DHS Secretary John Kelly – Page 8 – immigrationcourtside.com

IMMIGRATION HISTORY: Here’s The Chase-Burman Mini-Library Of Immigration History, Courtesy Of “The Green Card!”

75 Years of the BIA

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Spring-2016-updated.aspx

“Matter of L-, 1 I&N Dec. 1 (BIA 1940), was issued on August 29, 1940, the day before the Board of Immigration Appeals came into existence.2 Some background about the Board’s early history is required to explain this. From 1922 until 1940, a five-member Board of Review existed within the Department of Labor to review all immigration cases. The Board of Review had no decision- making authority of its own; it could only recommend action to the Secretary of Labor. In 1933, the Immigration and Naturalization Service (INS) was formed within the Department of Labor,3 and from 1933 until 1939 the Board of Review made its recommendations to the Commissioner of Immigration and Naturalization.4″

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Commentary on “Pattern or Practice” Persecution

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Fall-2016-.aspx

In INS v. Cardoza-Fonseca, its landmark 1987 decision establishing that the burden of proving a “well-founded fear of persecution” is significantly less than fifty percent, the Supreme Court relied on the following scholarly example: “Let us…presume that it is known that in applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp… In such a case it would be only too apparent that anyone who managed to escape from the country would have ‘well-founded fear of being persecuted’ on his eventual return.”2 While the Court’s decision predates the “pattern or practice” regulation by more than three years, the example it relies on (which predates the regulation by 24 years) presents a classic “pattern or practice” scenario. The hypotheti- cal establishes (1) a group, i.e., all adult males in a particular country; and (2) information establishing systemic persecution of one in ten members of such group. all members of the group therefore have a well-founded without the need to explain their individual circumstances.”

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The History of Racism in U.S. Immigration

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/the-green-card-winter-2017.aspx

“Racism was codified in this country’s original natu- ralization law. The Naturalization Act of 1790 limited the right to naturalize to “free white persons.” Following the Civil War, the Act of July 14, 1870, added “aliens of African nativity” and “aliens of African descent” to those eligible to naturalize. However, all others considered “non-white” continued to be barred from obtaining United States citizenship. In 1922, the Supreme Court denied Takao Ozawa, a Japanese immigrant who had lived in the U.S. for 20 years, the right to become a naturalized citizen because he “clearly” was “not Caucasian.” In interpreting the term “free white persons,” the Court found that “the framers did not have in mind the brown or yellow races of Asia.”1 In United States v. Bhagat Singh Thind,2 the Supreme Court reached the same conclusion regarding an “upper-caste Hindu” who claimed a lineage classi ed as “Aryan” or “Caucasian.” The Court determined that “Aryan” related to “linguistic, and not at all with physical, characteristics,” and concluded that the term “free white persons” as understood by the common man, would not include those of Hindu ancestry.3 It was not until passage of the McCarran-Walter Act in 1952 that the naturalization law was amended to read that “[t]he right of a person to become a naturalized citizen shall not be denied or abridged because of race or sex…”4

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Read all three of Judge Chase’s outstanding histories and get some “instant perspective” on how we got to where we are today as a nation of immigrants. There was no shortage of hypocracy. And, I submit that in the course of history some of today’s politicians advocating restrictive racially and religiously charged immigration policies are going to look just as distasteful, arrogant, prejudiced, and ignorant as some of the judges, lawmakers, and government officials described in these articles.

PWS

06-19-17

UPDATE

Judge Chase has reminded me that there is a fourth part to this collection:

The History of U.S. Asylum Law

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Summer-2016.aspx

“U.S. asylum policy is a product of the tension between the public sentiments of compassion and fear. In the words of a former Deputy UN High Commissioner: “The public will not allow governments to be generous if it believes they have lost control.” 1 Although asylum can be traced back at least to the Old Testament, for all practical purposes, U.S. asylum policy began on the eve of World War II.”

PWS

06-21-17

The Gibson Report For June 19, 2017

The Gibson Report, June 19, 2017

Thanks, Elizabeth!

PWS

06-19-17

THE HILL: Professor Andy Schoenholtz Of Georgetown Law On Why Americans Should Be Grateful To The 9th Circuit For Upholding The Rule Of Law Against Executive Overreach!

http://thehill.com/blogs/pundits-blog/civil-rights/337955-9th-circuit-on-travel-ban-president-must-respect-congress

Professor Schoenholtz concludes:

“In fact, had the president focused on asking America’s civil servants to build on the progress achieved since 9/11 and try to find new ways of identifying security threats among those who seek visas, that work would have been accomplished by now, according to the schedule set by both the first and second EO’s.

If the Supreme Court decides at some point to hear a case regarding the EO, they will now be asked to consider not only whether the President has violated the Establishment Clause but also whether he has exceeded his statutory authority. As determined by the Supreme Court in the late nineteenth century, Congress has the constitutional authority to establish the immigration laws.

It has done just that by statute. The president has broad authority to implement that statutory system, but does the president have the power to stop admitting immigrants from six countries? From sixty? From all countries? Where does this end, and where would that leave Congress and the equilibrium established by the Constitution? We should thank the Ninth Circuit for raising that issue clearly and thoughtfully.

Andrew I. Schoenholtz is a Professor from Practice at Georgetown Law and the author, with Professors Jaya Ramji-Nogales and Philip G. Schrag, of “Lives in the Balance: Asylum Adjudication by the Department of Homeland Security.”

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

Read Andy’s entire analysis at the link.

