11th Cir. — BIA GETS IT WRONG AGAIN ON MODIFIED CATEGORICAL APPROACH & AGFEL — GORDON V. ATTORNEY GENERAL

http://media.ca11.uscourts.gov/opinions/pub/files/201513846.pdf

Key quote:

“Further, the Board’s conclusion that the crime was an aggravated felony because the sale or delivery was “for monetary consideration” is meritless. That the sale or delivery was “for monetary consideration” does nothing to assist us in determining “which of a statute’s alternative elements”—sale or delivery— “formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2284. The Supreme Court has made clear time and time again that “[a]n alien’s actual conduct is irrelevant to the inquiry.” Mellouli, 135 S. Ct. at 1986. As the Board did not appropriately determine that Gordon was convicted of an aggravated felony, we grant Gordon’s petition and reject the Board’s finding of removability.”

PANEL: Circuit,Judges Tjoflat, Wilson; District Judge Robreno

INION BY: Judge Tjoflat

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So, why does an “expert tribunal” like the BIA keep getting this fairly basic stuff wrong? And, why has the DOJ eliminated EOIR training?

PWS

07-13-17

BREAKING: SUPREMES RULE IMMIGRANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE ATTY GAVE WRONG ADVICE ON DEPORTATION! — JAE LEE v. UNITED STATES — Chief Justice Roberts Writes For 6-2 Majority!

https://www.supremecourt.gov/opinions/16pdf/16-327_3eb4.pdf

Here’s the Court’s Headnote (not part of the decision)

Petitioner Jae Lee moved to the United States from South Korea with his parents when he was 13. In the 35 years he has spent in this country, he has never returned to South Korea, nor has he become a U. S. citizen, living instead as a lawful permanent resident. In 2008, federal officials received a tip from a confidential informant that Lee had sold the informant ecstasy and marijuana. After obtaining a warrant, the officials searched Lee’s house, where they found drugs, cash, and a loaded rifle. Lee admitted that the drugs were his, and a grand jury indicted him on one count of possessing ecstasy with in- tent to distribute. Lee retained counsel and entered into plea discussions with the Government. During the plea process, Lee repeatedly asked his attorney whether he would face deportation; his attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison. Lee had in fact pleaded guilty to an “aggravated felony” under the Immigration and Nationality Act, 8 U. S. C. §1101(a)(43)(B), so he was, contrary to his attorney’s advice, subject to mandatory deportation as a result of that plea. See §1227(a)(2)(A)(iii). When Lee learned of this consequence, he filed a motion to vacate his conviction and sentence, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Lee and his plea-stage counsel testified that “deportation was the determinative issue” to Lee in deciding whether to accept a plea, and Lee’s counsel acknowledged that although Lee’s defense to the charge was weak, if he had known Lee would be de- ported upon pleading guilty, he would have advised him to go to trial. A Magistrate Judge recommended that Lee’s plea be set aside and his conviction vacated. The District Court, however, denied relief, and

JAE LEE v. UNITED STATES Syllabus

the Sixth Circuit affirmed. Applying the two-part test for ineffective assistance claims from Strickland v. Washington, 466 U. S. 668, the Sixth Circuit concluded that, while the Government conceded that Lee’s counsel had performed deficiently, Lee could not show that he was prejudiced by his attorney’s erroneous advice.

Held: Lee has demonstrated that he was prejudiced by his counsel’s erroneous advice. Pp. 5–13.

(a) When a defendant claims that his counsel’s deficient perfor- mance deprived him of a trial by causing him to accept a plea, the de- fendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U. S. 52, 59.

Lee contends that he can make this showing because he never would have accepted a guilty plea had he known the result would be deportation. The Government contends that Lee cannot show prejudice from accepting a plea where his only hope at trial was that something unexpected and unpredictable might occur that would lead to acquittal. Pp. 5–8.

(b) The Government makes two errors in urging the adoption of a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. First, it forgets that categorical rules are ill suited to an inquiry that demands a “case-by-case examination” of the “totality of the evidence.” Williams v. Taylor, 529 U. S. 362, 391 (internal quotation marks omitted); Strickland, 466 U. S., at 695. More fundamentally, it overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. See INS v. St. Cyr, 533 U. S. 289, 322–323. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Lee, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial. Pointing to Strickland, the Government urges that “[a] defendant has no entitlement to the luck of a lawless deci- sionmaker.” 466 U. S., at 695. That statement, however, was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it

Cite as: 582 U. S. ____ (2017) 3

Syllabus

would have affected the defendant’s decisionmaking. Pp. 8–10.
(c) Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. In the unusual circumstances of this case, Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation: Both Lee and his attorney testified that “deportation was the determinative issue” to Lee; his responses during his plea colloquy confirmed the importance he placed on deportation; and he had strong connections to the United States, while he had no ties to South Korea.

