Due Process – Page 287 – immigrationcourtside.com

New Case Challenges DHS Delays In Bringing Detainees Before U.S. Immigration Courts!

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/03/11/class-action-lawsuit-claims-delays-in-immigration-courts-cancino-castellar-v-kelly.aspx?Redirected=true

From LexisNexis:

“ACLU Files Class Action Lawsuit Against DHS Challenging Months–Long Delays in Bringing Detained Immigrants, Asylum Seekers Before Judges

Thousands Are Incarcerated For Months In Remote Facilities Waiting To See A Judge

“The ACLU of San Diego & Imperial Counties (“San Diego ACLU”), Fish & Richardson P.C., and the Law Offices of Leonard B. Simon P.C. filed a class action lawsuit in federal court yesterday against the U.S. Department of Homeland Security and the Department of Justice. The suit seeks to end the excessive delays depriving civil immigration detainees of due process and prompt judicial review.

Every day, immigration agencies incarcerate tens of thousands of longtime U.S. residents, victims of persecution, and others in remote detention centers, ripped from their families and without access to legal support. None are serving time for a crime – and no judge has determined that there is probable cause to detain them – yet they are held in these deplorable detention facilities while they pursue legal avenues to remain in the U.S.

In San Diego and Imperial Counties, these detainees can languish for months before they are brought before a judge just to begin their case and learn for the first time why they are being incarcerated, what they can do to help present their case, or whether they can take steps to seek their release and get back to their loved ones.”

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The system is already badly broken. And the Trump Administration’s poorly-conceived plans to enforce and detain to the max are just going to make it worse. Likely that cases such as this, combined with arrogance and poor judgement by the Administration, eventually are going to result in Federal Court supervision of virtually every aspect of immigration hearing process. The case is Cancino Castellar v. Kelly. Keep an eye on it!

PWS

Trump Budget Calls For 75 New U.S. Immigration Judge Teams

https://www.washingtonpost.com/politics/trump-budget-calls-for-border-wall-border-prosecutions/2017/03/16/eba18240-0a80-11e7-bd19-fd3afa0f7e2a_story.html?utm_term=.76f73186b931

The Washington Post writes:

“Trump’s spending blueprint released Thursday is light on specifics, but makes clear that his campaign pledge to confront illegal immigration is a top priority. Even as he plans to cut the Justice Department’s budget by more than $1 billion, Trump is asking for hundreds of millions of dollars to hire 60 federal prosecutors and 40 deputy U.S. Marshals to focus on border cases.

He also wants to boost immigration courts by $80 million to pay for 75 additional teams of judges. That would speed up removal proceedings for people in the United States illegally and address a backlog of more than 540,000 pending cases. The plan foreshadows a greater emphasis on prosecuting people who cross the border illegally, those who come back after being deported, and anyone tied to human and drug smuggling.

Trump’s proposal also calls for adding $1.5 billion to Immigration and Customs Enforcement’s budget to find, detain and deport immigrants living in the U.S. illegally, along with more than $300 million to hire 500 new Border Patrol agents and 1,000 immigration agents.

The president’s budget is the first step in a lengthy process of funding government agencies, and it’s not clear which of Trump’s priorities will be approved by Congress.”

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My take:

Undoubtedly, the Immigration Court needs more Immigration Judges. On the positive side:

The Administration recognizes the need;

By referring to “teams” it appears that the Administration recognizes that judges can’t function without support, space, computers, etc.

On the negative side:

Given EOIR’s recent past performance, it could take the rest of the Administration to fill these new positions and expand Immigration Court facilities to accommodate the new judges. There currently are approximately 70 vacant IJ positions, most from the last Congressional increase;

There are likely to be a fair number of judicial retirements, compounding the hiring problems;

What kind of Immigration Judges would Sessions hire? He has never shown much respect for due process, fairness, or the rights of migrants. So, if he hires “Immigration Judges in his own image,” as he is legally entitled to do, that’s going to be a “due process disaster” for individuals seeking justice in Immigration Court;

Even with 449 fully trained judges on the bench, it would take nearly 1.6 years just to adjudicate currently pending cases. Piling more “priority” cases on top without any reasonable plan for deciding the currently pending cases is likely just to add to the backlogs and waiting times and further compromise due process and justice. It will undoubtedly result in more “aimless docket reshuffling” (“ADR”) which expends effort without producing any final dispositions.

There is no mention of needed reforms in Immigration Court structure, administration, and technology. Without those needed reforms, more judicial positions are unlikely to solve the Immigration Court’s deep existing problems in delivering due process and justice in a timely fashion.

Meanwhile, some sources have reported that existing Immigration Judges have been asked to be available for possible details outside of their “home” courts for up to 10 months of the year. As I have pointed out before, each time a sitting Immigration Judge is detailed, he or she leaves behind a full docket of cases which must be rescheduled.

Ordinarily, this results in cases scheduled for the near future being “reset” to dates at the end of overcrowded dockets, usually several years in the future. Plus, every act of mass rescheduling creates staff burdens that result in defective notices or other important work (such as answering phones, logging in new cases, or filing briefs and motions for upcoming cases) being put on hold.

PWS

03/16/17

Five Circuit Judges Dissent From 9th Circuit’s Decision Not To Vacate The Panel Decision In State of Washington v. Trump On Travel Ban 1.0!

Judge Bybee writing for the dissenters:

“Washington v. Trump, No. 17-35105 (Motions Panel–February 9, 2017)
U.S. COURT OF APPEALS

FILED

MAR 15 2017 MOLLY C. DWYER, CLERK

BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.

I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.

The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).

1 Our personal views are of no consequence. I note this only to emphasize that I have written this dissent to defend an important constitutional principle—that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review—and not to defend the administration’s policy.

This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error.”

