Executive Order – Page 146 – immigrationcourtside.com

4th Cir. Judges File Separate Opinion Praising Bravery Of Transgender Teen — Take Shot At Those On The “Wrong Side Of History!”

Senior Judge Davis, joined by Judge Floyd said this in a published separate opinion:

“Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.

G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.

. . . .

G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted — but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.”

The full opinion is well worth a read. Here’s a link: 161733R1.P-4th Circuit GG

Judge Davis incorporates this poem,

Famous by N.S. Nye:

The river is famous to the fish.

The loud voice is famous to silence, which knew it would inherit the earth before anybody said so.

The cat sleeping on the fence is famous to the birds watching him from the birdhouse.

The tear is famous, briefly, to the cheek.

The idea you carry close to your bosom is famous to your bosom.

The boot is famous to the earth, more famous than the dress shoe, which is famous only to floors.

The bent photograph is famous to the one who carries it and not at all famous to the one who is pictured.

I want to be famous to shuffling men who smile while crossing streets, sticky children in grocery lines, famous as the one who smiled back.

I want to be famous in the way a pulley is famous,
or a buttonhole, not because it did anything spectacular, but because it never forgot what it could do.

Here’s an article from yesterday’s Washington Post explaining the context of the 4th Circuit’s procedural decision and why the published, signed separate opinion is unusual.

https://www.washingtonpost.com/local/public-safety/judges-hail-transgender-teen-gavin-grimm-as-human-rights-leader/2017/04/07/ade47f12-1bc8-11e7-bcc2-7d1a0973e7b2_story.html?utm_term=.11ce2b2d3a58

The case is G.G. v. Gloucester County School Board.

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The Trump Administration’s attacks on vulnerable individuals such as Muslims, migrants, and now transgender students have given rise to an interesting new phenomenon in the U.S. Courts of Appeals: separate published opinions vigorously commenting on or dissenting from what normally would be routine, unsigned, unpublished, barely noticed, procedural orders.

Another good example was the recent spate of published opinions dissenting and concurring with the granting of an uncontested motion by the Government to dismiss the appeal from the TRO in State of Washington v. Trump (“Travel Ban 1.0”) which I discussed in an earlier blog: http://wp.me/p8eeJm-vM

In the 9th Circuit case, several judges used separate opinions to lash out at their colleagues and show their support for the Trump Administration’s “Travel Ban 1.0.” This drew a reaction from some of their colleagues who accused the dissenters of using the forum and device of the separate opinions to deliver a message to politicians, other courts, and the parties for use in future litigation that was not yet before the court. In other words, to influence matters that were not part of the the actual “case or controversy” before the court, which was being dismissed without objection by either party.

In any event, in just a short time in office, the Trump Administration has “gotten the attention” of normally aloof and “ivory towerish” Federal Appellate Judges who seem to be energized and eager to engage in the fray with the Administration, its detractors, and each other.

PWS

04-09-17

HuffPost: Larry Strauss — Trump, Sessions, & Co. Are On The Wrong Side Of History — “If you are knowingly hurting children, there is something wrong with you, whether or not you have the law on your side.”

http://www.huffingtonpost.com/entry/deportations-immigration-trump-children_us_58e66103e4b0773c0d3ebbb5?0tr

Larry Strauss, veteran high school teacher and basketball coach; author, “Students First and Other Lies” writes in HuffPost:

“Trump and his supporters have their own moral arguments. They say we must put America and Americans first. Of course these phrases express geographic ignorance, since many of the people they wish to expel are, in fact, Americans (the U.S. being but one country in America). But we know what they mean. Why should citizens of the United States be sympathetic to people from other places when so many of our own people are struggling so mightily? One can argue that undocumented individuals are not actually taking away jobs or other resources from those born here, but it’s a tough sell to someone whose financial fortunes have collapsed in the last five or ten or twenty years. The students in my classroom who were brought here or born to parents who came here will almost uniformly go further than those parents and enjoy prosperity far beyond that of those parents. It is not surprising that they are resented by those Americans (of the U.S. variety) whose prospects are far less than those of their parents and grandparents.

But politics and policies born of resentment cannot be good for the soul of our country. Nor can any law — ANY LAW ANYWHERE — that, for any reason, hurts children. If you are knowingly hurting children, there is something wrong with you, whether or not you have the law on your side.

Every year the school at which I teach enrolls students in my classes and whoever those children are I teach the hell out of their class for them — and so do most of my colleagues.

When you work with kids you don’t decide who deserves to be taught and encouraged. Where they come from and how they got here just doesn’t matter. I once taught the grand-daughter of a Nazi who’d escaped to El Salvador after World War II. The girl owed me no apology or explanation. Just her best effort and her homework on time — most of the time.

So I am not sympathetic to those who wish to punish the children of those who snuck into our country — or those who came on false pretenses.

I wish that Jeff Sessions and his ICE men and women would restrict their deportations to serious criminals — those no country wants. Why are federal agents wasting time and resources on people who’ve committed minor crimes? Are such actions any better than a municipality shutting down a lemonade stand because of a city ordinance?

Here’s an idea: if the crime of an undocumented immigrant does not exceed the crime of Jeff Sessions himself (perjury, that is) then let them stay. And if the harm of the deportation exceeds the harm of the deportee’s crime then let’s have a little collective heart.

We are a nation of laws but if those laws are being used to harm people for political expedience by indulging bigotry and ethnic paranoia, then those laws do not deserve out respect and the politicians exploiting them do not deserve our support.

Those who deported Mexicans and Mexican-Americans in the 1930s were within the law — but on the wrong side of history.

