Tag: Executive Order

ELIZABETH J. (“BETTY”) STEVENS IN “THE FEDERAL LAWYER” (FBA) – Why We Need An Article I Immigration Court Now! — “A close read of the GAO’s report provides a chilling window into a system in chaos.”

http://www.fedbar.org/Publications/The-Federal-Lawyer/Columns/Immigration-Law-Update.aspx?FT=.pdf

Recently, the White House announced that it sought to reduce the current immigration court backlog by requesting appropriations for additional immigration judges and instituting performance metrics for all immigration judges.1 Sen. Claire McCaskill and Reps. Jim Sensenbrenner, Zoe Lofgren, and Trey Gowdy asked the General Accountability Office (GAO) the following questions: 1. What do Executive Office for Immigration Review (EOIR) data indicate about its caseload, including the backlog of cases, and potential contributing factors and effects of the backlog according to stakeholders? 2. How does EOIR manage and oversee immigration court operations, including workforce planning, hiring, and technology utilization? 3. To what extent has EOIR assessed immigration court performance, including analyzing relevant information, such as data on case continuances? 4. What scenarios have been proposed for restructuring EOIR’s immigration court system and what reasons have been offered for or against these proposals?2

A close read of the GAO’s report provides a chilling window into a system in chaos.

. . . .

Moving the immigration courts out of the executive branch
would help alleviate the perception that they are not independent tribunals with DHS and the respondents as equal participants. This would also cure the perception that the immigration courts have become so politicized that decisions change not with the law but with the politics of the current administration. Moreover, due to
the number of immigration judges who are former DHS attorneys and the co-location of some immigration courts with Immigration and Customs Enforcement offices, a broad perception exists that immigration judges and DHS attorneys are working together. This perception leads to significant lapses in perceived due process; for example, individuals don’t appear because they think the system is rigged, don’t appeal a bad decision because they lack resources after the long wait for a merits hearing, or don’t pursue potential relief for which they might be eligible. Plus, such a move would allow DHS the opportunity to appeal the Article I appellate division’s decisions to the circuit courts of appeals—providing those courts with a broader, more balanced view of issues and decisions of the trial-level immigration court.21 EOIR’s FY 2016 Statistics Yearbook indicates that one quarter of the initial cases decided were grants—none of which were ever reviewed by the courts of appeals.22

With a move to an Article I court, both trial level and appellate di- vision judges would have fixed terms of office and tenure protections that would facilitate judicial decisions without fear or favor. (If one believes that current members of the Board of Immigration Appeals are truly independent, one should research the “streamlining” of
the board down to just 11 members.23) Current board members and immigration judges are arguably government attorneys with the same client as DHS attorneys.24 They are subject to case completion goals—with or without express reliance on numerical goals—and may be subject to discipline by the attorney general.25 The currently proposed performance metrics are not new—most have been in place in one form or another since 2002.26

Last but not least, removing the immigration courts from the Department of Justice should speed the courts’ ability to regulate itself. First and foremost, the individual immigration judges would have control over their dockets and not be subject to decisions by headquarters to prioritize case A over case B (and then back again)—or send trial judges off to border courts to handle a few cases when their backlogged dockets have to be re-scheduled.27 The Article I court as a whole would be able to issue rules and regulations without the current byzantine requirements for consultation with a number of different offices and agencies. And, finally, hiring an immigration trial judge would not take two years.28

Other options exist; all have flaws. None of the options will single-handedly fix the backlog. We all have strong opinions about whether our nation’s immigration laws need a complete overhaul or a quick x—and how to go about either or both—but as we look to implement changes in our current immigration system, we must also aspire to lift the immigration courts from “halfway there” not-quite- courts to true Article I courts. 

[Text of Footnotes Omitted]

Elizabeth J. Stevens is
the chair of the Federal
Bar Association’s Immi-
gration Law Section.

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Read Betty’s highly cogent and incisive full article in The Federal Lawyer at the link! You’ll also be able to get all of Betty’s terrifically informative footnotes.

Betty is not just “any” lawyer. In addition to being the head of the FBA’s highly regarded and very active Immigration Law Section, Betty’s distinguished career in the Department of Justice has touched on all aspects of the Immigration Court practice.

While in law school at George Mason, Betty interned at the Board of Immigration Appeals during my tenure there. When I arrived at the Arlington Immigration Court, Betty was serving as the sole Judicial Law Clerk for all six Immigration Judges.

Betty then began a distinguished career at the Office of Immigration Litigation (“OIL”) where her primary job was to defend the orders of the Board of Immigration Appeals. She had a meteoric rise through the ranks of OIL, culminating in position as a Senior Supervisor and a trainer of newer OIL attorneys.

I well remember Betty shepherding numberous groups from OIL over to the Arlington Court to introduce them to immigration litigation at the “retail level of our justice system.” Since her retirement from Federal Service, Betty has been an energetic, well-informed, and steadfast voice for better legal education of attorneys on both sides practicing immigration law and for Immigration Court and BIA reform.

“Chilling” is exactly the right word to describe the utter chaos in our U.S. Immigration Courts today, as the backlog approaches 700,000 cases with no end in sight. It’s “chilling” to the individual Constitutional rights of all Americans, as well as “chilling” as to the fantastic degree of “malicious incompetence” of the DOJ’s pathetic attempt to administer the Immigration Courts under Jeff Sessions.

Betty is someone who has “looked at life from both sides now!” When Betty Stevens says the system is broken and “in chaos,” you’d better believe it’s true! Thanks again Betty for all you do! It’s an honor and a privilege to work with you on the “Due Process Team.”

PWS

04-01-18

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019
  3. PACIFIC STANDARD: The Call For An Independent Article I U.S. Immigration Court Gets Louder! — Systemic Failure Of Due Process “At The Retail Level” Threatens Our Entire Justice System! — “Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case.”
  4. IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?

HERE’S AN INFO PACKED “TRIPLE HEADER” FROM TAL @ CNN: Trump Administration Moves To Undermine American Values On Three Fronts: Detention Of Pregnant Women, Targeting U.S. Citizen Children In Need, & Extreme Vetting!

http://www.cnn.com/2018/03/29/politics/ice-immigration-pregnant-women/index.html

ICE rolls back pregnant detainee release policy

By Tal Kopan, CNN

The Trump administration will no longer seek to automatically release pregnant immigrants from detention — a move in line with the overall efforts by the administration to hold far more immigrants in custody than its predecessors.

The change in policy was sent by Immigrations and Customs Enforcement to Congress on Thursday morning and obtained by CNN.

According to the new directive, immigration officers will no longer default to trying to release pregnant women who fall into immigration custody, either because they are undocumented or otherwise subject to deportation. The Obama administration policy urged officers to presume a pregnant woman could be released except for extreme circumstances.

But a FAQ sent with the directive makes clear that ICE is not going to detain all pregnant immigrants. The policy will require a case-by-case evaluation, the FAQ explains, and will keep in custody “only those whose detention is necessary to effectuate removal, as well as those deemed a flight risk or danger to the community.”

ICE will also lean towards releasing pregnant women if they are in their third trimester, and will also make an effort for detention facilities to provide services to pregnant women and parents.

The move follows controversial efforts by the Department of Health and Human Services to keep unaccompanied minor immigrants in custody rather than releasing them to obtain abortions, a policy that has been the subject of intense litigation.

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http://www.cnn.com/2018/03/29/politics/immigrants-rejected-government-benefits/index.html

White House reviewing plan to restrict immigrants’ use of government programs

By: Tal Kopan, CNN

The White House is reviewing a proposal that could penalize immigrants who use certain government programs, the Department of Homeland Security confirmed Thursday.

The proposed rule change would substantially expand the type of benefits that could be considered as grounds to reject any immigrants’ application to extend their stay in the US or become a permanent resident and eventually a citizen.

The move continues efforts by the Trump administration to overhaul the US immigration system and the changes could have the effect of substantially tipping the scales in favor of high-income immigrants — all without requiring an act of Congress. The changes could amount to an effective income test of immigrants to the US, critics say.

The expansion would going forward include programs like children’s health insurance, tax credits and some forms of Medicaid as black marks against immigrants seeking to change their status to stay.

By including benefits used by family members of the immigrants, the proposal could also apply to benefits being used by US citizens, who may be the spouse or child of the immigrant applying for status

DHS spokesman Tyler Houlton said the proposed rule had been sent to the White House Office of Management and Budget — the final step of the approval process before it’s released.

Houlton would not comment on the specifics of the proposal, but did said that DHS is “committed to enforcing existing immigration law … and part of that is respecting taxpayer dollars.”

CNN first reported on the changes as they were in development last month. The Washington Post obtained a more recent version of the proposal on Wednesday.

Why the change matters

US law authorizes authorities to reject immigrants if they are likely to become a “public charge” — or dependent on government.

Since the 1990s, that has meant that immigrants shouldn’t use so-called “cash benefits,” but a large number of programs were exempt from consideration.

But the new rule would include programs such as some forms of Medicaid, the Children’s Health Insurance Program, food stamps, subsidized health care under Obamacare and the Earned Income Tax Credit, according to the latest draft obtained by the Post.

In one change from the earlier draft obtained by CNN, educational programs that benefit children, including Head Start, will not be included under the administration’s plan. Programs like veteran’s benefits that individuals earn would also be excluded.

The rule would not explicitly prohibit immigrants or their families from accepting the benefits. Rather, it authorizes the officers who evaluate their applications for things like green cards and residency visas to count the use of these programs against the immigrant, and gives them authority to deny the immigrants visas on these grounds — even if the program was used by a family member.

The decision sets up a difficult scenario for immigrants who hope to stay in the US. If they accept any public benefits — or their family members do — they could potentially be denied future abilities to stay. That includes decisions about whether to use health insurance subsidies for them or their children, or tax credits they qualify for otherwise.