Read Judge Bybee’s full dissent here:

http://cdn.ca9.uscourts.gov/datastore/general/2017/03/15/17-35105 en banc.pdf

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I had speculated at the time a Judge of the 9th Circuit requested a vote on rehearing en banc that it was part of a strategy not intended to actually force such review, but rather to give those Judges who disagreed with the 3-Judge panel a chance to publicly express dissenting views. This dissent will be published.

Nevertheless, with only five of the 29 or so active Judges on the 9th Circuit joining Judge Bybee’s dissent, the prospect for the Administration obtaining any relief there from the TRO in State of Hawaii v. Trump enjoining Travel Ban 2.0 appears dim.

Notwithstanding President Trump’s claim that he will litigate Travel Ban 2.0 to the Supreme Court, that might not be so easy, particularly for the foreseeable future. The Supreme Court is not obligated to take any case just because the President wishes it. The Court has discretion.

In exercising that discretion (known as a “petition for certiorari”) the Court generally does not like to intervene at the TRO or Preliminary Injunction stage, before a full record is developed. Also, the current eight member configuration, presenting the possibility of a tie vote, makes it less likely that the Court would take the case now.

And, one of the reasons for the Court taking such a case — a split in Circuits — doesn’t exist here. The Administration has consistently lost on the issue except for a single District Court ruling from Massachusetts.

Consequently, the Administration might have to wait for a full trial on the merits of the plaintiffs’ case, a process that would take weeks at a minimum and quite possibly months or even years. Even then, there is no guarantee that the Supreme Court would take the case, or that even with Justice Gorsuch on the bench the Administration’s position would prevail.

Finally, I note that much of Judge Bybee’s dissent echoes the views expressed by Nolan Rappaport in several articles from The Hill posted on this blog. The most recent of those, relating to State of Hawaii v. Trump, can be found here:

http://wp.me/p8eeJm-tV

PWS

03/16/17

BREAKING: ENJOINED AGAIN! NATIONWIDE TRO! Judge in Hawaii Says Travel Ban Violates Establishment Clause! Trump Administration Basically Found “Not Credible” On Immigration/National Security Claims — Trump’s Own Statements & Those of Giuliani, Miller Used To Show Bias!

http://www.huffingtonpost.com/entry/trump-travel-ban-blocked_us_58c99d18e4b00705db4bc38f

Report from HuffPost:

“A federal judge in Hawaii has placed a nationwide hold on key aspects of President Donald Trump’s second attempt at a ban on travel ― a scaled-back version that targeted all non-visa holders from six Muslim-majority countries, as well as a halt on the U.S. refugee resettlement program ― just hours before the new restrictions were to take effect.

U.S. District Judge Derrick Watson said sections of the new travel order likely amounted to a violation of the First Amendment’s establishment clause, which forbids the government from disfavoring certain religions over others.

Watson gave short shrift to the Trump administration’s argument that the new restrictions applied to a “small fraction” of the world’s 50 predominantly Muslim nations ― and thus could not be read to discriminate Muslims specifically.

“The illogic of the Government’s contentions is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”

The judge also discarded the government’s defense that the text of the new executive order was silent on religion, supposedly solving constitutional defects identified by courts with the first order.

“Any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, secondary to a religious objective of temporarily suspending the entry of Muslims,” Watson wrote.”

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Here is Judge Watson’s written decision in State of Hawaii v. Trump:

http://www.hid.uscourts.gov/files/announcement142/CV17-50%20219%20doc.pdf

More bad news for the Administration — the Third Circuit has enjoined the removal of an Afghani interpreter with a visa who was denied admission and allegedly “withdrew” his application. Read about it in the WashPost here:

https://www.washingtonpost.com/national/immigration-authorities-to-deport-afghan-man-who-helped-us-government/2017/03/15/a7eecb9a-098e-11e7-a15f-a58d4a988474_story.html?hpid=hp_rhp-banner-main_travelban1010am:homepage/story&utm_term=.051c21ef8afe

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It’s early in the game on the Administration’s uncompromisingly hard line approach to immigration issues. So far, however, they have racked up an impressive string of losses from coast to coast from Article III Judges all across the spectrum.

In other words, the bombastically inappropriate statements made by Trump and his advisors have “poisoned the well,” and the Administration is probably going to find it difficult to “un-poison” it. And, as long as guys like Bannon, Sessions, Miller, and Kobach are calling the shots, that might never happen.

As some have suggested, perhaps the President and his advisors need a type of “Executive Miranda Warnings” before they shoot off their mouths (or their Twitters) in public: “Everything you say (or Tweet) can and will be used against you.”

The next stop for “Travel Ban 2.0” probably will be the 9th Circuit. But, since the Administration already lost there on its appeal of the TRO in State of Washington v. Trump, I wouldn’t hold my breath waiting for the 9th Circuit to lift the TRO. Like President Obama with the “DAPA Fiasco,” President Trump is learning that U.S. District Judges wield considerable power in our system. As one of my colleagues once said, “U.S. District Judges are the last living potentates.”

None of this bodes well for the Administration’s next ill-advised plan — to ramp up removals, increase the use of immigration detention, maximize “expedited removal,” and reduce what’s left of the U.S. Immigration Court to the equivalent of two-shift assembly line workers churning out removal orders. Chances are that the Article III Courts are going to have something to say about that too. And, unless the Administration moderates its approach, it’s not likely to be anything they like.