The Government argues that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances,” Padilla v. Kentucky, 559 U. S. 356, 372, since deportation would almost certainly result from a trial. Unlike the Government, this Court cannot say that it would be irrational for someone in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation. Pp. 10–13.

825 F. 3d 311, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined except as to Part I. GORSUCH, J., took no part in the consideration or decision of the case.

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My favorite quote from the Chief Justice’s opinion:

“There is no reason to doubt the paramount importance Lee placed on avoiding deportation. Deportation is always “a particularly severe penalty,” Padilla, 559 U. S., at 365 (internal quotation marks omitted), and we have “recognized that ‘preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence,’” id., at 368 (quoting St. Cyr, 533 U. S., at 322; alteration and some internal quotation

——————

12 JAE LEE v. UNITED STATES Opinion of the Court

marks omitted); see also Padilla, 559 U.S., at 364 (“[D]eportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (footnote omitted)). At the time of his plea, Lee had lived in the United States for nearly three decades, had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents—both naturalized American citizens. In contrast to these strong connections to the United States, there is no indication that he had any ties to South Korea; he had never returned there since leaving as a child.”

My question:

When is the Court finally going to take the next logical step, ditch the fiction that “deportation from the United States is strictly a civil matter,” and formally recognize that deportation, at least of someone like Lee who has been legally admitted to the U.S. for permanent residence, is indeed punishment, of the severest type imaginable! Indeed, exile as punishment dates back to ancient times?

Also worthy of note, the DOJ and the Solicitor General continue to be spectacularly unsuccessful in convincing a conservative, law enforcement oriented Court of the merits of their extreme “hard-line” positions in immigration-related matters. I have previously predicted that loss of “face” and credibility by the SG before the Supremes is a likely consequence of representing the Trump Administration with Jeff Sessions as your boss. As the President himself is finding out, the hard way, once lost, credibility before the courts is difficult or impossible to regain.

PWS

06-25-48

TRUMP IMMIGRATION ENFORCEMENT POLICIES: BOON FOR DOMESTIC ABUSERS, BUST FOR VICTIMS! — Many Victims Now Fear Reporting Abuse Or Seeking Help!

http://www.self.com/story/immigration-policies-domestic-violence-survivors

Haley Goldberg reports in Self:

Over the past several months, counselors at Laura’s House domestic violence agency in Orange County, California, have seen fewer and fewer undocumented immigrants coming in to report abuse. The agency’s legal director, Adam Dodge, does not see this as a good sign. He says undocumented domestic violence victims are facing a heightened fear that if they speak out against an abuser or take legal action, they could get deported—so they’re keeping quiet.

The trend started in February, when Dodge says the agency saw a dramatic change among the roughly 80 people who come in over the course of a typical month. “We went from 40 to 45 percent of our clients being undocumented—helping them get restraining orders for themselves and their children—to nearly zero,” he tells SELF.

Dodge says Laura’s House—which provides vital services like emergency shelter, counseling, and legal aid to survivors of domestic violence—first noticed a decrease in undocumented immigrant clients after Immigration and Customs Enforcement (ICE) agents detained an undocumented domestic violence survivor on Feb. 9, in El Paso, Texas, when she was in court filing a protective order against her alleged abuser. “That just spread like wildfire through the undocumented community across the United States and created this chilling effect where no one’s going in to seek restraining orders,” Dodge says. “People are just so scared of having their name in any system. We can’t tell them with any certainty that they won’t get picked up by ICE if they come to court.”

In the first few months following the El Paso incident, he says only one openly undocumented survivor came to their agency. Her situation was grave. “She thought she was going to die if she stayed in the relationship,” Dodge says. “She said she was willing to risk deportation to get a restraining order.” Now, the agency has seen a slight increase to one or two undocumented clients each week—but it’s still well below the norm. “The situation is still very dire,” he says.

