"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“This appeal presents the question of whether the emergency military construction authority provided by 10 U.S.C. § 2808 (“Section 2808”) authorized eleven border wall construction projects on the southern border of the United States. We conclude that it did not. We also consider whether the district court properly granted the Organizational Plaintiffs a permanent injunction and whether the district court improperly denied the State Plaintiffs’ request for a separate permanent injunction. We affirm the decision of the district court on both counts. … We hold that the States and Sierra Club both have Article III standing and a cause of action to challenge the Federal Defendants’ border wall construction projects, that Section 2808 did not authorize the challenged construction, and that the district court did not abuse its discretion in either granting a permanent injunction to Sierra Club or in denying a separate permanent injunction to the States.”
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PANEL:THOMAS, Chief Judge, and WARDLAW and COLLINS, Circuit Judges
Opinion by Chief Judge Sidney R. Thomas; Dissent by Judge Collins
The only real question here is whether the Supremes will bail out the regime’s scofflaws once again.
Last month, a nurse at a federal immigration detention center in Irwin, Georgia, filed a whistleblower complaint detailing the abhorrent treatment of people detained there. She charged that women in detention were subjected to hysterectomies and invasive gynecological exams without their knowledge or consent, and often without assistance from interpreters.
The complaint is heartbreaking, but far from surprising. These atrocities are consistent with practices employed at U.S. detention centers for decades, and they are sadly consistent with our tragic history of forced sterilization of minority women. The implications of the complaint are perfectly clear: we must end the civil detention of immigrants, so fraught with systemic racism that undervalues the lives of Black, Indigenous and other people of color. There is no other option.
With over 200 detention centers, the United States has the largest immigration detention system in the world. Immigration and Customs Enforcement (ICE) has over the past two years detained an average of 40,000 daily, an astonishing number that surpasses the population of Wisconsin cities like Brookfield and Wausau. Yet the detention of immigrants is just a microcosm of the inhumanity that characterizes our immigration system today. Many immigrants come to the U.S. to seek refuge and a better life for themselves and for their families. But when they arrive in this country, they are forced into conditions that violate human rights principles under both international and domestic standards, and that, frankly, violate our moral obligations to each other as human beings.
ICE has the authority to release most people from detention through monetary bonds or parole, and ICE policy requires that people seeking asylum are released from detention when they can establish their identity and demonstrate they are neither a danger nor a or flight risk. Instead of using these tools, though, ICE almost always chooses detention, ostensibly to deter others from coming into the country. But far from showing detention to be an effective deterrent, statistics reveal the opposite: harsher penalties have not reduced the numbers of undocumented migrants crossing U.S. borders. What the data does show is how immigrant detention has become a big business, with taxpayer dollars helping to subsidize a billion-dollar private prison industry that profits from human trauma.
Often located in remote places, immigrant detention facilities are ripe for the abuse of detained migrants. There is no community oversight and little — often no — access to legal representation. People in detention will only have an attorney if they can afford one or are lucky enough to find pro bono representation.
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Read the rest of Erin’s article at the link! Erin reinforces points that I make often here on Courtside: the real objectives of unnecessary and highly cost-ineffective “civil detention” are to deprive migrants of access to counsel, coerce them into abandoning potentially successful claims, punish them for exercising legal rights, and deter others from asserting legal rights.
All of these are clear violations of Constitutional due process and equal protection! The conditions under which these non-criminals are held to “punish” them for their audacity to assert their legal rights also violate the Eighth Amendment, as some lower Federal Court Judges have found.
Unfortunately, too many Article III Judges have abdicated their oaths to uphold the Constitutional rights of the most vulnerable persons among us in the face of improper political pressure and a regime overtly out to undo American democracy and institute a far-right reactionary, white nationalist kakistocracy.
And, here’s info on a great “virtual event” that Erin helped organize to raise awareness of the existence and devastating effects of “Baby Jails” in the U.S. Allowing such cruel and inhuman abominations to flourish in our nation is beyond disgraceful! (See also the recent book Baby Jails: The Fight to End the Incarceration of Refugee Children in America, by my good friend and Georgetown Law colleague Professor Phil Schrag).