I’m still somewhat skeptical that the Supremes will take this case given the problems caused by the President’s out of court statements and tweets. Future Chief Executives likely will be more “Presidential” and act with more prudence and thoughtfulness. So, why take a case that hopefully will turn out to be more or less “sui generus?” If I were the Supremes, I would let the lower courts sort through this mess and make a complete record before approaching the legal questions. But, we’ll see. Very soon!

PWS

06-19-17

DHS Wants To Assure Dreamers That They Should NOT Be Reassured — DACA Revocation Still Possible!

http://www.politico.com/story/2017/06/16/trump-daca-immigration-deportation-relief-program-239654?cid=apn

Ted Hesson writes in Politico:

“The future of an Obama-era deportation relief program remains undecided, the Department of Homeland Security said Friday.

The announcement was meant to clarify the department’s position on the Deferred Action for Childhood Arrivals program, which allows nearly 788,000 undocumented immigrants to apply for work permits and live in the U.S. without fear of deportation.

“The future of the DACA program continues to be under review with the administration,” a DHS spokesperson said in a written statement. “The president has remarked on the need to handle the issue with compassion and with heart.”

DHS felt compelled to issue a statement on the program’s fate after POLITICO and other outlets reportedThursday on guidance posted to the DHS website that suggested DACA would remain on firm footing under the Trump administration.

The guidance came as the administration terminated a separate deportation relief program for parents of U.S. citizens and lawful permanent residents that had been blocked by federal courts since early 2015.

On its website, DHS assured that DACA would not be affected by the move. “No work permits will be terminated prior to their current expiration dates,” the guidance read.

The department said today that it intended only to clarify that DACA would not be immediately canceled. The guidance, DHS said, “should not be interpreted as bearing any relevance on the long-term future of that program.”

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Even when faced with an opportunity to do something nice for folks, that would also help DHS out in practical terms, the Trumpsters just can’t resist an opportunity to sow fear and uncertainty.

PWS

Secretary Kelly Rescinds DAPA, But Retains DACA!

https://townhall.com/tipsheet/mattvespa/2017/06/15/dhs-secretary-kelly-signs-memo-rescinding-obamas-dapa-program-n2342012

Matt Vespa reports on Townhall:

“It’s official. The Department of Homeland Security has rescinded the memorandum that created the Deferred Action for Parents of Americans and Lawful Permanent Residents under the Obama administration. A statement from the department noted that Department of Homeland Security Secretary John F. Kelly consulted with the attorney general’s office on this subject and was able to sign off a new memorandum ending the DAPA program. The Deferred Action For Childhood Arrivals (DACA) remains in place:

On June 15, Department of Homeland Security Secretary John F. Kelly, after consulting with the Attorney General, signed a memorandum rescinding the November 20, 2014 memorandum that created the program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) because there is no credible path forward to litigate the currently enjoined policy.
The rescinded memo purported to provide a path for illegal aliens with a U.S. citizen or lawful permanent resident child to be considered for deferred action. To be considered for deferred action, an alien was required to satisfy six criteria:
(1) as of November 20, 2014, be the parent of a U.S. citizen or lawful permanent resident;
(2) have continuously resided here since before January 1, 2010;
(3) have been physically present here on November 20, 2014, and when applying for relief;
(4) have no lawful immigration status on that date;
(5) not fall within the Secretary’s enforcement priorities; and
(6) “present no other factors that, in the exercise of discretion, make [ ] the grant of deferred action inappropriate.”
Prior to implementation of DAPA, twenty-six states challenged the policies established in the DAPA memorandum in the U.S. District Court for the Southern District of Texas. The district court enjoined implementation of the DAPA memorandum, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and the Supreme Court allowed the district court’s injunction to remain in place.
The rescinded policy also provided expanded work authorization for recipients under the DACA program for three years versus two years. This policy was also enjoined nationwide and has now been rescinded.
The June 15, 2012 memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect.”

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The formal rescission of DAPA was anticipated. The Obama Administration program never went into effect. It was immediately enjoined by a US Distict Judge in Texas. That injunction was upheld by a split Fifth Circuit. The Obama Administration succeeded in obtaining Supreme Court review. However, following the death of Justice Scalia, the Court split 4-4, without issuing an opinion, thereby allowing the injunction to remain in effect. Following the election, the cancellation of DAPA became inevitable.

Ironically, the reasoning of the District Judge and the Fifth Circuit in the DAPA case has been cited by some in support of the so-far successful effort to enjoin Trump’s Travel Ban.

But, the good news here is that for the time being, at least, DACA remains in effect. As I have previously reported, the DHS is approving both new DACA applications and applications for renewal of DACA status.

PWS

06-16-17

CAL Moves To Thwart Additional Immigration Detention!

https://www.buzzfeed.com/adolfoflores/california-deals-blow-to-trumps-plan-to-expand-immigrant?utm_term=.wu6ag8mx2#.ph7jvNV2r

Adolfo Flores reports in BuzzFeed:

“California lawmakers on Thursday dealt a blow to the Trump administration’s plans to expand capacity for detaining undocumented immigrants in the state.

The provision, which is part of California’s $125-billion budget, stops local jurisdictions from signing new contracts or expanding existing contracts with US Immigration and Customs Enforcement (ICE) for detaining immigrants. It also requires the state attorney general to conduct reviews of all detention facilities holding immigrants. The budget plan now goes to the desk of Gov. Jerry Brown, who is expected to sign it.

California’s move comes as ICE is seeking a $1.2-billion increase in funding for the next fiscal year. The agency’s budget calls for nearly $4.9 billion to expand detention capacity to 51,379, with the ability to hold about 49,000 adults and 2,500 families.