El Paso was an early and powerful example of how ramped up ICE activity, spurred by President Trump’s aggressive and expansive new rules on immigration, can have a devastating impact on immigrants living in the U.S. without documentation. In February, the President issued new immigration policies, calling for the deportation of illegal immigrants even if they haven’t been formally convicted of a crime and an increase in ICE resources. In March, a video surfaced showing ICE officers poised to make an arrest at a Denver courthouse, a place where victims of domestic violence also appear when their cases go to court. NPR reported that after the video came out, four women dropped domestic violence cases in Denver, fearing they’d be spotted at the courthouse and deported.

When incidents like these happen, experts say the news—and fear of deportation—spreads, affecting how many survivors come forward. At the end of March, reports of sexual assault in Los Angeles had dropped 25 percent among the Latino population and reports of domestic violence had fallen 10 percent among the community compared to the previous year. Los Angeles Police Chief Charlie Beck said similar decreases in reports weren’t seen in any other ethnic groups, the Los Angeles Times reports.

Ruth Glenn, executive director of the National Coalition Against Domestic Violence, tells SELF the perception of how survivors are treated matters—and it can affect how undocumented immigrants proceed if they find themselves in an abusive situation. “If you have a case and you’re thinking about going forward, and then this environment that we’re in right now does not seem supportive, then you’re not going to follow through,” Glenn says. “It’s very disturbing.”

Critics of the administration’s treatment of undocumented survivors sounded an alarm in May, when it was discovered that the U.S. Department of Homeland Security’s new Victim Information and Notification Exchange—an online database created to track when criminals are released from or into ICE custody—publicly listed the names and detainment location of victims of domestic violence, sexual assault, and human trafficking who’ve applied to stay legally in the U.S. on special protective visas. DHS is prohibited from releasing identifying information about immigrants seeking these protections because of the dangers it poses to them. The Tahirih Justice Center, a nonprofit that serves immigrant women and girls, first contacted the DHS about the issue on May 12. As of the May 25, the organization said the names of abuse victims were still searchable in the database. In response to the uproar, an ICE spokesman told BuzzFeed News they were working to “correct” and “prevent” any non-releasable information disclosed on the site.”

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Read the complete story at the link.

While the Trump Administration has turned the VOICE Program for victims of crime committed by undocumented aliens into a big showpiece, they have basically declared an “open season” on undocumented victims of crime. Years of hard work by local police and social agencies to get the undocumented community its to report crimes, help in solving them, and seek appropriate victim assistance are going down the drain. And, I suspect that once lost, that trust will be difficult, if not impossible to regain.

At the same time, by discouraging individuals from reporting crime, I suppose the Administration can achieve fake “reduction in crime” stats resulting from its enforcement efforts.

PWS

06-03-17

NEW PRECEDENT: BIA On “Receipt Of Stolen Property” –Matter of ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017) — Still Getting It Wrong After All These Years — Read My “Dissenting Opinion!”

https://www.justice.gov/eoir/page/file/970806/download

Here’s the BIA headnote:

“The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.”

PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, and Kendall Clark

OPINION BY: Judge Pauley

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

I respectfully dissent.

The Immigration Judge got it right. Under the “plain meaning” of the statute, the respondent is not an aggravated felon. Therefore, the DHS appeal should be dismissed.

Nearly 17 years ago, when I was Chairman of the BIA, I joined the dissenting opinion of Judge Lory D. Rosenberg in a related case, Matter of Bhata, 22 I&N Dec. 1381 (BIA 2000) https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3437.pdf which is cited by this panel in Matter of Alday-Dominguez. Indeed, the panel relies on Bhata to support it’s incorrect decision.

However, as Judge Rosenberg pointed out cogently in her dissent:

Accordingly, the modifying parenthetical phrase helps only to elucidate the main clause of the provision. Although the language “theft offense” may require our interpretation, the parenthetical must be read according to its own terms in the context of that subsection of the Act. The phrase “(including receipt of stolen property)” after the word “offense” limits the crimes that are included within the phrase “theft offense.” United States v. Monjaras-Castaneda, supra, at 329 (citing John E. Warriner & Francis Griffith, English Grammar and Composition (Heritage ed., Harcourt Brace Jovanovich 1977)). Specifically, the parenthetical provides that a “theft offense” encompasses the particular offense of receiving stolen property (which, by implication and judicial interpretation, is not a theft).

Matter of Bhata, supra, at 1396 (Rosenberg, AIJ dissenting).

Clearly, as pointed out by Judge Rosenberg, under a “plain reading” of the statutory language, “receipt of stolen property” is a “subgroup” of a theft offense. Consequently, the unlawfully received property must have been obtained by “theft.” The California statute includes things other than property obtained by theft, specifically objects obtained by “extortion.”

