Due Process – Page 291 – immigrationcourtside.com

From “Sputnik News:” “Trump Selects Three Legal Veterans for Senior Justice Department Posts”

https://sputniknews.com/us/201702011050221283-trump-three-candidates-justice-dept-posts/

“WASHINGTON (Sputnik) — Trump announced he is going to nominate Rod J. Rosenstein of Maryland to be Deputy Attorney General, Rachel B. Brand of Iowa to be Associate Attorney General and Steven Andrew Engel of the District of Columbia to be Assistant Attorney General, according to the release.

Rosenstein was previously US Attorney for the federal, or District Court of Maryland, Brand served as an assistant attorney general under President George W. Bush and Engel was a successful litigator who had served previously as a deputy assistant attorney general.”

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Sounds like the type of candidates most any Republican President would appoint. The “real question” is will they have any real influence on policy at the DOJ or will they be confined to “working out the Xs and Os of daily agency operations” while aides at the White House “pull the strings” with Attorney General Sessions on major legal and policy issues (like the operation of the U.S. Immigration Courts).

Too early to tell, of course. But, it’s something that Democrats should at least raise during the confirmation process. I wouldn’t expect any of these candidates to have difficulty getting confirmed.

PWS

01/01/17

BREAKING: From “The Hill” — Sessions Nomination As AG Approved By Senate Judiciary Committee — Moves To Full Senate Where Approval Is A Foregone Conclusion!

http://thehill.com/homenews/administration/317035-sessions-approved-by-senate-committee

The Hill writes:

“A Senate committee voted to confirm Sen. Jeff Sessions (R-Ala.) to be attorney general on Wednesday, two days after the growing controversy surrounding President Trump’s travel ban on seven Muslim nations led to the firing of an acting attorney general for insubordination.
The Senate Judiciary Committee approved Sessions 11-9 along party lines. His nomination now goes to the floor, where he is widely expected to be confirmed given the GOP’s 52-seat majority.

The committee vote comes as Senate Democrats have sought to slow progress on other Trump nominees, including Steve Mnuchin, the pick at the Treasury Department, and Rep. Tom Price (R-Ga.), Trump’s pick to lead the Health and Human Services Department.

The Alabama senator’s already difficult path to confirmation was made more contentious by Trump’s firing of acting Attorney General Sally Yates, who deemed the president’s order illegal and said she would not have Justice attorneys defend it.”

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As we have known for weeks, Jeff Sessions will soon be the Attorney General of the United States. What exactly does that mean for our justice system and particularly for the beleaguered and backlogged United States Immigration Courts which he will now control?

Among the most immediate questions:

Will he exempt the Immigration Courts from the Administration’s hiring freeze?

If so, what will he do with the many “pipeline candidates” for existing Immigration Judge vacancies who were “caught in limbo” when the hiring freeze went into effect?

Will he continue with the existing DOJ hiring process for the Immigration Judiciary, or will he establish his own recruitment and hiring system for Immigration Judges and BIA Judges.

We’ll soon find out. Stay tuned to immigrationcourtside.com for all the latest!

PWS

02/01/17

Read The Winter 2017 Edition Of “The Green Card” From The FBA — Includes My Article “Immigration Courts — Reclaiming the Vision” (P. 15) & “The Asylumist” Jason Dzubow’s Reprise Of The “Schmidt Interviews” (See “Immigration Rant,” P. 2)!

Green Card Winter 2017 Final

Here are some excerpts:

“Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. I have often spoken about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?

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. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.

Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration Court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized Immigration Judges.”

Another one:

Former BIA Chairman Paul W. Schmidt on His Career, the Board, and the Purge

“Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (BIA) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.”

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Read the complete articles plus lots of other “great stuff” both practical and more philosophical at the above link.

And, for all of you “aspiring writers” out there, Green Card Editor and my good friend and former colleague from the U.S. Immigration Court In Arlington, VA, Hon. Lawrence Owen “Larry” Burman, and the Publications Director, Dr. Alicia Triche, are always looking for “new talent” and interesting articles. Instructions on how to submit manuscripts are on page one.

PWS

02/01/17

BREAKING NEWS: Trump (Predictably) Fires Acting AG Sally Yates For Refusing To Defend Executive Order

https://www.washingtonpost.com/world/national-security/acting-attorney-general-an-obama-administration-holdover-wont-defend-trump-immigration-order/2017/01/30/a9846f02-e727-11e6-b82f-687d6e6a3e7c_story.html?hpid=hp_rhp-banner-main_mobile-banledeall-917am:homepage/story&utm_term=.2bb3e1f21f15

The Washington Post reports tonight:

“President Trump fired Acting Attorney General Sally Yates Monday night, after Yates ordered Justice Department lawyers Monday not to defend his immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

In a press release, the White House said Yates had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.”