Those who interned Japanese Americans in the 1940s were within the law — but on the wrong side of history.

Those who forced Native American children into border schools to assimilate them were within the law — but on the wrong side of history.

Trump and Sessions are within the law — at least they are on immigration enforcement — but their cruelty is dragging us all onto the wrong side of history.”

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I couldn’t agree more with Strauss’s sentiments, although I’m not willing to say that everything Trump, Sessions, Kelly, and company are proposing is within the law. In fact, they seem to be heading toward some massive violations of the due process guaranteed by law.

However, “nations that turn their backs on children will be dealt with harshly by history” is the gist of an earlier op-ed that I wrote criticizing the Obama Administration’s inhumane and wrong-headed prioritization of recently arrived women and children for removal. http://wp.me/P8eeJm-1A.

While the “Obama priorities” were rescinded upon the change of Administration, the Trump Administration appears to have an even crueler and more inhumane fate in store for women and children seeking refuge from the Northern Triangle: detention, expedited removal, attempts to deny the fair opportunity to apply for asylum, intentional restriction of access to counsel, criminal prosecution of parents seeking to save their children, and an overall atmosphere of coercion and mistreatment meant to encourage those who have recently arrived to abandon their claims for refuge and to discourage others from coming to seek refuge under our laws. Only time will tell whether the Article III Courts will allow the Administration to get away with it.

I particularly like Strauss’s use of the “Sessions standard” — anybody who has done no more than perjure themselves under oath should be allowed to stay. And, talk about someone who has lived on the “wrong side of history” for his entire life, yet stubbornly refuses to change: well, that’s the very definition of Jeff Sessions’s depressingly uninspiring career. Given a chance for some redemption late in life, he’s instead choosing to “double down” on his biases and narrow outlook. Jeff had better hope that there’s forgiveness for his sins out there somewhere in the next world.

PWS

04-07-17

Applicants For Immigration Benefits Busted — Will This Become the Norm?

https://www.washingtonpost.com/news/post-nation/wp/2017/04/06/they-met-with-immigration-officers-to-apply-for-legal-residency-only-to-be-arrested-by-ice/?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.eebb0333a5d5

Kristine Phillips resorts in the Washington Post:

“Leandro Arriaga has been in the United States illegally since 2001.

He stayed despite a deportation order and over the past 16 years has made a living fixing and remodeling homes. He also started a family. But the father of four had grown tired of “living in the shadows,” his attorney said.

So last week, he went to a U.S. Citizenship and Immigration Services (USCIS) office for his marriage petition interview — the first step to legalize his presence in the United States through his wife, a naturalized citizen. The process, called an I-130 visa petition, is a common way for foreigners to gain legal residency through their relatives or spouses.

But Arriaga was arrested that day, along with four others who also showed up at the USCIS office in Lawrence, Mass. All five have deportation orders, according to the U.S. Immigration and Customs Enforcement, or ICE.”

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Are such incidents merely anecdotal, or do they represent a clear change in policy? Maybe the effect is the same. If migrants believe that visiting DHS field offices to apply for immigration benefits will put them at risk, they will stop doing it, regardless of what the “actual policy” might be.

I’d be interested in any comments from readers about what you are seeing or hearing in your areas.

PWS

04/06/17

National Immigrant Justice Center (“NIJC”) & Others Accuse ICE Of Due Process Violations In Night-Time Removal Of Indiana Father!

http://www.noblelawfirm.com/ice-violates-due-process-roberto-beristain

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Click the link to read the complete press release. Sometimes Article III Federal Courts are willing to intervene in alleged unlawful removal cases, sometimes not. I’ve been on both sides and in the middle on this issue during my career.

Thanks to Dan Kowalski over at LexisNexis Immigration Community for passing this along.

PWS

04-06-17

“Extreme Vetting” Proposal Draws Fire From Sen. McCaskill!

http://blogs.wsj.com/washwire/2017/04/05/claire-mccaskill-denounces-un-american-extreme-vetting-proposals/

LAURA MECKLER AND DAN FROSCH report in the WSJ:

“The senior Democrat on the Senate Homeland Security Committee said Wednesday the “extreme vetting” procedures contemplated by the Trump administration would alienate U.S. allies, deter legitimate travelers and fail to keep out security threats.

“It seems to me we are signaling something that is very un-American to the rest of the world,” Sen. Claire McCaskill (D., Mo.) told Homeland Security Secretary John Kelly at a hearing of the Senate panel.

The Wall Street Journal reported Tuesday that the Trump administration was considering new vetting rules that would ask visa applicants to provide cell phone contacts and social media passwords as well as answer probing questions about their ideology. A senior Homeland Security official said the changes could apply to close U.S. allies as well as visitors from other countries.

“If they know we’re going to look at their phones and we know we’re going to ask them questions about their ideology, they’re going to get rid of their phones and guess what they’re going to do on ideology? They’re going to lie,” she said.

Mr. Kelly did not respond directly to her criticism or to the Journal story. Rather, he spoke about current procedures at ports of entry and said that visitors’ phones are examined only in rare cases during secondary screenings.

“This is not routine,” he said. “It is done in a very small number of cases. It won’t be done routinely for people who are coming here from anywhere.”

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You have to wonder about any Administration dumb enough to call a proposal “extreme vetting.” The campaign is over (at least for now). While intentionally inflammatory language might play well with the base, in the real world of governing it’s better to choose more “bureaucratically neutral” terms.

