"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Immigration judges and employees at the Executive Office of Immigration Review said the agency’s informal policy to keep offices and courts open puts deportations over workers’ safety.
APRIL 20, 2020 05:31 PM ET
For weeks, employees at the Executive Office of Immigration Review’s immigration courts and offices have noticed a trend: whenever someone exhibits coronavirus symptoms, the agency quietly shuts the facility down for a day or two, cleans the office, and then reopens.
The frequency of these incidents, combined with the apparent refusal by management to take more proactive steps, like temporarily closing immigration courts altogether or instituting telework for EOIR support staff, have employees and judges fearing that the Trump administration is more concerned with keeping up the volume of immigration case decisions than the health of its own workforce.
Since Government Executive first reported on an instance of an employee with COVID-19 symptoms at a Falls Church, Virginia, EOIR office last week, there have been three additional incidents at that facility, including one where the person eventually tested positive for coronavirus. An office in the Dallas-Fort Worth area also was closed for two days in March after someone exhibited symptoms of the virus.
Additionally, the agency has announced on its official Twitter account more than 30 immigration court closures, most only for one or two days, across the country. Although in most instances officials do not explain the closures, National Association of Immigration Judges President Ashley Tabaddor said that if there is no reason listed, “you can be sure” it is a result of coronavirus exposure.
“Everything is reactive,” Tabbador said. “They put everyone at risk, and then when there’s an incident reported, they shut down the court for a day and then force people to come back to work. At Otay Mesa [in San Diego] there’s a huge outbreak, but they still haven’t shared that information . . . Sometimes we get the info and sometimes we don’t, so we don’t know how accurate or complete it is. There’s no faith that everyone who needs to be notified has been notified.”
Nancy Sykes, president of the American Federation of Government Employees Local 2525, which represents staff at EOIR’s office in Falls Church said the amount of information provided to employees about coronavirus-related incidents has actually decreased in recent weeks. Although after the first incident, EOIR Director James McHenry emailed staff and provided information about when the employee was symptomatic and in the office, subsequent notifications were sent out by Acting Board of Immigration Appeals Chairman Garry Malphrus and omitted key information about when symptomatic individuals were in the building.
“Employees are scared, they’re concerned,” Sykes said. “They don’t really trust what’s coming from management just because of the lack of details being shared. There’s a lag in information: by the time something is revealed, so much time has passed, so nobody’s clear how that process works and why it takes so long to get notice out to employees.”
In a statement, EOIR spokeswoman Kathryn Mattingly said that the agency “takes the safety, health and well-being of employees very seriously,” but that the workforce is critical to ensuring the due process of detained suspected undocumented immigrants.
“Accordingly, EOIR’s current operational status is largely in line with that of most courts across the country, which have continued to receive and process filings and to hold critical hearings, while deferring others as appropriate,” Mattingly wrote. “Recognizing that cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process, few courts have closed completely.”
A Series of Half Measures
Agency management has taken some steps to mitigate employees’ exposure to COVID-19. On March 30, the agency postponed all hearings related to individuals who are not being detained while they await adjudication. The agency is also encouraging the use of teleconferencing, video-teleconferencing and the filing of documents by mail or electronically, and some attorneys, paralegals and judges have been able to make use of telework to reduce the amount of time they spend in the office.
But thus far, the agency has refused to postpone hearings for detained individuals, a matter that is now the subject of a federal lawsuit brought by immigration advocates and attorney groups. And the agency has denied telework opportunities to support staff in EOIR offices and immigration courts across the country.
Sykes said the lack of telework is in part a capacity issue—the agency does not have the amount of laptops on hand to distribute to employees. But she suggested that local management may be prohibited from encouraging workplace flexibilities by agency or department leadership.
“We’ve asked management about doing something where you could have employees come in shifts every other day, or over a week’s time in rotation to pick up and drop off work materials, so that there’s less exposure when coming into the office,” she said. “But they said they have not been authorized to make those types of changes to our business. When my board management says they don’t have the authority, that means it’s over their heads.”
Tabaddor said she has heard similar stories that everything judges and supervisors authorize regarding coronavirus response must be “cleared” by someone up the chain of command.
“Supervisory judges, our first line of supervisory contact, they were told that they cannot put anything in writing about the pandemic or COVID,” she said. “Anything they want to do related to that has to be cleared by HQ and, essentially, the White House. So, to date, they haven’t been told what standards and protocols are to be used. The only thing they’ve been told is if there’s a report of any incident, they are to kick it up to HQ and wait for instructions.”
On Monday, McHenry sent an email to EOIR employees announcing that the agency has ordered face masks for employees to wear when they report to the office, and said they would be available “next week.”
“Once delivered, supervisors will provide their staff with information regarding distribution to employees who are not telework eligible and are working in the office,” McHenry wrote. “Even while using face coverings, however, please continue to be vigilant in maintaining social distancing measures to the maximum extent practicable and in following CDC guidance.”
Production Over People
Agency employees said what they have seen over the last month suggests that the agency is prioritizing working on its more than 1 million case backlog, and enabling the Homeland Security Department to continue to apprehend suspected undocumented immigrants, at the expense of the wellbeing of its workforce.
“Everything is designed under the rubric that the show must go on,” Tabbador said. “While we’ve been focused on public health first . . . the department says, ‘Nope, we need to make sure that the machinery continues. To the extent that we can acknowledge social distancing as long as business continues, we can do it. But between business and health considerations, business as usual supersedes health.”
Sykes said the agency’s resistance to making basic changes to protect its employees is troubling.
“To me, the only other explanation is the immense backlog that we have of immigration appellate cases building up, and the need to continue working on that backlog even in light of the current pandemic,” she said. “It’s very unnerving, because I believe this will continue, and I don’t have any other indication that we’re not going to just continue operations as is. We now finally have a confirmed case [in the building] and there’s still no change.”
In an affidavit filed in response to the lawsuit seeking to postpone immigration court hearings for detained individuals, McHenry said he has given individual immigration courts leeway to respond as needed to the COVID-19 outbreak in their communities.
“Because COVID-19 has not affected all communities nationwide in the same manner and because EOIR’s dockets vary considerably from court to court, the challenges presented by COVID-19 are not the same for every immigration court,” McHenry wrote. “In recognition of these variances and of the fact that local immigration judges and court staff are often in the best position to address challenges tailored to the specifics of their court’s practices, EOIR has not adopted a ‘one size fits all’ policy for every immigration court, though it has issued generally-applicable guidance regarding access to EOIR space, the promotion of practices that reduce the need for hearings, and the maximization of the use of telephonic and means through which to hold hearings.”
But he also suggested it could hamper the work of Immigration and Customs Enforcement and the ability of the Border Patrol to keep arresting suspected undocumented immigrants.
“The blanket postponement of all detained cases in removal proceedings, including initial master calendar hearings for aliens recently detained by DHS, would make it extremely difficult for DHS to arrest and detain aliens prospectively, even aliens with significant criminal histories or national security concerns, because of the uncertainty of how long an alien would have to remain in custody before being able to obtain a hearing in front of an [immigration judge] that may lead to the alien’s release,” he wrote.
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Thanks, Laura, for “packaging” this so neatly for further distribution! And many thanks to Erich Wagner over at Government Executive for “keeping on” this story he originally reported and that I also posted @ Courtside. https://wp.me/p8eeJm-5mO
Nice to know that someone is looking out for the public interest here, even if EOIR isn’t.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Wow, these self-serving “GrimGrams” ☠️⚰️ from McHenry must be very comforting to the EOIR employees 😰🧫 whose health 🤮 and safety ☠️ is on the line, not to mention the possibility that they will eventually infect their own families.😰
Deportations over safety, sanity and public health at EOIR. It’s just “business as usual” in the Clown Courts! 🤡
April 21, 2020. Migrants didn’t bring coronavirus to the U.S. Inevitable as its arrival was, U.S. travelers returning from abroad hastened the infection. The Trump regime ignored advanced warnings, wasted time, failed to prepare, and intentionally misled the public into believing that the problem was minor and under control. As we know, it was neither. No wonderthe “Chief Clown” needs to shift attention to “the usual suspects.”