The White House has named Dana Boente, U.S. attorney for the Eastern District of Virginia, as acting attorney general. Boente told The Washington Post that he will agree to enforce the immigration order.
Earlier on Monday, Yates ordered Justice Department not to defend President Trump’s immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world, declaring in a memo that she is not convinced the order is lawful.

Yates wrote that, as the leader of the Justice Department, she must ensure that the department’s position is “legally defensible” and “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”
“At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful,” Yates wrote. She wrote that “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”

Yates is a holdover from the Obama administration, but the move nonetheless marks a stunning dissent to the president’s directive from someone who would be on the front lines of implementing it.”

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Nothing very surprising here. As noted in the article, Yates was a holdover from the Obama Administration. I suppose it’s a nice note of protest for her to end her DOJ tenure.

Nevertheless, Yates was basically a bystander and enabler as her boss, AG Loretta Lynch, and the Obama Administration created chaos in the U.S. Immigration Court system. Lynch and Yates, who, to the best of my knowledge neither set foot inside a U.S. Immigration Court nor took the time to speak in person with sitting judges, mandated enforcement-based priorities which attempted to race vulnerable women, children, and families from Central America seeking refuge in the U.S. through the process on an expedited basis without a reasonable chance to obtain lawyers or present their claims. Indeed, while she might be having pangs of conscience about defending the Trump orders, Yates’s DOJ lawyers had little difficulty defending the facially absurd contention that children who couldn’t even speak English could represent themselves on complex asylum claims in Immigration Court. Meanwhile, those who had been patiently waiting on the Immigration Court’s docket for years and were actually ready to proceed to trial on their claims for relief were arbitrarily “orbited” to the end of the line — years in the future. Yates and Lynch inherited a court system in crisis and left it a disaster.

Then, there was judicial selection. Yates presided over a “Rube Goldberg Type” glacial, hyper-bureaucratized, opaque, hiring process that effectively excluded those outside government from the Immigration Judiciary and the Board of Immigration Appeals, while leaving approximately 75 unfilled positions at the end of the Administration and a BIA structure and system that basically institutionalized and reinforced the aggressively anti-due-process procedures put in place by Attorney General Ashcroft during the Bush Administration. She and her boss left behind total chaos and a due process train wreck that mocked the noble vision of the U.S. Immigration Courts: through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all.

So, forgive me if I can’t get too enthused about Yates’s belated show of backbone. Her gesture was purely symbolic, and cost her nothing, since she was going to be replaced immediately upon Sessions’s confirmation. But, when she actually had a chance to improve due process in the U.S. Immigration Courts, she was, sadly, MIA.

PWS

01/30/17

Washington Post: Sessions Driving Trump’s Immigration Policies — Due Process Forecast For U.S. Immigration Courts: Dark & Stormy

https://www.washingtonpost.com/politics/trumps-hard-line-actions-have-an-intellectual-godfather-jeff-sessions/2017/01/30/ac393f66-e4d4-11e6-ba11-63c4b4fb5a63_story.html?hpid=hp_rhp-top-table-main_sessions-0451pm%3Ahomepage%2Fstory&utm_term=.2f7a86336f2d

Philip Rucker and Robert Costa write in the Washington Post:

“In jagged black strokes, President Trump’s signature was scribbled onto a catalogue of executive orders over the past 10 days that translated the hard-line promises of his campaign into the policies of his government.

The directives bore Trump’s name, but another man’s fingerprints were also on nearly all of them: Jeff Sessions.
The early days of the Trump presidency have rushed a nationalist agenda long on the fringes of American life into action — and Sessions, the quiet Alabamian who long cultivated those ideas as a Senate backbencher, has become a singular power in this new Washington.

Sessions’s ideology is driven by a visceral aversion to what he calls “soulless globalism,” a term used on the extreme right to convey a perceived threat to the United States from free trade, international alliances and the immigration of nonwhites.

And despite many reservations among Republicans about that worldview, Sessions — whose 1986 nomination for a federal judgeship was doomed by accusations of racism that he denied — is finding little resistance in Congress to his proposed role as Trump’s attorney general.

Sessions, left, and then-President-elect Donald Trump speak at a “USA Thank You Tour” rally in Sessions’s home town of Mobile, Ala., on Dec. 17. (Jabin Botsford/The Washington Post)
Sessions’s nomination is scheduled to be voted on Tuesday by the Senate Judiciary Committee, but his influence in the administration stretches far beyond the Justice Department. From immigration and health care to national security and trade, Sessions is the intellectual godfather of the president’s policies. His reach extends throughout the White House, with his aides and allies accelerating the president’s most dramatic moves, including the ban on refugees and citizens from seven mostly Muslim nations that has triggered fear around the globe.