PWS

03/15/17

MATT CAMERON IN THE BAFFLER: Trump’s Immigration Policies Promise To Make A Bad System Even Worse

https://thebaffler.com/outbursts/strangers-in-a-cruel-land?utm_campaign=Newsletter&utm_source=hs_email&utm_medium=email&utm_content=45427323&_hsenc=p2ANqtz–SrQwaCmT1prkolHBKrPKHSN4djFsqLNoveeB1BWE10ZO3rscc5BcXMhmwFedKjGnCbzzw56UKYKQ-sIulUP96Hwj8rw&_hsmi=45427323

“Donald Trump’s presidential campaign capitalized on a familiar brand of nativist anti-immigrant slander usually reserved for our nation’s most desperate times. It was an ugly old vein to mine, but now that he’s managed to strike electoral gold there, he is not wrong to view his election as a mandate to carry out his promise to enforce federal immigration law to its fullest extent. This would be alarming to friends of the Constitution under any circumstances, but especially so given Trump’s open embrace of white supremacy—as a concept, if not a movement—in the primaries. We haven’t encountered such an openly bigoted presidential campaign on the right since Pat Buchanan’s last failed insurgent run at the GOP nomination in 1996, and we have never seen an avowedly white-nationalist leader accede to the Oval Office.
Nor should any of us expect the chastening experience of actual governing to temper his outlook. Trump has proven at every opportunity that he is all but ineducable about even the simplest details of how immigration to the United States actually works. And this, it turns out, is probably one of the few things he has in common with a considerable majority of Americans.”

. . . .

The immigration system I keep hearing about from pundits and politicians (all of whom should know better) is almost entirely unmoored from actual fact. It seems to be a chimerical pastiche of the one we had before Ellis Island closed, the one we had just before the moon landing, and some sort of rosy Tomorrowland fantasy in which visas would be awarded to the undocumented if only they would do it the right way. This is not the system I work with every day.
When a white, native-born American says, “my family came here the right way,” what the speaker almost invariably means is that one or more of his ancestors came to the United States without a visa during a time of virtually unrestricted European migration. They boarded a trans-Atlantic ocean liner, stood in line at an immigration inspection station for the better part of a day, answered a standard series of twenty-nine questions, were subjected to a medical exam, and were admitted indefinitely to the United States. That’s how my Scottish great-grandparents did it in 1916. If you were born in the United States with European ancestors, it’s probably how you came to be here too. That system ended in 1924. Its successor, the “national origins” quota system (a more restricted but still relatively open “line”), was abolished in 1965. But I still regularly meet well-meaning fellow citizens who believe that anyone who deserves a chance can simply “fill out the forms,” “get in line,” and “come the right way, like my family did.” At which point, I have to patiently explain that they can’t.

For most of my undocumented neighbors, in East Boston and beyond, there are no forms. There is no line. There never was. Telling an undocumented Mexican dishwasher that he should “wait in line, like my family did” is no more realistic than advising him to switch to the same model of iPhone your great-grandfather used. Yet the lie persists, with nearly every presidential candidate since George H. W. Bush invoking the imaginary “line.”

. . . .

[Bill] O’Reilly was too charitable. There is no reason to believe that Trump has ever understood the basic precepts of due-process protection. Commitment to due process would have been fundamentally incompatible with Trump’s record as a casino magnate, a New York City landlord, or an authoritarian game show host given unlimited license to “fire” contestants at whim.

Trump has signaled the likely place of due process in his immigration system by promising to immediately deport 2 to 3 million “criminal aliens.” This staggering number, nearly the entire urban population of Chicago, would represent more deportations than Obama (the current record-holder) completed in eight years, and more than twice as many as were carried out during Operation Wetback.

. . . .

In fifty-eight immigration courts nationwide, immigration judges are operating (per a recent study) at a degree of mental stress equivalent to that of an emergency-room doctor. “This case,” sneered federal judge Richard Posner in a recent dissent, “involves a typical botch by an immigration judge.” Posner, punching down from the lofty heights of a federal appeals court, went on to concede graciously that the immigration court’s status as “the least competent federal agency,” might have something to do with congressional underfunding and the resultant “crushing workloads.”
Our nation’s roughly 250 immigration judges [now approximately 305] are now responsible for managing a record backlog of more than five hundred thousand pending deportation cases, with thousands more pouring into the system each day. The judges I appear before in the Boston immigration court are humane and learned experts who work long hours, in circumstances that couldn’t be less familiar to Judge Posner, but they are as susceptible to human error as any judge anywhere.

In an executive order signed within days of his inauguration, Trump authorized Congress to triple the number of Immigration and Customs Enforcement agents on the ground. He has made no mention of any plans to extend the courts the same courtesy, but this new flow of cases simply cannot be sustained within today’s judicial plumbing.”

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Cameron’s full, hard-hitting article is definitely worth a read. And, as he points out, quite sadly, it’s likely to get much worse from a due process standpoint before it gets better.

I also think he is right that few U.S. Court of Appeals Judges would be able to survive working as U.S. Immigration Judges under today’s incredibly difficult circumstances and conditions.

PWS

03/15/17

9th Cir. En Banc — After 80 Pages, 9-2 Majority Finds Mexican Gov. “Unwilling Or Unable To Prevent” Persecution Of Gays — Dissent Bemoans “Usurpation” Of BIA’s Fact-Finding Authority — BRINGAS-RODRIGUEZ V. SESSIONS

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/08/13-72682.pdf

Judge Wardlaw for the majority:

“In Castro-Martinez, we also failed to consider the difference between a country’s enactment of remedial laws and the eradication of persecutory practices, often long ingrained in a country’s culture. Rejecting Castro’s claim that, in Mexico, a systematic pattern or practice of persecution against homosexuals remained, we found Castro’s evidence unpersuasive “in light of recent country reports,” which showed that the “Mexican government’s efforts to prevent violence and discrimination against homosexuals . . . ha[d] increased in recent years.” Castro- Martinez, 674 F.3d at 1082.

Mexico is to be lauded for its efforts. But it is well recognized that a country’s laws are not always reflective of actual country conditions. It is not unusual that a country’s “de jure commitments to LGBTI protection do not align with the de facto reality of whether the State is able and willing to provide protection.” Brief for UNHCR as Amicus Curiae at 4. And we have recently recognized that Mexico has experienced “an increase in violence against gay, lesbian, and transgender individuals during the years in which greater legal protections have been extended to these communities.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir. 2015) (emphasis in original).

Moreover, the anti-discrimination efforts discussed in Castro-Martinez seem to have been made by the national government, and thus do not necessarily reveal anything about the practices within state or municipal jurisdictions. See Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013) (noting that while Mexico’s national government was willing to control the drug cartel that attacked the petitioner, it was not necessarily able to do so, in part because state and local officials were involved with drug traffickers).”