The Flores Exhibit: Stories of Children Held in Immigrant Detention Facilities
WHEN
Wednesday, October 14, 2020
7:30 pm to 8:30 pm
WHERE
Virtual
EVENT DESCRIPTION
Artists, lawyers, advocates and immigrants read the sworn testimonies of young people under the age of 18, who were held in two detention facilities near the U.S./Mexico border in June 2019. Followed by a discussion with panelists.
Organized by the Immigrant Justice Clinic, Latinx Law Student Association, and American Constitution Society at UW Law School.
Zoom link will be sent to via email to those who register.
I proudly note that my good friend Judge (Ret.) Jeffrey S. Chase and other distinguished members of our Round Table of Former Immigration Judges are “readers” in “The Flores Exhibit.”
I am also inspired by all that Erin has accomplished and the lives she and her students have saved through the Immigrant Justice Clinic at my alma mater, UW Law!
Erin and others like her are exactly the type of progressive, practical, scholar-problem solvers that we need as Federal Judges and in key Government policy-making positions. We need to replace the reactionary kakistocracy with a progressive, equal justice oriented, practical, problem-solving humanitarian meritocracy.
“Equal Justice For All” isn’t just a “throwaway slogan.” It’s a vision of a better, more efficient, more effective, more tolerant, more inclusive, more diverse, more representative Government that will work with people of good faith everywhere to maximize opportunities for all and promote a brighter future for everyone in America! It’s in our power to make it happen,and the necessary change starts this Fall.
Mica Rosenberg National Immigration Reporter, Reuters
In our most recent story on ICE detention and the coronavirus, we looked at ICE data going back to 2010 and found immigrants are being held now for longer on average than at any time in a decade in the middle of a pandemic, which has now infected more than 6,400 detainees nationwide. We spoke to 20 detainees from Africa and Latin America who have been detained for more than six months. Some were asylum seekers held for long periods as they seek relief in immigration court, others were DACA recipients who have served criminal sentences but are still fighting their deportation orders.
Detainees are locked up for much longer, even as the overall detention population dropped dramatically this year. Part of the reason for that decline: around 150,000 expulsions at the US-Mexico border under new health rules put in place by the Trump administration in March.
This follows on our earlier reporting about how ICE transfers of detainees have exacerbated the spread of the virus in some cases and how detainees have died of COVID-19. As well as how the families of detainees are being affected because of their frontlinework.
Thanks again to everyone who has helped me report these stories and please do keep in touch with future tips. Beyond detention, we are also following the swift pace of immigration policy changes across the board.
All the best,
Mica
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Thanks Mica and crew for continuing to expose these outrageous violations our Constitution, our international obligations, morality, common sense, and our obligations to our fellow humans by the Trump regime’s white nationalist kakistocracy!
Vote ‘em out, vote ‘em out, on every level! Return our nation to the rule of law, common sense, competency, and simple human decency.
Tal Kopan Washington Reporter, SF ChronicleHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)
Justice Department cancels diversity training, including for immigration judges
WASHINGTON — The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.
The memo, dated Oct. 8, is in response to an executive order issued by President Trump last month that labeled racial bias training as “offensive and anti-American race and sex stereotyping and scapegoating.” It was issued by Lee Lofthus, the assistant attorney general for administration.
“To ensure compliance with requirements specific to Diversity and Inclusion (D&I) training for employees, DOJ Components are instructed to suspend all D&I related training, programs, activities, and events that employees are required or permitted to attend while on Government-paid time,” Lofthus wrote.
Any new diversity training must be approved by the federal Office of Personnel Management, Lofthus said. He offered no timeline for resuming training.
The suspension applies to all divisions of the Justice Department, but could be of particular importance to the immigration courts.
Unlike the independent federal judiciary, immigration judges who hear the cases of asylum seekers and others trying to stay in the U.S. are employees of the Justice Department, hired by the attorney general.
