of Colin Kaepernick’s protest against police brutality that make the response now so striking. Kaepernick’s decision to quietly take a knee during the anthem, to recognize those who still struggle for equality before the law, has caused him to be all but blacklisted from the NFL, blasted by right-wing commentators for perceived disrespect, and condemned by Republican politicians, including the president of the United States.
For Donald Trump, who ran on a platform of stoking white racial resentment, the attacks were predictable. What’s more striking is that the NFL has decided to oblige. On Wednesday, team owners voted to fine teams whose players do not stand for the anthem. Those who want to kneel can stay in the locker room during pregame ceremonies. If the league can’t persuade Kaepernick and others like him to give up their protests, then it will try to compel them into standing, or at least, hide them away from view and relieve the pressure placed by the president.
This entire spectacle—of a white, racially demagogic president demanding punishment of protesting black players—is part of a history of rebuke and outrage against black athletes who challenged American racism, like Muhammad Ali, John Carlos, and Tommie Smith. It also echoes an even older dynamic in American life: the country’s fraught relationship to black political activity. From his attacks on Barack Obama to his broadsides against Kaepernick, Donald Trump has always been on the side of those who see a threat in black advocacy and power.
Trump built his whole political brand on attacking prominent black Americans as illegitimate holders of status and influence, so Kaepernick was a natural target. To attack him—and other kneeling players—was to play the old hits, priming and harnessing the anger of those who view these vocal blacks as ungrateful and presumptuous—in other words, uppity. “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now, out, he’s fired,’ ” Trump told a sea of white supporters at a campaign-style rally in Alabama last September.
After the NFL announced its new rule, Trump voiced his support and even floated exile for players who don’t conform. “You have to stand proudly for the national anthem or you shouldn’t be playing,” Trump said in an interview with Fox News’s Brian Kilmeade. “You shouldn’t be there. Maybe you shouldn’t be in the country.”
Trump might speak the language of patriotism and respect, but what he wants is obedience. If players won’t bend their knees to his will—if they act as free citizens and not supplicants—then, by his lights, they forfeit their place in this country. The NFL has indulged the attitudes of an authoritarian, leaning further into the jingoism and militarism that it has cultivated for decades.
The president’s attacks are part of an old strategy against advocates of black equality. Explaining the backlash against black political activity in the years after Reconstruction, W.E.B Du Bois described the limits placed on blacks who wanted to survive, much less thrive: “Negroes who wanted work must not dabble in politics. Negroes who wanted to increase their income must not agitate the Negro problem. Positions of influence were only open to those Negroes who were certified as being ‘safe and sane,’ and their careers were closely scrutinized and passed upon.” When a conservative commentator like Laura Ingraham tells NBA player LeBron James to “shut up and dribble” after he criticized the president, she is reaching back to something quite old in the nation’s history.
Perhaps due to the demographics of its fan base—which skews both younger and less white than the NFL’s—the NBA has taken a different approach to both police violence and political expression. In January, Milwaukee Bucks player Sterling Brown was arrested after he was questioned for a potential parking violation. Police quickly dropped charges, and on Wednesday, the Milwaukee Police Department released body camera footage of the arrest, which shows multiple officers wrestling Brown to the ground and using a stun gun on him. Not only has Brown been outspoken about the incident, but the Bucks also released a statement in support of their colleague: “The abuse and intimidation that Sterling experienced at the hands of Milwaukee Police was shameful and inexcusable. Sterling has our full support as he shares his story and takes action to provide accountability.”
In fairness, it was just last year that the NFL had a similar response to an incident involving one of its own players. In September, after Michael Bennett was allegedly profiled and harassed by police in Las Vegas, NFL Commissioner Roger Goodell said Bennett, who often sat during the anthem last season, “represents the best of the NFL” and “that the issues Michael has been raising deserve serious attention from all of our leaders in every community.” Goodell went on to say the league would “support Michael and all NFL players in promoting mutual respect between law enforcement and the communities they loyally serve and fair and equal treatment under the law.” But with the president ratcheting up the pressure throughout the fall, and NFL viewership reportedly on the decline, the league appears to have changed its tune.