Writing for the dissent, Judge Bea (who claims to be the only U.S. Circuit Judge to actually have been the subject of deportation proceedings), joined by Judge O’Scannlain:

“I respectfully dissent from the majority opinion because it usurps the power of the Board of Immigration Appeals (BIA) to determine facts. It does this by reciting, but ultimately departing, from the “substantial evidence” standard which states that agency “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added).”

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The Administration apparently believes that cases like this are going to be resolved on an “assembly line” operation with U.S. Immigration Judges sitting in “shifts” in detention centers from 6 AM until 10 PM.

While notable for its potential precedential effect, this case is not particularly unusual in terms of the difficult factual and legal issues that arise daily in U.S. Immigration Court in asylum cases coming from countries “south of our border.” This happened to be Mexico, but LGBT cases involving individuals from the Northern Triangle are quite common, even in jurisdictions like the Arlington Immigration Court.

I note that the amicus views of the UNHCR fare much better in the majority’s decision than they typically do these days at the BIA. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 248 (BIA 2014), the BIA summarily “blew off” the views of the UNHCR on the issue of “particular social group.”

It’s also interesting that notwithstanding the dissent, the BIA actually lacks de novo fact finding authority of its own. Following a regulation change during the “Ashcroft era,” that authority belongs to the Immigration Judge with review by the BIA for “clear error.”

PWS

03/14/17

THE HILL: Nolan Rappaport Takes Apart Hawaii’s Case Against Travel Ban

http://thehill.com/blogs/pundits-blog/immigration/323948-hawaiis-case-against-trumps-travel-ban-debunked

After discussing and dismissing the four bases cited by Hawaii, Nolan concludes:

“Hawaii’s four claims against the president’s travel ban are thus unfounded and the state is going to fail in its attempt to stop the travel ban.”

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Read Nolan’s full article with citations in The Hill at the link. The case is State of Hawaii v. Trump, USDC, HI.

PWS

03/14/17

GIBSON DUNN PUBLIC COUNSEL: Chief U.S. Magistrate Judge Recommends That USDC, WD WA Maintain Habeas Jurisdiction Over Detained Dreamer’s Case

From: Manny Rivera <mrivera@wearerally.com>
Date: Tue, Mar 14, 2017 at 2:30 PM
Subject: BREAKING: Federal Court Finds Jurisdiction to Hear DREAMer Case
To: Manny Rivera <mrivera@wearerally.com>
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FOR IMMEDIATE RELEASE

March 14, 2017

Media Contact:

Manny Rivera, mrivera@wearerally.com, (323) 892-2080

FEDERAL COURT FINDS JURISDICTION TO HEAR CONSTITUTIONAL CLAIMS BROUGHT BY DREAMER DANIEL RAMIREZ MEDINA

Magistrate Judge James P. Donohue Recommends Court Hear Arguments on the Constitutionality of Mr. Ramirez’s Arrest and Detention; Denies Petitioner’s Motion for Immediate Conditional Release

Government’s Attempt to Throw Out Petitioner’s Claims Dismissed by the Court

MEDIA ALERT: Press Teleconference Call with Mr. Ramirez’s Legal Team Scheduled for TODAY at 3:30pm Pacific/6:30pm Eastern

Dial-In: (855) 557-3561

Conference ID: 89214839

SEATTLE, Wash. March 14, 2017 — Chief U.S. Magistrate Judge James P. Donohue today issued a recommendation denying the Government’s Motion to Dismiss, specifically acknowledging federal district court jurisdiction in the habeas petition filed by Daniel Ramirez Medina. Because of uncertainty of the impact of DACA, the court did not order the immediate release of Mr. Ramirez, the DACA beneficiary unconstitutionally detained by Immigration and Customs Enforcement (“ICE”) in Seattle for more than a month, but deferred ruling on the merits of whether he should be released while the merits of the habeas petition is being adjudicated. Mr. Ramirez’s release, called for by immigration advocates, community leaders and Members of Congress from throughout the country, was requested by Mr. Ramirez pending the final determination of the merits challenging his unconstitutional detention. Counsel for the petitioner believes that DACA supports his immediate release.

“We are pleased that the court rejected the government’s effort to evade judicial review,” said Theodore J. Boutrous, Jr., a partner at Gibson, Dunn & Crutcher, and a member of Mr. Ramirez’s legal team. “This is an important ruling because one of the core purposes of habeas corpus is to ensure judicial review of executive detentions and hold the executive branch accountable.”

“But at the same time, Daniel has been wrongfully detained for too long,” added Mr. Boutrous. “We plan to immediately file an objection to the magistrate judge’s denial of our motion seeking immediate conditional release. The government itself has already determined that he represents no threat to public safety or national security. Dreamers like Daniel who have followed the rules and kept their part of the DACA promise deserve to have their rights recognized and vindicated by the court. This is especially true where, as here, the government has failed to keep its promise, and has provided no independent evidence to support its baseless claims.”

In his findings, Judge Donohue noted:

“The Ninth Circuit has not yet decided whether a district court has the authority to conditionally release a habeas petitioner pending a decision on the merits of the petition. United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016), pet. for cert. filed (Feb. 16, 2016) (citing In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) (per curiam)). Authority from other circuits strongly supports the conclusion that this Court may exercise such authority in the appropriate circumstances.”

The Court also recommended that because Mr. Ramirez remains in custody, and because there are nearly 800,000 DACA beneficiaries who are interested in the outcome of these proceedings, that the merits phase of the case be treated on an expedited schedule.

The case could have broader implications on other DACA beneficiaries, as the lawsuit calls on the court to issue a declaratory judgement that Mr. Ramirez and other Dreamers have constitutionally-protected interests in their status conferred under the Deferred Action for Childhood Arrivals (“DACA”) program.