PWS

04-05-17

WashPost: ICE Arrests 82 In DC Area — 75% Have Criminal Convictions!

https://www.washingtonpost.com/local/virginia-politics/ice-arrests-82-in-five-day-sweep-in-virginia-maryland-and-dc/2017/04/05/9b5b6304-1a30-11e7-855e-4824bbb5d748_story.html?hpid=hp_local-news_iceraid-756pm%3Ahomepage%2Fstory&utm_term=.8c98e3403a5e

Patricia Sullivan reports:

“Agents for U.S. Immigration and Customs Enforcement arrested 82 people in Virginia, Maryland and the District last week, including one who they said was identified as an officer in command of a Somali organization known for human rights abuses, rape, torture and killings.

The arrests included 68 people with previous criminal convictions, ICE said in a news release that described the five-day operation as a routine, “targeted immigration enforcement.”

Those who have outstanding orders of deportation, or who returned to the U.S. illegally after being deported, can be immediately removed from the country. Others will remain in custody awaiting a hearing before an immigration judge, or pending deportation arrangements.

The Somali, a 50-year-old male, was picked up in Falls Church and was a second lieutenant in the Somalian National Security Service and had a felony drug conviction, ICE said.

Agents also took into custody two people who have ties to the MS-13 street gang, ICE said, two who already had been given final deportation orders and three who had overstayed their visas.

ICE said two of the targeted individuals had pending local charges and one was wanted by a foreign law enforcement organization. Three more had unlawfully entered the U.S., the agency said.

Most were arrested in Virginia but two were arrested in the District and one in Maryland. Their names were not released.”

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On its face, this appears almost identical to the “targeted enforcement” that the Obama Administration was doing by 2016. What if the Trump Administration had said that it was simply going to refine and build on the prioritization of criminals system already established by the Obama Administration? Would they have engendered so much opposition? Did the melodramatic Executive Orders, the dumb statements by guys like Stephen Miller, and boneheaded expansion of the “criminal alien” concept actually hinder community support for targeting individuals convicted of serious crimes? Has the Trump Administration converted the beginnings of a “smart enforcement” program into a “dumb enforcement” program without actually changing much of the substance?

PWS

04-05-17

LA TIMES EDITORIAL #3: “Trump’s Authoritarian Vision”

“Trump’s Authoritarian Vision”

“In a way, Trump represents a culmination of trends that have been years in the making.

Conservative talk radio hosts have long blasted federal judges as “activists” and regulators as meddlers in the economy, while advancing the myth of rampant election fraud. And gridlock in Washington has led previous presidents to try new ways to circumvent the checks on their power — witness President George W. Bush’s use of signing statements to invalidate parts of bills Congress passed, and President Obama’s aggressive use of executive orders when lawmakers balked at his proposals.

What’s uniquely threatening about Trump’s approach, though, is how many fronts he’s opened in this struggle for power and the vehemence with which he seeks to undermine the institutions that don’t go along.

It’s one thing to complain about a judicial decision or to argue for less regulation, but to the extent that Trump weakens public trust in essential institutions like the courts and the media, he undermines faith in democracy and in the system and processes that make it work.
Trump betrays no sense for the president’s place among the myriad of institutions in the continuum of governance. He seems willing to violate long-established political norms without a second thought, and he cavalierly rejects the civility and deference that allow the system to run smoothly. He sees himself as not merely a force for change, but as a wrecking ball.

Will Congress act as a check on Trump’s worst impulses as he moves forward? One test is the House and Senate intelligence committees’ investigation into Russia’s meddling in the presidential election; lawmakers need to muster the courage to follow the trail wherever it leads. Can the courts stand up to Trump? Already, several federal judges have issued rulings against the president’s travel ban. And although Trump has railed against the decisions, he has obeyed them.

None of these institutions are eager to cede authority to the White House and they won’t do so without a fight. It would be unrealistic to suggest that America’s most basic democratic institutions are in imminent jeopardy.

But we should not view them as invulnerable either. Remember that Trump’s verbal assaults are directed at the public, and are designed to chip away at people’s confidence in these institutions and deprive them of their validity. When a dispute arises, whose actions are you going to consider legitimate? Whom are you going to trust? That’s why the public has to be wary of Trump’s attacks on the courts, the “deep state,” the “swamp.” We can’t afford to be talked into losing our faith in the forces that protect us from an imperial presidency.

This is the third in a series.”

Read the complete editorial here: http://www.latimes.com/projects/la-ed-trumps-authoritarian-vision/

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PWS

04/04/17

LA TIMES CONFRONTS TRUMP IN FOUR PART EDITORIAL SERIES — Here Are Parts 1 & 2 — 1) “Our Dishonest President;” 2) “Why Trump Lies”

“Our Dishonest President”

“These are immensely dangerous developments which threaten to weaken this country’s moral standing in the world, imperil the planet and reverse years of slow but steady gains by marginalized or impoverished Americans. But, chilling as they are, these radically wrongheaded policy choices are not, in fact, the most frightening aspect of the Trump presidency.

What is most worrisome about Trump is Trump himself. He is a man so unpredictable, so reckless, so petulant, so full of blind self-regard, so untethered to reality that it is impossible to know where his presidency will lead or how much damage he will do to our nation. His obsession with his own fame, wealth and success, his determination to vanquish enemies real and imagined, his craving for adulation — these traits were, of course, at the very heart of his scorched-earth outsider campaign; indeed, some of them helped get him elected. But in a real presidency in which he wields unimaginable power, they are nothing short of disastrous.

Although his policies are, for the most part, variations on classic Republican positions (many of which would have been undertaken by a President Ted Cruz or a President Marco Rubio), they become far more dangerous in the hands of this imprudent and erratic man. Many Republicans, for instance, support tighter border security and a tougher response to illegal immigration, but Trump’s cockamamie border wall, his impracticable campaign promise to deport all 11 million people living in the country illegally and his blithe disregard for the effect of such proposals on the U.S. relationship with Mexico turn a very bad policy into an appalling one.