Rather than being a threat, courageous, talented, hard-working migrants of all types have been at the forefront of our battle against coronavirus. They put their own lives at risk to provide health care, medical research, food, sanitation, delivery, stocking, transportation, cleaning, technology, and other essential services. Their reward from Trump, Miller, and the other regime racists: to be scapegoated and further dehumanized by those whose “malicious incompetence” actually threatens the health and safety of all Americans.
Nobody knows what the U.S. economy will look like post-COVID-19. But, we can be sure that migrants will play a key role in our future. And, of course, permanent legal immigrants are carefully screened and required to undergo health examination before being admitted.
Meanwhile, Democrats complain, but show show no sign of actually using their leverage to halt the regime’s invidious assault on migrants. They weren’t even to get all taxpaying immigrant families included in the initial stimulus payments nor have they been able to require immigration authorities to comply with best health practices for detained migrants. Nor does it look like the needs of migrants will be addressed by the latest proposed legislation, although exact details are still pending. So, their bluster is just that —bluster.
Undoubtedly, the brave lawyers of the New Due Process Army will mount legal challenges to this latest assault on the rule of law. While some challenges might succeed in the lower Federal Courts, to date the “J.R. Five” on the Supremes have shown no inclination to look critically at any of the regime’s many misuses and abuses of so-called “emergency” and “national security” rationales, even when they are transparently bogus “pretexts” for xenophobia, religious bigotry, and racism.
Perhaps it’s largely a moot point right now. Market forces affect immigration. With worldwide travel restrictions, borders closed, and 22 million out of work in the U.S., the allure of migration to the U.S. should be sharply reduced.
The Trump regime’s open hostility to immigrants plus our chaotic response to COVID-19, perhaps the world’s worst overall at this point, might make the U.S. a less attractive place for future immigration, particularly for legal migrants who have other choices. Demand for migration is normally a sign of economic and social health. As America fades into disorder under the kakistocracy, so might our ability to attract migrants, particularly those we claim to prize.
According to James Hohmann at the Washington Post, senior officials at the DHS were surprised by Trump’s late night tweet announcing the impending action. As Hohmann noted, that’s an indication of the deep thought, analysis, and preparation that went into this action. Trump has normalized incompetence and dumb decisions made based on a racist political agenda to the point where they barley cause a ripple in our distorted national discussion anymore. I’d say it was like being “goverened” by a five-year-old, but that would be a supreme insult to most five-year-olds I know.
While the “Chief Clown” can’t move fast enough to reopen the economy, even in the face of solid evidence that the it’s premature in most areas, don’t expect the bogus “immigration emergency” to end as long as this regime is in power. Crisis becomes yet another opportunity for the “worst of the worst among us” — the kakistocracy — to act on their biases and prejudices and get away with it.
WASHINGTON — Congressional Democrats slammed President Donald Trump after he announced that he plans to suspend immigration to the United States, arguing that such a move does nothing to protect Americans from the coronavirus and deflects attention away from his handling of the outbreak.
House Democratic Caucus Chairman Hakeem Jeffries, D-N.Y., tweeted that Trump is the “xenophobe. In. chief.”
“This action is not only an attempt to divert attention away from Trump’s failure to stop the spread of the coronavirus and save lives, but an authoritarian-like move to take advantage of a crisis and advance his anti-immigrant agenda. We must come together to reject his division,” tweeted Rep. Joaquin Castro, D-Texas, chairman of the Congressional Hispanic Caucus.
Shortly after 10 p.m. ET on Monday, Trump announced in a tweet, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”
There were no additional details. A senior administration official said Trump could sign the executive order as early as this week.
Sen. Tim Kaine, D-Va., Democrats’ 2016 vice presidential nominee, called it a “pathetic attempt to shift blame from his Visible Incompetence to an Invisible Enemy.”
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Read Rebecca’s full article at the link.
Due Process Forever. The White Nationalist Kakistocracy Never!
On Thursday night, perhaps having been zapped with some sort of taser that sent a momentary current of sense through his body, Donald Trump announced that despite previously, falsely claiming he had “total” authority to force states to reopen far sooner than experts say is safe, the decision would be left to the individual governors. “If they need to remain closed,” he said, “we will allow them to do that.” Then he went to bed and woke up the exact same lunatic we’ve come to know and fear over the last three-plus years, and decided to spend a portion of his day whipping anti-social distancing protesters into a frenzy, contradicting everything he had said less than 24 hours prior.
The three states Trump all-caps called out have the distinction of being run by Democratic governors who’ve had the temerity to insist that logic and science will dictate when and how they will get people back to everyday life, a plan that has been met by mobs of angryprotesters who’d prefer to congregate in large groups ASAP, wildly contagious coronavirus be damned. While some of them, like Virginia’s Ralph Northam, dismissed Trump’s tweets as the ravings of an online troll, saying at a press conference that he’s “fighting a biological war” and “[does] not have time” to involve himself in “Twitter wars,” others were less inclined to let them slide.
The president’s statements this morning encourage illegal and dangerous acts,” Washington governor Jay Inslee wrote on Twitter. “He is putting millions of people in danger of contracting COVID-19. His unhinged rantings and calls for people to ‘liberate’ states could also lead to violence. We’ve seen it before.” He continued: “The president is fomenting domestic rebellion and spreading lies—even while his own administration says the virus is real, it is deadly and we have a long way to go before restrictions can be lifted…. The president’s actions threaten his own goal of recovery. His words will likely cause a spike in infections where distancing is working. That will further postpose the 14 days of decline his own guidance says is necessary to ease restrictions…. I hope someday we can look at today’s meltdown as something to be pitied, rather than condemned. But we don’t have that luxury today. There is too much at stake.”
Meanwhile, in a Friday call with Mike Pence, Senate Democrats questioned the vice president re: what the hell Trump is doing and if they can expect someone in the administration to sit him down and tell him to cut the shit. To which the answer was obviously no:
Senator Tim Kaine (D-Va.) pressed Pence on Trump’s Twitter feed at the end of the call, asking why the president was trying to incite division by tweeting “LIBERATE” Virginia, Minnesota and Michigan and aligning himself with protests in those states over their lockdowns. Pence said the administration is working with governors but that the president will continue to communicate with the American people as he always has.
So that’s something to look forward to.
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Trump sends an additional half a billion dollars to states to fight COVID-19
No, just kidding. That money’s actually going to his completely useless wall, per the Daily Beast:
In the middle of a pandemic that has killed 27,000 Americans and counting, the Army this week gave a politically connected Montana firm half a billion dollars—not to manufacture ventilators or protective gear to fight the novel coronavirus, but to build 17 miles of President Trump’s southern border wall. On Tuesday, the Army Corps of Engineers announced it awarded BFBC, an affiliate of Barnard Construction, $569 million in contract modifications for building “17.17 miles” of the wall in two California locations, El Centro and San Diego. That works out to over $33 million per mile—steeply above the $20 million-per-mile average that the Trump administration is already doling out for the wall. Construction is supposed to be completed by the end of June 2021.
On the bright side, it’s not like the money is effectively being lit on fire except, oh wait, that’s exactly what it’s like:
Smugglers sawed into new sections of President Trump’s border wall 18 times in the San Diego area during a single one-month span late last year, according to U.S. Customs and Border Protection records obtained by the Washington Post via a Freedom of Information Act request…. The records do not indicate whether the one-month span last year is a representative sample of how frequently people are trying to breach new sections of Trump’s border barrier, which are made of tall steel bollards partially filled with concrete and rebar. The Post reported last November that smuggling crews armed with common battery-operated power tools—including reciprocating saws that retail for as little as $100 at home improvement stores—can cut through the bollards using inexpensive blades designed for slicing through metal and stone.