“Our objective all along has been to end this DREAMer’s nightmare so that Daniel Ramirez may return to his family and his three-year-old citizen child,” said Mark Rosenbaum, director of Opportunity Under Law at Public Counsel, and a member of Mr. Ramirez’s legal team. “While the court today has taken one step towards justice, the government’s attempts to delay justice for this young man who has been detained now for over a month and never been charged with any crime sends an unmistakable message that the word of executive branch cannot be trusted, that it can ‘play bait and switch’ with the life of a DACA recipient.”

Mr. Ramirez was brought to this country as a child and knows no home but the United States. He gave the government sensitive personal information, paid a substantial fee, and voluntarily subjected himself to rigorous background checks—twice—as part of the DACA program, most recently in May 2016. He has no criminal history and has not been charged with any unlawful conduct. Despite this, he was arbitrarily arrested without a warrant or probable cause. The U.S. Government has had more than a month to submit any evidence of wrongdoing or criminal activity, yet no evidence has been presented because no evidence exists.

“Daniel has been in detention for more than a month without ever being charged with a crime, and to this day the government has shown us no evidence that he has done anything wrong” said Ethan Dettmer, a partner at Gibson, Dunn & Crutcher, and a member of Mr. Ramirez’s legal team. “No one should be treated that way, and it is unconstitutional. We are arguing the merits of this case in federal court.”

At a hearing in Seattle last Wednesday, counsel for Mr. Ramirez presented oral arguments on why federal court is the only appropriate venue to hear and decide the habeas petition challenging the constitutionality of his arrest and extended detention. In his decision, Judge Donohue agreed with the Petitioner’s arguments that federal court has jurisdiction over this case because of the critical constitutional issues at stake.

Mr. Ramirez has now been subjected to unconstitutional detention for 32 days without being charged with a crime and with no evidence presented to justify his continued detention.

Petitioners will file a written objection to the Magistrate Judge’s Report and Recommendation by no later than March 28, 2017.

A national press teleconference call with members of Mr. Ramirez’s legal team is scheduled for 3:30pm Pacific/6:30pm Eastern. Counsel will be available during this call to discuss today’s decision and answer questions from members of the media. To view the court’s Report and Recommendation, click here.

Press Teleconference with Counsel for Daniel Ramirez Medina—Dial-In Information:

Dial-In: (855) 557-3561

Conference ID: 89214839

###

Public Counsel is the nation’s largest pro bono law firm. Founded in 1970, Public Counsel strives to achieve three main goals: protect the legal rights of disadvantaged children; represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes; and foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation. Through a pro bono model that leverages the talents and dedication of thousands of attorney and law student volunteers, along with an in-house staff of more than 75 attorneys and social workers, Public Counsel annually assists more than 30,000 families, children, immigrants, veterans, and nonprofit organizations and addresses systemic poverty and civil rights issues through impact litigation and policy advocacy. For more information, visit www.publiccounsel.org.

Gibson, Dunn & Crutcher LLP is a leading international law firm. Consistently ranking among the world’s top law firms in industry surveys and major publications, Gibson Dunn is distinctively positioned in today’s global marketplace with more than 1,200 lawyers and 20 offices, including Beijing, Brussels, Century City, Dallas, Denver, Dubai, Frankfurt, Hong Kong, Houston, London, Los Angeles, Munich, New York, Orange County, Palo Alto, Paris, San Francisco, São Paulo, Singapore, and Washington, D.C. For more information on Gibson Dunn, please visit our Web site.

Barrera Legal Group focuses on complex immigration issues ranging from family reunification, removal defense and unlawful detention. Barrera legal has represented clients all over the US and in several different countries and maintains committed to represent the immigrant community.

MANNY RIVERA // RALLY

o
c

323-892-2080
626-864-7467

6565 Sunset Blvd. Suite 400
Los Angeles, CA 90028

www.WeAreRALLY.comU.S.

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Thanks to Pilar Marrero of La Opinion for sending this in!

PWS

03/14/17

EAST BAY EXPRESS: Are U.S. Immigration Court Hearings For Unrepresented Individuals Unconstitutional? Darwin BondGrahm Seems To Think So — Perhaps Darwin Is Right!

http://www.eastbayexpress.com/oakland/inside-immigration-court-are-deportation-hearings-in-the-bay-area-unconstitutional/Content?oid=5642504

Darwin BondGraham reports in a profile of justice at the U.S. Immigration Court in San Francisco, CA:

“Ilyce Shugall can rattle off a similarly long list of due-process problems. The directing attorney of Community Legal Services in East Palo Alto, Shugall is one of a couple dozen pro-bono lawyers who try to provide counsel to a fraction of the people facing deportation in San Francisco.

“Procedural protections don’t really exist, despite the consequences of banishment,” she said at a recent legal symposium held by the Thelton E. Henderson Center for Social Justice in Berkeley. “There’s no right to an attorney, but the government is represented in every case by an ICE attorney.”

As Shugall sees it, the ICE attorney also has a kind of home-field advantage: Being in the same courtrooms day-in, day-out, allows an attorney to establish better rapport with judges.

And the judges and ICE attorneys all have the same boss: The President of the United States.

The immigration judges are employees of the Executive Office for Immigration Review, which is overseen by the attorney general — they’re not members of the independent judicial branch of government. The ICE attorneys work for the Department of Homeland Security.

Over her career practicing immigration law, Shugall said she’s seen ICE attorneys frequently miss filing deadlines without consequences; file motions on the day of a hearing, preventing review by the defense; and withhold records in a case from the person being targeted for deportation, thereby forcing them to file a burdensome Freedom of Information Act request to get the documents.

She’s also seen extended detention result, countless times, in what Mr. Gonzales apparently did in Judge Murry’s courtroom this past December: Give up on his case and beg to be deported, just to get escape the misery of jail.”

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

The full article, which I found through ImmigrationProf Blog, is well worth a read.