Immigrants are no more likely to qualify for these programs than the native US population, according to tables included in the documents, the Post reported. There is no substantial difference in the rate between the two groups — in some cases foreign-born residents are slightly more likely to use a program, but in some cases the native-born population is, according to the tabulations.

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https://www.cnn.com/2018/03/29/politics/immigrants-social-media-information/index.html

US to require immigrants to turn over social media handles

By Tal Kopan, CNN

The Trump administration plans to require immigrants applying to come to the United States to submit five years of social media history, it announced Thursday, setting up a potential scouring of their Twitter and Facebook histories.

The move follows the administration’s emphasis on “extreme vetting” of would-be immigrants to the US, and is an extension of efforts by the previous administration to more closely scrutinize social media after the San Bernardino terrorist attack.

According to notices submitted by the State Department on Thursday, set for formal publication on Friday, the government plans to require nearly all visa applicants to the US to submit five years of social media handles for specific platforms identified by the government — and with an option to list handles for other platforms not explicitly required.

The administration expects the move to affect nearly 15 million would-be immigrants to the United States, according to the documents. That would include applicants for legal permanent residency. There are exemptions for diplomatic and official visas, the State Department said.

The decision will not take effect immediately — the publication of the planned change to visa applications on Friday will start a 60-day clock for the public to comment on the move.

The potential scouring of social media postings by potential immigrants is sure to rankle privacy and civil liberties advocates, who have been vocal in opposing such moves going back to efforts by the Obama administration to collect such information on a more selective and voluntary basis.

Critics complain the moves, amid broader efforts by the administration, are not only invasive on privacy grounds, but also effectively limit legal immigration to the US by slowing the process down, making it more burdensome and making it more difficult to be accepted for a visa.

Federal authorities argue the moves are necessary for national security.

In addition to requiring the five years of social media history, the application will also ask for previous telephone numbers, email addresses, prior immigration violations and any family history of involvement in terrorist activities, according to the notice.

Since its early days, the administration has been telegraphing a desire to more closely dig through the backgrounds and social media histories of foreign travelers, but Thursday’s move is the first time that it will formally require virtually all applicants to come to the US to disclose that information.

After the San Bernardino terrorist attack in 2015, greater attention was placed on immigrants’ social media use, when it was revealed that one of the attackers had advocated jihad in posts on a private social media account under a pseudonym that authorities did not find before allowing her to come to the US.

The move by the Trump administration stops short of requiring passwords or access to those social media accounts, although then-Homeland Security Secretary John Kelly suggested last year that it was being considered.

The administration has been pursuing “extreme vetting” of foreigners as a centerpiece of its immigration and national security policy, including through the contentious travel ban that remains the subject of heavy litigation.

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The Administration’s war on immigrants, America, and American values continues!

PWS

03-30-18

 

Related posts:

  1. TAL @ CNN: TRUMP’S “GONZO” IMMIGRATION ENFORCEMENT POLICIES LIKELY TO FAIL AND ACTUALLY AGGRAVATE FORCES DRIVING UNDOCUMENTED MIGRATION!
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JUDGE STEPHEN REINHARDT 1931-2018 – Stalwart Defender Of US Constitution, Due Process, & Individual Rights Dies At 87 – “Unapologetic Liberal” Jurist Stood On Principle, Unfazed By Grenades Constantly Lobbed His Way By Right Wing & Supremes!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=92a5fc77-cf2b-4fbf-ac39-2ef3b89812fa

Maura Dolan reports for the LA Times:

By

Judge Stephen Reinhardt, the liberal face of the 9th U.S. Circuit Court of Appeals, died Thursday afternoon, a court spokesman said. He was 87.

The spokesman said Reinhardt died of a heart attack during a visit to a dermatologist in Los Angeles.

“All of us here at the 9th Circuit are shocked and deeply saddened by Judge Reinhardt’s death,” 9th Circuit Chief Judge Sidney R. Thomas said. “We have lost a wonderful colleague and friend.”

Thomas called Reinhardt “deeply principled, fiercely passionate about the law and fearless in his decisions.”

“He will be remembered as one of the giants of the federal bench. He had a great life that ended much too soon,” Thomas said.

Reinhardt, an appointee of former President Carter, was dubbed the “liberal lion” of the federal circuit courts.

His rulings in favor of criminal defendants, minorities and immigrants were often overturned by the more conservative U.S. Supreme Court.

Many lawyers have joked that Reinhardt’s name on a ruling was probably enough to get the attention of the conservatives on the Supreme Court. In 1996, after Reinhardt was reversed several times by the Supreme Court, The Times asked him if he was upset.

“Not in the slightest!” he boomed. “If they want to take away rights, that’s their privilege. But I’m not going to help them do it.”

No matter how many reversals he endured, Reinhardt used the bench to try to help the underdog. Just a few months ago, he called The Times to read a reporter a letter from a woman who had just been released from prison and who wanted to thank him for ruling in her favor.

“He was a giant not just on the 9th Circuit but within the law,” UC Berkeley law school Dean Erwin Chemerinsky said. “He also was a judge with a particular vision of the law, based on enforcing the Constitution to protect people.”

Reinhardt joined another judge in ruling that the words “under God” in the Pledge of Allegiance were unconstitutional, a decision that was later overturned.

He wrote a ruling that said laws prohibiting physician-assisted suicide were unconstitutional and another that overturned California’s previous ban on same-sex marriage.

Reinhardt also lamented Supreme Court rulings that limited judges’ ability to overturn convictions and sentences on habeas corpus and complained about the flaws in death penalty cases.

He was among the federal judges who decided that overcrowding in California’s prison system was unconstitutional.

“His view was to decide cases as he believed the law required, not to predict what the Supreme Court would do,” Chemerinsky said. “He was unapologetic about that.”

Conservatives often railed against Reinhardt, calling him lawless. They accused him of never voting to uphold a death sentence. Reinhardt, asked about that, said he was not sure.

He was particularly close to former 9th Circuit Judge Alex Kozinski, considered a conservative with libertarian views. They were dubbed the “odd couple.”

When Kozinski retired under pressure in December in response to sexual harassment allegations, Reinhardt bemoaned the departure. He said he kept a photograph of Kozinski planting a kiss on his cheek in his chambers.

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Read Dolan’s complete obit on Judge Reinhardt at the above link.

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My friend and former BIA colleague Judge Lory Diana Rosenberg added this heartfelt tribute:

I am heartbroken to learn of Judge Reinhardt’s dying. Just knowing he was alive and participating in our courts gave me deep hope that justice would prevail, at least in some quarters. I am so fortunate to have known him and to have spent a tiny bit of time with him and his wife at an international meeting years ago. He is a giant among judges. I will miss him.

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Here’s an excerpt from my favorite Judge Reinhardt concurring opinion in Magna-Ortiz v. Sessions:

The government’s insistence on expelling a good man from the country in which he has lived for the past 28 years deprives his children of their right to be with their father, his wife of her right to be with her husband, and our country of a productive and responsible member of our community. Magana Ortiz, who first entered the United States at 15, is now 43 years old, and during his almost three decades here has raised a family and built a successful life. All of his children, ages 12, 14, and 20, were born in this country and are American citizens, as is his wife. His eldest daughter currently attends the University of Hawaii, and he is paying for her education.

. . .

President Trump has claimed that his immigration policies would target the “bad hombres.” The government’s decision to remove Magana Ortiz shows that even the “good hombres” are not safe.3 Magana Ortiz is by all accounts a pillar of his community and a devoted father and husband. It is difficult to see how the government’s decision to expel him is consistent with the President’s promise of an immigration system with “a lot of heart.” I find no such compassion in the government’s choice to deport Magana Ortiz.

We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

2 The family’s right to occupy their home will terminate upon Magana Ortiz’s removal.

3 On January 25, 2017, the President signed a series of executive orders dismantling the system of priorities that had previously guided Immigration and Customs Enforcement and Border Patrol in determining whom to deport. The orders also gave far greater authority to individual agents and officers, who are now removing non-citizens simply because they are here illegally, regardless of whether they have committed any offense. In light of the breadth of these orders and the lack of any apparent limit on agents’ discretion, the undocumented must now choose between going to work, school, hospitals, and even court, and the risk of being seized. See James Queally, ICE Agents Make Arrests at Courthouses, L.A. Times, March 16, 2017.

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I must say that I had the same feelings as Judge Reinhardt on a number of occasions in my judicial career, although I never expressed them as eloquently as he did.

The wastefulness and futility of spending Government time, money, and authority removing fine people who were making remarkable contributions to our country, our economy, and our society certainly was apparent at the Immigration Court level. That this Administration has cynically chosen to aggravate this inhumane and quite frankly stupid situation rather than to attempt to fix it is most disheartening as is the fact that by placing them and retaining them in power we all become complicit in their bias and injustice! Harm to the most vulnerable among us is harm to all!

You can read the 9th Circuit’s complete decision in Magana Ortiz v. Sessions including Judge Reinhardt’s concurrence at this link:

Magana-Ortiz-9thReinhardt17-16014

PWS

03-30-18

 

 

 

 

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  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
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NPR: Sessions Out To Destroy US Immigration Court System — “All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ!”

https://www.npr.org/2018/03/29/597863489/sessions-want-to-overrule-judges-who-put-deportation-cases-on-hold

Joel Rose reports for NPR:

The Trump administration has been trying to ramp up deportations of immigrants in the country illegally. But one thing has been standing in its way: Immigration judges often put these cases on hold.

Now Attorney General Jeff Sessions is considering overruling the judges.

One practice that is particularly infuriating to Sessions and other immigration hard-liners is called administrative closure. It allows judges to put deportation proceedings on hold indefinitely.

“Basically they have legalized the person who was coming to court, because they were illegally in the country,” Sessions said during a speech in December.

Sessions is using his authority over the immigration court system to review a number of judicial decisions. If he overturns those decisions, thousands of other cases could be affected. In this way, he is expected to end administrative closure, or scale it back.

The attorney general may also limit when judges can grant continuances and who qualifies for asylum in the United States.