At the same time, the Trump administration has expanded the pool of deportation priorities to include nearly all 11 million undocumented immigrants.

California state Sen. Nancy Skinner, who introduced the language into the bill, cited that expanded pool of possible deportees as a major reason for the new rule.

“That’s just an absurd expansion, which California overall rejects,” Skinner told BuzzFeed News. “We don’t support the president’s broad executive orders and we feel that any detainee should be treated humanely.”

A razor wire fence surrounds the Adelanto immigration detention center, which is run by the Geo Group Inc.

The Golden State is home to nine immigration detention facilities, and all but Otay Mesa Detention Center in San Diego contract with local jurisdictions to hold immigrants. A recent report from Human Rights Watch estimates that 65,000 immigrants are detained in California every year, second only to Texas.

Grace Meng, senior researcher at Human Rights Watch, said it’s an unprecedented move by a state with so many immigrant detainees.

“People think of California as a liberal state that’s anti-Trump and pro-immigrant, but after Texas, it holds more immigrants than any other state,” Meng told BuzzFeed News. “This certainly can’t stop Trump’s detention plan singlehandedly, but it’s an important step for a state to take.”

However, Virginia Kice, spokeswoman for ICE, said placing limitations on the agency’s detention options in California won’t hinder their efforts.

“It will simply mean ICE will have to transfer individuals encountered in California to detention facilities outside the state, at a greater distance from their family, friends, and legal representatives,” Kice said in a statement to BuzzFeed News.”

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Read the complete article at the link.

Yeah, as if keeping folks near “family, friends, and legal representatives” was ever a factor in DHS detention decisions. What a complete crock!

No, it’s largely about money, using detention as a deterrent/demoralizer, and, occasionally, forum shopping by the DHS to gets folks into Circuits where the law is less favorable to their claims for relief. In the latter respect, DHS could actually benefit from detaining more folks outside the jurisdiction of the 9th Circuit. It also appears that lining the pockets of certain private detention contractors and state jurisdictions might be a factor in jacking up needless detention. Added to the steady stream of deaths in immigration detention, it has become a pretty unwholesome business.

It starts with a “detention-happy” Congress and goes down the line from there. To date, those who have promoted and enabled overuse of immigration detention have escaped political, legal, and moral accountability. But, history is infinitely long and has a funny way of eventually catching up with those who seek to evade its judgments, even after death.

PWS

06-15-17

NO MERCY, NO JUDGEMENT, NO SANITY — “Deport ‘Em All — Create Universal Fear” (Paraphrased) Says Acting ICE Chief Homan!

http://www.washingtontimes.com/news/2017/jun/13/thomas-homan-ice-chief-says-illegal-immigrants-sho/

Stephen Dinan reports in the Washington Times:

“Illegal immigrants should be living in fear of being deported, the chief of U.S. Immigration and Customs Enforcement said Tuesday, pushing back against a growing sentiment among Democrats on Capitol Hill and activists across the country who have complained about agents enforcing the laws on the books.
Thomas D. Homan, acting director at ICE, said anyone in the country without authorization can be arrested and those who have been ordered deported by judges must be removed if laws are to have meaning.
His comments marked a major shift for an agency that President Obama forbade from enforcing the law when it came to more than 9 million of the country’s estimated 11 million illegal immigrants. Unshackled from Mr. Obama’s strictures, agents have dramatically increased the number of arrests.
Advocacy groups are enraged and demand leniency for “traumatized” immigrants.
Mr. Homan makes no apologies.
“If you’re in this country illegally and you committed a crime by being in this country, you should be uncomfortable, you should look over your shoulder. You need to be worried,” Mr. Homan testified to the House Appropriations Committee. “No population is off the table.”

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Homan’s definition of “criminal” (the “Trump definition”) is remarkable. It includes folks who have never been convicted of a crime, but might have committed one. So, by this definition, anyone who has ever driven a car while over the legal limit, left assets off of a Federal or State tax return, or tried marijuana in high school or college when it was against the law is a “criminal.” That probably would include the majority of the U.S. population, and even lots of folks who work for Homan. Fortunately for them, they aren’t subject to Homan’s arbitrary removal policies.
Homan’s over-broad use of “criminal” nevertheless excludes a large portion of the undocumented population who entered the U.S. legally on visas or visa waivers and then overstayed. Recent studies estimate that the visa overstays surpassed illegal entrants as a source of undocumented arrivals in 2008 and might amount to as much as 60% of the “new” undocumented population in recent years. Overstaying is not, in and of itself, a “crime.”
Some of the individuals under “final orders” of removal were ordered removed in absentia. Many of these individuals have a right to file a motion to reopen which automatically stays removal and requires immediate attention by an Immigration Judge. In my experience, because of the “haste makes waste” priorities followed by the last few Administrations, many “Notices To Appear” (NTA’s) had incorrect addresses or were otherwise were defectively served. (Keep in mind that the overwhelming majority of NTAs and Notices of Hearing Date are served by regular U.S. Mail, rather than actual personal service.) Consequently, many of these supposed “scofflaws” might not actually have had their day in court and will be entitled to a reopened individual hearing in the future.
Make no mistake about it, what Homan really is advocating is arbitrary enforcement. We can’t remove millions of individuals, but by arbitrarily removing a limited number, even if they are actually benefitting the US, we can spread fear among millions. And, by sowing fear, we can make these individuals afraid to report crime or cooperate with authorities in solving crime.
It’s not really Homan’s fault. His pride in his largely arbitrary use of the enforcement resources at his disposal is just the logical outcome of years of intentional neglect of needed immigration reforms by Congress and successive Administrations. Arbitrary enforcement is what the Trump Administration asked for, and Homan is giving it to them. Big time! Eventually, it’s likely to crash the entire system. And, that will finally force Congress to do what it hates most: legislate.
It also would be wrong to think of Acting Director Homan as a creation of the Trump Administration. He is a career civil servant who is exceptionally good at doing what he is told to do. So good, in fact, that he received a Presidential Rank SES Award from the Obama Administration for “jacking up” removals. Don’t forget that until Trump and his bombast arrived on the scene, President Obama was known as the “Deporter-in-Chief.” Obama made mistakes, but he did temper some of his counterproductive enforcement efforts with at least some amount of mercy, common sense, and the very beginnings of a rational system of enforcement along the lines of almost every other law enforcement agency in America. With Trump, the age of “full gonzo enforcement” has returned.