I think that the Administration’s ill-advised “pedal to the metal” detention and removal plans, combined with elimination of funding for various Government sponsored outreach, information, and self-help programs is very likely to bring the due process weaknesses of the current U.S. Immigration Court system to a head.

I would not be surprised if a U.S. District Judge somewhere issues a TRO preventing the Government from proceeding in certain types of cases unless the individual is represented. After all, the Government was recently blocked in the 9th Circuit from proceeding against incompetent individuals without establishing some viable system for determining competency and representing those determined to be incompetent.

I also predict that the Administration’s ill-conceived plan to “jack up” detention, particularly by using private facilities which have been determined to have a greater incidence of problematic conditions, is likely to result in major “conditions of detention” litigation and, perhaps, further intervention by the Article III Courts.

Rather than studying the situation and looking for ways to fix our broken immigration justice system so that individuals receive the due process to which they are entitled, the Trump Administration seems determined to make matters worse by turning up the volume. That’s likely to have unhappy consequences not only for the individuals, but also for the Administration.

PWS

03/13/17

NEW FROM 4TH CIR: Cantallano-Cruz v. Sessions — 4th Rips BIA’s “Excessively Narrow” & “Shortsighted” Treatment Of “Nexus” Issue In Honduran Family PSG Asylum Case!

http://www.ca4.uscourts.gov/Opinions/Published/152511.P.pdf

“Our decision in Hernandez-Avalos is particularly instructive in the present case. There, the BIA denied asylum to a petitioner who fled El Salvador after gang members threatened to kill her because she prevented her son from joining the gang. 784 F.3d at 946-47. The petitioner had argued that at least one central reason for her persecution was her nuclear family relationship with her son. Id. at 949. The BIA disagreed, holding that she actually was targeted because she did not consent to her son’s criminal activity. Id.

We held that this application of the nexus requirement by the BIA was “excessively narrow,” and explained that there was no meaningful distinction between the existence of a maternal relationship and a mother’s decision to forbid her son from participating in a gang. Id. at 949–50. We held that the record compelled a factual conclusion that the petitioner’s relationship with her son was a central reason for her persecution, because that relationship was the reason “why she, and not another person, was threatened.” Id. at 950.

We likewise conclude in the present case that the BIA and IJ applied an improper and excessively narrow interpretation of the evidence relevant to the statutory nexus requirement. The BIA and IJ shortsightedly focused on Avila’s articulated purpose of preventing Cantillano Cruz from contacting the police, while discounting the very relationship that prompted her to search for her husband, to confront Avila, and to express her intent to contact the police. See Oliva, 807 F.3d at 59-60 (although the applicant’s refusal to pay the gang rent was the “immediate trigger” for an assault, the applicant’s membership in the social group of individuals who left the gang led to threats, and thus the two reasons were linked). The BIA’s and IJ’s focus on the explanation Avila gave for his threats, while failing to consider the intertwined reasons for those threats, manifests a misapplication of the statutory nexus standard.

The full record before us compels a conclusion that Avila’s threats were motivated, in at least one central respect, by Cantillano Cruz’s membership in Martinez’s nuclear family. Although, as the IJ observed, any person interested in Martinez’s disappearance may have confronted Avila concerning Martinez’s whereabouts, this fact does not adequately explain the ongoing threats Avila made against Cantillano Cruz and her children over a period of two years at her home. See Cordova, 759 F.3d at 339-40 (although the applicant was first attacked by the persecutor to force the applicant to join the gang, the BIA failed to consider evidence showing that later attacks were motivated by family ties). Avila persisted in threatening Cantillano Cruz after she promised him that she would not contact the police. Avila placed threatening telephone calls to Cantillano Cruz at her home, the center of life for Martinez and his nuclear family. Also at the Martinez family’s home, Avila and his associates killed the family’s dogs, brandished and fired weapons, and threatened to harm Cantillano Cruz and her children.”

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

Read the full opinion at the link.

In too many cases, the BIA appears to strain the law and misconstrue facts to avoid granting protection to deserving applicants from Northern Triangle countries in Central America who clearly face harm upon return. Misapplication of the highly technical concept of “nexus” is a device sometimes used by by the Board and some Immigration Judges to deny claims of vulnerable individuals who could and should be granted protection under U.S. laws.

In doing so, the BIA jettisons the generous spirit of the Supreme Court’s decision in Cardoza-Fonseca and their own precedent decision in Mogharrabi warranting generous treatment of credible asylum seekers in need of protection. Indeed, the BIA often seems more willing to “rote cite” Mogharrabi than to actually follow their own precedent.

The purpose of asylum and other protections laws is to protect individuals facing harm wherever possible, not to find hyper-technical ways to deny or limit protections.

I am pleased that one of the cases cited by the Fourth Circuit is Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011). Crespin is one of the “seminal” fourth Circuit cases recognizing family as a “particular social group” for asylum purposes. I had granted the asylum applications in Crespin only to have the BIA reverse those grants after the DHS appealed. However, upon judicial review, the Fourth Circuit agreed with me and reversed and remanded the case to the BIA.

This case also vividly illustrates the absurdity of forcing individuals to pursue these types of claims in Immigration Court without a lawyer. Even the Immigration Judge and the BIA were confused about the proper standards here! Fortunately, this individual not only had a lawyer but a good one.

But, how would an unrepresented individual, without English language skills, and perhaps with minimal education, and therefore no ability to access or understand the important and complicated Fourth Circuit precedents showing the BIA and the IJ to be wrong have any legitimate chance of achieving success? Yet, the Administration proposes to race just such individuals through expedited hearings at inconveniently located and often poorly run detention facilities where chances of getting competent legal assistance are minimal.