There is already backlash to the NFL’s new rule. New York Jets chairman Christopher Johnson told reporters that he would not discipline a player who protests and would pay the league’s fine. The NFL Players Association announced it would challenge any aspect of the policy that it found to be in violation of its collective bargaining agreement. “The vote by NFL club CEOs today contradicts the statements made to our player leadership by Commissioner Roger Goodell and the Chairman of the NFL’s Management Council John Mara about the principles, values and patriotism of our League,” it said in a statement.
This space—what players can and cannot do on the field—is still contested and the resolution is far from clear. What can be said, however, is that the NFL’s move—an attempt to satisfy the president’s demands for conformity—is a dangerous attack on political expression, even if it’s ultimately fair play in the eyes of the law.
There are real threats to free speech in this country. But the culprits aren’t college students or overzealous young activists, they are those who use wealth and power—or control of the state itself—to punish political dissenters and advocates for justice. While this abuse may begin by targeting the most unpopular groups and individuals, it’s rare in history that it stops there.
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Probably not!
But, it would be a chance for athletes to stand up for our Constitution and social justice — to do something that will fundamentally change American society as well as standing up against the Trump/GOP racist, anti-union, anti-American agenda.
Do athletes really have the ability to make a living doing something other than getting their brains disabled for the entertainment of a predominantly White “fake patriot” audience who has no respect for their rights or status as human beings and which falsely equates brainless rituals for meaningful commitment to a Constitutional society? Do “owners” who can’t play the game themselves really have the right to tell “their” players whether they can assert their First Amendment rights to political expression? Does a President who routinely violates Constitutional rights and societal norms have the right to tell private citizens how they must think and express themselves to conform to his perverted political agenda?
What about it AR? Is there life beyond the gridiron (and Danica)?
The Supreme Court’s final oral argument of the term will be one of its most important and potentially far-reaching, an examination of the president’s authority to protect the country by banning some foreigners who seek entry.
But, similar to a debate that has consumed Washington for the past 15 months, a major issue for the court is separating “the president” from “this president.”
The justices on Wednesday will consider President Trump’s third iteration of a travel ban that bars most nationals from a small group of mostly Muslim nations. It is the first time the court has considered the merits of a policy that has consumed the administration since its start, and raises deep questions about the judiciary’s role in national security issues usually left to the political branches.
The first version of the ban was issued just a week after Trump took office, and lower courts have found that it and each reformulated version since exceeded the authority granted by Congress and was motivated by Trump’s prejudice — animus, as courts like to say — toward Muslims.
The state of Hawaii, which is leading the challenge of the ban, told the Supreme Court:
“For over a year, the president campaigned on the pledge, never retracted, that he would ban Muslims from entering the United States.
“And upon taking office, the president issued and reissued, and reissued again, a sweeping and unilateral order that purports to bar over 150 million aliens — the vast majority of them Muslim — from entering the United States.”
Hawaii’s brief, by Washington lawyer Neal K. Katyal, cites not only Trump’s campaign comments, but also his actions as president, including the time he retweeted “three anti-Muslim propaganda videos” from a widely condemned far-right British organization.
This led to a response by the solicitor general of the United States to the justices of the Supreme Court that could have been written only in this era, about this chief executive:
“The president’s retweets do not address the meaning of the proclamation at all.”
Solicitor General Noel J. Francisco urged the court not to get distracted by the president’s bluster — he has said nice things about Muslims, too, the brief states — and to keep its examination on the law.
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Read Barnes’s full article at the link.
Trump has never shown any actual justification for the “bogus ban.” But, the standard of “facially bona fide and legitimate” is very permissive. As usual, from a legal standpoint, Trump would have done better to have kept his big mouth shut!