PWS

06-14-17

NICHOLAS KULISH IN THE NYT: TORTURED IN VENEZUELA, HANDCUFFED BY ICE @ THE MIAMI ASYLUM OFFICE! — DHS Continues To Abuse Legal Authority, Clog Backlogged U.S. Immigration Courts! My Quote: “Why clog an already clogged court docket with a case that looks like a slam dunk?”

https://www.nytimes.com/2017/06/13/us/asylum-torture-venezuela.html

Nicholas reports:

“Marco Coello, then a skinny 18-year-old high school student, was grabbed by plainclothes agents of the Venezuelan security services as he joined a 2014 demonstration against the government in Caracas.

They put a gun to his head. They attacked him with their feet, a golf club, a fire extinguisher. They tortured him with electric shocks. Then Mr. Coello was jailed for several months, and shortly after his release, he fled to the United States.

Human Rights Watch extensively documented his case in a report that year. The State Department included him in its own human rights report on Venezuela in 2015. With such an extensive paper trail of mistreatment in his home country, his lawyer, Elizabeth Blandon, expected a straightforward asylum interview when Mr. Coello appeared at an immigration office this April in Miami.

“I had this very naïve idea that we were going to walk in there and the officer was going to say, ‘It’s an honor to meet you,’” said Ms. Blandon, an immigration law expert in Weston, Fla.

Instead, he was arrested and taken to a detention facility on the edge of the Everglades. He was now a candidate for deportation. “Every time they would move me around, I would fear that they were going to take me to deport me,” said Mr. Coello, now 22.

Mr. Coello’s case drew extensive media coverage in both Miami and Caracas and, eventually, the intervention of Senator Marco Rubio of Florida. The senator helped secure Mr. Coello’s release, though he could still be deported.

The case may have been a sign of just how far the government is willing to go to carry out President Trump’s crackdown on illegal immigration.

“It’s very unusual — almost unprecedented — that ICE would arrest an asylum applicant who is at a U.S.C.I.S. office waiting for their asylum interview,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

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

Just because arresting individuals believed to be in the U.S. without authorization is legal doesn’t mean that it’s not stupid or wasteful in many cases. Cases like this belong in the Asylum Office.

In a well-functioning system, Mr. Coello likely would have been granted asylum following his interview. Instead, he’s on an already overcrowded U.S. Immigration Court docket with a merits hearing scheduled for approximately one year from now.

What does the U.S. gain from these types of wasteful enforcement actions? What message are we sending to Mr. Coello and others who will eventually become full members of our society? What kind of messages are we sending to Venezuela and those attempting to escape from some of the world’s most brutal governments?

Read Nicholas’s complete report, which contains more quotations from me and others, at the above link.

PWS

06-13-17

Secretary Kelly Proposes Legislative Legalization For Dreamers & Central American TPSers! — Puts Ball In Congress’s Court!

http://m.washingtontimes.com/news/2017/jun/11/john-kelly-dhs-secretary-suggests-dreamer-amnesty/

The Washington Times reports:

http://m.washingtontimes.com/news/2017/jun/11/john-kelly-dhs-secretary-suggests-dreamer-amnesty/

“The Trump administration last week floated an amnesty idea for potentially 1 million illegal immigrants, looking to find permanent solutions for some of the most sympathetic cases in the long-running immigration debate.

In two days of testimony to Congress, Homeland Security Secretary John F. Kelly said he doubts his ability to oust some 250,000 immigrants from Central American countries who have been in the U.S. for nearly two decades on a temporary humanitarian relief program.

He also signaled that he would keep protecting 780,000 Dreamers from deportation and hoped Congress would grant them permanent status.

“You’ve got to solve this problem,” Mr. Kelly told the House Homeland Security Committee when members prodded him not to deport Dreamers.

He said he would not deport Dreamers but warned that the policy could change when someone else takes over his job, making the only solution congressional action. He said there is clear bipartisan support for some form of permanent legalization and urged lawmakers to take the opportunity that the Trump administration is giving.

“I’m not going to let the Congress off the hook. You’ve got to solve it,” he said.

If lawmakers wait, he warned, a future secretary might take a stricter line on Dreamers and fully cancel President Obama’s 2012 amnesty, known in governmentspeak as DACA.”

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

Finally, some of the common sense and nuance that many had hoped Secretary Kelly would bring to the table! And, some public recognition that it is neither desirable nor possible to restore or pursue all of these cases on already overwhelmed U.S. Immigration Court dockets. I also agree with the Secretary that Congress needs to step up to the plate and fashion some type of bipartisan legislative solution.