This could reshape the nation’s immigration courts, which are overseen by the Justice Department, and make them move faster. Sessions says he is trying to clear a massive backlog of cases that is clogging the docket.

But critics say he is weighing changes that would threaten the due process rights of immigrants, and the integrity of immigration courts.

“What he wants is an immigration court system which is rapid, and leads to lots of deportations,” said Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law.

“It’s really just an unprecedented move by the attorney general to change the way the whole system works,” she said.

It’s rare for an attorney general to exercise this power, but Sessions has done it four times in the past three months.

Separately, for the first time, the Justice Department is setting quotas for immigration judges, pushing them to resolve cases quickly in order to meet performance standards.

It’s not just immigration lawyers who are worried about the effect of any changes. The union that represents immigration judges is concerned, too.

“A lot of what they are doing raises very serious concerns about the integrity of the system,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “judges are supposed to be free from these external pressures.”

The attorney general insists he’s trying to make sure that judges are deciding cases “fairly and efficiently.” And says he is trying to clear a backlog of nearly 700,000 cases.

That is in addition to the hundreds of thousands of cases in administrative closure. Nearly 200,000 immigration cases have been put on hold in this way in the past five years alone.

“Far and away, administrative closure was being abused,” said Cheryl David, a former immigration judge who is now a fellow at the Center for Immigration Studies, which advocates for lower levels of immigration.

He says many of those cases should have ended in deportation. “But rather than actually going through that process, the Obama administration simply administratively closed them. And took them off the docket to be forgotten,” he said.

Sessions has chosen to personally review the case of an undocumented immigrant named Reynaldo Castro-Tum who didn’t show up for his removal hearing. The judge wondered whether the man ever got the notice to appear in court and put his deportation proceedings on hold.

In a legal filing in January, Sessions asked whether judges have the authority to order administrative closure and under what circumstances.

Immigration lawyers and judges say there are legitimate reasons to administratively close a case. For instance, some immigrants are waiting for a final decision on visa or green card applications.

There is a backlog for those applications, too. They’re granted by U.S. Citizenship and Immigration Services, which is separate from immigration court. And that can take months, if not years.

Immigration lawyers and judges are worried that undocumented immigrants could be deported in the meantime.

“You know this is not the private sector where you pay extra money and you can get it done in two days,” said Cheryl David, an immigration lawyer in New York.

David represents hundreds of undocumented immigrants who are facing deportation. She often asks judges to put the proceedings on hold.

“It gives our clients some wiggle room to try and move forward on applications,” she said. “These are human beings, they’re not files.”

Immigration lawyers say these changes could affect immigrants across the country.

Brenda DeLeon has applied for a special visa for crime victims who are undocumented. She says her boyfriend beat her up, and she went to the police.

She came to the U.S. illegally from El Salvador in 2015, fleeing gang violence, and settled in North Carolina.

“If I go back, then my life is in danger,” DeLeon said through a translator. “And not only mine, but my children’s lives too.”

For now, a judge has put DeLeon’s deportation case on hold while she waits for an answer on her visa application.

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Get the full audio version from NPR at the above link.

Haste makes waste! Gimmicks to cut corners, deny due process, and cover up the Administration’s own incompetent and politically driven mal-administration of the Immigration Courts is likely to cause an adverse reaction by the “real courts” — the Article III Courts of Appeals — who ultimately have to “sign off” on the railroading of individuals back to potentially deadly situations.

I also have some comments on this article.

  • In Castro-Tum, on appeal the BIA panel corrected the Immigration Judge’s error in administratively closing the case. Consequently, there was no valid reason for the Attorney General’s “certification” and using the case for a wide ranging inquiry into administrative closing that was almost completely divorced from the facts of Castro-Tum.
  • I also question Judge Arthur’s unsupported assertion that “Far and away administrative closing was being abused.”
    • According to TRAC Immigration, administrative closing of cases as an exercise of “prosecutorial discretion” by the DHS Assistant Chief Counsel accounted for a mere 6.7% of total administrative closings during the four-year period ending in FY 2015.
    • In Arlington where I sat, administrative closing by the Assistant Chief Counsel was a very rigorous process that required the respondent to document good conduct, length of residence, family ties, employment, school records, payment of taxes, community involvement, and other equities and contributions to the U.S. With 10 to 11 million so-called “undocumented” individuals in the U.S., removing such individuals, who were actually contributing to their communities, would have been a complete waste of time and limited resources.
    • The largest number of administrative closings in Arlington probably resulted from individuals in Immigration Court who:
      • Had been granted DACA status by USCIS;
      • Had been granted TPS by USCIS;
      • Had approved “U” nonimmigrant visas as “victims of crime,” but were waiting for the allocation of a visa number by the USCIS;
      • Had visa petitions or other applications that could ultimately have qualified them for permanent legal immigration pending adjudication by the USCIS.
    • Contrary to Judge Arthur’s claim, the foregoing types of cases either had legitimate claims for relief that could only be granted by or with some action by the USCIS, or, as in the case of TPS and DACA, the individuals were not then removable. Administrative closing of such cases was not an “abuse,” but rather eminently reasonable.
    • Moreover, individuals whose applications or petitions ultimately were denied by the USCIS, or who violated the terms under which the case had been closed by failing to appear for a scheduled interview or being picked up for a criminal offense were restored to the Immigration Court’s “active docket” upon motion of the DHS.

There are almost 700,000 cases now on the Immigration Courts’ docket — representing many years of work even if there were no new filings and new judges were added. Moreover, the cases are continuing to be filed in a haphazard manner with neither judgement nor restraint by an irresponsible Administration which is allowing DHS Enforcement to “go Gonzo.” To this existing mess, Sessions and Arthur propose adding hundreds of thousands of previously administratively closed cases, most of which shouldn’t have been on the docket in the first place.

So, if they had their way, we’d be up over one million cases in Immigration Court without any transparent, rational plan for adjudicating them fairly and in conformity with due process at any time in the foreseeable future. Sure sounds like fraud, waste, and abuse of the system by Sessions and DHS to me. All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ. We need this reform sooner, rather than later!

PWS

03-30-18

 

 

 

 

 

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

JOSHUA MATZ IN WASHPOST: The Litigating Strategy Of Unrelenting Animus – Will It Eventually Win For The Trumpsters, Even While Destroying Our Legal System?

https://www.washingtonpost.com/opinions/getting-deja-vu-on-trumps-transgender-ban-youre-not-alone/2018/03/27/4e78091e-312e-11e8-8bdd-cdb33a5eef83_story.html

By Joshua Matz March 27 at 7:14 PM

Joshua Matz is a constitutional lawyer based in the District. He is also the publisher of the legal analysis blog Take Care.

President Trump is hard at work making animus the law of the land. Justice Department lawyers revealed his latest effort Friday night, announcing a revised plan to exclude nearly all transgender soldiers from the armed forces.

As many commentators haveobserved, the reasoning offered to support Trump’s policy is riddled with empirical errors and anti-trans stereotypes. It comes nowhere close to disproving the comprehensive study in 2016 that recommended allowing transgender people to serve openly. Like so many other missives from this White House, it makes only a token effort to conceal the disdain and disgust that underlie it.

Trump’s original “transgender ban” was blocked byfourfederal courts. After two of those rulings were affirmed on appeal, the administration decided against seeking Supreme Court review. It’s therefore safe to assume that Trump’s latest order will not go into effect unless it survives constitutional challenges.

And in thinking about that litigation, it’s hard to escape a feeling of deja vu. A little more than 14 months into Trump’s presidency, a pattern has emerged in cases challenging some of his most despicable decisions.

. . . .

It remains to be seen when and where these arguments will succeed. As a logical matter, there must be some limits. Evidence that Trump originally acted with impermissible motives cannot (and should not) permanently preclude him from making policy.

But that isn’t the situation we confront. Trump has made no effort whatsoever to dispel or deny the aura of animus that envelops so many of his orders. To the contrary, he and his advisers have leaned into the hate. With each passing day, it spreads like a poison.

We thus live in a strange new world, where bigots serve openly and soldiers are forced into closets.

********************************************
Go on over to the WashPost at the link for the complete article.
The problem, as noted by Matz, is that our system isn’t designed to deal with unremitting hate and bias from it’s most active, and supposedly most responsible, litigant, the U.S. Government. Usually, after a few “warning shots across the bow,” the Executive gets the picture and changes strategies.
But, led by White Nationalists like Trump and Sessions, this Administration simply “doubles down” on thinly disguised hate and bias motivated policies. At some point, the Article III courts are likely to become both frustrated and exhausted. By continuing to “knock down” bias-based policies and actions, the Article IIIs become part of the political fray, which makes them uncomfortable. Perhaps at that point, they will just start giving Trump & Co. “free passes.” Indeed, some Federal Courts, including perhaps the Supremes, already appear prepared to “punt” on the daily dose of  legally questionable and indecent legal positions spewed forth by this Administration.
PWS
03-29-18

Related posts:

  1. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. 🤡CLOWN CAPITOL:  J.R. PRESIDES OVER GOP CLOWN SHOW HE HELPED CREATE — Empowering The Koch Bros, Suppressing Minority Votes, Enabling GOP Gerrymandering, Ignoring Invidious Racial & Religious Motives, Turning A Blind Eye To Lies & Pretexts, It All Contributed To The Arrogant Display Of GOP Dishonesty & Impunity Now On Public Display In The Senate! — Plus Bonus Friday Mini-Essay: “Profiles in Fecklessness”

BESS LEVIN @ VANITY FAIR: Trump Contemplating Misappropriating Military Funds For “His Wall!”