On Wednesday, a group of 66 representatives and 25 senators sent a letter to the administration calling for the halting of construction on the wall until the coronavirus crisis is tackled. “We should be using all resources and funding to combat this virus and protect Americans, instead of using critical funding and resources to continue the construction of a border wall,” the lawmakers wrote. “The construction of a wall puts workers, law enforcement personnel, and border residents in immediate danger.” Said letter will presumably be used as toilet paper in the West Wing washroom, but it was a valiant effort nevertheless.
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You can read the rest of the “Levin Report” at the above link.
James Downie Digital Opinions Editor Washington Post
Meanwhile, over at the WashPost, James Downie weighs in on our spineless Veep:
When Donald Trump chose Mike Pence as his running mate in 2016, the obvious political benefit was that Pence, a former governor and House member who is famously Christian, could boost evangelical and conservative turnout to help Republicans up and down the ballot. But for the egomaniacal Trump, Pence had another key qualification: “He says nice things about me.”
Since being named to the ticket, Pence has repeatedly put his obsequiousness on display: Few on Team Trump are better at deploying up-is-down reasoning to spin news to Trump’s benefit. But during the vice president’s appearances on NBC’s and Fox News’s Sunday morning talk shows, it was clear that even Pence could not bootlick his way out of the lurch the president’s actions leave the rest of us in.
On Friday, Trump spoke out in support of protests against stay-at-home orders imposed by Democratic governors in Minnesota, Michigan and Virginia. It’s disturbing enough that the president would undermine the fight against the pandemic. Worse was his provocative call on Twitter to “LIBERATE” those states — and, in Virginia’s case, “save your great 2nd Amendment” — which caught the attention of far-right extremists. Washington Gov. Jay Inslee (D) rightly observed Friday, “The president is fomenting domestic rebellion and spreading lies — even while his own administration says the virus is real.”
Protests with honking horns, anti-shutdown signs and angry Americans continued in Maryland, Texas and Wisconsin on April 18. (The Washington Post)
[Full coverage of the coronavirus pandemic]
Naturally, hosts on both NBC and Fox asked the vice president to explain the president’s comments. After all, as Fox host Chris Wallace pointed out, “they’re protesting your own guidelines to stop the spread.” On Fox, Pence focused on bragging about the White House coronavirus task force. When pressed, he assured viewers that “no one in America wants to reopen this country more than President Donald Trump” — a line he repeated on NBC. In both interviews, he then turned to touting guidelines that Trump issued Thursday for reopening states. Pence omitted that the guidance leaves key decisions up to governors, who Trump has said should call the shots on reopening. Both are in keeping with this president’s refusal to take responsibility for the pandemic crisis or a national response.
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The simple truth is that Pence dodged because the president’s actions were indefensible. But Pence can’t say that, both because the protests are being cheered by Fox News and like-minded outlets and because Pence wants to stay in the good graces of a president who values loyalty to him above all else. So long as conservative media and egomania mean more to the president than Americans’ lives, the rest of the country suffers.
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Read the rest of Downie’s op-ed at the link.
Actually, Pence is the only person in the Trump regime that the Clown-in-Chief can’t arbitrarily remove from office for speaking truth. Sure, Trump can toss him off the ticket for November. But, there are other factors here:
In the best case scenario, it won’t make any difference because Biden will win;
Trump might still remove Pence from the ticket on a whim, no matter how much he sucks up;
At some point is being a coward/toady/apologist for the most corrupt President in U.S. history really worth sacrificing the health and welfare of our nation as well as your human dignity?
I guess for someone like Pence, toadyism has no limits. But, America needs and deserves better from its #2.
This November, vote like your life depends on it. Because it does! Throw the Clowns out!🤡
From celebrities and chefs to local food banks and grassroots organizations, people everywhere have been pitching in to help mitigate the effects of the coronavirus pandemic on our communities. Here’s how Global Cafe in Memphis is helping healthcare workers in a city that’s both food-insecure and extremely charitable.
Memphis has been a long-time hub for the civil rights movement and more recently, food activism. Global Cafe is no exception.
Located in Crosstown Concourse—a former Sears distribution building that has been transformed into a 1,200,000 square foot mixed use space—the international food hall hosts three immigrant/refugee food entrepreneurs cooking and selling an eclectic mix of affordably priced, authentic dishes from their home countries, which currently includes a delicious mix of Syrian, Sudanese and Venezuelan cuisine. Think: delectable arepas, amazingly tender shawarma, and freshly made baba ganoush.
So far, they’ve cooked and delivered hundreds of meals to the night ER shift at LeBohneur Germantown, the physicians at LeBonheur, the respiratory ICU unit at Baptist East, as well as First Congo Food Justice Ministry in Midtown and the staff of Church Health.
Giving back to the community is part of Global Cafe’s life blood, explains owner and CEO, Sabine Langer.
“Post-election, the climate was very negative towards immigrants and refugees. As an immigrant, I wanted to find a way to make a difference in the lives of immigrants and refugees. I wasn’t sure exactly how but after lots of research, it became apparent that I could help some of the women I had met that were cooking on the side trying to make an additional income to support their families,” she says.
By empowering immigrant and refugee entrepreneurs to set up food businesses with zero start-up cost, Langer says that the food hall has been a wonderful catalyst for many of the team members.
“One of our chefs was able to pay off her house, another one was able to purchase a house, and our trusted dishwasher recently bought a car. It’s fantastic to see this and it warms my heart to know that we are true to our mission and really making a difference in everyone’s lives,” she says.
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Read the rest of Simone’s article, along with some great food pictures, at the link.
Immigrants have long been a powerful force in our culinary arts and food supply. That has become even more obvious during this crisis.
When the pandemic finally gets under control, will we recognize these essential contributions by improving wages, working conditions, and providing a social safety net for these essential workers? Or, will we go back to undervaluing and disrespecting their contributions? Will we emerge as a more equitable, just, and caring society? Or, as happened after the last recession, will we allow the privileged and powerful to increase their authority and line their pockets at the expense of the vast majority of Americans? The lack of an adequate “safety net” has become obvious; but will we finally do what’s necessary to promote the common good rather than living from “crisis to crisis?”
Already, far-right White Nationalist pols like Jeff “Gonzo Apocalypto” Sessions are cynically using the pandemic as an excuse for pushing “immigration moratoriums” and other nativist schemes. Don’t let them get away with it! Immigrants aren’t “taking our jobs;” they’re “saving our lives,” often at the risk of their own!
DETAINED MIGRANTS WIN IN FEDERAL COURT: JUDGE GREENLIGHTS NATIONWIDE CLASS ACTION LAWSUIT
April 16, 2020
To make Press Center inquiries, email press@splcenter.org or call us at 334-956-8228.
Tens of thousands of immigrants denied medical care and disability accommodations by the federal government will have their day in court
RIVERSIDE, Calif. – A federal judge ruled today that a nationwide class action lawsuit against Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) can proceed, greenlighting a challenge to ICE’s system-wide failure to provide standard medical and mental health care and disability accommodations for people in its custody.
U.S. District Court Judge Jesus Bernal issued the ruling in the lawsuit filed by the Southern Poverty Law Center (SPLC), Disability Rights Advocates (DRA), Civil Rights Education and Enforcement Center (CREEC), Orrick, Herrington & Sutcliffe LLP and Willkie Farr & Gallagher LLP. The plaintiffs seek zero monetary damages and instead only an end to the inhumane and traumatic experience of ICE detention affecting tens of thousands across the country.
Judge Bernal denied the government’s motion to divide the nationwide lawsuit into 15 individual cases in eight district courts. He also denied ICE’s motion to strike the 200-page complaint, which was filed in the U.S District Court for the Central District of California in August 2019.