Sessions v. Dimaya, No. 15–1498, 04-17-18 (5-4 Decision)
Syllabus By Court Staff:
The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the Unit- ed States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U.S.C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.
Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree bur- glary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar re-
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SESSIONS v. DIMAYA Syllabus
sidual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitu- tionally vague.
Held: The judgment is affirmed.
803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to
Parts I, III, IV–B, and V, concluding that §16’s residual clause is un- constitutionally vague. Pp. 6–11, 16–25.
(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residu- al clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judi- cial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncer- tainty, ACCA’s residual clause layered an imprecise “serious poten- tial risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” thresh- old is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. Pp. 6–11.
(b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce imper- missible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16–24.
(1) First, the Government argues that §16(b)’s express require-
Cite as: 584 U. S. ____ (2018) 3
Syllabus
ment (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”— in other words, a court applying §16(b) may not “consider risks aris- ing after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any of- fense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the tem- poral language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.
Second, the Government says that the §16(b) inquiry, which focus- es on the risk of “physical force,” “trains solely” on the conduct typi- cally involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequenc- es. Thus, the force/injury distinction does not clarify a court’s analy- sis of whether a crime qualifies as violent.
Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16– 21.
(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21–24.
JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts II and IV–A:
(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed
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SESSIONS v. DIMAYA Syllabus
because the removal of an alien is a civil matter rather than a crimi- nal case. This Court’s precedent forecloses that argument. In Jor- dan v. De George, 341 U. S. 223, the Court considered what vague- ness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deporta- tion is “a particularly severe penalty,” which may be of greater con- cern to a convicted alien than “any potential jail sentence.” Jae Lee v.United States, 582 U. S. ___, ___. Pp. 4–6.
(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be aban- doned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact- based approach is an untenable interpretation of §16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical ap- proach. This Court’s decisions have consistently understood lan- guage in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.”Taylor v. United States, 495 U. S. 575, 601. And the words “by its na- ture” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinari- ly entails. Finally, given the daunting difficulties of accurately “re- construct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”— and associated inequities—is as great in §16(b) as in ACCA. John- son, 576 U. S., at ___. Pp. 12–15.
JUSTICE GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair- notice standard should apply where (as here) a person faces only civ- il, not criminal, consequences from a statute’s operation is unavail- ing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard
Cite as: 584 U. S. ____ (2018) 5
Syllabus
because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving ei- ther the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1–19.
KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opin- ion with respect to Parts II and IV–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined as to Parts I–C–2, II–A–1, and II–B.
Key Quote From Justice Kagan’s Majority (Pt. V):
Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA’s] residual clause con- spire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk thresh- old, it necessarily “devolv[ed] into guesswork and intui- tion,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA’s residual clause, §16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). We accordingly affirm the judgment of the Court of Appeals.
Key Quote From Justice Gorsuch”s Concurring Opinion:
Vague laws invite arbitrary power. Before the Revolu tion, the crime of treason in English law was so capa ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.
The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya sub ject to removal for having committed a crime, the Immi gration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.
Key Quote From Chief Justice Roberts’s Dissenting Opinion:
The more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender “grave uncertainty about how to estimate the risk posed by a crime.” And the provision’s use of a commonplace sub- stantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.” That should be enough to reject Dimaya’s facial vagueness challenge.4
Because I would rely on those distinctions to uphold
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4 The Court also finds it probative that “a host of issues” respecting §16(b) “divide” the lower courts. Ante, at 22. Yet the Court does little to explain how those alleged conflicts vindicate its particular concern about the provision (namely, the ordinary case inquiry). And as the Government illustrates, many of those divergent results likely can be chalked up to material differences in the state offense statutes at issue. Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 783–785 (CA5 2012) (per curiam) (reasoning that New Mexico car burglary “requires that the criminal lack authorization to enter the vehicle—a require- ment alone which will most often ensure some force [against property] is used”), with Sareang Ye v. INS, 214 F. 3d 1128, 1134 (CA9 2000) (finding it relevant that California car burglary does not require unlaw- ful or unprivileged entry); see Reply Brief 17–20, and nn. 5–6.