One thing that might favor a solution in this Congress: one of the strongest opponents of past bi-partisan efforts at common-sense immigration reform, Jeff “Gonzo-Apocalypto” Sessions, is no longer in the Senate. In fact he seems to be “otherwise occupied” these days defending himself on possible ethnics and perjury charges.

My friend, Nolan Rappaport, who has been touting bipartisan legislative solutions to immigration problems for ages should be cheered with this development! Nolan recently reported that some of his articles from The Hill were entered into the Congressional Record!

PWS

06-12-17

US Immigration Judge Frees Immigrant Activist — Incredulous At DHS’s Position!

http://abcnews.go.com/International/wireStory/immigration-judge-orders-release-los-angeles-woman-47945745

The AP reports:

“A Mexican woman was released from custody Friday while the U.S. government seeks to deport her after a judge rejected arguments she should wear a monitoring device because she was arrested twice while demonstrating in support of people in the country illegally.

Claudia Rueda, 22, plans to apply for Deferred Action for Childhood Arrivals, a program started in 2012 under President Barack Obama that shields immigrants who came to the U.S. as young children from being deported. Her case has drawn attention because she has no criminal record and is an immigration activist.

The immigration judge, Annie S. Garcy, said holding Rueda without bond was “unduly severe” and allowed her to be released on her own recognizance. She noted Ruedas’ academic and other achievements and was incredulous when a government attorney asked that Rueda be required to wear a monitoring device.

“Wow, an ankle bracelet? Really?” said Garcy, who is on temporary assignment from Newark, New Jersey, under an administration effort to give higher priority to cases along the U.S. border with Mexico.

The government attorney, Matthew Hanson, responded that Rueda was arrested twice, once for trespassing and once for disorderly conduct.

Her attorney, Monika Langarica, said those arrests occurred during peaceful demonstrations to support people in the country illegally. She was charged in only one case and it was dismissed.

Rueda, a student at California State University, Los Angeles, was arrested on immigration charges May 18 outside a relative’s Los Angeles home in connection with what the U.S. Border Patrol said was a drug smuggling investigation.

Her mother, Teresa Vidal-Jaime, was arrested on immigration violations in April in connection with the same investigation and later released from custody. Neither Rueda nor her mother was arrested on drug charges.

U.S. Immigration and Customs Enforcement said it would comply with the order to release Rueda and will consider any additional requests by her attorney.”

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Read the complete report at the link.

Under a rational policy, this respondent should have been released by DHS on recognizance and given time to apply for DACA. No wonder the U.S. Immigration Courts are near collapse when DHS wastes precious judicial time on cases that don’t belong in court in the first place.

I don’t blame the Assistant Chief Counsel, Mr Hanson. He’s probably just following instructions. The most knowledgeable folks in the DHS, their court lawyers, have been stripped of the authority to exercise sensible prosecutorial discretion. Instead, Gen. Kelly has turned line agents loose to do as they please.

In other words, he is presiding over a random enforcement system that wastes taxpayer money, abuses the courts, and harms individuals whose cases shouldn’t be in the enforcement system at all.

REALITY CHECK: According to TRAC, as of April 30, 2017, the Newark Immigration Court, where Judge Garcy normally sits, was setting “merits” cases for September 1, 2020, three plus years from now. Why on earth, then, was Judge Garcy sent to California to hear non-merits (i.e., bond) cases that didn’t even belong in court in the first place? Through a disastrous combination of “gonzo” enforcement policies and stunning incompetence the Trump Administration is destroying a key component of the US justice system. When and where will it end?

PWS

06-11-17

REUTERS: Neither Rhyme Nor Reason Apparent In DHS Decisions to Undo Prosecutorial Discretion

http://www.reuters.com/article/us-usa-immigration-deportations-exclusiv-idUSKBN1902I4

Mica Rosenberg and Reade Levinson report from Reuters:

“In September 2014, Gilberto Velasquez, a 38-year-old house painter from El Salvador, received life-changing news: The U.S. government had decided to shelve its deportation action against him.

The move was part of a policy change initiated by then-President Barack Obama in 2011 to pull back from deporting immigrants who had formed deep ties in the United States and whom the government considered no threat to public safety. Instead, the administration would prioritize illegal immigrants who had committed serious crimes.

Last month, things changed again for the painter, who has lived in the United States illegally since 2005 and has a U.S.-born child. He received news that the government wanted to put his deportation case back on the court calendar, citing another shift in priorities, this time by President Donald Trump.

The Trump administration has moved to reopen the cases of hundreds of illegal immigrants who, like Velasquez, had been given a reprieve from deportation, according to government data and court documents reviewed by Reuters and interviews with immigration lawyers.

Trump signaled in January that he planned to dramatically widen the net of illegal immigrants targeted for deportation, but his administration has not publicized its efforts to reopen immigration cases.

It represents one of the first concrete examples of the crackdown promised by Trump and is likely to stir fears among tens of thousands of illegal immigrants who thought they were safe from deportation.

While cases were reopened during the Obama administration as well, it was generally only if an immigrant had committed a serious crime, immigration attorneys say. The Trump administration has sharply increased the number of cases it is asking the courts to reopen, and its targets appear to include at least some people who have not committed any crimes since their cases were closed.

Between March 1 and May 31, prosecutors moved to reopen 1,329 cases, according to a Reuters’ analysis of data from the Executive Office of Immigration Review, or EOIR. The Obama administration filed 430 similar motions during the same period in 2016.

Jennifer Elzea, a spokeswoman for U.S. Immigration and Customs Enforcement, confirmed the agency was now filing motions with immigration courts to reopen cases where illegal immigrants had “since been arrested for or convicted of a crime.”