The ruling comes amid the spread of Covid-19 in detention centers, a dangerous scenario that doctors and public health experts across the country have warned will only be made worse by ICE’s lack of pre-existing medical care and substandard detention center conditions. On March 25, the groups filed an emergency preliminary injunction motion in the case requiring ICE to immediately fix numerous deficiencies in its Covid-19 response, such as inadequate staffing, resources and oversight. The motion further seeks the immediate release of medically vulnerable people if ICE cannot or will not take immediate steps to protect those who are in its custody. Judge Bernal has yet to rule on that injunction.
“Today, the court rejected ICE’s false narrative that our plaintiffs’ stories represent just a few individual problems,” said Lisa Graybill, SPLC deputy legal director. “The court saw through ICE’s deliberate mischaracterization of our case. This is the first step in holding ICE to account for its appalling treatment of the tens of thousands of immigrants needlessly incarcerated and languishing in its prisons around the country.”
According to the lawsuit, ICE has failed to provide detained migrants in over 150 facilities nationwide with safe and humane conditions, as required by agency standards, federal law and the U.S. Constitution. Numerous reports, including accounts by internal government investigators, detail the lack of sufficient medical and mental health care treatment, ultimately resulting in untreated medical needs, prolonged suffering and preventable death. ICE’s punitive use of segregation violates the Fifth Amendment of the U.S. Constitution. The agency’s failure to ensure that detained immigrants with disabilities are provided accommodations and do not face discrimination violates Section 504 of the Rehabilitation Act of 1973.
“Mentally, they are killing us,” said plaintiff Ruben Mencias Soto. “What I am living and what I am seeing is not only my situation. This is unjust as a system. [The government] is falling to the lowest level with ICE.”
Mencias Soto, who has been detained at Adelanto ICE Processing Center in California for over a year, has dislocated and herniated discs in his back. He has had his wheelchair and crutches taken away by detention staff, leaving him without a device to help him walk and causing immense pain.
“Across the country, ICE continually fails to provide basic medical care and necessary disability accommodations to people in immigration detention – putting thousands of people in life-threatening danger every day. From holding people with disabilities in solitary confinement solely because of their medical needs to denying patients in detention doctor-ordered emergency medical care, ICE has demonstrated incompetence and cruelty toward people with disabilities. Disability Rights Advocates is committed to fighting for the civil rights of those in custody until ICE complies with U.S. law,” said Stuart Seaborn, Managing Director of Litigation, Disability Rights Advocates.
“ICE’s failure to ensure that private prison companies like the GEO Group adequately take care of people in their custody has been an open secret for a long time,” said Timothy Fox, co-executive director of the Civil Rights Education and Enforcement Center. “We are pleased that the court will allow us to move forward and hopefully end the impunity with which this agency and its private operators have been acting for too long.”
Plaintiff Jose Baca Hernandez underscored that the goal of the case is to “improve health for me and the rest of the people here [in detention]. This is not only for me. It’s so everyone here can be healthy.” During his time in custody, ICE failed to provide Baca Hernandez–a blind man–with effective communication. He has been forced to rely on his cellmates, attorneys, and guards to read documents, including those related to his medical care and immigration case.
Plaintiff Luis Rodriguez Delgadillo, who has schizophrenia and bipolar disorder, had reached a considerable measure of mental health stability before his detention. In detention, however, his shifting medication regime, lack of therapy and the failure of mental health staff to mitigate stressors have caused his mental health to noticeably decline.
This case is about fighting to ensure “we all can get better treatment,” Rodriguez Delgadillo said. “Some people don’t have the means or are scared to speak, so we fight for everyone else.”
The parties will work with the court to set the schedule for the litigation of the case.
See plaintiffs’ opposition to defendants’ motion to sever and dismiss, transfer actions, and strike portions of the complaint here.
See the complaint here and all other filings in the case here.
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What if we had a Government that “did the right thing” without being sued?
Jacqueline Thomsen Courts Reporter National Law Journal
DOJ Said Judges Can’t Stop Immigration Hearings Over COVID-19. Cleary Gottlieb Called That a ‘Death Trap.’
Immigration lawyers and detained immigrants want U.S. District Judge Carl Nichols to temporarily stop all in-person immigration proceedings during the COVID-19 pandemic.
Justice Department attorneys told a federal judge in Washington, D.C., on Wednesday that he lacks the authority to temporarily halt in-person court proceedings for detained immigrants during the COVID-19 pandemic.
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Those will full access can go over to the NLJ for Jacqueline’s complete article.
With DOJ lawyers arguing that folks have to “exhaust their administrative remedies” (basically by risking death or serious illness) you get the general tenor of the argument before U.S. District Judge Carl Nichols in D.C.
I’d be tempted to say that during the pandemic ethical rules have been suspended for DOJ attorneys. But, in my view, that was true even before the pandemic.
And, in their defense, some of their misleading narratives and insane arguments actually WIN in Federal Court, as some Federal Judges are used to deferring to the DOJ and giving their lawyers a pass on both ethical rules and acceptable arguments that generally wouldn’t be extended to private attorneys acting in the same irresponsible manner.
What would be an acceptable response in a better functioning, ethics-biased DOJ: for the lawyers to go back to their “agency clients,” tell them that they won’t defend the indefensible, and advise them to start working immediately with the plaintiffs to develop methods for hearing only the most pressing cases under appropriate health safeguards.
Interestingly, the positions argued by DOJ lawyers are actually putting the lives of their colleagues at EOIR and their fellow Government attorneys at ICE at risk! Perhaps if they “win,” they should be given a chance to risk their lives to represent ICE in Immigration Court! Wonder how their nifty little “exhaustion arguments” would help them ward off the virus.
With 1.4 million cases already in the backlog, it’s not like any one removal more or less during the pandemic is going to make much of a difference. Unlike, perhaps, some other courts built with sufficient space and electronic support, the poorly designed “brandbox” Immigration Courts with marginal, at best, technology, are unhealthy in the best of times. Certainly, it’s difficult to imagine that there are very many cases other than perhaps bonds or stipulated “grant and release” cases that need to go forward right now.
How many lawyers (on both sides) and Immigration Judges are going to have to die before the Article IIIs finally take notice and put the brakes on the nonsense going on at EOIR?☠️⚰️☠️⚰️☠️⚰️
President Trump is spinning his new decision to suspend funding to the World Health Organization as an act of decisive leadership — one that showcases his devotion to effective crisis management, to gathering good empirical information, and to holding people accountable for leadership failures that had catastrophic human consequences.
In just about every conceivable way, this is the opposite of the truth.
In making this new move, Trump is inviting us to review the basic timeline of events. And it demonstrates that the WHO, for all its initial failures, was still far ahead of Trump in embracing the need for a comprehensive response to coronavirus.
The timeline also once again illustrates Trump’s epic failures in that regard, and reveals the degree to which Trump is now relying on transparently ridiculous scapegoating to erase his own central role in this catastrophe.
[Full coverage of the coronavirus pandemic]
In announcing an end to funding for the WHO, Trump claimed the organization was complicit in China’s early coverup of the outbreak’s severity there. He insisted the WHO “pushed China’s misinformation,” and ripped WHO for “severely mismanaging and covering up the spread.”
Trump also claimed that if not for WHO, “the outbreak could have been contained at its source with very little death.” He lamented that the U.S. can’t rely on WHO for “accurate, timely and independent information to make important public health recommendations and decisions.”
For Trump to position himself in this manner as a spokesperson for crisis management, empiricism and accountability would be positively comical, if the stakes weren’t so monumentally dangerous.
The WHO’s initial mistakes were real, and many critics beyond Trump have pointed to them. The organization was too trusting of China’s early obfuscations about coronavirus, and failed to aggressively push China to be more transparent. The WHO also arguably was too slow to declare a global public health emergency.
But cutting off funding as a punishment is counterproductive and deeply absurd. Indeed, even if you accept that the WHO committed serious errors, the timeline is still far more damning to Trump, by the terms that he himself has set through his criticism of the organization.