Bess writes in The Levin Report:

Of the untold number of stupid things that have come out of Donald Trump’s mouth, making a strong case for the stupidest was his claim, as he announced his candidacy for president, that he would build a wall on the southern border of the country and make the “criminals” and “rapists” in Mexico pay for it. So dumb was this declaration that even Trump eventually realized he would have to tweak it, probably around the time that Mexico’s president, Enrique Peña Nieto, said there was no way in hell he would fund the project. From there, Mr. Art of the Deal changed his story to taxpayers will put up the money initially, but Mexico will pay us back;which later became Mexico will pay for the wall through import tariffs; which quickly changed to Mexico will pay for the wall indirectly through NAFTA,” which morphed, earlier this month, into the wall will pay for itself. And now, the president has landed on a new idea: make the military pay for it.

Trump has privately been making the case that the Pentagon should use some of the $700 billion it received as part of last week’s spending bill to fund his vanity project, The Washington Post reported Tuesday. After mentioning it to several advisers last week, Trump reportedly floated the idea by House Speaker Paul Ryan in a meeting on Wednesday at the White House, to which Ryan “offered little reaction.” During another meeting, this one with senior aides, Trump apparently whined about how much money the Department of Defense was getting, noting that surely the Pentagon could afford to part with a few (or, say, 67) billion dollars. According to reporters Josh Dawsey and Mike DeBonis, President Temper Tantrum has had a hard time watching TV lately—heretofore his only solace in this cruel world—due to criticism of the spending deal he signed last week, and the fear that his base could sour on him without any wall progress. (The fact that he allegedly had an affair with a porn star, whom he subsequently paid off to stay quiet, is obviously a plus for them.) Currently, just $641 million is earmarked for new fencing, and it can only be used on “operationally effective designs that were already deployed last May,” meaning that unless something changes, the prototypes Trump recently visited in California will be just for show.

Of course, as everyone but the president seems to understand, it’s highly unlikely that the Pentagon would divert funds from the military to finance the wall, which experts say won’t actually stop the flow of illegal immigration at all, and which would require Congressional votes that Trump obviously doesn’t have. Not only will Democrats take a hard pass military spending paying for his fence, but Pentagon officials, per White House advisers, “may also blanch at the possibility.” In a statement to the Post,Minority Leader Chuck Schumer made his feelings pretty clear. “First Mexico was supposed to pay for it, then U.S. taxpayers, and now our men and women in uniform? This would be a blatant misuse of military funds and tied up in court for years. Secretary [James] Mattis ought not bother and instead use the money to help our troops, rather than advance the president’s political fantasies,” he said.

That virtually no one is going for the idea hasn’t stopped Trump from floating it in his preferred venue of choice. Over the weekend he suggested on Twitter that the military should scrounge up the money for national security reasons:


The national security argument might hold a bit more water if the Trump administration hadn’t targeted traditional border security measures for for cuts or delays in funding that experts say “[pose] a serious threat to border security.” (Those experts also say that the The Wall will largely useless “unless it’s 35,000 feet high.”) Meanwhile, at the White House, good soldier Sarah Sanders on Tuesday told reporters that the administration “still has plans to look for potential ways” for Mexico to pay for the wall.

Anyway, stay tuned for next week when Trump privately presses for the Department of Veterans Affairs to quit being so stingy and pony up the dough. How much money do they really need to treat PTSD?

Team Trump has a special treat in store for the bank industry

It’s the appointment of Jelena McWilliams at the F.D.I.C., which will result in a trifecta of deregulation-happy officials atop the nation’s banking regulators, per The Wall Street Journal:

When that happens, the F.D.I.C., the Federal Reserve and Office of the Comptroller of the Currency will be able to move ahead on a number of the Trump administration’s policy priorities, such as adjusting capital and liquidity requirements, easing restrictions on short-term consumer loans and relaxing the 2010 Dodd-Frank financial law’s proprietary trading ban, the Volcker rule.

Ms. McWilliam’s arrival likely will coincide with the completion of a bill in Congress aimed at easing crisis-era banking regulations, another catalyst for changes to the financial rule book.

Isaac Boltansky, the policy research director at Compass Point Research & Trading LLC, told W.S.J.that, “With Congress likely to pass the only financial deregulatory bill for the near future, it will be the alphabet soup of new regulators who decide the tone and tenor of the new deregulatory agenda.” #MAGA!

Wilbur Ross does the G.O.P. a solid

Overriding the advice of career officials who warned that adding a question to the 2020 census about citizenship will lead to fewer responses from people worried about deportation, Ross decided on Monday to just go for it, writing in a memo he had “determined that reinstatement of a citizenship question on the 2020 decennial census questionnaire is necessary to provide complete and accurate census block level data” (the last time the citizenship question was on the census was in 1950). That’s an interesting argument, given that the very reason census officials didn’t want to reinstate the question is a fear that it will lead to lower response rates. Which may be all part of the plan:

Critics of the change and experts in the Census Bureau itself have said that, amid a fiery immigration debate, the inclusion of a citizenship question could prompt immigrants who are in the country illegally not to respond. That would result in a severe undercount of the population—and, in turn, faulty data for government agencies and outside groups that rely on the census. The effects would also bleed into the redistricting of the House and state legislatures in the next decade.

Others argued that an undercount in regions with high immigrant populations would lead not only to unreliable data but also to unfair redistricting, to the benefit of Republicans.

In response to the decision by Ross, the human equivalent of a smoking jacket and cigar, the states of California and New York have sued the Trump administration.

Trump takes full responsibility for stock-market sell-off

Just kidding, of course. The president, who took the time out of his busy day on Monday to pat himself on the back for yesterday’s rally, was suddenly too busy to tweet about today’s drop.

Elsewhere!

At least 50 people on Wall Street think “Billions” characters are based on them (Business Insider)

Ross says market is realizing the tariffs are bargaining chips for better trade deals (CNBC)

Zuckerberg Expected to Testify Before Congress on Cambridge Analytica Scandal (Wired)

The Billionaire Whisperer Who United Bezos, Buffett, and Dimon (Bloomberg)

The White-Collar Wives Club (N.Y.T.)

Trump claimed the tax bill would lead to a huge boost in business spending—but there’s no sign of it yet (Business Insider)

Deutsche Bank Examines Potential Successors to C.E.O. John Cryan (W.S.J.)

Manafort Asks Virginia Judge to Dismiss Tax, Bank-Fraud Case (Bloomberg)

Mulvaney nears victory in struggle with Mnuchin on tax rules (Politico)

Ring-bearing owl causes chaos at British wedding (UPI)

*********************************
Go on over to Bess @ Vanity Fair for the complete Levin Report at this link:
More threatening essentially to break or evade the law from our “Con-Man-In-Chief.” “Normalizing” this erratic, “Third World Dictator” conduct doesn’t make it “normal” or “acceptable.” It reflects on the folks willing to enable and apologize for Trump (although apology is something he never does, no matter how egregious his lies or misconduct.)

Ironically, Trump likely could have had “His Wall” funded if he had been willing to support a bipartisan “Dreamer Compromise” just a few weeks ago.

PWS
03-28-17

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!
  3. STATE OF DISUNION! — TRUMP TRASHES IMMIGRANTS, THREATENS TO DESTROY CIVIL SERVICE — “[A] Flabby, Divisive Speech” From A “Shell President!”
  4. JAMELLE BOUIE @ SLATE: TRUMP, SESSIONS, MILLER & THE GOP RESTRICTIONISTS HAVE PUT GOOD OL’ 1920S RACISM AT THE FOREFRONT OF THEIR WHITE NATIONALIST IMMIGRATION AGENDA! –“What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful? . . . That is not what a good nation should do, and we need to get away from it.” — J. “Gonzo Apocalypto” Sessions, Attorney General of the United States of America & Unapologetic White Nationalist With A Long History Of Racism!

THE HILL: A Different Approach to DACA? Nolan Asks Whether Redefining DACA In Terms Of Special Immigrant Juvenile (“SIJ”) Provisions Could Save The Day?

http://thehill.com/opinion/immigration/380265-trump-dems-can-solve-the-daca-problem-by-redefining-it

 

Family Pictures

Nolan writes:

“. . . .

It might be more productive at this point to put negotiations about DACA and DREAM Acts aside and try a different approach. My suggestion is to work on creating a place in the Special Immigrant Juvenile (SIJ) program for the DACA participants.

This little-known humanitarian program makes lawful permanent resident (LPR) status available to undocumented alien children in the United States who have been abused, abandoned, or neglected by one or both parents and who should not be returned to their own countries.

. . . .

DACA

Undocumented aliens were considered for the DACA program if they:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the U.S. before reaching their 16th birthday;
  3. Have continuously resided in the U.S. since June 15, 2007;
  4. Were physically present in the U.S. on June 15, 2012, when they filed their DACA applications; and
  5. Had no lawful status on June 15, 2012.

The aliens in both programs came to the United States as children and humanitarian relief is warranted in both situations to prevent them from having to return to their own countries. The SIJ aliens would be returning to abuse, neglect, or abandonment; and the DACA aliens spent their childhoods here and know no home other than America.

The need for the new category would end when all of the DACA participants have been taken care of, but this should not be a problem. Section 1059 of the FY2006 National Defense Authorization Actestablished Special Immigrant status for Iraqi and Afghan nationals who had served as translators for the U.S. Armed Forces, and the need for that program will end when the translators are no longer needed.

Trump’s Framework

The first pillar of Trump’s framework is the legalization program.

Putting the DACA participants in the SIJ program would facilitate a compromise on Trump’s pillar requiring an end to chain migration.

The SIJ provisions take away a participant’s right to confer immigration benefits on his parents when he becomes an LPR.  INA §101(a)(27)(J)(iii)(II)states that, “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”

This restriction continues even if they naturalize.

It might be necessary to amend this provision to include the rest of the family-based classifications that Trump wants to eliminate, but that would be a much smaller concession than terminating chain migration for everyone.

The other two pillars are the wall and ending the Diversity Visa Program(DVP).

Trump has made it very clear that he will reject any deal that does not include funding for his wall.

Lastly, terminating the DVP should not be a problem. The Democrats have shown a willingness to end that program. Section 2303 of Senator Charles Schumer’s (D-N.Y.) Gang of Eight bill would have repealed the DVP if it had been enacted.