Therefore, under the “categorical approach,” the California statute is broader than the aggravated felony offense described in section 101(a)(43)(G) of the Act. Accordingly, the DHS fails to establish that the respondent is removable under that section. Hence, the Immigration Judge correctly terminated removal proceedings, and the DHS appeal should be dismissed.

The majority is just as wrong today as it was in Bhata. Remarkably, a member of this panel, Judge Guendelsberger, along with Judge Gus Villageliu and Judge Neil Miller, joined our dissent in Bhata. Sadly, over the course of his unjustified exile, followed by re-education, rehabilitation, and reappointment to his Appellate Judgeship, my friend and colleague’s views must have changed since the days when he stood up with the rest of us for respondents’ legal rights against the majority of our colleagues who all too often bought the Government’s arguments, even when they were less than persuasive.

Just this week, in a unanimous decision written by Justice Clarence Thomas, the Supreme Court reinforced the “plain meaning” analysis in applying the categorical approach to an aggravated felony removal provision involving “sexual abuse of a minor.” Esquivel-Quintana v. Sessions, ___ U.S. ___ (2017). Yet, the panel seems “tone-deaf” to the very clear message from Justice Thomas and his colleagues about the impropriety of manipulating clear statutory language to achieve a finding of removal.

In conclusion, the respondent has not been convicted an of an aggravated felony under section 101(a)(43)(G) of the Act by virtue of his conviction for receiving stolen property under the California Penal Code. Consequently, the Immigration Judge reached the correct result, and the DHS appeal should be dismissed.

Therefore, I respectfully dissent from the panel’s decision to sustain the DHS appeal.

Paul Wickham Schmidt

Former BIA Chairman, Appellate Immigration Judge, & United States Immigration Judge (Retired)

Entered: June 2, 2017

PRECEDENT: BIA Opines On “Divisibility” In Agfel Cases — Matter of CHAIREZ-CASTREJON, 27 I&N Dec. 21 (BIA 2017)

https://www.justice.gov/eoir/page/file/959656/download

Here’s the BIA headnote:

“In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.”

PANEL: Appellate Immigration Judges Pauley, Greer, Malphrus

OPINION BY: Judge Pauley

CONCURRING OPINION BY: Judge Malphrus

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This case is unusual because BIA Judges seldom file “separate opinions” in published decisions these days.

In his concurring opinion, Judge Garry D. Malphrus appears to be both questioning whether the Supreme Court’s approach to statutory “divisibility” analysis comports with congressional intent in immigration matters and inviting Congress to perhaps change the INA so that the BIA and the Immigration Judges could examine the facts of the case, as set forth in the record of conviction, to determine whether the individual should be removed. Judge Malphrus says in his conclusion:

“Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent’s plea agreement indicates that he did more—specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.

The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien’s conviction constituted an aggravated felony crime of violence). [footnote omitted]. It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”

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Another observation: How could an unrepresented respondent charged under this section possibly defend himself consistent with due process when the law is so complex and convoluted. This particular respondent was fortunate enough to have a lawyer, and as we can see, he was able to achieve a favorable result. But, recent studies have shown that the overwhelming number of respondents in detention (as individuals charged as “agfels” must be) must proceed without counsel. http://wp.me/p8eeJm-Gv

PWS

04-24-17

“This Is The Trump Era” — Jeff Sessions Visits S. Border — Announces New Emphasis On Immigration Crimes — Although Majority of Feds’ Prosecutions Already Immigraton-Related, Enough Is Never Enough! — “Incarceration Nation” Coming! Sessions Also Seeks 125 New U.S. Immigration Judges Over Next 2 Years — Sessions “Disses” Forensic Science At DOJ!

https://www.wsj.com/articles/sessions-lays-out-tough-policy-on-undocumented-who-commit-crimes-1491930183

Aruna Viswanatha reports in the WSJ:

“Attorney General Jeff Sessions directed federal prosecutors to pursue harsher charges against undocumented immigrants who commit crimes, or repeatedly cross into the U.S. illegally, and promised to add 125 immigration judges in the next two years to address a backlog of immigration cases.

The moves are part of the administration’s efforts to deter illegal immigration and is meant to target gangs and smugglers, though non-violent migrants could also face more severe prosecutions.

In a memo issued Tuesday, Mr. Sessions instructed prosecutors to make a series of immigration offenses “higher priorities,” including transporting or harboring illegal immigrants, illegally entering or reentering the country, or assaulting immigration enforcement agents.