The timeline is far more damning to Trump
By Jan. 23, the WHO was already warning that coronavirus could “appear in any country,” and urged all countries to be “prepared for containment” and get ready to exercise “isolation” and “prevention” measures against its spread.
At around the same time, on Jan. 22, Trump was asked point-blank whether he worried about coronavirus’s spread, and he answered: “No, not at all,” insisting it was just “one person coming from China” and that “we have it totally under control.”
And on Jan. 24, Trump hailed China’s “effort” against coronavirus and its “transparency” about it, predicting that “it will all work out well.”
So Trump showed less concern about its spread in countries outside China — including in our own — than the WHO did.
On Jan. 30, the WHO declared coronavirus a global public health emergency. While WHO was still too credulous toward China’s response, WHO also warned that all countries must review “preparedness plans” and take seriously what was coming.
By contrast, on Jan. 30, Trump was directly warned by his Health and Human Services secretary of the threat coronavirus posed. Trump dismissed this as “alarmist.”
And on Feb. 2, Trump boasted to Sean Hannity: “We pretty much shut it down, coming in from China.” He hailed our “tremendous relationship” with that country. Trump continued praising China’s handling of coronavirus all through the entire month of February.
So at the very least, Trump showed precisely the same credulity about China that Trump is now faulting the WHO for showing, but without appreciating the urgency of the international threat coronavirus posed to the degree that the WHO did.
As MSNBC’s Ari Melber aptly put it, these attacks on the WHO are “only calling attention to the fact that the WHO was ahead of President Trump.”
. . . .
Trump is attacking the WHO right now so we’ll talk about the WHO’s shortcomings, and not his own role in this catastrophe. But this blame-shifting utter nonsense, and no one should grant it the slightest shred of credibility.
*******************
Greg Sargent Opinion Writer Washington Post
At the link, read Greg’s complete article which also dismembers Trump’s bogus claim that his “Chinese travel ban” had a major impact on deterring the spread of the pandemic.
So, here’s what really appears to be happening as America’s national government disintegrates under Trump’s malicious incompetence. America is breaking up into a number of “Regional Federated States” which have banded together for mutual assistance under decisive governors, largely, but not exclusively Democrats. We already have one on the West Coast and one in the Northeast. I’d look for the governors of Virginia and Maryland and the Mayor of DC to perhaps form a “DMV Region” to manage the pandemic and the recovery.
That covers about 1/3 of the U.S. population and much of the economic and tax base. The rest of the states will have to limp along as best they can with governors largely in charge and trying to get as much help as they can from the sinking Federal ship by going around Trump and dealing with Pence, Fauci, and Birx. Everyone also counts on some help from the Fed, which isn’t immune from Trump’s blustering nonsensical attacks, but is largely beyond his control and therefore free of his blundering ineptness.
There’s likely to be very bad news for the health and safety of those in states whose GOP governors have proved to be as inept and willfully blind as Trump and the rest of his kakistocracy. South Dakota is a prime example of what happens under a clueless GOP Governor.
Notably, most of the initial victims in South Dakota were Latinos working in the supposedly “essential” meat packing industry under conditions that clearly violated best health practices. The Governor claims that the plant would have remained open even under a “Stay at Home” order. Now, however, workers are sick and all those plants are closed anyway. The worst possible result. So, we’ll see how “essential” they really were. Perhaps if everybody had stayed home, the disease wouldn’t have spread and the plants could have reopened on a more limited basis with proper social distancing and protective equipment. And, if workers are really “essential,” why aren’t we looking out for their health, safety, and income protection?
Internationally, world leaders have long ago learned that Trump is incapable of leadership and that under him the U.S. is no longer a trustworthy or reliable partner. Nothing in Trump’s inept handling of the Pandemic in the U.S., his pathetic attempts to shift the blame elsewhere, and his incredibly stupid decision to stop funding the WHO would convince them otherwise.
Sure, like the drunken bully/oaf in the bar, the “Trumped-up U.S.” throws its weight around in unpredictable ways and is too big to be ignored or easily removed from the premises. So, world leaders have figured out how to move on without the U.S. and hope to largely avoid the irrational acts of petty vengeance and retribution for which he is famous.
Not a pretty picture. But, it will be even worse if we don’t remove Trump and the GOP from power in November.
Dana Milbank had a “spot on” assessment of “Captain Clown” 🤡 in today’s Post:
. . . .
Like Bligh, he is abusive. Unlike Bligh, he is a poor navigator. The Trump-as-errant-captain theme has been explored, delightfully, by novelist Dave Eggers in his recent allegory, “The Captain and the Glory”:
“He nudged the wheel a bit left, and the entire ship listed leftward, which was both frightening and thrilling. He turned the wheel to the right, and the totality of the ship, and its uncountable passengers and their possessions, all were sent rightward. In the cafeteria, where the passengers were eating lunch, a thousand plates and glasses shattered. An elderly man was thrown from his chair, struck his head on the dessert cart and died later that night. High above, the Captain was elated by the riveting drama caused by the surprises of his steering.”
So it is with our captain, who claims absolute authority but takes no responsibility. He announces he’s cutting off funding to the World Health Organization in the middle of the pandemic. He condemns the WHO for praising China’s transparency, even though he said in January he “greatly appreciates [China’s] efforts and transparency.” His conflicting messages about reopening the economy throw the country into confusion. He assembles so many coronavirus task forces that he will need another to keep track of them all. And after his long delayed and botched virus response, even now the number of tests in U.S. commercial labs is falling.
At Wednesday evening’s session, Trump turned the tiller randomly. After proclaiming the United States has “passed the peak” of the virus, he swerved into complaints about “partisan obstruction” holding up his nominees and threatened the never-before-tested “constitutional authority to adjourn both houses of Congress,” which would provoke another crisis in the middle of the pandemic.
He veered into complaints about the “disgusting”Voice of Americaand the “impeachment hoax.”He lurched into attacks on the World Trade Organization , various Democrats and governors generally, asserting that “we have the right to do whatever we want.”He accused the WHO of a conspiracy to hide the virusand boasted about his name going on government-issued relief checks: “People will be very happy to get a big fat beautiful check, and my name is on it.”
The ship has become accustomed to such unpredictable steering: He touts a virus treatment that so far shows more alarming side effects than efficacy. He announces virus-testing schemes that don’t exist. He talks about pardoning Joe Exotic. He blames everybody except his own administration, which is doing things very, very strongly and powerfully. “The Defense Production Act was used very powerfully, more powerfully than anybody would know, in fact, so powerfully that, for the most part, we didn’t have to officially take it out,” he proclaims.
[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]
As the captain propounds powerful gibberish, the mutiny builds. Regional blocs make their own pandemic-recovery plans. Allies condemn his assault on the WHO. Republican Sen. Susan Collins (Maine) tells Politico that Trump has been “very uneven.” Even Trump-friendly outlets such as Fox News and the Wall Street Journal editorial page offer some criticism.
“WSJ is Fake News!” shouts the captain.
“What the hell is happening to @FoxNews?”
What’s happening, captain, is you’ve hit the rocks.
Patrick J. McDonnell, Molly O’Toole and Cindy Carcamo report for the LA Times:
MEXICO CITY — More than half the deportees flown back to Guatemala by U.S. immigration authorities have tested positive for coronavirus, the top Guatemalan health official said Tuesday.
Speaking to reporters in Guatemala City, Hugo Monroy, the minister of health, did not specify a time frame or the total number of deportees who had arrived home with infections.
But hundreds of Guatemalans have been returned in recent weeks, including 182 who arrived Monday on two flights from Texas.
Monroy said that on one flight — which he declined to identify — more than 75% of the deportees tested positive.
But he made clear this was not an isolated incident and said many deportees arrived with fevers and coughs and were immediately tested.
“We’re not just talking about one flight,” he said. “We’re talking about all the flights.”
In video later released by the government, Monroy contradicted his earlier statements and said he was referring to just one flight.