Those cases often include some of the most sensitive stories of trauma from around the world, including many from women who say they have been raped, trafficked or abused in countries that frequently do not punish men who commit such acts. Asylum seekers also include people who say they have been persecuted because of their religious beliefs and LGBTQ individuals from countries where such identities are criminalized.
The Justice Department did not immediately respond to a request for comment.
Rep. Zoe Lofgren, D-San Jose, who chairs the House Judiciary subcommittee on immigration, said the Justice Department, like other workplaces, “should always aim for more diversity, not less.”
“The suspension of this training will also apply to our nation‘s immigration courts and could lead to less inclusive and fair-minded judges,” Lofgren said in a statement to The Chronicle. “This is yet another reason why the immigration court system should be an independent body, separate from DOJ and free from the political whims of the Executive branch.”
The union that represents immigration judges noted that they interact with a diverse group of people in court, which it said makes such training important.
“The National Association of Immigration Judges values diversity and inclusion in the workplace as it ensures that the Immigration Judges can meet the needs of the diverse group of stakeholders with whom we interface.” Mimi Tsankov, the chair of the group’s committee on gender equity and a judge in New York, said in a statement. “Immigration Court workplace training on diversity and inclusion reflects a commitment to its importance and ensures a judicial bench ready to respond to the needs that our cases demand.”
President Trump’s attorneys general have paid particular attention to the immigration courts as part of their efforts to restrict immigration to the United States, by implementing policies that have reduced judges’ discretion and made it harder for immigrants to claim asylum.
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Those with access should go to the above link for the full article. It also gives Tal a boost from the “hits.”
Glaring, intentional lack of diversity on the bench along with racial, gender, religious, and ethnic insensitivity have become an endemic problem at EOIR. But, given a regime and a DOJ that pride themselves on racism, misogyny, xenophobia, along with disdain for professionalism, expertise, ethics, humanity, and the Constitution, that’s not surprising.
Representative Lofgren and the NAIJ’s Judge Tsankov are absolutely correct. It’s time to put an end to the disgraceful abomination at EOIR and create a real, independent court system dedicated to due process, fundamental fairness, and promoting human dignity!
Due Process Forever! Today’s Dysfunctional & Unfair EOIR, Never!
A plague was the check and balance, not the rule of law, not civility. Trump and Republicans showed hubris in the face of a force of nature that cannot be gaslit, bullied, or emotionally manipulated. A virus demands you engage with it truthfully. You can’t bluster your way out of infection. Trump’s lies and arrogance regarding Covid-19 have cost 210,000 Americans their lives. Those lies and arrogance have finally caught up with him, and he may pay a heavy price. Some people think that’s poetic justice. They are being rebuked by those who think you should never be that callous, not even to a fascist.
Fascists know how to weaponize the norms governing civility to gain and maintain control over others. They know how to exploit sympathy. They know if they pretend to play nice sometimes, people believe they’ll begin to adhere to these norms and stop their harm. It’s a con. It works, though. That’s why four years into the Trump regime, reporters and pundits are still, embarrassingly, talking about his change of tone and his becoming more “presidential” any time he displays the barest modicum of decorum. This dynamic lowers the bar all the way down to Hell. Playing along is always the wrong move.
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Read the rest of the article at the link.
Excellent summary of how fascism works and how the “mainstream” keeps giving it a “pass” and normalizing severely abnormal, anti-social, illegal behavior by Trump and his toadies.
Just look at yesterday’s Courtside posting — kids and legal refugees continue to suffer while Sessions collects his pension, Hamilton continues to plan criminal enterprises on our dollar, and Rosenstein racks up the big bucks pretending like his venture into child abuse and crimes against humanity were just “normal activities of a senior Government official at the DOJ.” Not normal! Not acceptable!
History tells us what happens to those who “play along to get along.” The U.S. Olympic Committee turning an intentionally blind eye to Hitler’s virulent anti-Semitism so that the U.S. could participate in “Hitler’s Big Show” — the 1936 Olympics. British Prime Minister Neville Chamberlain selling out the Czechs, babbling about “peace in our time” on the eve of the bloodiest war in world history, and pretending that Hitler was “just another German politician” with “traditional” nationalist aspirations.