. . . .

On Inauguration Day, we wrote on this page that it was not yet time to declare a state of “wholesale panic” or to call for blanket “non-cooperation” with the Trump administration. Despite plenty of dispiriting signals, that is still our view. The role of the rational opposition is to stand up for the rule of law, the electoral process, the peaceful transfer of power and the role of institutions; we should not underestimate the resiliency of a system in which laws are greater than individuals and voters are as powerful as presidents. This nation survived Andrew Jackson and Richard Nixon. It survived slavery. It survived devastating wars. Most likely, it will survive again.

But if it is to do so, those who oppose the new president’s reckless and heartless agenda must make their voices heard. Protesters must raise their banners. Voters must turn out for elections. Members of Congress — including and especially Republicans — must find the political courage to stand up to Trump. Courts must safeguard the Constitution. State legislators must pass laws to protect their citizens and their policies from federal meddling. All of us who are in the business of holding leaders accountable must redouble our efforts to defend the truth from his cynical assaults.

The United States is not a perfect country, and it has a great distance to go before it fully achieves its goals of liberty and equality. But preserving what works and defending the rules and values on which democracy depends are a shared responsibility. Everybody has a role to play in this drama.

This is the first in a series.”

Read the entire editorial here:

http://www.latimes.com/projects/la-ed-our-dishonest-president/

“Why Trump Lies”

“Donald Trump did not invent the lie and is not even its master. Lies have oozed out of the White House for more than two centuries and out of politicians’ mouths — out of all people’s mouths — likely as long as there has been human speech.

But amid all those lies, told to ourselves and to one another in order to amass power, woo lovers, hurt enemies and shield ourselves against the often glaring discomfort of reality, humanity has always had an abiding respect for truth.

In the United States, born and periodically reborn out of the repeated recognition and rejection of the age-old lie that some people are meant to take dominion over others, truth is as vital a part of the civic, social and intellectual culture as justice and liberty. Our civilization is premised on the conviction that such a thing as truth exists, that it is knowable, that it is verifiable, that it exists independently of authority or popularity and that at some point — and preferably sooner rather than later — it will prevail.

Even American leaders who lie generally know the difference between their statements and the truth. Richard Nixon said “I am not a crook” but by that point must have seen that he was. Bill Clinton said “I did not have sexual relations with that woman” but knew that he did.
The insult that Donald Trump brings to the equation is an apparent disregard for fact so profound as to suggest that he may not see much practical distinction between lies, if he believes they serve him, and the truth.

His approach succeeds because of his preternaturally deft grasp of his audience. Though he is neither terribly articulate nor a seasoned politician, he has a remarkable instinct for discerning which conspiracy theories in which quasi-news source, or which of his own inner musings, will turn into ratings gold. He targets the darkness, anger and insecurity that hide in each of us and harnesses them for his own purposes. If one of his lies doesn’t work — well, then he lies about that.

If we harbor latent racism or if we fear terror attacks by Muslim extremists, then he elevates a rumor into a public debate: Was Barack Obama born in Kenya, and is he therefore not really president?
If his own ego is threatened — if broadcast footage and photos show a smaller-sized crowd at his inauguration than he wanted — then he targets the news media, falsely charging outlets with disseminating “fake news” and insisting, against all evidence, that he has proved his case (“We caught them in a beauty,” he said).

If his attempt to limit the number of Muslim visitors to the U.S. degenerates into an absolute fiasco and a display of his administration’s incompetence, then he falsely asserts that terrorist attacks are underreported. (One case in point offered by the White House was the 2015 attack in San Bernardino, which in fact received intensive worldwide news coverage. The Los Angeles Times won a Pulitzer Prize for its reporting on the subject).

If he detects that his audience may be wearying of his act, or if he worries about a probe into Russian meddling into the election that put him in office, he tweets in the middle of the night the astonishingly absurd claim that President Obama tapped his phones. And when evidence fails to support him he dispatches his aides to explain that by “phone tapping” he obviously didn’t mean phone tapping. Instead of backing down when confronted with reality, he insists that his rebutted assertions will be vindicated as true at some point in the future.

Trump’s easy embrace of untruth can sometimes be entertaining, in the vein of a Moammar Kadafi speech to the United Nations or the self-serving blathering of a 6-year-old.

. . . .

Our civilization is defined in part by the disciplines — science, law, journalism — that have developed systematic methods to arrive at the truth. Citizenship brings with it the obligation to engage in a similar process. Good citizens test assumptions, question leaders, argue details, research claims.

Investigate. Read. Write. Listen. Speak. Think. Be wary of those who disparage the investigators, the readers, the writers, the listeners, the speakers and the thinkers. Be suspicious of those who confuse reality with reality TV, and those who repeat falsehoods while insisting, against all evidence, that they are true. To defend freedom, demand fact.

This is the second in a series.”

Read the complete editorial here:

http://www.latimes.com/projects/la-ed-why-trump-lies/

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Stay tuned for parts 3 & 4 in this LA Times editorial series.

PWS

04-03-17

THE HILL: N. Rappaport Asks Whether Trump’s Next “Sanctuary Cities” Strategy Will Include Criminal Prosecutions For Harboring?

http://thehill.com/blogs/pundits-blog/immigration/327050-trumps-next-immigration-showdown-sanctuary-cities-and

Nolan writes:

“Gregg Jarrett, a Fox news anchor and former defense attorney, has observed that if this approach fails to force city officials to abide by the law, President Trump can consider charging them with crimes.