It is not possible to tell from the EOIR data how many of the cases the Trump administration is seeking to reopen involve immigrants who committed crimes after their cases were closed.

Attorneys interviewed by Reuters say indeed some of the cases being reopened are because immigrants were arrested for serious crimes, but they are also seeing cases involving people who haven’t committed crimes or who were cited for minor violations, like traffic tickets.

“This is a sea change, said attorney David Leopold, former president of the American Immigration Lawyers Association. “Before, if someone did something after the case was closed out that showed that person was a threat, then it would be reopened. Now they are opening cases just because they want to deport people.”

Elzea said the agency reviews cases, “to see if the basis for prosecutorial discretion is still appropriate.”

POLICY SHIFTS

After Obama announced his shift toward targeting illegal immigrants who had committed serious crimes, prosecutors embraced their new discretion to close cases.

Between January 2012 and Trump’s inauguration on Jan. 20, the government shelved some 81,000 cases, according to Reuters’ data analysis. These so-called “administrative closures” did not extend full legal status to those whose cases were closed, but they did remove the threat of imminent deportation.

Trump signed an executive order overturning the Obama-era policy on Jan. 25. Under the new guidelines, while criminals remain the highest priority for deportation, anyone in the country illegally is a potential target.

In cases reviewed by Reuters, the administration explicitly cited Trump’s executive order in 30 separate motions as a reason to put the immigrant back on the court docket. (For a link to an excerpted document: tmsnrt.rs/2sI6aby)

Since immigration cases aren’t generally public, Reuters was able to review only cases made available by attorneys.

In the 32 reopened cases examined by Reuters:

–22 involved immigrants who, according to their attorneys, had not been in trouble with the law since their cases were closed.

–Two of the cases involved serious crimes committed after their cases were closed: domestic violence and driving under the influence.

–At least six of the cases involved minor infractions, including speeding after having unpaid traffic tickets, or driving without a valid license, according to the attorneys.

In Velasquez’s case, for example, he was cited for driving without a license in Tennessee, where illegal immigrants cannot get licenses, he said.

“I respect the law and just dedicate myself to my work,” he said. “I don’t understand why this is happening.”

Motions to reopen closed cases have been filed in 32 states, with the highest numbers in California, Florida and Virginia, according to Reuters’ review of EOIR data. The bulk of the examples reviewed by Reuters were two dozen motions sent over the span of a couple days by the New Orleans ICE office.

PUMPKIN SEED ARREST

Sally Joyner, an immigration attorney in Memphis, Tennessee said one of her Central American clients, who crossed the border with her children in 2013, was allowed to stay in the United States after the government filed a motion to close her case in December 2015.

Since crossing the border, the woman has not been arrested or had trouble with law enforcement, said Joyner, who asked that her client’s name not be used because of the pending legal action.

Nevertheless, on March 29, ICE filed a two-page motion to reopen the case against the woman and her children. When Joyner queried ICE, an official said the agency had been notified that her client had a criminal history in El Salvador, according to documents seen by Reuters.

The woman had been arrested for selling pumpkin seeds as an unauthorized street vendor. Government documents show U.S. authorities knew about the arrest before her case was closed.

Dana Marks, president of the National Association of Immigration Judges, said that revisiting previously closed matters will add to a record backlog of 580,000 pending immigration cases.

“If we have to go back and review all of those decisions that were already made, it clearly generates more work,” she said. “It’s a judicial do-over.”

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

I remember that during his confirmation hearings in the Senate, Secretary Kelly came across as someone who understood law enforcement priorities and the futility of “enforcement for enforcement’s sake.” But the “hallmarks” of the “Kelly DHS” have been arbitrary and irrational enforcement, lack of transparency, lack of planning, general disregard of humane values, disrespect for migrants, waste of taxpayer dollars, and gross abuse of the U.S. Immigration Court’s docket.

PWS

06-09-17

US District Judge In Texas: DHS Detainers UNCONSTITIONAL!

The case is Santoyo v. USA. The judge is Chief U.S. District Judge Orlando Garcia, W.D. Tex. Read a summary and get a copy of the complete decision from LexisNexis here:

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.lexisnexis.com_legalnewsroom_immigration_b_immigration-2Dlaw-2Dblog_archive_2017_06_09_texas-2Djudge-2Ddetainers-2Dunconstitutional-2Dsantoyo-2Dv-2Dusa.aspx&d=DQMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=fVRNdU2VDNz5G-xkDmzIHJDayE6dAgl2QFOONWGizXo&m=eYmyVp_b4b6sgSLEWXliECUTA8OV1IM4Onh1TwuWXu4&s=xsuek2YuKGwZ6Og703o-8xGeMgkfm4ZNOovDmzDs6KU&e=

Sessions, Kelly, Abbott & Co. might be putting local jurisdictions “between a rock and a hard place” with their aggressive “anti-sanctuary” policies.

PWS

06-09-17

H-2B Nonimmigrant Visa Dispute Hits US Seasonal Industries!

https://www.nytimes.com/2017/06/08/us/summer-jobs-visas.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region®ion=top-news&WT.nav=top-news&_r=0

Miriam Jordan reports in the NY Times:

“Mackinac Island has a permanent population of about 500 people and just as many horses, but no cars. From May to October, the picturesque Michigan getaway relies on about 3,000 workers to power its economic engine: summer tourism.

Historically, up to a third of those workers are foreigners, including Mexicans, Filipinos, Canadians and Jamaicans, who are hired on seasonal visas. But when many of the island’s business owners applied for those visas this year, they heard from the government that none were left.