In any case, the parties have nothing to lose from trying this approach.”

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

Go on over to The Hill at the link to read Nolan’s complete article.

This seems like an interesting idea that could work if, and it’s a big “if,” the parties can get over their respective “all or nothing” approaches.

For the Dems, it gives the Dreamers closure, permanent status, and a path to eventual citizenship. A very big deal!

At the same time, the GOP and Trump basically get three of “Trump’s pillars” in some form or another.

Yes, the inclusion of the “parent bar” could be a sticking point for the Dems. But, it will be at least three to five years after the Dreamers get their “green cards” before any of them would be eligible to naturalize. By that time, both the thinking and the politics behind the issue of status for parents of naturalized U.S. citizens could well change. We would definitely have better data about the “real universe” in terms of numbers.

Even now, many Dreamers no longer have two living parents who would be able to or interested in immigrating. Estimates of “future impact” based on the assumption that each Dreamer would “immigrate” two parents always have appeared wildly exaggerated to me. A “special immigrant program” would provide better data.

Also, once Dreamers become Lawful Permanent Residents and U.S. citizens, they are likely to be in a position favorably to influence the dialogue about parental migration.

PWS

03-27-18

 

Related posts:

  1. THE HILL: NOLAN UNIMPRESSED BY “GANG OF SIX’S” DREAMER COMPROMISE EFFORT!
  2. THE HILL: PROFESSOR (& FORMER USCIS CHIEF COUNSEL) STEPHEN LEGOMSKY ON WHY THE TRUMP/SESSIONS FALSE NARRATIVE ATTEMPTING TO DEMONIZE & CRIMINALIZE ALL IMMIGRANTS IS SO TOXIC FOR AMERICA!
  3. COURTSIDE HISTORY: HOW THE FOUNDING FATHERS’ RACISM ERASED A PRESIDENT’S DAUGHTER! — ALSO MY: “FRIDAY ESSAY — FROM MONTICELLO TO TRUMP, MILLER, SESSIONS, AND THE GOP WHITE NATIONALISTS”
  4. PLAYING CATCH-UP: Here Are Two “Courtside Regulars” From Earlier This Week: 1) The Gibson Report 01-21-19; and 2) Nolan On Trump & The Wall From The Hill!

THE BORDER IN PICTURES BY PHOTOGRAPHER JOHN MOORE — “The fury and debate over immigration to the United States appears to be going nowhere.”

https://www.nytimes.com/2018/03/25/world/americas/mexico-border-photos-john-moore.html

Where Fear and Hope Collide: Images From Mexican Border, and Beyond

ByBy AZAM AHMED

The fury and debate over immigration to the United States appears to be going nowhere.”

 

The fury and debate over immigration to the United States appears to be going nowhere.”

 

A man killed in a suspected drug-related execution in 2012 in Acapulco, Mexico. Violence has surged in Acapulco, once Mexico’s top tourist destination, spurring the flight of many Mexicans. John Moore/Getty Images

For nearly a decade, the photographer John Moore has traversed the Mexico-United States border, covering the story of immigration from all sides — American, Mexican, immigrant and border agent.

His depiction of the border is both literal and figurative.

Families at a memorial service for two boys who were kidnapped and killed in February 2017 in San Juan Sacatepéquez, Guatemala. John Moore/Getty Images

. . . .

A boy from Honduras watched a movie in 2014 at a detention facility for unaccompanied minors in McAllen, Tex.

. . . .

But wherever the numbers go, Mr. Moore’s images reflect an American truth: The fury and debate over immigration to the United States appears to be going nowhere.”

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

Go to the above link to the NYT for the full article and all of Moore’s pictures.

What do you suppose the “boy from Honduras” is thinking about America? Are these the images by which we want to be remembered as a country? If not, join the New Due Process Army and work for constructive change!

PWS

03-26-18

Related posts:

  1. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?
  2. JAMELLE BOUIE @ SLATE: TRUMP, SESSIONS, MILLER & THE GOP RESTRICTIONISTS HAVE PUT GOOD OL’ 1920S RACISM AT THE FOREFRONT OF THEIR WHITE NATIONALIST IMMIGRATION AGENDA! –“What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful? . . . That is not what a good nation should do, and we need to get away from it.” — J. “Gonzo Apocalypto” Sessions, Attorney General of the United States of America & Unapologetic White Nationalist With A Long History Of Racism!
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. HISTORICAL PERSPECTIVE: CLYDE W. FORD @ LA TIMES: “Opinion: The immigration crisis and the racism driving it have roots in Hitler’s ‘bible’”

THE TRUMP GOP “LATINO STRATEGY” – Combination Of White Nationalism, Racism, Lies, Cruelty, Insults, Taunts, Scapegoating, Demeaning, Abusing, Prosecuting, & Deporting, Along With a Big Dose Of “Gonzo Apocalypo” Will Make ‘Em Love Us! — Not So Much!

https://www.washingtonpost.com/news/the-fix/wp/2018/03/24/trump-to-latinos-the-gop-supports-you-more-than-democrats-but-latinos-arent-so-sure/?utm_term=.fde5862826b7

Eugene Scott writes in the Washington Post:

“. . . .

But other political strategists aren’t sure that many Latino voters will be able to get past the messages they have heard from Trump and some GOP leaders related to DACA, misleading stats about MS-13-related gang violence and other issues.

“A whole generation of minority voters is essentially hearing the GOP tell them, ‘We don’t like you,’ ” Doug Heye, a former communications director for the Republican National Committee, previously told The Washington Post. “That might not have sunk the GOP against a flawed candidate like Hillary Clinton, but the demographics are moving into a direction where this will be political suicide.”

Unless things change significantly — as in the president and Congress proposing policies that Latino voters consider important — the GOP could continue to push voters away.”

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

Read the complete article at the link.

The Trump GOP’s program is doubly insulting.  While the Dems undoubtedly have both under-appreciated Latino voters and grossly underperformed on their issues, there is a huge difference between ineffectiveness and race-based maliciousness which has become part of the “Trump/GOP Brand.” And, contrary to the Trumpsters’ blather, Latinos are more than smart enough to figure out the difference and where their real interests reside.

PWS

03-25-18

Related posts:

  1. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?
  2. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  3. WASHINGTON POST EDITORIAL RIPS TRUMP/SESSIONS “GONZO” IMMIGRATION AGENDA AS “ANTI-AMERICAN!”– White Nationalist Inspired Restrictionism Is Suppressing The Real Dialogue We Should Be Having!
  4. GONZO’S WORLD: HIS HIGHLY DISINGENUOUS “TRIBUTE” TO DR. KING WHILE ACTIVELY UNDERMINING MLK’S VISION OF RACIAL EQUALITY IN AMERICA OUTRAGES CIVIL RIGHTS ADVOCATES! — Hollow Words From An Empty Man!

TAL @ CNN: A “Gold Star Father” Urges The Supremes To Reject Discriminatory “Muslim Ban!”

http://www.cnn.com/2018/03/23/politics/khizr-khan-brief-muslim-travel-ban-supreme-court/index.html

Tal writes:

“Washington (CNN)Gold Star father Khizr Khan wrote a personal appeal to the Supreme Court on Friday to strike down President Donald Trump’s travel ban, using his family’s story to argue the ban is unconstitutional and “desecrates” his son’s sacrifice.

Known for his impassioned speech at the 2016 Democratic National Convention, Khan is a lawyer and the father of Capt. Humayun Khan, an Army captain who was killed when he moved to stop a car containing suicide bombers headed toward his base in Iraq, for which he was posthumously awarded the Bronze Star.
Originally from Pakistan and a Muslim, Khan filed the legal brief on Friday because, in his view, Trump’s travel ban “not only desecrates Humayun Khan’s service and sacrifice as a Muslim- American officer in the United States Army, but also violates Khizr Khan’s own constitutional rights,” his attorney wrote in the brief.

He lost his son in Iraq and drew Trump's ire. Now hear this Muslim American's Veterans Day message.

He lost his son in Iraq and drew Trump’s ire. Now hear this Muslim American’s Veterans Day message.
The brief describes the Khan family’s history and the service of Humayun Khan, mentioning as well Khan’s speech at the DNC where he held up a pocket Constitution and emotionally asked Trump if he’d read it.
The brief also notes Trump’s comments on the campaign trail that he wanted to institute a “Muslim ban,” a key component of critics’ arguments that the administration’s travel ban is a thinly veiled attempt to target Muslims.
Supreme Court sets travel ban arguments for final day of term
Supreme Court sets travel ban arguments for final day of term
“The taint of discrimination has not been washed away,” the brief argues, saying the latest travel ban and its predecessors all flow from that original idea.
“The message is that Muslims are unwelcome outsiders,” it continues. “And that message has been received loud and clear — not only by Muslims like Mr. Khan, but by those who have been denigrating and attacking Muslims with increasing frequency and vehemence since President Trump called for, and then began trying to implement, his unconstitutional Muslim Ban.”
Gold Star father Khizr Khan slams John Kelly's defense of Trump
Gold Star father Khizr Khan slams John Kelly’s defense of Trump
“The message is that Muslims are outsiders, regardless of the depth of their devotion to the Constitution, and despite paying the ultimate price to defend it. That message is painfully clear to Mr. Khan,” the brief states.
Khan’s attorney, Dan Jackson, said the Gold Star father felt compelled to weigh in because of the impact of the travel ban on his son’s legacy, and added Khan has a “fierce devotion” to the Constitution.”
*********************************
Go on over to CNN at the link to read Tal’s complete article.
The rich irony here is that the individuals who “designed” the “travel ban” — Trump, Sessions, Miller — have shown a total disdain for our Constitution. Time and time again, they have failed in their duty to protect the rights of everyone in America, regardless of race, religion, gender, or status. What kind of country disrespects the memory of those who have died in its defense while allowing itself to be governed by biased, morally bankrupt, intellectually dishonest individuals who reject the very notion of a Constitutional republic?
PWS
03-24-18

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TAL @ CNN SUMMARIZES ALL THE “DACA DEALS” THAT TRUMP & THE GOP HAVE TORPEDOED — “As Congress left town increasingly unlikely to pass any major immigration legislation before November’s midterms, the White House has repeatedly rejected deals to fix DACA, the Obama-era policy he ended then implored Congress to save.”

http://www.cnn.com/2018/03/23/politics/daca-rejected-deals-trump/index.html

Here’s Tal’s report:

“Washington (CNN)President Donald Trump argued Friday that Democrats have stood in the way of DACA recipients gaining permanent legal status, while casting Republicans as would-be saviors.