14 SESSIONS v. DIMAYA ROBERTS, C. J., dissenting
§16(b), the Court reproaches me for not giving sufficient weight to a “core insight” of Johnson. Ante, at 10, n. 4; seeante, at 15 (opinion of GORSUCH, J.) (arguing that §16(b) runs afoul of Johnson “to the extent [§16(b)] requires an ‘ordinary case’ analysis”). But the fact that the ACCA residual clause required the ordinary case approach was not itself sufficient to doom the law. We instead took pains to clarify that our opinion should not be read to impart such an absolute rule. See Johnson, 576 U. S., at ___ (slip op., at 10). I would adhere to that careful holding and not reflexively extend the decision to a different stat- ute whose reach is, on the whole, far more clear.
The Court does the opposite, and the ramifications of that decision are significant. First, of course, today’s holding invalidates a provision of the Immigration and Nationality Act—part of the definition of “aggravated felony”—on which the Government relies to “ensure that dangerous criminal aliens are removed from the United States.” Brief for United States 54. Contrary to the Court’s back-of-the-envelope assessment, see ante, at 23, n.12, the Government explains that the definition is “critical” for “numerous” immigration provisions. Brief for United States 12.
In addition, §16 serves as the universal definition of “crime of violence” for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. See 18 U. S. C. §§25(a)(1), 842(p)(2), 1952(a), 1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). Of special concern, §16 is replicated in the definition of “crime of violence” applicable to §924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence,” or possessing a firearm “in furtherance of any such crime.” §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court’s holding calls into question convictions under what the Government warns us is an “oft-prosecuted offense.” Brief for United States 12.
Because Johnson does not compel today’s result, I respectfully dissent.
Key Quote From Justice Thomas’s Dissent:
I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b), as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ (2015). ACCA’s residual clause—a provision that this Court had applied four times before Johnson—was not unconstitu tionally vague either. See id., at ___ (THOMAS, J., concur ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J., dissenting) (slip op., at 13–17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the “‘sum’” of its specific features. Id., at ___ (majority opinion) (slip op., at 10). By ignoring this limitation, the Court jettisonsJohnson’s assurance that its holding would not jeopardize “dozens of federal and state criminal laws.” Id., at ___ (slip op., at 12).
While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that §16(b) is unconstitutionally vague be cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.
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Gee whiz, those Trumpsters and GOP Senators who were overflowing with their praise of Justice Gorsuch’s brilliance during his confirmation hearings must be beside themselves now that he joined the “Gang of Four” in striking down a statute in an immigration enforcement case!
I predicted early on that Gorsuch might surprise those on both sides who expected him to be a “complete Trump toady.” Indeed, the case that drove today’s decision in Dimaya, Johnson v. United States, was written by none other than Justice Scalia, one of Justice Gorsuch’s “juridical role models.” At bottom, Dimaya is all about strict adherence to the Constitution and separation of powers, two things that Gorsuch as extolled in past decisions.
No, I don’t think that Justice Gorsuch is likely to team up with Justices Kagan, Ginsburg, Breyer, and Sotomayor on most future immigration cases. But, I am encouraged that he seems to be going where his legal principles, whether one agrees with them or not, take him, rather than just voting to support the Administration’s hard-line immigration agenda as many had predicted and some had hoped or assumed would happen.
There are other important immigration cases before the Supremes where adherence to the literal language of a statute and skepticism about giving the Executive unbridled power under separation of powers could aid the respondent’s position. So, while this might not be a “normal” majority configuration, it could well be repeated in some future immigration case. Let’s hope so!