The author of many of Trump’s executive orders is senior policy adviser Stephen Miller, a Sessions confidant who was mentored by him and who spent the weekend overseeing the government’s implementation of the refugee ban. The tactician turning Trump’s agenda into law is deputy chief of staff Rick Dearborn, Sessions’s longtime chief of staff in the Senate. The mastermind behind Trump’s incendiary brand of populism is chief strategist Stephen K. Bannon, who, as chairman of the Breitbart website, promoted Sessions for years.

Then there is Jared Kushner, the president’s son-in-law and senior adviser, who considers Sessions a savant and forged a bond with the senator while orchestrating Trump’s trip last summer to Mexico City and during the darkest days of the campaign.

[Trump lays groundwork to change U.S. role in the world]

In an email in response to a request from The Washington Post, Bannon described Sessions as “the clearinghouse for policy and philosophy” in Trump’s administration, saying he and the senator are at the center of Trump’s “pro-America movement” and the global nationalist phenomenon.”

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I suppose not surprisingly, Senator Session’s claim that he would rise above his past and be Attorney General for all Americans was just a disingenuous smokescreen. Well, as I’ve said before, sometimes philosophical bias prevents folks from acting both in their own self-interest and the national welfare. So, the fate of due process in the U.S. Immigration Courts is likely to end up in the hands of the U.S. Courts of Appeals and, eventually, the Supreme Court. If nothing else, Sessions could find out that he’s going to spend most of the next four years without much immigration enforcement at all, as the Article III Courts sort this out. Dumb me, for giving the guy the “benefit of the doubt.”

PWS

01/30/17

Jill Family: Due Process On The Run

http://yalejreg.com/nc/draining-due-process-by-jill-e-family/

Professor Jill Family of Widener University Law writes in “Notice & Comment:”

“As I have argued before, the failings of the immigration adjudication system are not an excuse to perform end-runs around the system and to ignore administrative process design criteria. The system needs to be fixed and not forgotten. This is not only a question of what is fair for individuals charged with removal. It is also a signal of the administration’s attitude toward due process rights. That should be concerning to anyone interested in agency adjudication and individual rights.”

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I couldn’t agree more with Professor Family. I lived through lots of “haste makes waste” disasters in my Government career. Both Nolan Rappaport and I have pointed out, in our different ways, why it would be smart for the Trump Administration to do an “honest fix” for the Immigration Court system. A “level playing field” that concentrates on full due process in the Immigration Courts benefits everyone, including those who favor vigorous (yet fundamentally fair) immigration law enforcement.

But, sadly, after one week, this has all of the hallmarks of an Administration that will not be able to rise above its own intentionally divisive campaign rhetoric and its unfortunate biases. Just to be clear, as the events of the first week show, those biases have nothing whatsoever to do with the best interests or security of our country and everything to do with pandering to misguided nationalist/populist sentiment.

I suspect that eventually the entire Immigration Court System as well as the DHS “Administrative Removal Process” will end up in “receivership” in the Article III Courts, who will have to decide what to do with a supposed due process system that has been “drained” of both common sense and due process. But, given the failures of the last two Administrations to foster due process in the Immigration Courts, the apparent intention of the Trump Administration to mock established concepts of fairness and due process, and the failure Congress to act on long overdue reforms to establish an Immigration Court independent from the Executive, that might be the best thing for America.

PWS

01/29/17

Copy Of TRO By Judge Leonie Brinkema, EDVA, Prohibiting Removal Of LPRs & Requiring Access To Counsel — Aziz v. Trump

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Case No. 1:17-cv-116

Date: January 28, 2017

Ammar Aqel Mohammed Aziz, by their next friend,

Aqel Muhammad Aziz, and

John Does 1-60, Petitioners,

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles,

Respondents.
TEMPORARY RESTRAINING ORDER

Pursuant to Federal Rule of Civil Procedure 65, the Court orders that:

a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport;

b) respondents are forbidden from removing petitioners—lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.

Dates: January 28, 2017

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Seems pretty straightforward. Lawful permanent residents (“green card holders”) returning from abroad are entitled to full Removal Hearings before a U.S. Immigration Judge at which the DHS bears the burden of establishing removability by clear and convincing evidence. They are also entitled to representation by counsel of their own choosing (at no expense to the Government) in such a hearing. Therefore, it’s hard to understand the the basis for the apparent DHS claim that they could detain and remove a returning green card holder without a hearing and without allowing him or her access to a lawyer. But, I’ve read and heard reports from local attorneys saying that DHS CBP officials at Dulles International Airport have been slow to comply or resisted complying with Judge Brinkema’s very clear order.