“The Republicans are with you, they want to get your situation taken care of,” Trump said at the White House, as he complained about the $1.3 trillion spending bill program, speaking directly to recipients of the Deferred Action for Childhood Arrivals program. “The Democrats fought us, they just fought every single inch of the way. They did not want DACA in this bill.”
But as Congress left town increasingly unlikely to pass any major immigration legislation before November’s midterms, the White House has repeatedly rejected deals to fix DACA, the Obama-era policy he ended then implored Congress to save.
Here’s a timeline of DACA under Trump:
September 5, 2017: Trump announced an end to the DACA program, which protected young undocumented immigrants who came to the US as children from deportation. President Barack Obama instituted the work permits and protections in 2012.
September 13: Trump has dinner with Senate Democratic Leader Chuck Schumer and House Democratic Leader Nancy Pelosi at the White House, after which the two Democrats say they agreed in broad strokes to a DACA-border security deal that doesn’t include Trump’s wall. Trump initially seems on the same page, then the White House and Republicans walk it back. Trump tweets about how “good, educated and accomplished” DACA recipients are.
October 8: The White House unveils what it calls its priorities for a DACA deal, a laundry list of aggressive conservative immigration measures that Democrats and a handful of Republicans rejected as rife with poison pills.
November 1: After a terrorist attack in New York City, Trump begins to emphasize ending the diversity visa lottery and family-based migration.
November 2: Republican lawmakers meet with Trump at the White House and rule out attaching any DACA deal to year-end funding bill before a possible shutdown.
December 21: Lawmakers pass government funding into the new year and leave town without a deal, despite Democrats’ previous pledges to not go home without one.
January 9: Trump holds bipartisan meeting at the White House that cameras televise for nearly an hour. He indicates multiple times he is willing to compromise on DACA, despite some contradictions within the meetings, and says “when this group comes back — hopefully with an agreement — this group and others from the Senate, from the House, comes back with an agreement, I’m signing it.” The so-called “four pillars” also come out of this meeting — that a deal shall include DACA, family-based migration, the diversity lottery and border security.
January 9: Federal court puts hold on Trump’s plan to end DACA, ordering renewals of permits to continue but no new applications.
January 11: After months of meetings, Democrat Dick Durbin and Republican Lindsey Graham go to the White House to propose to Trump a compromise worked out by their group of six bipartisan senators. The offer includes a path to citizenship for eligible young immigrants, the first year of Trump’s border wall funding, ending the diversity visa lottery and reallocating those visas, and restricting the ability of former DACA recipients to sponsor family.
Trump and the White House invite hardline Republicans to the meeting and he rejects the deal, making his now-infamous “shithole countries” comment in the process.
January 19: House before a government funding deadline, Schumer and Trump meet for lunch at the White House. Schumer offered Trump the upwards of $20 billion he wanted for his border wall in exchange for a pathway to citizenship for the eligible immigrant population. The deal is rejected, and government shuts down at midnight.
January 22: Government reopens after Republicans Graham and Jeff Flake secure a public commitment from Senate Majority leader Mitch McConnell to hold a future immigration floor vote. Bipartisan negotiations resume.
January 25: White House releases its proposal for a DACA deal under the four pillars, which includes a generous path to citizenship for eligible immigrants, but also a number of impossible-to-swallow provisions for Democrats and some Republicans under the auspices of family-based migration and border security.
February 14: A bipartisan group of senators unveils a compromise plan, which includes $25 billion for the border, a pathway to citizenship for the immigrants, cuts to one slim category of family-based migration and prevents the parents who brought their children to the US illegally from ever being sponsored for citizenship by those children.
February 15: White House goes all out to stop the bipartisan compromise deal, which fails to get the necessary 60 votes in the Senate, with 54 votes.
February 26: Supreme Court declines to take up an immediate appeal of court decisions resuming DACA renewals, ensuring no deportations of DACA recipients for months and taking pressure of Congress.
March 14: With roughly a week to go before the major government spending package known as the omnibus must pass, White House suddenly signals a desire for a DACA-border deal. Publicly, the White House says they oppose a temporary fix.
March 22: Congress passes an omnibus without DACA, virtually ensuring it will not be addressed before midterms.
March 23: Trump signs the omnibus, rails on Democrats for, he says, not caring about DACA.

CNN’s Jeremy Diamond contributed to this report.”

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

Thanks, Tal for your very succinct, accessible reporting “setting the record straight” on DACA.

Trump could, and should have engineered full DACA relief with no “tradeoffs.” since the DACA folks are a great benefit to America, why would we need any “tradeoffs?” And, I believe that a “straight DACA relief bill” could have passed both Houses and been signed into law if Trump had backed it, although it might not have had “majority GOP support.” All polls show that the vast majority of Americans favor status for DACA recipients.

Moreover, the Dems probably would have given Trump at least something he could have claimed as a “Wall victory” thrown in. In the end, Trump’s insistence that the DACA bill had to contain other unneeded and highly inappropriate restrictions on legal immigration and anti-Due Process measures directed at children at the border killed the effort.

PWS

03-24-18

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THE LATEST FROM THE HON. JEFFREY CHASE: “Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker” — PLUS: A Link To The Actual Brief! — MATUMONA V. SESSIONS, 10th Cir.

https://www.jeffreyschase.com/blog/2018/3/22/amicus-brief-filed-in-10th-cir-petition-for-remotely-detained-asylum-seeker

Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker

An amicus brief was filed yesterday by attorneys at the law firm of Sidley Austin on behalf of an asylum seeker from the Democratic Republic of Congo in the case of Matumona v. Sessions.  Fleeing for his life and seeking asylum in the U.S., the petitioner upon arrival was detained by DHS in the Cibola County Detention Center in New Mexico.

To call Cibola remotely located is truly an understatement.  If you Google Map it, you will see that the detention center is surrounded on the east, south, and west by the stunningly scenic, 263,000 acre El Malpais National Conservation Area.  Moving out a bit further, the map shows reservations of the Zuni, Navajo, and Apache nations, beyond which lies the Sevilleta National Wildlife Refuge, and both the Carson and Santa Fe National Forests.

In fairness, Albuquerque is an hour and a half drive away.  However, that city has a total of 36 attorneys who are members of the American Immigration Lawyers Association, working for 25 offices or organizations.  By comparison, New York City has well over a thousand AILA members (not including many others located in the surrounding suburbs). The problem of representation is compounded by the fact that the petitioner, although detained at Cibola, had his removal hearings in the Immigration Court in Denver, 500 miles away.  The National Immigrant Justice Center was able to identify only 21 attorneys in all of New Mexico and Texas who would be willing to represent detainees at Cibola in their removal proceedings. For those requiring pro bono representation, the options are even fewer. According to the latest figures provided by DHS, there were 689 non-citizens being detained in Cibola, and that was less than the facility’s full capacity.

Therefore, close to none of those detained at Cibola are able to exercise their constitutional right to be represented by an attorney, as assigned counsel at government expense does not exist in immigration proceedings.  A study by the Vera Institute of Justice found a staggering 1,100 percent increase in successful outcomes when universal representation was made available to the detained population at the Varick Street Detention Facility in New York City.  I will note that universal representation was possible there because the Varick Street facility is located in the heart of New York City, within walking distance of a multitude of immigration law offices, law school clinics, and not-for-profit organizations.

Left to represent themselves, asylum seekers detained at Cibola and other similar remote facilities are further hampered in their limited access to phones (which are necessary to contact friends and relatives abroad who might provide evidence to corroborate the asylum claim), and lack of access to the internet (which would allow detainees to research the law and to access and download country condition materials in support of their claims).  Additionally, detention centers tend to have inadequate law libraries. Furthermore, detainees are required to complete their applications, conduct research, and file supporting documents in English, which is incredibly difficult for someone such as the petitioner, whose native language is Lingala. EOIR’s own statistics show that only ten percent of respondents in removal proceedings last year had enough of a command of English to allow them to participate in their proceedings in that language.  As asylum seekers have often suffered torture or other violence, post-traumatic stress disorder and other physical or psychological remnants of their past mistreatment (which might be further exacerbated by their detention) creates an additional obstacle to self-representation. All of this overlooks the fact that U.S. asylum law is highly complex even for educated English-speakers.

The latest amicus brief raises these and other points on behalf of a group of former immigration judges and BIA Board members.  The brief further makes recommendations for practices to be adopted by immigration judges to help mitigate the above-cited obstacles to pro se applicants in pursuing relief. These recommendations include having the immigration judges explain the applicable legal standard (and any bars to relief) to pro se applicants; introducing country condition evidence (as well as making applicants aware of country condition resources available on EOIR’s own Virtual Law Library); and advocating for free, uninterrupted access to telephones for respondents in detention centers.

To my knowledge, our amicus brief filed with the BIA last summer in the U.S. Supreme Courts remand of Negusie v. Holder was the first time that former immigration judges and Board members identified as a group for amicus purposes.  The seven of us who participated in that brief doubled to 14 for the next such brief, filed with the Attorney General last month in Matter of Castro-Tum.  I see it as a positive development that in the short time since these briefs were filed, we have been called upon to provide our experience in expertise in two more cases, one filed last week in the Ninth Circuit on the issue of representation for children in immigration proceedings (C.J.L.G. v. Sessions), and now in this case filed yesterday in the Tenth Circuit.  Hopefully, this outstanding group will continue to contribute to the cause of justice for vulnerable noncitizens in removal proceedings.