This Fall, vote Trump and the GOP out at all levels of Government. It might be the last chance to save our democracy from fascism and to save more lives from the malfeasance, ignorance, hate, and evil of Trump and his GOP enablers.
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON NJ AILA LITIGATION ABOUT IMMIGRATION COURTS⚖️!
By Hon. Sue Roy
Former U.S. Immigration Judge
Exclusive to Courtside
Oct. 8, 2020
As Paul had written about in August, the New Jersey chapter of the American Immigration Lawyers Association (AILA-NJ) filed a complaint against the Department of Justice/Executive Office for Immigration Review (DOJ/EOIR) over the arbitrary re-opening of the Newark Immigration Court for in-person hearings on July 13, 2020, without proper COVID-19 safety procedures and protocols in place.
This is despite the fact that in March, numerous individuals contracted COVID-19 because the Court did not timely close at the outset of the pandemic. To date, a well-respected immigration attorney who was present in the building during that time passed away from COVID-19 complications. Three additional people who worked in the building have also passed away from COVID-19, and many individuals became quite ill due to the exposure; some of whom have permanent health complications as a result.
As of now, most courts in NJ remain closed; courts at the municipal, country, state, and federal level have successfully utilized either telephonic or televideo technology to ensure that cases move forward. In fact, the NJ District Court is literally next door to the Newark Immigration Court; it remains closed, and the U.S. Attorney’s Office, which is located in the same building as the Newark Immigration Court, remains closed as well.
Before filing the lawsuit, AILA-NJ asked EOIR to provide them with information regarding what safeguards were going to be implemented at the time of reopening, but EOIR declined to respond.
It should be noted that the National Association of Immigration Judges (NAIJ) has been seeking the same information from EOIR, and EOIR has refused to release information to NAIJ as well.
Accordingly, AILA-NJ, through the pro bono representation of Gibbons, P.C., filed a complaint and an injunction request in the NJ District Court. DOJ, represented by the U.S. Attorney’s Office, advised the Court that it was not their responsibility to ensure the safety of individuals utilizing the Court; it was the parties’ responsibility to follow proper COVID-19 safety protocols. While Judge Vasquez did not grant the injunction, he was extremely critical of DOJ’s position, calling it “shocking” and “disheartening.” He noted that it was impossible for him to determine if EOIR had acted in an arbitrary and capricious manner in reopening the Newark Immigration Court without being advised as to what went into the decision-making process.
Two and ½ weeks ago, DOJ asked for a 2-week extension to file their responses to Judge Vasquez’s requests for information regarding EOIR’s safety plans, any policy discussions/memoranda from the various agencies who were allegedly involved in the decision to reopen Newark Immigration Court in July. DOJ also indicated that, despite previously stating that televideo proceedings were not possible, they were looking into setting them up at Newark. AILA-NJ agreed to the continuance request.
The Newark Immigration Court has held a few televideo hearings over the past two weeks. Attorneys are required to have their clients present with them in their offices when appearing before the Court. One attorney who was forced to do this tested positive for COVD-19 two days later and is now in quarantine.
Instead of then complying with Judge’s Vasquez’s order, last Thursday, DOJ filed a letter brief asking the Judge to dismiss the lawsuit as moot. AILA-NJ offered to settle the matter through the use of a consent order; DOJ refused. Therefore, AILA-NJ has opposed the request to dismiss the lawsuit, noting the continuing safety issues, the lack of any uniform procedures for the video hearings, the fact that televideo hearings are subject to individual judges’ discretion, and other concerns.
There is a telephonic conference now scheduled before Judge Vasquez for Thursday, October 8, at 11:30 am.
As of now, televideo hearings are only being offered at Newark Immigration Court, (not nationwide) and only to AILA-NJ attorney members who request it. Non-AILA-NJ attorneys are not being offered this option, and neither are pro se litigants, who are required to appear in person for master calendar and individual hearings. Court staff, interpreters, and immigration judges are required to be physically present for hearings, thus risking exposure to COVID-19, which is currently on the rise again in New Jersey generally, and in Newark in particular.