In remarks to border patrol agents at the U.S.-Mexico border in Nogales, Arizona on Tuesday, Mr. Sessions spoke in stark terms about the threat he said illegal immigration poses.

“We mean criminal organizations that turn cities and suburbs into warzones, that rape and kill innocent citizens,” Mr. Sessions said, according to the text of his prepared remarks. “It is here, on this sliver of land, where we first take our stand against this filth.”

“This is a new era. This is the Trump era,” Mr. Sessions said.

Former prosecutors said they didn’t expect the memo to dramatically impact U.S. attorneys offices along the southern border, which already bring thousands of such cases each year. They said it could impact those further inland, which haven’t historically focused on immigration violations.

In the fiscal year that ended in September 2016, 52% of all federal criminal prosecutions involved immigration-related offenses, according to Justice Department data analyzed by Transactional Records Access Clearinghouse at Syracuse University.

. . . .

Immigration advocates said they worried that the memo and tone set by the administration was describing a closer link between criminal behavior and immigration than statistics show.

“We are seeing an over-emphasis on prosecuting, at the federal level, immigration, illegal entry and reentry cases, and far less paid to criminal violations that implicate public safety,” said Gregory Chen, director of advocacy for the American Immigration Lawyers Association.”

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On April 8, 2017, Sari Horowitz reported in the Washington Post on how Sessions’s enthusiastic plans to reinstitute the largely discredited “war on drugs” is likely to “jack up” Federal Prison populations:

“Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.
“Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.

“They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).”

. . . .

Cook and Sessions have also fought the winds of change on Capitol Hill, where a bipartisan group of lawmakers recently tried but failed to pass the first significant bill on criminal justice reform in decades.

The legislation, which had 37 sponsors in the Senate, including Sen. Charles E. Grassley (R-Iowa) and Mike Lee (R-Utah), and 79 members of the House, would have reduced some of the long mandatory minimum sentences for gun and drug crimes. It also would have given judges more flexibility in drug sentencing and made retroactive the law that reduced the large disparity between sentencing for crack cocaine and powder cocaine.

The bill, introduced in 2015, had support from outside groups as diverse as the Koch brothers and the NAACP. House Speaker Paul D. Ryan (R-Wis.) supported it, as well.

But then people such as Sessions and Cook spoke up. The longtime Republican senator from Alabama became a leading opponent, citing the spike in crime in several cities.

“Violent crime and murders have increased across the country at almost alarming rates in some areas. Drug use and overdoses are occurring and dramatically increasing,” said Sessions, one of five members of the Senate Judiciary Committee who voted against the legislation. “It is against this backdrop that we are considering a bill . . . to cut prison sentences for drug traffickers and even other violent criminals, including those currently in federal prison.”
Cook testified that it was the “wrong time to weaken the last tools available to federal prosecutors and law enforcement agents.”

After GOP lawmakers became nervous about passing legislation that might seem soft on crime, Senate Majority Leader Mitch McConnell (R-Ky.) declined to bring the bill to the floor for a vote.

“Sessions was the main reason that bill didn’t pass,” said Inimai M. Chettiar, the director of the Justice Program at the Brennan Center for Justice. “He came in at the last minute and really torpedoed the bipartisan effort.”

Now that he is attorney general, Sessions has signaled a new direction. As his first step, Sessions told his prosecutors in a memo last month to begin using “every tool we have” — language that evoked the strategy from the drug war of loading up charges to lengthen sentences.

And he quickly appointed Cook to be a senior official on the attorney general’s task force on crime reduction and public safety, which was created following a Trump executive order to address what the president has called “American carnage.”

“If there was a flickering candle of hope that remained for sentencing reform, Cook’s appointment was a fire hose,” said Ring, of FAMM. “There simply aren’t enough backhoes to build all the prisons it would take to realize Steve Cook’s vision for America.”

. . . .

Sessions’s aides stress that the attorney general does not want to completely upend every aspect of criminal justice policy.

“We are not just sweeping away everything that has come before us.” said Robyn Thiemann, the deputy assistant attorney general in the Office of Legal Policy, who is working with Cook and has been at the Justice Department for nearly 20 years. “The attorney general recognizes that there is good work out there.”

Still, Sessions’s remarks on the road reveal his continued fascination with an earlier era of crime fighting.