I’ve never personally met Judge Brinkema, who sits in the U.S. District Court a few blocks from our home in Alexandria. But, I’m familiar with her work. Occasionally, one of my custody/bond decisions from the Arlington Immigration Court ended up before her for judicial review by habeas corpus. Sometimes she upheld my decision, sometimes not.

On several occasions, she ordered me to conduct immediate individualized custody hearings for detained individuals notwithstanding BIA precedent to the contrary. I always complied immediately, just as she had ordered. The DHS Arlington Chief Counsel also got on board. Judge Brinkema wasn’t someone you wanted to “mess around with.”

Unlike U.S. Immigration Judges, who were given statutory contempt of court powers by the Congress, only to have that authority withheld by the U.S. Dept. of Justice over three Administrations, Democratic and Republican, Judge Brinkema has authority to hold individuals, including U.S. Government officials, in contempt of court for disobeying her orders. And, I never had the impression that she would be reluctant to do that when necessary.

Additionally, failure to comply with court orders can result in large attorney fee awards against the Government under the Equal Access to Justice Act. If the reports of non-compliance are true, it seems that DHS and their lawyers are “playing with fire” here.

Remember guys, this isn’t Immigration Court. Article III Judges have life tenure, and they don’t work for the President. He’s just another party to them.

PWS

01/29/17

BREAKING NEWS: U.S. District Judge Ann Donnelly, EDNY, Stays Deportation Of Individuals Held Under Trump’s Executive Order — Finds “Irreparable Harm” To Individuals!

https://www.washingtonpost.com/local/social-issues/refugees-detained-at-us-airports-challenge-trumps-executive-order/2017/01/28/e69501a2-e562-11e6-a547-5fb9411d332c_story.html?hpid=hp_no-name_no-name:page/breaking-news-bar&tid=a_breakingnews&utm_term=.ee674f9be00b

From the Washington Post:

“In Brooklyn, after a brief hearing in front of a small audience that filtered in from a crowd of hundreds outside, Donnelly determined that the risk of injury to those detained by being returned to their home countries necessitated the decision. She seemed to have little patience for the arguments presented by the government, which focused heavily on the fact that the two defendants named in the lawsuit had already been released. At one point, she visibly lost patience with a government attorney who was participating by phone.

Donnelly noted that those detained were suffering mostly from the bad fortune of traveling while the ban went into effect. “Our own government presumably approved their entry to the country,” she said at one point, noting that, had it been two days prior, those detained would have been granted admission without question.”

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I feel the Judge’s pain with the Government’s disingenuous arguments. Implementing such a draconian measure on a weekend with no notice is just plain stupid. And arguing that the Government would somehow be harmed by agreeing to stay the removal of meticulously pre-screened individuals with valid visas long enough for the Judge to fully consider the substantial constitutional arguments presented is beyond ludicrous.

I also feel for the poor AUSA stuck defending this kind of nonsense by an obstinate Administration that knows no compromise. I had to help defend a few of these in my Government career. At the time of my “first retirement” from the DOJ, one DOJ litigator said that he would miss me because I “was the best ever at providing reasonable explanations for my agency’s fundamentally irrational policies.”

The temporary restraining order issued by the Judge does not decide the merits of the dispute. It merely maintains the status quo so that the Judge can decide the case after full briefing and argument by the parties at a time other than a Saturday night. However, in addition to finding irreparable harm, Judge Donnelly also found a “strong likelihood” that the individual plaintiffs would prevail on their arguments based on Constitutional Due Process and Equal Protection. A copy of the order is at the link below. Stay tuned.

Darweesh v Trump_DECISION and ORDER document-3

PWS

01/28/17

Religion: Stephen Mattson In Sojourners: “American ‘Christianity’ Has Failed”

https://sojo.net/articles/american-christianity-has-failed

“Because while the gospels instruct followers of Christ to help the poor, oppressed, maligned, mistreated, sick, and those most in need of help, Christians in America have largely supported measures that have rejected refugees, refused aid to immigrants, cut social services to the poor, diminished help for the sick, fueled xenophobia, reinforced misogyny, ignored racism, stoked hatred, reinforced corruption, and largely increased inequality, prejudice, and fear.

. . . .

By these standards — and by the ultimate example that Jesus himself set for us by example — mainstream Christianity in America has failed. It looks nothing like Jesus.
But the reality is that following Jesus is extremely hard. It demands giving away your most prized possessions and abandoning your biggest fears. So while there might be political, economic, financial, and safety reasons for implementing policies that harm people and refuse them help, there are certainly no gospel reasons.