Interestingly, I had this issue come up in one of the last cases I wrote before retiring from the Arlington Immigraton Court. I noted that the respondent made a strong argument for unconstitutionality under Johnson v, United States. However, as an Immigration Judge, I had no authority to hold a statute unconstitutional (although, ironically, under today’s convoluted system, the respondent was required to make his constitutional argument before me to “preserve” it for review by the Court of Appeals). So, I merely “noted” the constitutional issue for those higher up the “judicial food chain” and decided the issue on the basis that burglary as defined under the state law in question was not categorically a “crime of violence” under the so-called “categorical approach.”
Two other points worth mentioning:
In this particular case, the Supremes upheld the ruling of the much maligned (particularly by Trump & Sessions) 9th Circuit Court of Appeals, having jurisdiction over California ;
This type of issue is frequently recurring in Immigration Court where many, perhaps the majority, of respondents are unrepresented. How would an unrepresented individual who does not even speak English make the type of sophisticated legal arguments that a) got this case to the Supremes in the first place, and b) persuaded the majority of the Court? Of course, they couldn’t. That’s why much of what is going on in today’s U.S. Immigration Courts is a farce — a clear violation of constitutional Due Process that the Federal Courts have been doing their best to ignore or gloss over for many decades.
As more light is shed on the much misunderstood U.S. Immigration Court system, both Congress and the Article III Courts must come to grips with the procedural, ethical, and fairness inadequacies built into today’s “captive” Immigration Courts and the utter lack of any concern about protecting the legal rights of migrants shown by Jeff Sessions and the rest of the Trump Administration. Shockingly, they have actually pledged to stomp on migrants already unfulfilled rights to fair hearings in the name of a “false efficiency.”
Join the “New Due Process Army” and help stop the continuing abuses of human rights, statutory rights, and constitutional rights of migrants by Sessions and the rest of the “Trump Scofflaws!”
BEFORE 5TH CIRCUIT EN BANC: STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.
MAJORITY OPINION: EDITH H. JONES, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, DAVIS, SMITH, DENNIS,** CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES,*** HIGGINSON, and COSTA, Circuit Judges.
** Judge Dennis concurs in the judgment.
*** Judge Haynes concurs in the judgment and with the majority opinion’s conclusion that Bivens should not extend to the circumstances of this case.
DISSENTING OPINION: EDWARD C. PRADO, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting.
EXCEPTS FROM JUDGE PRADO’S DISSENT:
“Today’s en banc majority denies Sergio Hernandez’s parents a Bivens remedy for the loss of their son at the hands of a United States Border Patrol agent. The majority asserts that the transnational nature of this case presents a new context under Bivens and that special factors counsel against this Court’s interference. While I agree that this case presents a new context, I would find that no special factors counsel hesitation in recognizing a Bivens remedy because this case centers on an individual federal officer acting in his law enforcement capacity. I respectfully dissent.
. . . .
In sum, this Court is more than qualified to consider and weigh the costs and benefits of allowing a damages action to proceed. This case simply involves a federal official engaged in his law enforcement duties acting on United States soil who shot and killed an unarmed fifteen-year-old boy standing a few feet away. I would elect to recognize a damages remedy for this tragic injury. As Chief Justice John Marshall wrote, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 (1803). In this case, I would recognize a Bivens remedy for this senseless cross-border shooting at the hands of a federal law enforcement officer. Therefore, I respectfully dissent.”
Judge Edward C. Prado is nor just “any” U.S. Circuit Judge. Among other things in his long and distinguished career, Judge Prado was the U.S. Attorney for the Western District of Texas during the Reagan Administration. I dealt with him on some immigration issues during my as the Deputy General Counsel in the “Legacy INS” during that time. He is a gentleman and a scholar.
Perhaps appropriately, this is likely to be Judge Prado’s last major published opinion. On March 22, 2018, he was confirmed by the Senate as the U.S. Ambassador to Argentina. Congratulations Ambassador Prado; thanks for leaving us this great dissent as a reminder of how the law should be interpreted and applied!