We have always suspected that EOIR had no safety plans or protocols in place before it decided to arbitrarily reopen the Newark Immigration Court. This view is shared by the NAIJ. The fact that EOIR reversed course and set up televideo hearings in Newark in less than 2 weeks and are now seeking to not release any information demonstrates just how disingenuous and unscrupulous DOJ has become.
NAIJ, the New Jersey State Bar Association, the Hispanic Bar Association, and the Round Table of Former Immigration Judges, among others, have all issued statements in support of the AILA-NJ litigation.
Hon. Susan B. Roy is a member of the Round Table of Former Immigration Judges and the principal of Law Office of Susan G. Roy, LLC in Princeton Junction, New Jersey.
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Thanks, Sue, for all you do for due process!
Here are links to my previous reports on the litigation:
WASHINGTON — The five U.S. attorneys along the border with Mexico, including three appointed by President Trump, recoiled in May 2018 against an order to prosecute all undocumented immigrants even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.
But the attorney general at the time, Jeff Sessions, made it clear what Mr. Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Mr. Trump’s “zero tolerance” family separation policy.
“We need to take away children,” Mr. Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”
Rod J. Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.
“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Mr. Bash had declined the cases, but Mr. Rosenstein “instructed that, per the A.G.’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”
The Justice Department’s top officials were “a driving force” behind the policy that spurred the separation of thousands of families, many of them fleeing violence in Central America and seeking asylum in the United States, before Mr. Trump abandoned it amid global outrage, according to a draft report of the results of the investigation by Michael E. Horowitz, the department’s inspector general.
The separation of migrant children from their parents, sometimes for months, was at the heart of the Trump administration’s assault on immigration. But the fierce backlash when the administration struggled to reunite the children turned it into one of the biggest policy debacles of the president’s term.
Though Mr. Sessions sought to distance himself from the policy, allowing Mr. Trump and Homeland Security Department officials to largely be blamed, he and other top law enforcement officials understood that “zero tolerance” meant that migrant families would be separated and wanted that to happen because they believed it would deter future illegal immigration, Mr. Horowitz wrote.
The draft report, citing more than 45 interviews with key officials, emails and other documents, provides the most complete look at the discussions inside the Justice Department as the family separation policy was developed, pushed and ultimately carried out with little concern for children.
This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it. The officials, who spoke on the condition of anonymity because they had not been authorized to discuss it publicly, cautioned that the final report could change.
Before publishing the findings of its investigations, the inspector general’s office typically provides draft copies to Justice Department leaders and others mentioned in the reports to ensure that they are accurate.
Mr. Horowitz had been preparing to release his report since late summer, according to a person familiar with the investigation, though the process allowing for responses from current and former department officials whose conduct is under scrutiny is likely to delay its release until after the presidential election.
Mr. Sessions refused to be interviewed, the report noted. Mr. Rosenstein, who is now a lawyer in private practice, defended himself in his interview with investigators in response to questioning about his role, according to two of the officials. Mr. Rosenstein’s former office submitted a 64-page response to the report.
“If any United States attorney ever charged a defendant they did not personally believe warranted prosecution, they violated their oath of office,” Mr. Rosenstein said in a statement. “I never ordered anyone to prosecute a case.”
The Government did not seriously question the correctness of this finding!
Intentionally violating Constitutional rights (not to mention lying and attempting to cover it up) is clearly a violation of 18 USC 242.
Here’s the text of that section from the DOJ’s own website:
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Sure looks like an”open and shut” case for prosecution.
The irony: Families and their kids have been traumatized for life, perhaps even killed or disabled by the actions of these criminal conspirators; however, the “perps” remain at large.
Hamilton is on the public dole continuing to wreak-havoc on the Constitution, the rule of law, the Immigration Courts, and human decency at the corrupt Barr DOJ; Rosenstein works for a “fat cat” law firm hauling down a six figure salary while he avoids justice and accountability for his misdeeds; “Gonzo” had the absolute audacity to try to reinsert himself onto the public dole by running for the Senate from Alabama (thankfully, unsuccessfully, even though he previously held the seat for years and misused it as a public forum to spread his racist ideas, xenophobic venom, lies, false narratives, and unrelenting cruelty).