So at the Iroquois Hotel, a Victorian property on the waterfront where rooms command up to $1,200 a night, the owner is trying to figure out how to maintain its high standards without 30 Jamaican housekeepers. Other hotels are contemplating closing off whole sections. Even those who own the ubiquitous horses are wondering if they will have enough workers.

“It’s urgent for us to get more visas to save the season,” Brad Chambers, who operates horse tours and taxis, said.

The island whose selling point is being stuck in time is now suffering because it is stuck in the middle of a modern-day struggle over jobs and who should be doing them. So, too, are a number of the regional industries that define the American summer but have increasingly relied on non-American workers, from vacation spots in Maine and Minnesota to Gulf Coast shrimpers and the salmon fisheries of Alaska.”

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

So, how does having unused hotel rooms and unprocessed fish help U.S. Workers? An employer has to show unsuccessful efforts to recruit US workers to get a petition approved in the first place.

Exploitation of foreign workers is another question. That requires more vigorous inspection and investigation by the USDOL. But, these are exactly the kinds of regulatory inspection and enforcement jobs that the Trump Administration seeks to eliminate under the guise of “”lessening the buurden” on US employers!

PWS

06-08-17

BREAKING: NPR’s Beth Fertig Exposes Administration’s Immigration Court Due Process Disaster — Taxpayers Billed For Sending Judges To Hustle Detainees Through Court Without Lawyers, Leaving More Represented Cases At Home To Rot! — Backlogs Mushroom As Administration Plays Games With Human Lives!

http://www.wnyc.org/story/missing-new-york-immigration-judges/

Fertig reports:

“In the middle of May, paper notices were posted on the walls of the federal building in lower Manhattan announcing the absence of several immigration judges. Some were out for a week or two, while others were away for six weeks. The flyers said their cases would be rescheduled.

The Executive Office for Immigration Review, which runs the immigration courts, would not comment on the judges’ whereabouts. It cited the confidentiality of personnel matters. But after WNYC asked about these missing judges, many of the paper notices were taken off the walls of the 12th and 14th floors, where hearings are held in small courtrooms.

It’s no secret that President Donald Trump’s administration has been redeploying judges to detention centers near the southern border to speed up the processing of cases. After contacting numerous immigration attorneys down south, as well as retired judges and others, WNYC was able to crowdsource the judges’ locations. At least eight of New York City’s 29 immigration judges had been sent to Texas and Louisiana since March to conduct hearings in person or by video. Six judges were out for different parts of the month of May, alone.

“NYC

The federal building is home to the nation’s busiest immigration court, with a backlog of 80,000 cases. By redeploying so many judges in such a short period of time, immigration lawyers fear the delays will grow even longer. Meanwhile, attorneys near the border question whether these extra judges are even necessary.

Among other matters, judges at detention courts are supposed to hear cases involving people who crossed the border illegally. Yet those numbers have declined since Trump took office. That’s why local attorneys are cynical about the surge.

“I don’t really think that they need all these judges,” said Ken Mayeaux, an immigration lawyer in Baton Rouge.

Mayeaux said what’s really needed there are more immigration attorneys. As federal agents arrest an increasing number of immigrants who are already in the U.S. without legal status, they’re sending them to southern detention centers that are pretty isolated. The ones in Oakdale and Jena, Louisiana, are hours west of Baton Rouge and New Orleans, where the vast majority of the state’s immigration advocates are concentrated, said Mayreaux.

“To ramp things up in one of the places that has the lowest representation rates in the United States, that’s a due process disaster,” he said.

Data from the Transactional Records Access Clearinghouse at Syracuse University confirms that immigrants may only wait a couple of months for their deportation case to be completed in these detention centers near the border. But in New York, the wait to see an immigration judge is 2.4 years.

So why move judges from a clogged and busy court system in New York to the border region, where immigration cases are already moving swiftly?

“In this particular instance, it’s a virtuous circle from the perspective of the administration,” explained Andrew Arthur, a former immigration judge.

Arthur is a resident fellow at the Center for Immigration Studies. It’s a think tank that wants to limit immigration, though it’s been branded a hate group by the Southern Poverty Law Center. During the Obama administration, Arthur said too many immigrants were let out of detention and waited years for their cases to be heard. He said moving more judges to the border will prevent that from happening.

“Because the quicker that you hear the cases the less likely that an individual is to be released,” Arthur said. “Therefore the less likely another group of individuals are to attempt to make the journey to the United States.”

Another former immigration judge, Paul Wickham Schmidt, said the Obama administration tried something similar by fast-tracking the cases of Central American migrants in 2014. But he said it wound up scrambling the judges’ dockets and was counterproductive. He was redeployed from his home court in Virginia and estimates he had to reschedule a hundred cases in a week.

“Nobody cares what’s happening on the home docket,” he said. “It’s all about showing presence on the border.”

Not all judges assigned to the border are physically present. Mana Yegani, an immigration lawyer in Houston, said she’s seen several judges — including a few from New York — at a detention center where cases are done by video teleconference.

“We never see the prosecutor’s face, it’s just a voice in the background,” she explained. “It’s just not a fair process for our clients and I don’t think the judges can be efficient the way they’re supposed to. They take an oath to be fair and to uphold the Constitution and due process, and I think the way the system is set up it really hinders that.”

A new audit of the immigration courts by the Government Accountability Office questioned whether video teleconferences have an impact on outcomes and said more data should be collected.