And our heartfelt thanks to the dedicated attorneys at Sidley Austin, Jean-Claude Andre and Katelyn Rowe, for drafting the outstanding brief.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

REPRINTED BY PERMISSION

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HERE’S A COPY OF OUR BRIEF, PREPARED BY THE FABULOUS Jean-Claude André, & Katelyn N. Rowe, Sidley Austin LLP, LOS ANGELES, CA:

Matumona v Sessions Amicus Brief Final

HERE’S THE TABLE OF CONTENTS:

Identity and Interest of Amici Curiae …………………………………1

 

ARGUMENT …………………………………………………………………………………………………………………..2

I. Immigrants face significant obstacles to accessing justice when they are held in
remote detention facilities……………………………………………………………………………………….7

II. Immigrants are deprived of access to justice when they have no legal
representation, and Immigration Judges are unable to meaningfully fill this justice gap……………………………………………………………………………………………………………………..15

III. Immigration Judges should adopt certain best practices that can better enable
them to develop a proper record in cases involving pro se litigants…………………………….25

CONCLUSION………………………………………………………………………………………………………………30 APPENDIX……………………………………………………………………………………………………………..App. 1

HERE’S THE “CAST OF CHARACTERS:”

The Honorable Steven R. Abrams was appointed as an Immigration Judge in September of 1997. From 1999 to June 2005, Judge Abrams served as the Immigration Judge at the Queens Wackenhut Immigration Court at JFK Airport in Queens. He has worked at the Immigration Courts in New York and Varick Street Detention facility. Prior to becoming an Immigration Judge, he was the Special Assistant U.S. Attorney in the Eastern District of New York in the Criminal Division in charge of immigration. Judge Abrams retired in 2013 and now lectures on immigration in North Carolina.

The Honorable Sarah M. Burr began serving as an Immigration Judge in New York in 1994. She was appointed Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. Judge Burr served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus. She also worked as the supervising attorney in the Legal Aid Society immigration unit. Judge Burr currently serves on the Board of Directors of the Immigrant Justice Corps.

 

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board of Immigration Appeals from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a solo practitioner and volunteer staff attorney at Human Rights First. He was also the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and is a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. Judge Einhorn is also a contributing op-ed columnist at the D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a member of the Board of Immigration Appeals from 2000-2003. She then served in various positions at the Office of the General Counsel for the Executive Office for Immigration Review from 2003-2017, including Senior Associate General Counsel, Privacy Officer, Records Officer, and Senior FOIA Counsel. Judge Espenoza presently works in private practice as an independent consultant on immigration law and is also a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997), where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. Judge Espenoza is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law, and in 2014 she was recognized as the University of Utah Law School’s Alumna of the Year. She also received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990. Judge Espenoza has published several articles on Immigration Law.

The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. From 1997 to 2016, Judge Gossart was an adjunct professor of law and taught immigration law at the University of Baltimore School of Law and more recently at the University of Maryland School of Law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland, and the former Maryland Institute for the Continuing Education of Lawyers. Judge Gossart is a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of the Board of Immigration Appeals for six months between 2010 and 2011. Judge King previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Eliza Klein served as an Immigration Judge from 1994 to 2015 and presided over immigration cases in Miami, Boston, and Chicago. During her tenure, Judge Klein adjudicated well over 20,000 cases, issuing decisions on removal, asylum applications, and related matters. Judge Klein currently practices immigration law at the Gil Law Group in Aurora, Illinois.

The Honorable Lory D. Rosenberg served on the Board of Immigration Appeals from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct professor of law and taught immigration law at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC, a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General’s Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the Department of Homeland Security Office of Chief Counsel in Newark, New Jersey. She then became an Immigration Judge in Newark, New Jersey. Judge Roy has been in private practice for nearly five years, and two years ago she opened her own immigration law firm. She also currently serves as the New Jersey Chapter Liaison to the Executive Office for Immigration Review for the American Immigration Lawyers Association and the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association. In 2016, Judge Roy was awarded the Outstanding Pro Bono Attorney of the Year by the New Jersey Chapter of the Federal Bar Association.

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, Virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. Judge Schmidt authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), which extended asylum protection to victims of female genital mutilation. He served in various positions with the former Immigration Naturalization Service, including Acting General Counsel (1986- 1987, 1979-1981) and Deputy General Counsel (1978-1987). He worked as the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995. He also practiced business immigration law with the Washington, D.C., office of Jones, Day, Reavis and Pogue from 1987 to 1992 and was a partner at the firm from 1990 to 1992. Judge Schmidt served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ) and presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, a nonprofit that provides direct legal services to immigrant communities in Washington, D.C. and Maryland. Judge Schmidt assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as writes and lectures on immigration law topics at various forums throughout the country. Judge Schmidt created immigrationcourtside.com, an immigration law blog.

HERE’S A SUMMARY OF THE ARGUMENT:

Thousands of immigrants are currently detained in detention facilities that are located hours away from the nearest urban areas. See Kyle Kim, Immigrants held in remote ICE facilities struggle to find legal aid before they’re deported, L.A. Times (Sept. 28, 2017), http://www.latimes.com/projects/la-na-access-to- counsel-deportation/ (“About 30% of detained immigrants are held in facilities more than 100 miles from the nearest government-listed legal aid resource.”); Human Rights First, Jails and Jumpsuits: Transforming the U.S. Immigration Detention System—A Two Year Review 44 (2011), https://www.humanrightsfirst.org/wp-content/uploads/pdf/HRF-Jails-and- Jumpsuits-report.pdf (“40 percent of all ICE bed space is currently more than 60 miles from an urban center.”). These immigrants will struggle, and often fail, to retain an attorney who has the time, resources, and relevant expertise to represent them through complex removal proceedings. Even when detained immigrants do secure legal representation, this relationship may be jeopardized by a variety of remote detention conditions: lack of adequate access to telephones in detention facilities; the possibility of being transferred from one detention facility to another; and the difficulty for attorneys to regularly visit remote detention facilities.

For those immigrants that must journey through the labyrinth of immigration court proceedings alone, countless obstacles abound. See Baltazar-Alcazar v. I.N.S., 386 F.3d 940, 948 (9th Cir. 2004) (“[T]he immigration laws have been termed second only to the Internal Revenue Code in complexity. A lawyer is often the only person who could thread the labyrinth.”); Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (“This case vividly illustrates the labyrinthine character of modern immigration law—a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike.”); Lok v. Immigration & Naturalization Serv., 548 F.2d 37, 38 (2d Cir. 1997) (noting that the Immigration and Nationality Act bears a “striking resemblance . . . [to] King Minos’s labyrinth in ancient Crete”). Language barriers will often undermine an immigrant’s ability to effectively represent herself. Although pro se immigrants will receive interpreters during their court hearings, they are still required to complete asylum applications and other court filings in English. In addition, the law libraries at remote detention facilities often have inadequate legal resources that are not up-to-date and/or have not been translated into the immigrant’s native language. These obstacles make it extremely difficult for pro se immigrants to learn about possible claims for relief and determine whether they are even eligible to make such claims. See Chicago Appleseed Fund for Justice, Assembly Line Injustice: Blueprint to Reform America’s Immigration Courts 29 (2009), http://appleseednetwork.org/wp-content/uploads/2012/05/Assembly-Line- Injustice-Blueprint-to-Reform-Americas-Immigration-Courts1.pdf (“Those immigrants appearing without a lawyer, or ‘pro se,’ often enter the system without any understanding of the process before them, much less of the grounds for relief that may be available to them.”).

Petitioner Adama Heureux Matumona of the Democratic Republic of Congo faced many of these access-to-justice obstacles because he was detained at the Cibola County Detention Center, which is located approximately 300 miles away from some of the nearest pro bono legal services providers and 500 miles away from his immigration court hearings. (AR 20, 432) Mr. Matumona was unable to secure legal representation because he did not have the financial means to pay for a private attorney. (AR 10, 16, 277) Of the three pro bono legal services providers that the Immigration Judge recommended, two did not represent immigrants in Cibola and the third did not have adequate interpretation services to communicate with Mr. Matumona, who is a native Lingala speaker. (AR 250, 252, 432) In addition, Mr. Matumona could not find pro bono counsel on his own because he did not have enough money to pay for the telephone service at Cibola and was not granted free access to telephones at Cibola. (AR 10, 20)

As a pro se litigant, Mr. Matumona’s likelihood of securing relief in his removal proceedings was significantly limited. Despite the fact that Mr. Matumona does not speak English, the Immigration Judge expected him to complete his asylum application and other court filings in English. (AR 303) All the while, Mr. Matumona has endured residual trauma from fleeing his home country out of fear that his community organizing activities would lead to his imprisonment, disappearance, or death by the ruling regime. (AR 339-42) This trauma was further exacerbated by the many months Mr. Matumona has spent in detention, separated from his wife, eight children, and other family members. (AR 324) All of these factors made it more burdensome for Mr. Matumona to build and present his case than if he had been represented by counsel from the beginning.

In amici’s decades of experience, immigrants like Mr. Matumona who lack access to counsel and are held in remote detention facilities will be deprived of a meaningful opportunity to investigate and develop their cases to a degree that is consistent with the requirements of due process. Immigration Judges are limited in their ability to fill this justice gap due to time constraints caused by backlogged dockets and pressure to avoid coaching pro se immigrants because it contravenes their mandate of impartial arbiter. While Immigration Judges can grant continuances to give pro se immigrants additional time to find counsel or collect evidence, this action also has the negative consequences of increasing docket backlog and prolonging an immigrant’s time in detention. In addition, the Executive Office for Immigration Review has cautioned that “an Immigration Judge must carefully consider not just the number of continuances granted, but also the length of such continuances” and “should not routinely or automatically grant continuances absent a showing of good cause or a clear case law basis.” Exec. Office for Immigration Review, Operating Policies and Procedures Memorandum 17-01: Continuances 3 (July 31, 2017), https://www.justice.gov/eoir/file/oppm17- 01/download (“OPPM 17-01: Continuances”). This kind of directive has a chilling effect on Immigration Judges who may be inclined to grant continuances in cases where they believe it is necessary to protect due process. Moreover, there is no guarantee that a continuance will enable a pro se immigrant to secure counsel or obtain needed evidence—especially in light of the other obstacles that detained immigrants face in remote detention facilities. Thus, the combination of remote detention and lack of legal representation not only impedes immigrants’ access to justice, but also overburdens the operation of the immigration system as a whole.