According to James H. Walsh, who was an associate general counsel for the Immigration and Naturalization Service, there are several federal statutes that apply to state and local officials and others who interfere with the enforcement of our immigration laws.

I have found at least one provision in the INA that seems to be an appropriate basis for such prosecutions, 8 U.S.C. §1324(a)(1)(A)(iii). It provides criminal penalties for concealing, harboring, or shielding aliens from detection who are in the United States illegally.

It does not specify what actions constitute “harboring.” This has been left to the courts, and the courts have not settled on one uniform definition. But the most frequent characteristic the courts have used to describe “harboring” is that it facilitates an immigrant’s remaining in the United States illegally, and this seems to be the primary reason for sanctuary cities and municipal ID card programs.

Criminal prosecution of responsible government officials is preferable in some ways to withholding federal funding. Withholding federal funding mainly would hurt the people who depend on the funds. It would not have a direct impact on the responsible officials the way prosecuting them would.

Also, the Supreme Court has held that such restrictions on federal funds must “bear some relationship to the purpose of the federal spending,” which may be difficult to establish in this situation.

In any case, we appear to be headed for major conflicts between the Trump administration and state and local governments, which could take a very long time to resolve.”

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

Regardless of whether or not criminal prosecutions become part of the Trump Administration’s arsenal, I totally agree with Nolan’s conclusion that we’re heading for a major confrontation.

PWS

03-03-17

“Come Together” — A Great New 1-Min. Video From The GW Immigration Clinic All-Stars! — “Why We Are Motivated To Work for Immigrants!”

GW Immigration Clinic 2017 – Medium

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Looks like lots of new recruits for the “New Due Process Army.” These guys are the real “heart and soul” of today’s American law. Thanks to Professor Alberto Gonzalez for sending this in.

PWS

04/03/17

SLATE: Into The Void — Appalled Attorney Dan Canon Says Immigration Detention Diminishes, Dehumanizes All Of Us!

http://www.slate.com/articles/news_and_politics/cover_story/2017/04/ice_detainees_enter_an_unbelievably_cruel_system_designed_to_make_them_disappear.html

“A couple of weeks ago, for the first time ever, I represented an undocumented worker in deportation proceedings. Or rather, I tried to. My attempts to navigate this system were not what I would call successful. Part of this may be due to the fact that, though I have been a practicing attorney for 10 years, this was my first go at immigration law. But another part of it—most of it, I’d venture—is due to the fact that the U.S. immigration system is designed to be opaque, confusing, and inequitable.

Under most circumstances, I would not wade into this kind of thing at all. I’m primarily a civil rights lawyer, and immigration is a highly specialized area of law with a unique set of risks awaiting unwary practitioners. I would not, for example, take someone’s bankruptcy case or file adoption papers. I would refer those to lawyers with experience in those areas. But the crisis of unrepresented detainees is too big and too pressing to leave to the few organizations and individual practitioners with expertise in immigration law. One recent study found that only about 14 percent of detainees have representation. That’s out of nearly 300,000 cases in the immigration courts every year.*

If I killed someone on the street in broad daylight, I‘d be entitled to an attorney. But those summoned before the immigration courts, including infants who have been brought here by their parents, have no right to counsel. They can hire immigration lawyers, but only if they can pay for them. Most of them can’t, and volunteer lawyers are scarce. So children, parents, and grandparents are locked up for months, sometimes years, waiting for a day in court. When they show up in front of a judge, they do so alone and terrified. Those who don’t speak English are provided an interpreter who tells them what’s being said, but no one is there to tell them what’s really happening.

Undocumented people who live here in Louisville and southern Indiana are driven 90 minutes to the jail in Boone County, Kentucky. There, they are placed in the general population with locals who have actually been accused of crimes. That’s where my client, who was assigned to me by an overburdened immigration firm, was taken after he was scooped up by Immigration and Customs Enforcement in the parking lot of his apartment building.

Entering the United States, even without proper documentation, is not a criminal offense. The only “crime” my client committed is trying to get his family away from the drug cartels that overtook his Central American village. Unlike many who come here fleeing crippling poverty, he and his family were getting along fairly well in their home country. A little success, it turns out, can make you a target for violent extortionists. His wife, who fled the exact same situation in the exact same place, was apparently catalogued as an asylum-seeker, but her husband was not.

The Kentucky facility doesn’t allow a phone call, even for an attorney, without an appointment. Requests to call your client must be made by fax. Sometimes the jail will call you to say your 2 p.m. time slot has been changed to 6 p.m., and sometimes you won’t get any notification at all. The visitation restrictions for families are no more accommodating. Visitation amounts to 45 minutes a week, tops. If my client’s wife, daughter, or grandkids want to visit him, they have to drive 90 minutes and hope for the best.

. . . .

What happened to my client and his family wasn’t anomalous. It wasn’t even unusual. It happens all over the country, every single day. Part of what makes our immigration system so reprehensible is that it’s so easy to ignore. Most of us don’t ever have to deal with it in any meaningful way or even think about it. But stop and consider that this practice of moving detainees from place to place randomly, with no notice given to their families or their attorneys, is indescribably cruel. Stop and consider that locking up human beings in jail for months to coerce them into submission is maddeningly unjust. And then consider the possibility that the whole system is not just dysfunctional, but utterly diabolical.

Further consider that the practice of breaking up families and making people disappear into black holes is the result of a set of loosely defined policy goals that are in no way based on reality. There’s no real evidence to support the notion that undocumented immigrants are any more dangerous than anyone else, or that they “steal” jobs from Americans, or that they do anything but contribute to the economy overall. There is no policy reason for inflicting this misery on people. It’s just cruel.