In the speech in Richmond, he said, “Psychologically, politically, morally, we need to say — as Nancy Reagan said — ‘Just say no.’ ”

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Not surprisingly, Sessions’s actions prompted a spate of critical commentary, the theme of which was the failure of the past “war on drugs” and “Just say no to Jeff Sessions.” You can search them on the internet, but here is a representative example, an excerpt from a posting by Rebecca Bergenstein Joseph in “Health Care Musings:”

“We Can’t Just Say No
Posted on April 9, 2017 by Rebecca Bergenstein Joseph
Three decades ago, Nancy Reagan launched her famous anti-drug campaign when she told American citizens, “Say yes to your life. And when it comes to alcohol and drugs, just say no.” 1 Last month, Attorney General Jeff Sessions invoked the former First Lady’s legacy in a speech to Virginia law enforcement when he said, “ I think we have too much tolerance for drug use– psychologically, politically, morally. We need to say, as Nancy Reagan said, ‘Just say no.’”2 As our nation is confronted on a daily basis with the tragic effects of the opioid epidemic, it is important that we understand just how dangerous it is to suggest that we return to the ‘just say no’ approach.

In the 1980s and 1990s, the ‘just say no’ curriculum became the dominant drug education program nationwide in the form of DARE.3 The DARE program– Drug Abuse Resistance Education– was developed in 1983 by the Los Angeles police chief in collaboration with a physician, Dr. Ruth Rich. The pair adapted a drug education curriculum that was in the development process at University of Southern California in order to create a program that would be taught by police officers and would teach students to resist the peer pressure to use alcohol and drugs. With the backdrop of the War on Drugs that had continued from the Nixon presidency into the Reagan era, DARE grew quickly. Communities understandably wanted to prevent their children from using alcohol and drugs. The program was soon being used in 75% of schools nationwide and had a multimillion dollar budget.3 In fact, I would bet that many of you reading this are DARE graduates. I certainly am.

It did not take long for there to be research showing that the ‘just say no’ approach used in DARE was not working. By the early 1990s there were multiple studies showing that DARE had no effect on its graduates choices regarding alcohol and drug use.4 The decision to ignore the research about DARE culminated when the National Institute of Justice evaluated the program in 1994, concluded that it was ineffective, and proceeded to not publish this finding. In the 10 years that followed, DARE was subjected to evaluation by the Department of Education, the U.S Surgeon General’s Office, and the Government Accountability Office.4 The combined effect of these evaluations was the eventual transformation of DARE into an evidence-based curriculum, Keepin’ It REAL, which was released in 2011.5 But this only happened after billions of dollars were spent on a program that did not work and millions of students received inadequate drug education.

And yet, here we are again. The top law enforcement officer in our nation is suggesting that we go back to the days where elementary and middle school students were told that all they needed to do was ‘just say no.’”

Read the complete post here:

https://sites.tufts.edu/cmph357/author/rjosep06/

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Finally, just yesterday, on April 10, 2017, Spenser S. Hsu reported in the Washington Post that Sessions was “canning” the “National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013” as a consultant to the DOJ on proper forensic standards.

In plain terms, in Session’s haste to rack up more criminal convictions and appear “tough on crime,” the quality of the evidence or the actual guilt or innocence of those charged becomes merely “collateral damage” in the “war on crime.”

Here’s a portion of what Hsu had to say:

“Several commission members who have worked in criminal courts and supported the input of independent scientists said the department risks retreating into insularity and repeating past mistakes, saying that no matter how well-intentioned, prosecutors lack scientists’ objectivity and training.

U.S. District Judge Jed S. Rakoff of New York, the only federal judge on the commission, said, “It is unrealistic to expect that truly objective, scientifically sound standards for the use of forensic science . . . can be arrived at by entities centered solely within the Department of Justice.”

In suspending reviews of past testimony and the development of standards for future reporting, “the department has literally decided to suspend the search for the truth,” said Peter S. Neufeld, co-founder of the Innocence Project, which has reported that nearly half of 349 DNA exonerations involved misapplications of forensic science. “As a consequence innocent people will languish in prison or, God forbid, could be executed,” he said.

However, the National District Attorneys Association, which represents prosecutors, applauded the end of the commission and called for it to be replaced by an Office of Forensic Science inside the Justice Department. Disagreements between crime lab practitioners and defense community representatives on the commission had reduced it to “a think tank,” yielding few accomplishments and wasted tax dollars, the association said.