The Guatemalan Foreign Ministry said through a spokesman Tuesday that the “official” number of deportees diagnosed with COVID-19 is four, including one who arrived on one of the flights Monday.
A high number of infections among deportees would cast doubt on the official tally of how many of the more than 33,000 migrants in U.S. detention are infected. U.S. immigration officials have said that 77 have tested positive, noting that some of those may no longer be in custody.
The U.S. Department of Homeland Security did not respond to requests for comment.
. . . .
****************
Read the rest of the article at the link.
For four decades, the U.S. has been deporting its problems to the poorest and most unstable countries in Central America. Gangs such as MS-13 and the 18th Street Gang actually originated in Los Angeles and were “exported” to Central America. Once there, they flourished, grew more powerful, became “de facto governments” in some areas, and instituted a reign of terror and persecution that sent hundreds of thousands of new refugees fleeing north to the United States over the years.
Now, Trump and his cronies once again believe that often illegal and irresponsible deportations to the Northern Triangle countries will allow us to escape accountability. But, it won’t.
Irresponsibly spreading disease in poor countries where public health services are dismal at best will eventually have consequences throughout the Americas. And, we will not be immune from the long-term effects of empowering theTrump kakistocracy and its White Nationalist cronies. What goes around come around. Neither wealth nor arrogant ignorance will save us from paying a price for our lack of concern for humanity.
Due Process Forever! Malicious Incompetence Never!
Immigration Review Office Remains Open Despite Potential COVID-19 Exposure
Most support staff at the Executive Office of Immigration Review in Falls Church, Va., remain unable to telework even after two floors had to be deep cleaned after an employee exhibited coronavirus symptoms at work last week.
The agency responsible for conducting removal proceedings in immigration courts still is not providing telework for many of its employees, even after an employee exhibited coronavirus symptoms at work.
On April 8, an employee on the 20th floor of the Executive Office of Immigration Review’s office in Falls Church, Va., which the agency shares with the Social Security Administration, had symptoms consistent with COVID-19, although the employee has not been tested for the virus.
As a result, employees on that floor and the 21st and 22nd floors were temporarily sent home on weather and safety leave until contractors could conduct a deep cleaning. The 21st and 22nd floor employees returned to work Friday, while the 20th floor reopened on Monday, except to those who came in contact with the employee, who are now undergoing a 14-day quarantine.
“I want to advise you that an EOIR employee working on the 20th floor of the Skyline Tower Building has displayed symptoms of COVID-19,” wrote Executive Office of Immigration Review Director James McHenry in an email to employees last week. “The employee is now self-quarantined for two weeks and all persons identified as close contacts have been advised of their interaction with the symptomatic employee. We are conducting an enhanced cleaning of the 20th and 21st floors and the building’s common areas in compliance with [Centers for Disease Control and Prevention] guidelines. The CDC guidance does not indicate that any additional EOIR spaces would require cleaning.”
An agency employee, who requested anonymity out of fear of reprisal, said that employees on the 17th floor were told that if they were uncomfortable continuing to work in the office, they would have to take personal leave. And they said that while the attorneys and paralegals may work remotely, the agency still is not allowing most support staff and clerks to telework, citing a lack of laptops.
“Unlike at the immigration judge level, we’re still fully operational,” the employee said. “There’s been no change, no modification to the way we’re operating. We’re 100% fully staffed and we have attorneys, paralegals and support staff.”
The office remains open despite guidance from the Office of Personnel Management and the Office of Management and Budget urging agencies to “maximize telework” for employees wherever possible. Additionally, Deputy Attorney General Jeffrey Rosen and Assistant Attorney General for Administration Lee Lofthus directed Justice Department components to “move to a posture of maximum telework” in the Washington, D.C., region beginning March 16.
“Components should exploit all flexibilities in their telework policies, including adjusting duties and work to expand availability of telework to employees whose duties did not previously support telework, and even if the employee would only have enough duties to telework for part of a work day,” Lofthus wrote.
The EOIR employee said the agency has been resistant to implementing a continuity of operations plan that would prioritize detainee cases over non-detainee cases, as immigration courts have done to reduce the time needed to be in the office, and said they fear the agency is more concerned with “keeping up production numbers” than employees’ well-being.
“Why can’t we go into COOP status to minimize staff in the office?” the employee said. “We could go into only working detained cases, just like the courts, and we wouldn’t need as many staff. And with a smaller docket, maybe we could introduce rotations or stagger shifts. Right now the only option to stagger shifts is allowing some employees to work from 6 a.m. until 3 and then someone else could work later.”
The employee noted that, by comparison, when there was a positive coronavirus case among the Social Security Administration’s employees in the building, the agency completely evacuated the office, and employees have not returned since.
“Why did we come back to work so much faster [than Social Security]?” they asked. “SSA had one incident and they’re on 17 different floors, and they haven’t been back.”
The agency did not respond to a request for comment.
**********************
Interestingly, in past “Government shutdowns,” most EOIR HQ personnel were deemed “nonessential” and told to say home. Now, with a true emergency that could affect employee health and safety, and with the Immigration Courts’ “non-detained docket” — more than 95% of the EOIR workload — shut down, it becomes necessary to drag HQ staff in. To do what? Exactly what “essential services” are being performed that justify risking the health and safety of employees, their families, and their communities?
But, I suppose it’s no surprise that an agency sitting on a largely self-created backlog of 1.4 million cases, with no plausible plan for dealing with it, would essentially tell its own employees to “show up and hope for the best.”
The novel coronavirus has been particularly harsh on immigrants. After facing years of harassment and persecution from the Trump administration, the 11 million undocumented immigrants living in the United States have now been left unprotected, unable to receive aid from the government’s historic stimulus package, even though they pay billions of dollars in taxes every year
Local and state officials, especially those in immigrant-friendly states such as California, are scrambling to find a way to help their undocumented communities, but it might not be enough. Without appropriate federal support, prompt access to more effective unemployment benefits or paid sick leave for those in need, many communities could be devastated. Left with the agonizing decision of going to work in the midst of a pandemic that requires strict limits on public movement or see their livelihood disappear, many undocumented people are already risking their health.
[Full coverage of the coronavirus pandemic]
This is a travesty. Undocumented immigrants are productive members of society who deserve all the care afforded to others.Even this administration has deemed workers who harvest and process the country’s food supply as essential, asking them to keep their “normal work schedule” during the crisis. “It’s like suddenly they realized we are here contributing,” Nancy Silva, an immigrant from Mexico who works in the fields of Southern California, told the New York Times. “Contributing” is an understatement. The immigrant workforce is critical for a significant number of industries in the United States.
In June, I interviewed John Rosenow, a Wisconsin dairy farmer who has relied on Mexican immigrants for years. “Our industry doesn’t exist without immigrant labor,” he told me. “Eighty percent of the milk in Wisconsin is harvested by immigrants. If you took the immigrants away, way over half of the farms would go out of business.” Wisconsin’s dairy industry is not alone in its dependence on immigrant labor. Indeed, almost 20 percent of food processing workers and more than 36 percent of agricultural workers are undocumented. The health-care industry relies heavily on immigrants as well,as do the country’s construction and service businesses.
. . . .
Martínez worries that a protracted economic crisis could worsen the nativist backlash against immigration. “If things continue this way,” he said, “we could see further restrictions on work or entrepreneur visas, no matter the obvious contributions we all make to the economy.”
The United States will be worse for it, both morally and economically.
**************************
Read the complete op-ed at the link.
The well-being of the United States as a whole has never been a part of the Trump agenda. Nor is it for the White Nationalist restrictionists who promote his immigration agenda. Their agenda is based largely on racist myths and preconceived false narratives about the dangers of the “other.”
But, in any emergency creating an economic downturn there will be a race to find “scapegoats.” Indeed, essentially “caught red-handed and in full view in failure,” Trump is desperately looking to shift the blame elsewhere for his Administration’s poor initial response and lack of planning. “With great power comes no responsibility” could be his motto.