Nobody understood this better than the early church. Those first Christ followers who refused to bow to the emperor and go along with the policies of the Roman government. For them, they gave everything — to the point of being persecuted, arrested, tortured, and eventually martyred — for the purpose of serving Christ and serving others, the result of choosing to dedicate their lives to the truths of Jesus rather than the ideals of the ruling empire.

The question is, will American Christians ever learn to do the same?”

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PWS

01/28/17

CBS News: “Overloaded U.S. immigration courts a ‘recipe for disaster'”

http://www.cbsnews.com/news/trump-us-immigration-courts-deportations/

AIMEE PICCHI/MONEYWATCH writes:

“President Donald Trump is taking what he portrays as a hard-nosed approach to undocumented immigrants, issuing an order this week to boost the number of U.S. border patrol agents and to build detention centers.

But what happens when a federal push to ramp up arrests and deportations hits a severely backlogged federal court system?

“It’s a recipe for a due process disaster,” said Omar Jadwat, an attorney and director of the Immigrant Rights Project at the ACLU. Already, he pointed out, there are “large, large numbers of caseloads” in immigration court, and Mr. Trump’s directives threaten to greatly increase the number of people caught in the system, he said.

Just how backlogged is the system for adjudicating deportations and related legal matters? America’s immigration courts are now handling a record-breaking level of cases, with more than 533,000 cases currently pending, according to Syracuse University’s TRAC, a data gathering site that tracks the federal government’s enforcement activities. That figure is more than double the number when Mr. Obama took office in 2009.

As a result, immigrants awaiting their day in court face an average wait time of 678 days, or close to two years.
Immigrant rights advocates say the backlog is likely to worsen, citing Mr. Trump’s order on Wednesday to hire 5,000 additional border patrol agents while also enacting a freeze on government hiring. Whether the U.S. Justice Department, which oversees the immigration courts, will be able to add judges given the hiring freeze isn’t clear.

A spokeswoman from the DOJ’s Executive Office for Immigration Review said the agency is awaiting “further guidance” regarding the hiring freeze from the Office of Management and Budget and the Office of Personnel Management. In the meantime, she said, the agency “will continue, without pause, to protect the nation with the available resources it has today.”

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There is video to go with the complete story at the link.

The situation is likely to get much worse in the U.S. Immigration Courts. Obviously, due process is not going to be a high priority for this Administration. And, while the Executive Orders can be read to give Attorney General Jeff Sessions authority to continue hiring Immigration Judges, filling the 75 or so currently vacant positions won’t begin to address the Immigration Courts’ workload problems.

Then, there are the questions of space and support staff. One of the reasons more vacancies haven’t been filled to date is that many Immigration Courts (for example, the U.S. Immigration Court in Arlington, VA) have simply run out of space for additional judges and staff.

The parent agency of the Immigration Courts, “EOIR,” is counting on being allowed to continue with expansion plans currently underway. But, even if Attorney General Sessions goes forward with those plans, that space won’t be ready until later in 2017, and that’s highly optimistic.

This does not seem like an Administration that will be willing to wait for the current lengthy highly bureaucratic hiring system to operate or for new Immigration Judges to be trained and “brought up to speed.” So various “gimmicks” to speed hiring, truncate training, and push the Administration’s “priority cases” — likely to be hundreds of thousands of additional cases — through the Immigration Courts and the Board of Immigration Appeals at breakneck speed.

Consequently, the whole “due process mess” eventually is likely to be thrown into the U.S. Courts of Appeals where “final orders of removal” are reviewed by Article III Judges with lifetime tenure, rather than by administrative judges appointed and supervised by the Attorney General.

PWS

01/28/17

CNN: The Human Trauma Of Trump’s Executive Orders Begins — Those Who Played By The Rules, Helped America, And Believed in Our Fairness And Humanity Face Potential Detention And Removal!

http://www.cnn.com/2017/01/28/politics/2-iraqis-file-lawsuit-after-being-detained-in-ny-due-to-travel-ban/index.html

“Lawyers for two Iraqis with ties to the US military who had been granted visas to enter the United States have filed a lawsuit against President Donald Trump and the US government after they were detained when they arrived in New York Friday.

The lawsuit could represent the first legal challenge to Trump’s controversial executive order, which indefinitely suspends admissions for Syrian refugees and limits the flow of other refugees into the United States by instituting what the President has called “extreme vetting” of immigrants.
Trump’s order also bars Iraqi citizens, as well as people from six other Muslim-majority nations, from entering the US for 90 days, and suspends the US Refugee Admissions Program for 120 days until it is reinstated “only for nationals of countries for whom” members of Trump’s Cabinet deem can be properly vetted.