Lest anyone think this is just more liberal railing against the Trump administration, this system pre-dates the orange guy. The Obama administration sucked more than three million people into the lungs of this administrative monster and spit them out all over the world. Having seen up close what this system does to families, it’s hard to forgive that, especially when you consider that American trade policies contributed to the collapse of Latin America. But hell, we’re all complicit in this. We let it happen every day.

I’m going to suggest something I have never suggested to any working person: If you are part of this machine—if you are a guard, an agent, a janitor, or anything in between—quit. Walk off your job. Right now. You’ve got bills to pay? A family to support? I get it. So do the people who come here looking for a better existence. The system you are contributing to is preposterously evil. It separates mothers from their children. It kills innocent people. It exists only to make easy punching bags out of those damned by their circumstances, some of whom have already lived through unspeakable horrors.

For everyone else: If you’ve never thought about your tacit support for this system, start thinking about it. Start resisting it. Start demanding its abolition. A Kafkaesque bureaucracy needs participants, both willing and unwilling. We have the power to dismantle it.”

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

As noted in Canon’s article, immigration detention originated long before the Trump Administration. The Obama Administration certainly wasn’t afraid to use detention as an attempted deterrent to asylum seekers. Additionally, the Obama administration essentially argued for “eternal detention” pending final determinations in Removal Proceedings in a case that is currently pending decision before the Supremes. Jennings v. Rodriguez, see previous blog here: http://wp.me/p8eeJm-kp. The often prolonged detention of women and children asylum seekers from the Northern Triangle by the Obama Administration will go down as one of the darker chapters in American human rights history.

Unfortunately, however, we haven’t hit bottom yet. The Trump Administration’s plans for enhanced immigration enforcement will certainly involve even more widespread use of immigration detention as a tool of deterrence, coercion, and denial of due process, with all of the additional human abuses that is likely to engender.

One qualification/explanation of Canon’s statement that: “Entering the United States, even without proper documentation, is not a criminal offense.” In fact, it usually is. Under 8 U.S.C. 1325, “improper entry by an alien” is a misdemeanor, although often not prosecuted. A second conviction is a felony.

An individual without documentation who appears at a U.S. port of entry ands applies for asylum would not be committing a criminal offense. But, according to a number of recent media accounts, such individuals currently are being sent back to Mexico and told to await “an appointment.”

Additionally, the Trump Administration has indicated that it would like to develop a process to return non-Mexican asylum seekers to Mexico while they are awaiting hearings in U.S. Immigration Court. So far, the Mexican government has indicated that it would not agree to such a program.

PWS

04/03/17

POLITICS/ENTERTAINMENT: Even With The Demise Of Ringling Bros. Opportunities For Clowns Abound — Daniel W. Drezner On “The Beclowning Of The Executive Branch!”

https://www.washingtonpost.com/posteverything/wp/2017/03/31/the-beclowning-of-the-executive-branch/?hpid=hp_regional-hp-cards_rhp-posteverything%3Ahomepage%2Fcard&utm_term=.0c04325e77c7

Daniel W. Drezner writes in the Washington Post:

“Fewer than a hundred days into the Trump administration, there are two, actually three, competing narratives about how the government is being run. The first narrative is the Trump administration’s claim that things are running so, so smoothly. A brief glance at the poll numbers suggests that not many people are buying this, so we can discard it quickly.

The second narrative, made by the Wall Street Journal’s editorial board among many others, is that America’s system of checks and balances turns out to be working pretty well. President Trump’s more egregious moves have been checked by federal courts and even by the court of public opinion at times. A historically unpopular and costly health-care bill did not pass the House of Representatives, which seems like the right outcome. Irresponsible foreign policy statements made by the president during the transition have been walked back. Efforts by the Trump White House to deny or scuttle investigations into foreign meddling into the election have resulted in congressional investigations, pushback by the intelligence community and recusals by Trump appointees. The administration successfully managed to pick a Supreme Court nominee who is not a laughingstock.

There’s a lot to this argument. But if I may, I’d like to proffer just a sampling of the news stories that have broken in the past 24 hours to suggest a third and more troubling narrative: the president and his acolytes are beclowning the American state.

Think I’m exaggerating? Consider the following: . . . .”

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

Read Drezner’s complete article at the above link.

In a “normal” Administration, any one of the items described by Drezner would be a jaw-dropper. But, in Trump’s Washington, it’s just another day under the Big Top. After all, “the show must go on.”

PWS

04/02/17

ALERT: Weekly Summary of Trump Administration’s Attack On Human Rights, Civil Rights, Due Process, & America — Blocking Public Monitoring Of Immigration Detention High On List!

https://www.washingtonpost.com/news/the-watch/wp/2017/03/31/trump-watch-volume-6-more-immigration-crackdowns-sessions-defends-cops-in-st-louis-and-jared-kushner-renaissance-man/?utm_term=.0fc52897ff4c

Radley Balko reports in an op-ed in the Washington Post:

“Here’s the latest from the Trump administration on civil liberties and criminal justice:

U.S. Immigration and Customs Enforcement appears to be attempting to end public monitoring of immigration detention centers.
In the battle for control of President Trump’s drug policy, it’s shaping up to be good cop New Jersey Gov. Chris Christie (treatment) against bad cop Attorney General Jeff Sessions (enforcement).
When he isn’t brokering Middle East peace, ending opioid addiction and streamlining the federal bureaucracy, Jared Kushner will apparently be handling criminal justice reform.
Democrats in some states are pushing back against Trump’s immigration crackdown by trying to prevent local law enforcement from sharing immigration information with federal officials.
More “bad hombres” — a single dad brought here at age 8 who has raised his daughter by himself for the last 14 years has just been deported over a 17-year-old marijuana possession charge.
Jeff Sessions gave a speech in St. Louis Friday. He said Ferguson has become the “emblem of the tense relationship between law enforcement and the communities we serve.” He also said that cops are “unfairly maligned,” and blamed “viral videos.” He made no mention of the area’s aggressive fines and predatory municipal courts that are such a huge part of the problem.
Other recent ICE and immigration actions: Five Massachusetts immigrants, at least three of whom were there for green card interviews, were arrested when they showed up for appointments at a U.S. Citizenship and Immigration Services office this week. In Portland, Ore., three ‘dreamers’ have been arrested. In Chicago, ICE agents broke into a home and shot someone who may have been the father of the man they were looking for. And in Indiana, a Trump voter feels betrayed after her husband is taken into custody and scheduled for deportation.
The Trump administration boycotted the Inter-American Commission on Human Rights conference earlier this month. It’s the first time in at least 20 years that the U.S. government not shown up to the event.
Finally, the man Trump just appointed assistant secretary for health technology at the Department of Health and Human Services has some interesting opinions. Among them, “Not all Goths are drug addicts, but a high percentage experiment with all types of drugs, including hallucinogens,” and “when kids cross the line into pot use, they are crossing the line, figuratively and literally, toward a life of illegal drug use and probable addiction.” He also thinks women who view pornography at a young age may suffer from “a phobia to male genitalia,” and thinks there’s a strong links between drug addicts and people who get tattoos.
Trump again floats the idea of changing libel laws, this time so that truth is no longer a defense in lawsuits against public figures. But he also doesn’t appear to understand how libel laws actually work.”

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

Go to the original article at the above link to get links to more in depth reporting on each of these reported incidents.

Trying to block monitoring of immigration detention centers is a particularly nice touch. Given some of the grim reports about conditions, particularly in much-criticized privately-run detention centers which appear to be near and dear to Sessions, I can see why DHS and DOJ don’t want anyone to know what’s really going on. But, I wouldn’t be surprised if by the end of the Trump Administration the entire immigration detention system will be under some sort of court-appointed monitor.

Sadly, some more folks are probably going to have to die in immigration detention before we get to that point.

PWS

04-02-17

Turning Back The Hands Of Time — Sessions Seeks To Restore AG’s Lead Role In Immigration Enforcement!

https://www.washingtonpost.com/politics/seeking-central-role-on-immigration-attorney-general-jeff-sessions-plots-border-visit-to-arizona/2017/03/30/34fc8596-1550-11e7-833c-503e1f6394c9_story.html

David Nakamura and Matt Zapotosky report in the Washington Post:

“The Justice Department is seeking to play a more muscular role in the Trump administration’s immigration enforcement strategy, a move that is alarming immigrant rights advocates who fear Attorney General Jeff Sessions’s hard-line ideology could give Justice too much clout in determining policy.

To highlight the department’s expanding role, Sessions is considering making his first trip to the southern border in mid-April to Nogales, Ariz., a busy border crossing region that features a major patrol station and already has miles of fencing and walls designed to keep out illegal immigrants from Mexico. Aides emphasized that his itinerary is still being developed and the stop in Nogales — which would come as Sessions travels to a conference of state police officials from around the country 200 miles away in Litchfield Park — is still tentative.

If he follows through, the border visit would come at a time when President Trump is asking Congress for billions of dollars to begin construction on a longer and larger wall between the United States and Mexico, a central campaign promise.

In recent weeks, Sessions has taken steps to increase his department’s focus on immigration.

. . . .

But legal experts said Sessions could significantly restructure the Justice Department by ramping up the number of immigration judges sent to the border to speed up hearings and by pursuing more criminal prosecutions against immigrants in the United States beyond those associated with drug cartels and human smugglers that past administrations have focused on.

The Sessions Justice Department also could move to strip some protections from undocumented immigrants, such as how much time they have to find a lawyer; more robustly defend DHS enforcement policies that are challenged in court; and use the Office of the Special Counsel to aggressively prevent employers from discriminating against American workers by hiring undocumented workers, said Leon Fresco, a former deputy assistant attorney general in the Obama administration.

“I think they will be incredibly active,” said Fresco, who helped draft the 2013 immigration bill while serving as an aide to Sen. Charles E. Schumer (D-N.Y.). The only thing that could slow Sessions, he added, was “finding enough individuals with expertise and the willingness to speed these issues along.”

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

Prior to the creation of the Department of Homeland Security (“DHS”), the Attorney General had responsibility for nearly all aspects of domestic immigration enforcement and adjudication. Most of those functions were reassigned to the DHS, leaving the AG responsible primarily for the Immigration Courts (through the Executive Office for Immigration Review – “EOIR”) and for conducting immigration litigation in the Article III Federal Courts (through the Office of Immigration Litigation — “OIL”).

Apparently, Attorney General Sessions finds these legal roles too “passive” for his enforcement-oriented outlook. Sensing a vacuum because of his closeness to the President and DHS Secretary Kelly’s relative inexperience in immigration issues, Sessions now seeks to make, rather than just defend or adjudicate, immigration policy.

What does this say about the chances that Sessions will promote a fair and impartial administrative hearing system through the U.S. Immigration Courts and the Board of Immigration Appeals over which he exercises ultimate control.