The nativists are already toting out their shopworn arguments that the pandemic should be an excuse and justification for yet harsher and more restrictive immigration measures. The rest of us need to fight back against their counterproductive nonsense.
Those who complain about the media’s relentless focus on President Trump during a pandemic have yet to internalize the horrendous reality of his pandemic response: Trump’s failures of leadership and character have increased the death toll and continue to threaten lives.
For me, that is a difficult sentence to write. Having spent time in the executive branch, I realize how complicated presidential decisions can be. America’s chief executives are often forced to make momentous choices, based on scant information, under the pressure of a ticking clock. It is easier to attack such decisions than to make them.
But the fact of Trump’s deadly negligence is now demonstrated beyond reasonable doubt. Detailed investigative articles in The Post and New York Times have established that there were six weeks of denial and dithering between a credible warning about the virus and decisive action by the president. It is now evident that Trump:
• ignored early intelligence reports of a possible pandemic;
• delayed the ramp up of practical preparations;
• was often more focused on political considerations, on the news cycle and on stock market performance than on epidemiological reality;
• deceptively played down what he knew to be a rising threat;
• coddled China when it should have been confronted;
• instinctively distrusted experts and seemed unable to absorb simple information and sound advice;
• lashed out at aides who took the crisis seriously;
• shifted reluctantly and belatedly from a strategy of containment to mitigation;
• is strangely obsessed with unproven treatments for the novel coronavirus; and
• has systemically lied about the promptness of his own response.
These accounts reveal a White House staffed by incompetent loyalists, distracted by turnover and riven by feuds. A White House carefully pruned and shaped to resemble the chaos in Trump’s mind.
[Full coverage of the coronavirus pandemic]
I urge you to read the articles themselves. In this case, it is a duty of informed citizenship. Americans need to understand the epic smallness of our president in times that demanded something more.
The tension between National Institute of Allergy and Infectious Diseases director Anthony S. Fauci and President Trump has been simmering for weeks. (Monica Akhtar/The Washington Post)
All this is bad enough. But our interest, unfortunately, should not be merely forensic. Trump draws bitterness and resentment out of his experience of the world. He does not draw lessons or wisdom. And he remains just as dangerous to public health on the back side of the curve as he was on the front.
. . . .
******************
Read the complete op-ed at the link.
“Deadly negligence,” “ malicious incompetence,” “criminal recklessness” — call it what you will, there is more than ample proof that Trump is unqualified in every imaginable way for the office he holds.
Of course, Trump will remain a danger to our national health, safety, and welfare. He has neither the capacity for nor interest in anything beyond himself.
AMERICA (The Borowitz Report)—In order to better coördinate their efforts to combat the coronavirus, the nation’s governors are considering the extraordinary step of forming a country.
The radical proposal is an unusual bipartisan effort, spearheaded by the Democratic governor of Michigan, Gretchen Whitmer, and the Republican Governor of Ohio, Mike DeWine.
“Mike and I were bidding against each other for masks and ventilators, and I was, like, ‘Mike this is crazy,’ ” Whitmer said. “ ‘It would be so much better if we just worked together and formed a country.’ ”
DeWine said that Whitmer’s proposal of creating a country out of the fifty states “made a lot of sense.”
“It was one of those moments where someone throws out a nutty idea and you think, ‘Hold on, let’s think on that for a second,’ ” he said.
While the idea of the fifty states coming together to form a country is still in the embryonic stage, DeWine said that the states would ideally create a “federal government” led by a “President.”
“We’re all in agreement that it would be amazing to have a President right now,” DeWine said.
A straw poll of the governors indicates that the front-runner for President of this yet-to-be-named country is one of their own: Governor Andrew Cuomo, of New York.
“Andrew keeps saying that he doesn’t want to be President,” Whitmer said. “And I’m, like, ‘Dude, you already are.’ ”
***************
Just after I read this, I was pelted with notifications that Governors in the Northeast and on the West Coast were banding together to develop cooperative regional approaches to restarting their regional economies consistent with best health practices.
After recently claiming that he had no authority to order a nationwide shutdown, Trump now says that reopening is his sole decision to make.
The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.
On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.
How the COVID-19 Expulsion Policy Works
The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).
The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.
The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.
This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to landborders.
The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.
Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.
But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.
. . . .
**********************
Read the rest of Lucas’s “mini treatise” at the above link.
The law is clearly against Trump here, as Lucas so eloquently and cogently sets forth. But, that doesn’t necessarily mean much in an era of a feckless GOP-stymied Congress and an authoritarian-coddling righty Supremes’ majority led by Roberts and his four sidekicks.
The Supremes have delivered a strong message to the lower Federal Courts that Trump can do just about anything he wants to migrants. He just has to invoke some transparently bogus “national security” or “emergency” rationale for ignoring the Constitution and statutes.
It’s “Dred Scottification” in full force. Largely the same way the courts buried the rights and humanity of African Americans to enable a century plus of “Jim Crow” following the end of the Civil War. The “law of the land” just became meaningless for certain people and in certain jurisdictions. “Any ol’ justification” — states’ rights, separate but equal, no jurisdiction, etc. — was more than enough to read Africans-American citizens out of their Constitutional and other legal protections.
Don’t kid yourself. That’s exactly what Trump, the GOP, and the Supremes’ majority are up to here.
And, the amazing thing, here in 21st Century America, they are getting alway with it! In plain sight!
This November, Vote Like Your Life Depends On It! Because It Does!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
New
BIA Email Filings: The BIA is now accepting email filings for limited purposes. This guidance is separate from the previously posted general IJ email filing guidance.
OCAHO Email Filings: Until further notice, complainants can file new complaints by emailing the complaint and all required attachments
IJ Email Filings: The new email filing system seems to sometimes send a confirmation email but sometimes it does not. IJs also have sometimes not had access to confirmed email filings at hearings.
Bond: The New York Field Office is not processing bonds until further notice. The Newark office may serve as an alternative.
Parole Requests: Are being accepted by mail at 26Fed and Varick in New York. See also attached ICE Guidance on Discretionary Release.
ICE-Appointments: NY Field Office OSUP appointments are canceled through April 30.
A running list of positive coronavirus cases at county jails in North Jersey
ACIJ Changes: Effective Monday, April 13, Immigration Judge David Cheng will begin serving as the Assistant Chief Immigration Judge overseeing the Newark and Elizabeth immigration courts, replacing ACIJ Carrie C. Johnson-Papillo, who will now serve exclusively as the ACIJ at the New York – Federal Plaza Immigration Court. ACIJ Cheng will be based out of the Newark Immigration Court.
NIP: In early 2020, the Trump Administration began implementing a multi-pronged effort to collect DNA samples from immigrants to be used by federal and state law enforcement authorities to investigate crimes. Beginning April 8, 2020, the U.S. Department of Homeland Security (DHS) is authorized to collect DNA from all detained immigrants.
NJ.com: Almost one-third of all federal detainees infected with the coronavirus are being held in New Jersey, according to the latest figures from U.S. Citizenship and Immigration Services.
CityLimits: Without help from the government, community-based organizations are trying to fill that gap. Mixteca Organization is providing prepaid $250 debit cards to 100 families in distress in the immigrant community of Sunset Park.
DocumentedNY: Jorge, who asked to be referred to only by his first name for fear of reprisal, was arrested by ICE on his 18th birthday from a shelter in Westchester, New York on March 18. He was then transferred to the Orange County Correctional Facility, according to attorneys at the Brooklyn Defender Services. See also “We are trapped”: Immigrant women detained during pandemic speak out.
CNN: There are no official statistics on how many Chinese nationals in the US have lost jobs as a result of the coronavirus pandemic, but CNN has seen two groups on WeChat, a “must-have” messaging platform for the Chinese diaspora, in which hundreds of people claiming to be in this situation share stories and exchange information.