According to court papers, both men legally were allowed to come into the US but were detained in accordance with Trump’s move to ban travel from several Muslim-majority nations.

The lawyers for the two men called for a hearing because they maintain the detention of people with valid visas is illegal. They were still at John F. Kennedy International Airport as of late Saturday morning, one of the lawyers told CNN.

“Because the executive order is unlawful as applied to petitioners, their continued detention based solely on the executive order violates their Fifth Amendment procedural and substantive due process rights,” the lawyers argue in court papers.
The two Iraqi men named as plaintiffs in the suit are Hameed Khalid Darweesh, who worked as an interpreter for the US during the Iraq War, and Haider Sameer Abdulkaleq Alshawi. The suit said Darweesh held a special immigrant visa, which he was granted the day of Trump’s inauguration on January 20, due to his work for the US government from 2003 to 2013.

The lawsuit said the US granted Alshawi a visa earlier this month to meet with his wife and son, whom the US already granted refugee status for their association with the US military.”

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The CNN report notes that lawsuits challenging the Executive Order have been filed. But as immigration scholar and Clinical Professor Steve Yale-Loehr of Cornell Law states in the full article, the lawsuit is no “slam dunk” given the Executive’s authority over immigration.

Also, these two individual had been approved and actually had visas when the Executive Order was issued. Most individuals “in the pipeline”who have been conditionally approved have not yet been issued visas. So, they won’t even be able to board planes for the United States. Others who actually have visas in hand will probably find that they have been cancelled before they can get on a plane for the U.S.

U.S. Courts have been most reluctant to review actions by the Executive that ostensibly relate to foreign policy, and particularly averse to reviewing actions taken by U.S. officials in foreign countries acting at the direction of the President or the Secretary of State.

Congress could act to attempt to limit or direct the President with respect too refugees. But that’s not going to happen. And, if it did, it would also raise some difficult separation of powers issues

So, when the smoke clears, it is quite possible that NGOs, refugee advocates, and others who oppose the President’s directives on refugees will be without a forum in which to challenge him.

PWS

01/28/17

From “The Week:” Strange Bedfellows — If “Sanctuary Cities” & Migrants’ Advocates Defeat President Trump’s Policies In Court, They Might Owe A Huge Debt To Conservative Judges, Like The Late Justice Antonin Scalia!

http://theweek.com/articles/674498/how-conservative-judges-unintentionally-sabotaged-president-trumps-immigration-crackdown

Self-described “free-market progressive libertarian” Shikha Dalmia writes in The Week:

“But there’s another big cost that will hamstring this sanctuary city crackdown: If he can’t command local cooperation by threatening to cut funds, then President Trump also can’t de facto deputize local law enforcement agents. So he will have to cough up large sums of federal money to triple the size of the federal deportation force that would be required to eject millions of additional people.

And that will also mean bad optics, because without cooperative local authorities, President Trump will not be able to order ICE agents to whisk away all of these folks quietly in the dead of the night, shielded from media cameras. Instead, he’ll have to start raiding schools, neighborhoods, and workplaces, which will make for terrible publicity.

Whether Trump will go that far remains to be seen. But thanks primarily to the conservative justices on the Supreme Court, it’ll be very hard for him to do so. And that gives undocumented workers far more of a chance than if they had to depend only on the good intentions of local liberal politicians.

The irony is that these immigrants would be in much bigger trouble if Justice Sonia Sotomayor, along with her liberal colleague Ruth Bader Ginsburg, had prevailed in the ObamaCare ruling, as many liberals had hoped at the time. They were completely on board with ObamaCare’s efforts to use federal funds to strong-arm states.

So what’s the lesson? That standing up for bedrock checks and balances is a far better protector of vulnerable minorities than do-gooding liberal politics.”

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I’ve written before that the Trump Administration might not get the anticipated “free pass” to bash migrants that they apparently anticipate from Republican appointees on the U.S. Courts of Appeals and a conservative majority Supreme Court. Leaving aside “hot button” or “litmus test” issues like abortion, doctrinal conservatives often have great Constitutional reservations about the unbridled use of Executive Power. Indeed, doctrinal conservatism at some point comes close to libertarianism, and libertarianism has some things in common with liberalism.

Thus, at some point in my career, I found myself sitting at a Cato Institute Seminar and nodding in agreement when none other than Grover Norquist described his essentially “free market” approach to migration and border enforcement issues.

In the end, the fact that independent Article III judges, conservative, liberal, middle of the roaders, Republicans, and Democrats, freed of political control, will deliberatively decide what the law requires could turn out to be a bigger problem for the Trump Administration than they had anticipated.