PWS

03/31/17

LA TIMES: Retired U.S. Immigration Judge Bruce J. Einhorn Speaks Out For Due Process — Challenges City Of L.A. To Provide Lawyers For Those Facing Removal!

http://www.latimes.com/opinion/op-ed/la-oe-einhorn-immigration-lawyers-deportation-ice-20170327-story.html

Like many of us, Bruce has witnessed first-hand the patent unfairness of requiring individuals to represent themselves in U.S. Immigration Court. In this L.A. Times op-ed he urges Los Angeles to follow the City of New York’s fine example in providing effective pro bono legal representation to those whose lives and futures are on the line in Immigration Court:

“In December, Mayor Eric Garcetti announced the creation of a $10 million fund to provide lawyers to immigrants facing deportation. But the parameters of the program are still being determined. In order to be effective, the program needs to be implemented soon and expanded quickly.
For defendants in deportation proceedings, the stakes can be life or death, since some face torture or worse upon returning to their home countries. This is why a fellow immigration judge, Dana Marks, once said that deportation cases are “death penalty cases heard in traffic court settings.” Many other defendants face permanent separation from their families.

Yet immigrants who cannot afford a lawyer must argue against government prosecutors. More often than not, this includes immigrants who are detained — that is, jailed — while their cases move through the courts. Detention almost always means loss of income, while lawyers cost more than the majority of immigrants can afford. A person who speaks little or no English must gather information from police officers or medical experts, submit written declarations in English or find evidence to support their asylum claims, all without access to the Internet or to affordable phone calls. There are an estimated 3,700 immigrants in detention across the greater L.A. area, according to the mayor’s office.

With one side at such a great disadvantage, it becomes much harder for judges to apply the law in a just manner, increasing the risk of flawed decisions. Especially in cases where defendants are detained, a day in court without a lawyer isn’t a day in court at all. A recent study found that detained immigrants who are represented by an attorney are five times more likely to win their cases than immigrants without representation.

A court system without lawyers is not merely unjust — it is also inefficient and wasteful. Without adequate legal representation for immigrants, judges can’t spend their time making decisions. Instead, they must constantly explain the legal process, reschedule cases and answer questions. In some instances, judges issue decisions only to cover the same ground again if the defendant is lucky enough to find a lawyer and get the case re-heard.

All this waste results in a heavily backlogged immigration court system, and nowhere more so than in California, where almost 100,000 cases are waiting to be decided. In San Francisco, for instance, an immigrant in court today will have his next hearing over two years from now.

. . . .

After 17 years on the bench, I’m troubled to see a wave of new raids that are sure to clog the dockets for years to come. But I also see an opportunity for local leaders to take a stand and provide immigrant communities with the fair and responsive representation they deserve.”

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

Bruce makes an important point that many outside observers miss. In addition to being inherently unfair, hearings involving unrepresented individuals are tremendously inefficient. That is, if the Immigration Judge takes to time to provide at least some semblance of due process.

Aspects of the hearing system that lawyers understand have to be explained in detail, in simplified language, through an interpreter to the unrepresented respondent.

Because there is no lawyer to question the respondent, and it would be inappropriate to rely on the DHS lawyer to present the respondent’s case, the Immigration Judge effectively becomes the respondent’s “substitute attorney” — an impossible conflict of interest. I usually conducted the examination of an unrepresented respondent using a format similar to that I used for client intake interviews in private practice. It takes time to do a fair and thorough job.

Dictating a decision in an unrepresented detained case is a long, painstaking process. Where an attorney is involved, and the interpreter is with me in court, which is the norm, the attorney normally “waives” a verbatim contemporaneous interpretation in favor of a short summary and a promise to fully explain my ruling to the client afterwards.

But, with no attorney, I must stop every few sentences for the interpreter to do a “serial interpretation” to the respondent on televideo. The “simultaneous interpretation” system is not currently designed to work with the televideo system.

Appeals by the losing side are fairly common in detained unrepresented cases. When both sides have attorneys, I just say a few words reminding them about how strictly the BIA enforces filing deadlines.

But, when an unrepresented respondent is involved, I have to give a short “how to seminar” in the art of filing an appeal with a fee waiver in a timely manner. Occasionally, the detention center doesn’t even have the correct appeal and waiver forms available, so I have to note that “officer promised to serve forms” while attaching an “insurance copy” to my “minute order” (which itself might not actually get to the detained respondent until weeks after the hearing — halfway through the 30 day appeal period).

Also, Bruce accurately points out that if the respondent finally is able to find a pro bono lawyer during the appeal process, the chances of a remand for further development of the record before the Immigration Judge are significant.

Although claiming to be supportive of the role of pro bono counsel in Immigration Court, and providing some support to some programs, overall the U.S. Immigration Court is “user unfriendly” to the pro bono community. In all Administrations, artificial political prioritization of cases driven by the Department of Justice and decisions to “kowtow” to DHS enforcement by placing so-called “courts”‘ within out of the way detention centers (rather than insisting, as true independent court system would, that detention centers be located in the vicinity of already established courts, where there is an established immigration bar and family support is often available) actively undermine both access to, and effective participation by, pro bono attorneys.

It’s sad but clear that the current Administration has “no time” for due process for migrants. They appear to have every intention of taking an already out of control, user unfriendly court system and making it even worse.

Only the Article IIII Courts stand between this Administration and their apparent goal of a “deportation express” with “no station stops” for due process. And, the only way that vulnerable migrants are going to be able to get into, and draw the attention of, the Article III Courts is by being well-represented by attorneys every step of the way.

That’s why it is critically important for Los Angeles and other cities who value their immigrant communities to heed Bruce’s call for the establishment of pro bono programs. Otherwise, the due process travesty being planned by this Administration will go forward unabated and become an indelible stain on American legal, political, and Constitutional history.

Other than that, I have no strong views on the subject.

PWS

03/31/17

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