Amici respectfully submit that the Board of Immigration Appeals did not recognize the various access-to-justice barriers that Mr. Matumona faced in presenting his case to the Immigration Judge. Therefore, this Court should grant Mr. Matumona’s Petition for Review, vacate the Board of Immigration Appeals’ decision, and remand his case. In addition, amici request that this Court encourage Immigration Judges to adopt certain best practices, described below in Part III, that will ensure a detailed record is developed in cases with pro se immigrants so that they receive meaningful review of their claims for relief.

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

Thanks again to J.C., Katelyn, Sidley Austin, and my wonderful colleagues who joined in the brief. For better or worse, there is no shortage of opportunities for Amicus involvement in the current climate.

PWS

03-23-18

 

 

 

 

 

Related posts:

  1. RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!
  2. TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”
  3. MICHELLE BRANE @ WOMEN’S REFUGEE COMMISSION — “Why I March!”
  4. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”

CAN AMERICA RECOVER FROM THE TRUMP/GOP KAKISTOCRACY? — Maybe — But, Eric Levitz @ NY Maggie Gives You Four Reasons Not To Sleep Tonight!

“Kakistocracy is a term that was first used in the 17th century; derived from a Greek word, it means, literally, government by the worst and most unscrupulous people among us. More broadly, it can mean the most inept and cringeworthy kind of government. The term fell into disuse over the past century or more, and most highly informed people have never heard it before (but to kids familiar with the word “kaka” it might resonate).”

 

http://nymag.com/daily/intelligencer/2018/03/donald-trump-has-never-been-more-dangerous-than-he-is-now.html

Levitz writes:

From one angle, it’s been a comforting few weeks for those of us who fear and loathe the Trump presidency. Since early February, public support for the president and his party has declined significantly — erasing the polling gains that both had made at the start of this year. Meanwhile, Democrats have continued to over-perform in special elections, scoring their most impressive victory yet last week, when Conor Lamb bested a better-funded Republican opponent in a Pennsylvania district that had gone for Trump by 20 points. Signs suggest that the GOP’s House majority won’t survive the winter — and that our reality star–in-chief is unlikely to be brought back for a second season.

For progressives, the case for optimism about Trump’s tenure has always gone something like: If he doesn’t get us all killed, the demagogue might just rejuvenate the Democratic base, poison the GOP’s brand, trigger big “blue” wave elections in 2018 and 2020, and thus, ironically, leave U.S. politics in a better place than it had been in circa 2016.

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Over the past month, each piece of this scenario has begun to seem a tad more likely — except, that is, for the “doesn’t get us all killed” bit.

Of course, Donald Trump is (almost certainly) not going to literally end all human life. But in recent weeks, many of the downside risks of his election — a mass-casualty war, irreparable diplomatic blunder, or constitutional crisis — have become more plausible than ever before. Assuming we avoid total catastrophe, America is poised to make a speedy recovery from its ill-advised experiment with kakistocracy. But there are (at least) four reasons why that assumption has never been less safe: . . . .

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Read the complete article with the “four reasons” at the above link.

Trump and his gang of evil incompetents and valueless enablers are the biggest threat to American democracy since the Civil War. Essentially, he and his White Nationalist cabal are out to reverse the results of the Civil War, leaving the country divided and a bunch of unqualified Old White Guys in charge because — well just because they are White Guys and can get away with it.

But, if we all unite behind the New Due Process Army, we can use the legal system and the ballot box to achieve regime change and the return of human decency and common sense.

PWS

03-22-18

 

 

 

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ANOTHER WASHPOST LEAD EDITORIAL RIPS CRUEL, INHUMANE, ADMINISTRATION POLICIES ON SEPARATING CHILDREN – In Plain Terms, Our Government Is Engaging in Child Abuse!

https://www.washingtonpost.com/opinions/dhs-keeps-separating-kids-from-their-parents–but-officials-wont-say-why-or-how-often/2018/03/20/0c7b3452-2bb4-11e8-8ad6-fbc50284fce8_story.html?utm_term=.8fe0d0d7b420

DHS keeps separating kids from their parents — but officials won’t say why or how often


Immigration and Customs Enforcement headquarters in Washington. (Salwan Georges/The Washington Post)
By Editorial Board March 20 at 7:31 PM

LAST FRIDAY night, a 7-year-old Congolese girl was reunited with her mother in Chicago, four months after immigration agents of the Department of Homeland Security separated them for no defensible reason. When the little girl, known in court filings as S.S., was delivered by a case worker to her mom, the two collapsed to the floor, clutching each other and sobbing. According to the mother’s lawyer, who was in the room, S.S., overwhelmed, cried for the longest time.

That sounds like a happy ending to a horrific story. In fact, according to immigrant advocates, such separations are happening with increasingly frequency — with no credible justification.

In the case of S.S. and her mother, known in court filings as Ms. L., the trauma visited on a little girl — wrenched from her mother, who was detained in San Diego, and flown nearly 2,000 miles to Chicago — was gratuitous. A U.S. official who interviewed Ms. L. after she crossed the border into California determined she had a reasonable asylum claim based on fear for her life in her native Congo. Despite that, mother and daughter were torn apart on the say-so of an immigration agent, and without explanation.

A DHS spokesman, Tyler Houlton , says separating children from their parents is justified when paternity or maternity is in doubt, or when it is in a child’s best interest. However, in court filings, officials present no cause for doubt about Ms. L.’s maternity, nor evidence that it was in S.S.’s “best interest” to be taken from her mother last November, when she was 6 years old.

Rather, in court filings, an official from Immigration and Customs Enforcement, a DHS agency, lists some documentary discrepancies on Ms. L.’s part, in which officials in Angola, Panama and Colombia recorded different versions of her name. Never mind the translation problems she may have encountered in Latin America as a speaker of Lingala, a language spoken only in central Africa.

Even if Ms. L. fudged her identity, how would that justify taking away her child? And if there were doubts about Ms. L.’s maternity, why didn’t ICE request a DNA test at the outset, before sundering mother and child? When a DNA test was finally done — four months later — it immediately established Ms. L.’s maternity.

Immigrant advocates say DHS has separated children from immigrant parents scores of times in recent months, perhaps to deter other asylum seekers by trying to convince them the United States is even more cruel than their native countries. Officials at DHS have floated that idea publicly in the past year. They insist it is not their policy. However, they also have declined to provide statistics showing the frequency of separations.

Responding to a class-action lawsuit filed by the American Civil Liberties Union on behalf of parents separated from their children, ICE insists it has done nothing so outrageous that it “shocks the conscience” — a Supreme Court standard for measuring the denial of due-process rights.

Here’s a question for Homeland Security Secretary Kirstjen Nielsen: If it does not “shock the conscience” to traumatize a little girl by removing her from her mother for four months in a land where she knows no one and speaks no English, what does “shock the conscience”?

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Stop the Trump Administration’s program of turning America into a reviled human rights abuser! What about “Gonzo Apocalyto’s” policies of turning our Immigration Courts into “enforcement deterrents” rather than protectors of fairness and Due Process?

Join the New Due Process Army now! Resist in the “real’ courts. Vote Trump, his abusers, and his enablers out of office! 

Harm to the most vulnerable among us is harm to all of us. Due Process Forever!

PWS

03-21-18

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Michelle Brané in WASHPOST: “Separating refugee children from their parents is cruel”

https://www.washingtonpost.com/opinions/separating-refugee-children-from-their-parents-is-cruel/2018/03/18/d3e6b286-293f-11e8-a227-fd2b009466bc_story.html

March 18
I was glad to see the March 12 editorial “Torn asunder seeking asylum,” which called attention to the horrific practice of separating families seeking asylum. I can offer broader context to the issue of family separation. The Women’s Refugee Commission’s Migrant Rights and Justice Program has been monitoring this issue for many years.Primarily, the mother and child in the editorial should never have been separated. The increasingly common practice of separating asylum-seeker children from their parents is often done for no reason other than to deter the family from seeking protection. The Department of Homeland Security has publicly stated deterrence as the intended outcome, and its suggestion now that it is doing so to protect children is misleading and shameful.This is outrageous, as well as cruel, costly and illegal. What’s more, this practice is increasing. My organization is aware of hundreds of similar cases. We hope that Homeland Security’s decision to release the mother, and reunite her with her child, represents a move away from this practice and back toward respect for parents’ and children’s right to seek asylum.

Michelle Brané, Washington

The writer is director of the
Migrant Rights and Justice Program at the Women’s Refugee Commission

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Well said, Michelle!

Compare the intelligence, humanity, and comprehensive knowledge of a “True American Hero” like Michelle with some of the ignorant, biased, immoral, and mean-spirited rantings of those who pass for “leaders” of our country these days. We have put the wrong people in power; but, there’s still time to correct the mistake before it’s too late!

PWS

03-21-18

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. TRUMP TREATS KIDS AS HUMAN PAWNS IN UGLY POLITICAL CHESS GAME – Administration’s Continued Spreading Of False Narrative On Migration Makes Continuing Migration Outside of Legal System Inevitable!
  3. ANOTHER WASHPOST LEAD EDITORIAL RIPS CRUEL, INHUMANE, ADMINISTRATION POLICIES ON SEPARATING CHILDREN – In Plain Terms, Our Government Is Engaging in Child Abuse!
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