NPR: New White House Chief of Staff Mark Meadows is working with Agriculture Secretary Sonny Perdue to see how to reduce wage rates for foreign guest workers on American farms, in order to help U.S. farmers struggling during the coronavirus, according to U.S. officials and sources familiar with the plans. See also Shortage of Farmworkers Threatens Americans’ Food Supply During the Coronavirus.
DocumentedNY: According to detainees at Batavia, U.S. Immigration and Customs Enforcement has blocked all visits to doctors unless they have a coronavirus related emergency; meaning many who have long-term chronic conditions have to go without care.
Marshall Project: In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.
TRAC: Although the Immigration Courts with the largest backlogs of cases are located in large cities, the latest Immigration Court records show that when adjusted for population, many rural counties have higher rates of residents in removal proceedings than urban counties.
LITIGATION/CASELAW/RULES/MEMOS
SDNY TRO grant for Essex detainees with more serious criminal justice contact (see attached)
NYIFUP: On Friday night, Judge Torres granted a TRO for two people BDS represents detained at Essex (the third person was released post-filing) in a decision with some great language against severing a group petition and about the continuing danger at Essex. Torres cited to the declarations filed for two of the “Basank 10,” Mr. Picasso and Mr. Pena, who wanted to share their experiences to help others. This win is very gratifying also because these two clients have more serious criminal justice contact than in other recent habeas cases, but Judge Torres agreed that they should still be released and the real issue is what conditions are appropriate.
Also, Judge Arleo of the DNJ issued a TRO for the immediate release of 5 individuals held in Hudson and Bergen County Jails.
AILA, the Immigration Justice Campaign, the NIPNLG, and several detained individuals filed an emergency TRO challenging EOIR’s operation of in-person immigration court hearings and ICE’s conditions of confinement during the COVID-19 pandemic. (NIPNLG et al., v. EOIR et al., 4/8/20) AILA Doc. No. 20040830
A district court judge issued a TRO, given the COVID-19 pandemic, granting relief to individuals detained in Adelanto ICE Processing Center through 4/25/20, and asked the government why he should not convert this order into a preliminary injunction. (Torres, et al. v. DHS, et al., 4/11/20) AILA Doc. No. 18121703
For purposes of determining whether an alien is subject to the firm resettlement bar to asylum, a viable and available offer to apply for permanent residence in a country of refuge is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.
Law360 reports that a federal judge granted class certification in the lawsuit filed by AILA and partners challenging the president’s healthcare proclamation. AILA Director of Litigation Jesse Bless called it an “important step towards making sure the proclamation never becomes effective.” AILA Doc. No. 20040961
ImmProf: The court found the inclusion of “so help me God” as a means of completing the naturalization oath does not violate the First or Fifth Amendments or RFRA.
ImmProf: In the very first paragraph, the essence of the decision is announced: “Without addressing the coup, the BIA found that any change in gender based violence was incremental or incidental and not material. Because this conclusion is not supported by the record, we grant the petition and remand.”… The most notable thing about the panel’s 2-1 decision besides its well thought-out reasoning is the lack of any discussion involving Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018), anywhere in either the majority’s or dissent’s decisions.
The President issued a memo directing the Secretary of State to impose visa sanctions pursuant to INA section 243(d) on any foreign country that denies or delays the acceptance of its citizens after being asked to accept them, and if such denial or delay impedes DHS operations regarding COVID-19. AILA Doc. No. 20041300
ICE issued guidance on its response to the COVID-19 pandemic. ICE confirmed that as of 4/10/20, 50 detainees, 15 detention facility personnel, and 66 ICE employees, have tested positive for COVID-19. AILA Doc. No. 20031658
USCIS 30-day extension of a comment period originally announced at 84 FR 55167 on proposed revisions to Form I-864, Affidavit of Support Under Section 213A of the INA, as well as Forms I-864EZ and Form I-864A. Comments are now due 5/11/20. (85 FR 20292, 4/10/20) AILA Doc. No. 20041030
ICE issued a memo on its COVID-19 action plan for ICE Health Service Corps (IHSC)-staffed and non-IHSC-staffed, ICE-dedicated facilities. The memo was released by ICE as an exhibit in Fraihat v. ICE. AILA Doc. No. 20040901
USCIS notice that a new version of Form I-9 (Employment Eligibility Verification) with a version date of ‘‘(Rev. 10/21/2019)’’ is available for use beginning today, 1/31/20. Employers may continue using the prior version of the form until 4/30/20. (85 FR 5683, 1/31/20) AILA Doc. No. 20013130
USCIS issued policy guidance in the USCIS Policy Manual regarding eligibility requirements, filing, and adjudication of adjustment of status applications based on the Liberian Refugee Immigration Fairness (LRIF) law. The guidance is effective immediately. Comments are due May 7, 2020. AILA Doc. No. 20040730
ACTIONS
Email Kyle Barron (kbarron@bds.org) at BDS to join the NY-NJ Habeas Working Group listserv.
Andrea Castillo and Brittny Mejia report for the LA Times:
For weeks, as the coronavirus spread, Jose Hernandez Velasquez worried about the dangers of being detained inside the Adelanto ICE Processing Center 80 miles east of Los Angeles.
The 19-year-old Guatemalan immigrant listened uneasily as other men called their families, begging them to do everything possible to get them released so as to reduce their odds of contracting the deadly illness.
Ultimately, in light of the pandemic, a federal judge ordered immigration authorities to release Hernandez, an asylum seeker with hypertension who had spent nearly 21/2 years at the facility. When a guard came to tell him the news, Hernandez was speechless. Other detainees burst into applause.
“I was really worried,” he said in a phone call after his release. “It was so difficult to be inside.”
As an increasing number of Immigration and Customs Enforcement detainees across the country test positive for COVID-19, California lawyers are working to free as many clients as they can by invoking constitutional rights and arguing on humanitarian grounds. In the last two weeks, U.S. District Judge Terry Hatter Jr. ordered at least 10 people released from Adelanto, one of the country’s largest detention centers, holding nearly 2,000 people.
It’s unclear how many detainees have been released nationwide because of coronavirus concerns. In recent weeks, federal judges across the country have ordered the release of more than 40 detainees.
Like Hernandez, most have been released after lawyers petitioned federal courts on their behalf. Others have been released on bond or through humanitarian parole, which is free to people with a compelling emergency.
In response to the pandemic, ICE has instructed field offices to assess and consider for release those deemed to be at greater risk of exposure, reviewing cases of individuals age 60 and older, as well as those who are pregnant.
In court filings, ICE has argued that concern about detainees contracting COVID-19 is “based on mere speculation” and that releasing large numbers of them would set a precedent that would persist even after the virus subsides.
Until ICE agrees to release more detainees, “you’re going to keep seeing petitions like this,” said Jessica Bansal, senior staff attorney at the American Civil Liberties Union of Southern California, which got Hernandez and others released from Adelanto. “Because people need to get out.”
The ACLU has sued ICE facilities in multiple states over coronavirus concerns.
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Read the rest of the article at the above link.
Empowering a regime that functions in such a contemptuous, cruel, and incompetent manner is insane and wasteful to boot. Everyone, including the legitimate needs of DHS enforcement (not much resemblance to the current racially-driven scofflaw mess) would benefit from a professionalized, accountable, and properly focused DHS and an independent, due process with efficiency-oriented U.S. Immigration Court.
Immigration enforcement could focus on priorities that actually relate to the safety and security of our nation, the private and NGO immigration bar could expand individual case representation before the Immigration Courts thus promoting efficiency with due process, and the U.S. District Courts could return to other cases. It would be a win-win-win, notwithstanding the bogus blather of the White Nationalist restrictionists who seek to use the pandemic as a weapon to “zero out” legal immigration and force all migration into the “black market” where it can more easily be exploited and abused by them and their cronies.
Due Process Forever! Malicious Incompetence Never!