PWS

01/27/17

Grossman Law LLC Analyzes Impact Of Exec Orders On Migrants, Families!

Trump’s Executive Orders on Immigration
Yesterday, January 25, 2017, President Trump signed two Executive Orders on immigration, demonstrating that he will take a hard-line, no compromise, and enforcement only approach to handling our nation’s already broken immigration system. Through these Orders, the Trump Administration communicated the following priorities:
Border Wall: The Secretary of the Department of Homeland Security (DHS) must immediately begin planning, designing, and constructing a physical wall along the nearly 2000-mile southern border. The U.S. (not Mexico) will pay for this wall at an estimated price tag of $6.5 million per mile. This is an unconscionable expenditure at a time when statistics show that the southern border is more secure than ever and illegal border crossings are at a 40-year low!

Increased Detention of Asylum Seekers and immigrants at the southern border: DHS is authorized to hire an additional 5000 Border Patrol Agents and build new detention facilities. DHS will no longer release asylum seekers on bond or electronic monitoring; instead, asylum-seekers will remain in jail while their cases are pending, and will have to gather evidence, prepare legal arguments, and present their cases while in detention. Not only will this be expensive ($125 per adult per day, or in the case of family detention, $343 per person per day), but it is inhumane. An estimated 88% of Central American women, children, and families crossing the Southern border have valid asylum claims. Subjecting them to prolonged detention further traumatizes them and violates this country’s proud tradition of welcoming those fleeing persecution.

Revised Removal Priorities: DHS is authorized to hire up to 10,000 additional immigration officers who will prioritize for removal individuals convicted of any criminal offense whatsoever, no matter how minor or insignificant. They will also prioritize for removal individuals who have open charges pending against them, even if they have not been found guilty by a judge or jury, and individuals who have never been charged or convicted of a crime, but whom an immigration officer believes may have committed a criminal act or may otherwise pose a risk to public safety or national security. This vague and overbroad policy opens the door for rampant constitutional and civil rights violations. It also has the potential to expose both federal and deputized state and local agencies to frequent and protracted litigation.

Relatedly, the President has also Deputized State and Local Law Enforcement Officials to act as immigrant agents in apprehending, investigating, and detaining immigrants. Local jurisdictions currently have no legal obligation to assist with civil immigration enforcement, as immigration enforcement is the responsibility of the federal government alone. Forcing local police to act as immigration agents strains their already limited resources and reduces their ability to respond to and investigate crime. Importantly, this policy also deters immigrants who are victims of crime from coming forward and reporting criminal activity. By alienating our immigrant neighbors and over-taxing local police, this policy will make our communities even less safe.

Sanctuary Cities: President Trump pledges to end “sanctuary cities” (jurisdictions which protect the identity of non-criminal immigrant members of the community by refusing to share information about those individuals with federal immigration authorities). He has promised to end “sanctuary cities” by denying them Federal grants and funding. This move, too, jeopardizes the safety of all Americans. It undermines community policing efforts that encourage everyone to work with the police to prevent and solve crime. When immigrants distrust and fear local law enforcement, victims and key witnesses refuse to come forward out of fear of deportation.

Without a doubt, the impact of these directives will be substantial. Grossman Law is concerned that the President’s priorities skirt the long-established due process rights of all individuals, including immigrants, within our borders. Additionally, the attack on “sanctuary cities” will have the negative impact of further dividing our nation and the potential of increasing crime in our largest cities. Our nation’s history, prosperity and growth has been closely aligned with the prosperity and growth of immigrants. The executive orders, in large part, will work to destroy this proud history, and will have the consequence of instilling fear, rather than hope, into the hearts of deserving immigrants. This is “un-American” and misguided policy. Grossman Law will closely monitor the implementation of these Orders and will provide ongoing advice and counsel to our clients, and will continue organizing to ensure the protection of rights for all.

Grossman Law, LLC
4922 Fairmont Avenue, Suite 200
Bethesda, Maryland 20814
Phone: (240) 403-0913
Website: www.GrossmanLawLLC.com

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PWS

01/26/17

Fox News: Text Of President Trump’s Executive Order On Interior Enforcement!

http://www.foxnews.com/politics/2017/01/25/text-trump-executive-order-on-enhancing-public-safety-in-interior-united-states.html

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Wow! Incredibly broad! Probably easier to determine what isn’t a priority (offhand, I’d say something like “undocumented migrants already in the United States who have lived lives completely free from any run-ins with the law” — and, there are definitely quite a few of those) than what is!