The commission was created after critical reports by the National Academy of Sciences about a dearth of standards and funding for crime labs, examiners and researchers, problems it partly traced to law enforcement control over the system.

Although examiners had long claimed to be able to match pattern evidence — such as with firearms or bite marks — to a source with “absolute” or “scientific” certainty, only DNA analysis had been validated through statistical research, scientists reported.

In one case, the FBI lab in 2005 abandoned its four-decade-long practice of tracing bullets to a specific manufacturer’s batch through chemical analyses after its method were scientifically debunked. In 2015, the department and bureau reported that nearly every examiner in an elite hair-analysis unit gave scientifically flawed or overstated testimony in 90 percent of cases for two decades before 2000.

The cases include 32 defendants sentenced to death. Of those, 14 have been executed or died in prison.”

Here is a link to the full article by Hsu: https://www.washingtonpost.com/local/public-safety/sessions-orders-justice-dept-to-end-forensic-science-commission-suspend-review-policy/2017/04/10/2dada0ca-1c96-11e7-9887-1a5314b56a08_story.html?utm_term=.97b814db4eac&wpisrc=nl_buzz&wpmm=1

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I “get” that some of the advocacy groups quoted in these articles could be considered “interested parties” and/or “soft on crime” in the world of hard-core prosecutors. But, Senate Judiciary Committee Chairman Chuck Grassley (R-IA), Sen. Mike Lee (R-UT), Speaker Paul Ryan (R-WI), and the Koch brothers “soft on crime?” Come on, man!

Capitalist theory says that as long as there is a nearly insatiable “market” in the United States for illegal drugs, and a nearly inexhaustible “supply” abroad, there is going to be drug-related crime. Harsher sentences might increase risks and therefore “jack up market prices” for “consumers” of “product,” while creating “new job opportunities” for “middlemen” who will have to take (and be compensated for) more risks and invest in more expensive business practices (such as bribery, or manipulation of the legal system) to get the product “to market.”

But, you can bet that until we deal with the “end causes” in a constructive manner, neither drug trafficking nor trafficking in undocumented individuals is likely to change much in the long run.

Indeed, authorities have been cutting off heads, hands, feet, and other appendages, drawing and quartering, hanging, crucifying, shooting, gassing, injecting, racking, mutilating, imprisoning in dungeons, transporting, banishing, and working to death those who have committed crimes, both serious and not so serious, for centuries. But, strangely, such harsh practices, while certainly diminishing the humanity of those who inflict them, have had little historical effect on crime. The most obvious effects have been more dead and damaged individuals, overcrowded prisons, and angry disaffected families.

125 new U.S. Immigration Judges should be good news for the beleaguered U.S. Immigration Courts. But, even assuming that Congress goes along, at the glacial pace the DOJ and EOIR have been hiring Immigration Judges over the past two Administrations, it could take all four years of Trump’s current term to get them on board and actually deciding cases.

More bad news: Added to the approximately 375 Immigration Judges currently authorized (but, only about 319 actually on the bench), that would bring the total to 500 Immigration Judges. Working at the current 750 completions/year (50% above the “optimum” of 500 completions/year) the currently authorized 375 Immigration Judges could complete fewer than 300,000 cases/year consistent with due process — barely enough to keep up with historic receipts, let alone the “enhanced enforcement” promised by the Trump Administration. They would not have to capacity to address the current “backlog” of approximately 550,000 cases.

If receipts remained “flat,” the 125 “new” Immigration Judges contemplated by AG Sessions could go to work on on the backlog. But, it would take them about 6 years to wipe out the 550,000 case existing backlog.

PWS

04/11/17

BIA Says MD Sexual Solicitation Of Minor Is Categorical CIMT — Matter of JIMENEZ-CEDILLO, 27 I&N Dec. 1 (BIA 2017) — BIA Reaches A Publication Milestone!

https://www.justice.gov/eoir/page/file/955631/download

Here’s the headnote:

“(1) A sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), clarified.

(2) Sexual solicitation of a minor under section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense in violation of section 3-307 is categorically a crime involving moral turpitude.”

PANEL: Appellate Immigration Judges Pauley, Mullane, and Greer; Opinion by Judge Pauley.

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Yeah, I know that they teach you in law school never to rely on headnotes. So, if you are going to use this case for any legal filing you should of course read the entire opinion.

But, for the rest of us, the BIA headnotes are some of the “best in the business” if I do say so myself, having had some role in setting up the “modernized version” of BIA precedent distribution and formatting in one of my former lives.