Some attorneys believe the reassignments are temporary to see if border crossings continue to ebb. The Executive Officer for Immigration Review won’t comment on that, but spokesman John Martin said the agency will hire 50 new judges and “plans to continue to advertise and fill positions nationwide for immigration judges and supporting staff.”

In the meantime, there’s no question that shifting judges away from New York is having an impact on real people.”

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

Read Beth’s entire article, including the story of one “real” asylum applicant waiting patiently for a hearing that almost didn’t happen.

The due process farce continues, at taxpayer expense, while the U.S. Immigration Courts are being treated as an enforcement arm of the DHS. Aimless Docket Reshuffling (“ADR”) denies due process at both the “sending courts” and “receiving courts.” When, if ever, will Congress or the Federal Courts step in and put an end to this travesty of justice and mockery of our constitutional requirement for due process! In the meantime, what’s happening in the Immigration Courts is a continuing national disgrace.

PWS

06-06-17

“AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!

http://www.wnyc.org/story/why-new-yorks-immigration-court-even-busier-fewer-judges-under-trump/

Fertig reports:

“There are 29 immigration judges assigned to court rooms in the Federal Building in Lower Manhattan. But as the number of pending cases grew from about 70,000 in January to nearly 80,000 this spring, more and more people have been coming to court only to discover they don’t have judges.

On a Tuesday morning in May, Alin Guifarro expected to attend a hearing with his 18-year-old son, Jose David Rodriguez. The teen came from Honduras last year to join his father and is trying to get legal status in the U.S.

But when they went to the 12th floor and scanned the long list of names with appearances scheduled that day, Guifarro saw his son’s case wasn’t assigned to a judge. Confused, he went to the clerk’s office and was told he would eventually get a letter in the mail about a new court date.

Guifarro was frustrated. “I came over here driving 2 ½ hours for nothing,” he said, referring to his journey from his home in Mastic, Long Island.

This father and son aren’t the only ones whose immigration cases have been postponed lately.

“In the last two months this has happened every week,” said Bryan Johnson, an immigration lawyer based on Long Island. Many of his clients are seeking asylum, and he said some have already been waiting a couple of years. With extra delays, he said, “if they have children who are abroad, that will delay family unification or spousal unification if their spouse is abroad.”

On a single day in May, when almost 400 hearings were scheduled to take place in immigration court, WNYC counted 60 people who didn’t have judges.

The Executive Office for Immigration Review runs the nation’s immigration courts. It says staffers typically mail a notice if a judge is out or a case is delayed, but they don’t always go out in time. As for why people are coming to court without judges, the agency explained that they are technically assigned to ”visiting judges.” But it acknowledged these judges don’t actually exist.

“The concept of ‘visiting judges’ is for internal case management,” said E.O.I.R. spokesman John Martin. “When judges retire, or temporarily stop hearing cases due to illness, the New York City Immigration Court will assign these dockets to a ‘visiting judge’ in order to maintain continuity of these cases. As new immigration judges are hired and officially placed at their respective immigration court locations, these ‘visiting judge’ dockets in those locations are reassigned to them.”

Even after a recent hire, New York City has only 29 immigration judges, compared to 31 at this time last year.

The backlog in immigration courts isn’t new. There are almost 600,000 pending cases, nationally. The problem started well before President Donald Trump took office.”

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

Read Beth’s complete article at the link.

A recent GAO report highlighted and quantified endemic management issues with the DOJ’s stewardship over the U.S. Immigration Courts, particularly in hiring new Immigration Judges which takes an astounding average of 742 days. http://wp.me/p8eeJm-Uh

Then, there are the retirements. It’s hardly rocket science that an aging workforce in high-stress jobs might retire in large numbers. I ran “Immigration Judge retirements” into my search engine and got 9 articles, right off the bat. Try it yourself.

Additionally, there is the practice of both Administrations of mindlessly jamming more new cases in the front of the system without a rational plan for completing the ones already in it. That’s followed by reassigning Immigration Judges (like they were assembly line workers) from existing dockets of cases scheduled for final hearings to new dockets of Not Quite Ready For Prime Time (“NQRFPT”) cases. And to cap it off, Secretary Kelly, egged on by Jeff Sessions, has told DHS agents to arrest anyone the feel like arresting without any regard for reasonable priorities or space on already overcrowded court dockets!

And, while we’re at it, let’s stuff more non-criminals into dangerous, expensive, and unneeded immigration detention, thereby turning them into self-created emergency situations, rather than thinking creatively about cheaper, more humane, and more effective methods of getting non-dangerous folks through the system in a reasonable manner.

And you gotta love imaginary “visiting judges.” Visiting from where, “The Twilight Zone?” Almost as good as “warehousing” tens of thousands of cases on a single day in November 2019. No wonder that once in extreme frustration I referred to this administrative morass as “Clown Court!”🤡

No, it’s not all the fault of EOIR bureaucrats, most of whom mean well and are simply caught up in a “built for failure” system. But, it is the fault of the DOJ whose politicized management of the Immigration Courts has been a disaster since the beginning of this century. And, even if you removed politics from the equation, the DOJ obviously lacks the basic administrative competence to run a complicated, high volume court system. Ultimately, Congress must assume the responsibility for allowing this travesty to continue to exist. An independent Immigration Court outside the Executive Branch is long overdue.

But, other than that, it’s a great system!

Stay tuned! Tomorrow, Beth will tell us what judges pulled off their existing dockets find when they get to their “detail courts.” I can’t wait to hear what she found out!

PWS

06-05-17

75 Years of the BIA

Commentary on “Pattern or Practice” Persecution

The History of Racism in U.S. Immigration

The History of U.S. Asylum Law

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