PWS

03/13/17

IMMIGRATION IMPACT: More Commentary On How The U.S. Immigration Court In Atlanta Mocks The Due Process Mission of EOIR

http://immigrationimpact.com/2017/03/10/atlanta-immigration-court/

Hilda Bonilla writes:

“Observers found that the immigration judges made prejudicial statements, demonstrated a lack of courtesy and professionalism and expressed significant disinterest toward respondents. In one hearing, an attorney argued that his client should be released from detention because he was neither a threat to society nor a flight risk. In rejecting the client’s bond request, the immigration judge reportedly compared an immigrant to a “person coming to your home in a Halloween mask, waving a knife dripping with blood” and asked the attorney if he would let him in.

When the attorney disagreed with this comparison, the immigration judge responded that the “individuals before [him] were economic migrants and that they do not pay taxes.” Another immigration judge reportedly “leaned back in his chair, placed his head in his hands, and closed his eyes” for 23 minutes while the respondent described the murder of her parents and siblings during an asylum hearing.

Other critical problems include disregard for legal arguments, frequent cancellation of hearings at the last minute, lack of individualized consideration of bond requests, and inadequate interpretation services for respondents who do not speak English. The observers also reported that immigration judges often refer to detention centers as “jails” and detainees as “prisoners,” undermining their dignity and humanity and suggesting that the IJs perceive detained immigrants as criminals. Compounding this problem, detained immigrants who appear in immigration court in Atlanta are required to wear jumpsuits and shackles.

Many of these practices stand in stark contrast with the Executive Office of Immigration Reviews’ Ethics and Professionalism Guide for Immigration Judges, which state, among other things, that “an immigration judge… should not, in the performance of official duties, by word or conduct, manifest improper bias or prejudice” and that immigration judge should be “patient, dignified, and courteous, and should act in a professional manner towards all litigants, witnesses, lawyers, and other with whom the immigration judge deals in his or her capacity.”

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

“[P]atient, dignified, courteous, . . . professional,” unfortunately does not describe the judges of the U.S. Immigration Court in Atlanta as portrayed in this study and numerous articles from various sources. As I have pointed out before, although the BIA finally did “call out” one Immigration Judge in Atlanta for his outrageous disregard of due process and appropriate judicial conduct in Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence), the BIA has let this problem fester for far, far too long. Indeed, the indefensible 2% asylum grant rate suggests that the BIA has been derelict in its duty to insure due process, fairness, and compliance with the appropriate, generous legal standards in asylum cases for some time.

Without a more effective effort by the BIA, this problem is unlikely to be solved any time in the near future. While administrative judges at EOIR Headquarters in Falls Church, VA may investigate complaints and correct instances of unprofessional conduct and rudeness, they (quite properly) lack authority to change the decisions in particular cases. Only the BIA, the Attorney General, the Court of Appeals (in this case the 11th Circuit), or the Supreme Court can correct legal errors.

The conduct of the Immigration Judges in Atlanta and some other locations diminishes the efforts of the vast majority of U.S. Immigration Judges, such as my former colleagues in the Arlington Immigration Court, who strive extremely hard to provide due process and impartial judging under extraordinarily difficult circumstances in a system that its not necessarily designed and operated with due process in mind. But, unfair as as the wayward judges might be to their colleagues elsewhere, the real victims of their unprofessional conduct are the individuals who do not receive the fair, courteous, impartial, professional due process adjudications to which they are entitled under our Constitution. And, one has to ask what purpose is served by a “court” which consistently fails to deliver on its one and only mission: guaranteeing fairness and due process for all?

PWS

03/13/17

REUTERS: U.S. Immigration Court’s “Night Court” Plan Shows Why Due Process Is A Mirage In A “Captive” Court System — Will EOIR Cave To Administration’s Move To Put “Due Process Veneer” On Assembly Line Removals!

http://mobile.reuters.com/article/idUSKBN16H030

Julia Edwards Ainsley reports:

“The Department of Justice is deploying 50 judges to immigration detention facilities across the United States, according to two sources and a letter seen by Reuters and sent to judges on Thursday.

The department is also considering asking judges to sit from 6 a.m. to 10 p.m., split between two rotating shifts, to adjudicate more cases, the sources said. A notice about shift times was not included in the letter.

The Justice Department did not respond to a request for comment.”

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

Thanks much to Zoe Tillman over at BuzzFeed News for bringing this article to my attention.

“Judges” working “shifts” on the “removal assembly line!” “Come on, man!” A “real” court would be strongly resisting this mockery of justice and due process.

But, because the U.S. Immigration Court is a “wholly owned subsidiary” of the Administration, EOIR leadership will likely “go along to get along” with a transparent scheme to railroad human beings in real danger back to the “death zone” of the Northern Triangle with “rubber stamp” justice. In other words, the Immigration Courts are considered by the Administration and the DOJ to be part of the “enforcement team,” rather than an independent due-process focused judiciary.

Scheduling early in the AM and late at night is likely to make it more difficult to get pro bono lawyers, witnesses, interpreters, etc. It isn’t just judges.

Also, some folks don’t function very well at those hours. Sounds sort of “gulag like” to me.

And, what about court clerks and other support staff? Additionally, by putting courts in out of the way detention locations and scheduling hearings at odd times, DOJ limits transparency. It’s harder for the press and other “outsiders” to observe.

Moreover, what happens to existing dockets of those IJs who “volunteer?” Reassigning 50 currently sitting Immigration Judges to the Southern Border on a rotating basis for one year would require the rescheduling of nearly 40,000 cases from their “home” dockets. Those cases, many already years old, are likely to be sent to the end of the docket, several years out. This is classic “aimless docket reshuffling” which increases backlogs and inhibits fairness and due process.

Finally, what’s going to happen to a “volunteer” Immigration Judge who takes due process seriously, slows down the cases so individuals can get lawyers, takes time for full presentation of the cases by both sides, and writes carefully reasoned decisions granting asylum or alternative forms of protection. Chances are they will be considered “unproductive,” “not with the program,” “not carrying their weight,” or “not committed to carrying out the Attorney General’s priorities” (yes, folks, Immigration Judges actually are given “performance ratings,” and one of the elements has to do with supporting “agency priorities”)? That’s likely to be “career limiting.”