And with this case, the BIA crosses another threshold in its 77 year history: completion of Volume 26 and the very first decision in Volume 27.

PWS

04-08-17

NY TIMES EDITORIAL: The “Art Of The Shame” Makes America Less Safe!

https://mobile.nytimes.com/2017/03/22/opinion/president-trumps-reckless-shame-game.html?em_pos=small&emc=edit_ty_20170323&nl=opinion-today&nl_art=0&nlid=79213886&ref=headline&te=1&_r=0&referer=

“President Trump’s Homeland Security Department turned its immigration purge — and assault on the Constitution — up a notch this week. It posted the first of what it says will be weekly online reports identifying state and local law enforcement agencies that decline its requests to keep immigrants in jail to give federal agents time to pick them up.

The idea is to name and shame these agencies, accusing them of recklessly loosing dangerous aliens onto the streets. The report, on the Immigration and Customs Enforcement website, trumpets itself as a “Public Safety Advisory.” It includes a grim warning from the acting ICE director, Thomas Homan, about the agency’s requests, called detainers: “When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE’s ability to protect the public safety and carry out its mission.”

The accusation is dishonest. The report is a sham. And the claim of protecting public safety is ridiculous — dangerously so.

When local authorities decline to honor ICE detainers, they can have any number of good reasons for doing so. A likely one is the Fourth Amendment, which forbids imprisoning anyone without justification. If a police department is about to release someone who posts bail, it can’t prolong the detention — in essence, arrest that person again — just because ICE asks it to. Federal courts have repeatedly ruled that the local police cannot be forced to honor a detainer in violation of the Constitution. That is, without an arrest warrant from a judge. Which an ICE detainer is not.
Beyond the constitutional problems lies an argument about public safety, which also finds the Trump administration on the wrong side of the facts, in service of a campaign of fear. Mr. Trump has been trying to make Americans fear unauthorized immigrants. He has succeeded in making these immigrants terrified of him, having declared open season on the undocumented, in effect making every one of 11 million people a priority for deportation. Nobody — not parents of citizen children, not students, not those with clean records and deep American roots — is above suspicion or safe from arrest.

. . . .

By attacking them in this way, the administration puts local law enforcement agencies in a terrible position. Honoring a detainer puts them at risk of a federal lawsuit. Not honoring one puts them in the cross hairs of the xenophobic Mr. Trump. His indiscriminate search for immigrants to deport keeps ICE from focusing on real public safety threats. It antagonizes local agencies that want to do policing the right way. It emboldens corrupt local jurisdictions that engage in racial profiling and other abuses. And it makes immigrants fear and shun the protection of law enforcement.

The result: Everybody is afraid. And everybody is less safe.”

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Read the complete editorial at the above link.

PWS

03/23/17

THE HILL: Nolan Rappaport Gives Thumbs Up To President Trump’s “VOICE” Program

http://thehill.com/blogs/pundits-blog/immigration/321859-trumps-mostly-wrong-about-immigrant-crime-but-gets-1-thing

Nolan writes in The Hill:

“The VOICE office will create a programmatic liaison between ICE and victims of crimes committed by removable aliens. The objective is to facilitate engagement with the victims and their families to ensure, to the extent permitted by law, that they are provided with information about the offender, including the offender’s immigration status and custody status.
Secretary Kelly funds this program by ordering the director of ICE to reallocate the resources currently used to advocate on behalf of undocumented aliens (except to comply with a judicial order) to the new VOICE Office, and to terminate outreach and advocacy services to undocumented aliens immediately.

VOICE is not a completely new idea. ICE established a Victim Assistance Program in 2008, but it has worked primarily with victims of human trafficking.

A Huffington Post contributor says, “Let’s call this what it is: VOICE is racist government propaganda.” He claims that VOICE will embroil the media and the public in a constant debate about the merits of immigration in the United States.

Even if the contributor is right about President Trump’s intention in creating this program, and I do not think he is, I applaud the president’s attempt to help crime victims.

Moreover, I believe that the public is entitled to more information about crimes committed by immigrants, particularly the ones who are here in violation of our immigration laws. Then, we will be able to let the facts speak for themselves.”

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Nolan informs me that his article made “The Hill’s Top Five Hit Parade.” Congratulations to Nolan, and many thanks for his timely and highly readable scholarship on immigration and politics.

Note that to fund VOICE, DHS will terminate all outreach programs aimed at assisting undocumented individuals involved in various DHS processes.

PWS

03/01/17

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