Unlike the Border Enforcement Executive Order, which specifically requires detention of arriving migrants with very narrow, case-by-case, exceptions, this order does not specifically direct immigration officials to detain all interior removal “priorities.” But, it certainly is implicit in the President’s Order that all of the stated removal priorities “present a significant threat to national security and public safety.” That’s probably going to result in at least a de facto “presumption of detention” in all priority cases. And, regulations, precedents, or other directives from the Secretary of Homeland Security and the Attorney General could specifically establish such a presumption.

So, everyone arriving at the border without documentation is a priority and will be thrown in detention. And, everyone in the interior who is undocumented and has ever been arrested, charged, or committed any crime, no matter how minor, and regardless of whether convicted, will also be prioritized, and most of them will be thrown in detention.

Consequently, almost everybody in Immigration Court will be a “Detained Priority” or an “Enforcement Priority” of some type. That’s going to mean yet another massive re-shuffling of dockets.

And, since almost everyone will be detained, there will be even more excruciating pressure on already stressed and overwhelmed U.S. Immigration Judges to “move” these cases, without much regard to due process, because detention will be costing a fortune (and the Supremes well might place a limit on the duration of “pre-hearing” detention).

In that case, why would anybody interested in being a “real” judge who isn’t already in the system and not eligible to retire, want the Immigration Judge’s job? Yes, I’m sure that there will be many lawyers out there who need jobs and will apply. But, they are likely to be those who see being a “judge” in the Executive Branch under such circumstances as a law enforcement position, rather than a chance to be an impartial “umpire,” scholar, or dispenser of balanced and deliberative due process.

Perhaps, the initiative will be a huge enforcement success; the Article III Courts will sign on and basically dispense with any semblance of “normal” due process for migrants, thus allowing them essentially to be railroaded out of the U.S. Obviously, that’s what the Administration is counting on.

Alternatively, however, the Article III Courts might “dig in” and insist on scrupulously fair hearings, thereby essentially grinding all enforcement to a halt and forcing massive “re-dos” of already “expedited” and “prioritized” cases. In that event, the initiative will turn out to be a colossal and incredibly expensive failure.

I suspect that the Supremes will have to sort this out in the fairly near future. In the past, a Supreme Court with the late Justice Antonin Scalia sitting frequently vindicated the rights of migrants against attempted Government overreaching by Administrations of both parties. So, it’s by no means a “given” that a Supreme Court with a disciple of Justice Scalia as the new Justice would necessarily endorse all aspects of the President’s enforcement initiatives. We’ll just have to wait and see.

And, surprisingly, particularly to those who think that this is a “great” idea, the answer may affect the due process rights of more than just migrants. You never know when you yourself might be in need of a little due process. It often happens to those who least expect it.

Meanwhile, “back at the ranch,” not only is it a great time not to be a refugee, but it’s a really great time to be retired from the USG (and, the U.S. Immigration Court, in particular).

PWS

01/25/17

Obama DOJ’s Failed Priorities Leave Backlogs, “Frontlogs,” And Overall Docket Chaos As Legacy To United States Immigration Courts!

http://trac.syr.edu/whatsnew/email.170117.html

TRAC Immigration writes:

“(17 Jan 2017) The number of judges is still insufficient to handle the growing backlog in the Immigration Court. The court’s crushing workload reached a record-breaking 533,909 pending cases as the court closed out calendar year 2016, up 4.2 percent in just the last four months.
The problem is particularly acute for priority cases involving women with children according to the latest court data updated through the end of December 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Pending priority cases for these families jumped by more than 20 percent (21.9%) in just the last four months. The backlog of these family cases alone totaled 102,342 last month, surpassing 100,000 cases for the first time.

The number of pending priority cases involving unaccompanied children also has continued to climb, reaching 75,582 at the December 2016. Together with family cases, this priority workload now accounts for fully one third (33%) of the court’s overall record backlog.”

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How totally sad and disappointing for those of us who care deeply about the due process mission of our United States Immigration Courts! The Obama Administration had eight full years to make the necessary reforms to put the United States Immigration Courts back on track to achieving their “due process vision.” Instead, alternating indifference to and interference with the due process mission of the Immigration Courts made a bad situation even worse. And, unlike the Article III Courts, the U.S. Immigration Courts are a “wholly-owned subsidiary” of the DOJ and the Administration. So, Republicans can’t be blamed for this one. In fact, recently the Republican-controlled Congress provided strong bi-partisan support for the Immigration Courts by authorizing and funding additional U.S. Immigration Judge positions (many of which, however, remained unfilled at the end of the Obama Administration).

We’ll see what happens next. But, if the results aren’t happy for due process, Democrats are going to have to shoulder much of the blame.

PWS

01/20/17

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