Final question: How would you like to have your life determined by a judge working (for the “chief prosecutor”) under these conditions?

PWS

03/10/17

TIME: Deportation Can Be a Death Sentence — We Should Be Concerned About “Quick Removal Schemes” By The Administration & Continued Deterioration of Due Process And Fairness For Asylum Seekers – Particularly Those Unrepresented — In U.S. Immigration Court!

http://time.com/4696017/deportation-death-refugees-asylum/

Conchita Cruz and Swapna Reddy, co-founders of the Asylum Seeker Advocacy Project at the Urban Justice Center, write:

“For one immigrant group—asylum seekers already living in the United States—the fear is especially intense: deportation is a death sentence.
While thousands showed up to support refugee families at airports in response to the refugee ban, many Americans do not realize that a different group of refugee families stands to be picked up in raids, detained and wrongfully deported from the United States. These refugees are called “asylum seekers” because they are seeking refugee status from inside the United States instead of abroad.
For many asylum seekers, there is no mechanism to apply for refugee status abroad, which causes them to come to the U.S.-Mexico border and turn themselves in, seeking refuge. Like their counterparts in airports, they have experienced incredible violence in their countries of origin. They have been brutally raped, threatened by gunpoint to join gangs, or witnessed the murder of loved ones.
In response, the Department of Homeland Security (DHS) holds asylum seekers in detention centers for weeks or months until they pass a preliminary interview with an asylum officer. If they secure release, they move in with relatives or friends while remaining in deportation proceedings pending a full asylum trial.
Asylum seekers do not have a right to government-appointed counsel though their lives hang in the balance. Instead, families are forced to navigate the complex immigration system alone in a language they do not understand. Many also suffer from trauma-based disabilities such as post-traumatic stress disorder due to the persecution they experienced in the countries they fled.”

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

Perhaps contrary to popular perception, we often return individuals to dangerous and life-threatening situations. That’s because of the somewhat arcane “nexus” requirement for asylum that only covers persecution because of race, religion, nationality, membership in a particular social group, or political opinion.

By manipulating these definitions, U.S. Government authorities often can deny protection even to individuals who clearly face life-threatening danger upon return. The Government has worked particularly hard to develop technical legal criteria to disqualify those fleeing danger in the Northern Triangle.

Given the complexity and the highly legalistic nature of the system, competent representation by an attorney is a requirement for due process. For example, according to TRAC, for a sample population of Northern Triangle “women with children,” slightly more than 26% of those with lawyers got favorable decisions from the Immigration Court. Without lawyers, only 1.5% succeeded.

And, if the law were interpreted more reasonably and generously, in accordance with the spirit of asylum protection, I think that a substantial majority of those applying for asylum from the Northern Triangle would be granted relief. Pressure for more favorable interpretations will not come from unrepresented individuals who can’t speak English, let alone articulate, document, and support sophisticated legal arguments for better interpretations of protection laws.

PWS

03/09/17

My Message To Cornell Law — “Fight For Due Process” — Join The “New Due Process Army” — Due Process In Peril At The U.S. Immigration Court!

I spoke to an audience of approximately 120 members of the Cornell University community in Ithaca on Wednesday, March 8, 2017, as part of the Berger International Programs Lecture Series at Cornell Law. Many thanks to Professor Stephen Yale-Loehr for inviting me.

Read my entire speech

“EXISTENTIALISM AND THE MEANING OF LIFE AT THE U.S. IMMIGRATION COURT – CORNELL LAW VERSION”

here:

EXISTENTIALISM — Cornell — AND THE MEANING OF LIFE AT THE U

Here are a few “Highlights:”

“Sadly, the Immigration Court System is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now exceeding an astounding one half million cases and no clear plan for resolving them in the foreseeable future.”

“Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life or death issues at stake, unlike criminal court there is no right to an appointed lawyer.”

“First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history.”

“This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases. Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.”

“Over the past 16 years, the BIA’s inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need a BIA which functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than an unfulfilled promise.”

“So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former student, and those who have practiced before the Arlington Immigration Court.”

“They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

“Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.”

“Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!”

PWS

03/10/17

THE HILL: Nolan Rappaport Says New Trump Travel Ban A Slam Dunk Winner In Court! Get Link Here!

http://thehill.com/blogs/pundits-blog/immigration/322720-trumps-travel-ban-legally-sound-defensible-all-the-way-to-the

Nolan writes:

“The Trump administration released Monday a revised version of its immigration Executive Order to address the concerns raised in an appeals court decision, but those criticisms were always fundamentally irrational and not based in the text of the Order.”

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

Read Nolan’s complete article in The Hill at link.

As I indicated in my posts yesterday, the new travel ban appears to me just as bogus as the first one. Rather than being designed to solve a real national security problem, it is fear-mongering designed primarily to rev up public opinion, particularly among Trump’s base, against Muslims and refugees, neither of which pose a significant threat to the U.S. at present.

I noted that the Post “Fact-Checker” has already awarded “Three Pinocchios” to the misleading statistics that Secretary Kelly and AG Sessions cited in their “staged dialogue” asking the President to reimpose the travel ban. And, this is from a President and an Administration that already have pretty much zero credibility.

That being said, I don’t necessarily disagree with Nolan’s bottom line that Trump might well win this one if it even gets to the Supremes. This time, following the advice of Government litigators, he has applied the ban prospectively only to those foreign nationals overseas who have not previously been admitted or already documented to enter the U.S. He’s also eliminated the overt mention of religion.

Given that the standard for overseas visa denials is a “facially legitimate and bona fide reason,” the Administration might well be home free. Although the stated rationale might not stand up to a rigorous examination, it is unlikely that the Supremes, or even most lower Federal Courts, view engaging in a testing of the factual basis for this type of order affecting individuals overseas as something that can properly be adjudicated by Article III judges.

See my previous posts here:

http://wp.me/p8eeJm-ry

http://wp.me/p8eeJm-rH

PWS

03/07/17

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