Where’s the “justice” in a system that punishes victims while letting “perps” prosper and go free?
Paul Schmidt, who served as a board member and board chair of the Board of Immigration Appeals under the [Clinton] administration, said that Trump is not the first to manipulate the courts. In 2003, President George Bush’s Attorney General John Ashcroft removed board members whose views did not match the administration’s ideas for immigration. “You can track the downward trajectory of the immigration courts from Ashcroft,” he said. “We call it the purge. If you’re not with the program, your job could be on the line.… Ashcroft rejiggered the system so there’s no dissent.”
Schmidt said he “got bounced” because of his views, which makes him skeptical of the courts ever being independent in the current system. “How can you be a little bit independent?” he said. “It’s like being a little bit pregnant. You either are, or you aren’t.”
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Read the full article at the link.
Congrats to Marcia for recognizing that while the seeds of the current Immigration Court disaster originated in the Bush II Administration, they also grew steadily because of the Obama Administration’smismanagement and misuse of the Immigration Courts.
Given a rare chance to create a truly progressive, due-process-oriented judiciary, without any interference from Mitch McConnell and the GOP, the Obama group chose another path. They promoted “Aimless Docket Reshuffling” at EOIR to meet improper political policy objectives. At the same time, they almost totally “shut out” the human rights, clinical, and immigration bars by appointing over 90% of Immigration Judges from Government backgrounds, overwhelmingly DHS prosecutors.
Notwithstanding a process that did not require Senate Confirmation, the Obama Administration politicos took a mind boggling average of two years to fill Immigration Court judicial vacancies! They also left an unconscionable number of unfilled positions on the table for White Nationalist AG Jeff Sessions to fill!
Sure, it’s not “malicious incompetence” like the Trump regime. But, for asylum applicants and other migrants whose lives and due process rights are now going down the drain at an unprecedented accelerated rate, the difference might be negligible.
Dead is dead! Tortured is tortured! Missed opportunities to save lives are lives lost!
First, and foremost, Biden/Harris need to get elected. But, then they must escape the shadow of Obama’s immigration failures and do better for the many vulnerable and deserving folks whose lives are on the line.
Shouldn’t be that hard! The progressive legal talent is out there for a better Federal Judiciary from the Immigration Courts to the Supremes.
It just requires an Administration that takes due process, human rights, human dignity, and equal justice for all seriously and recognizes that in the end, “it all runs through immigration and asylum!” The failure to establish a sound, independent, institutionalized due process and equal justice foundation at the U.S. Immigration Courts, the “retail level” of our courts, now threatens to infect and topple the entire U.S. justice system! We need to end “Dred Scottification” before it eradicates all of our individual rights.
Why Legal Representation Is Essential To Due Process For Asylum Seekers (In Fewer Than 200 Words)
By. Paul Wickham Schmidt
Retired U.S. Immigration Judge
Courtside Exclusive
Oct. 5, 2020
Unlike criminal defendants, asylum seekers have no right to “appointed counsel.” Yet, never in the history of our country has access to legal assistance been more important to asylum seekers’ Fifth Amendment Due Process rights.
The Justice Department and the DHS have actively sought to skew asylum law against asylum seekers by reversing favorable precedents and promulgating restrictive regulations intended to evade the protections available under the Refugee Act of 1980, the Immigration & Nationality Act, and international conventions. They have also used arrests, detention, shortened filing deadlines, pressure on Asylum Officers and Immigration Judges to deny more asylum applications, and other “gimmicks” to discourage legitimate asylum seekers from filing, documenting, and pursuing their applications.
Without access to competent counsel, experienced in the latest developments in asylum law and enforcement, asylum seekers have little chance of prevailing at the administrative level and virtually no chance of successfully seeking review and intervention from Article III Courts to protect and vindicate precious, often life-saving, statutory and Constitutional rights.
A federal judge has ordered that the 2020 Census count continue until Oct. 31, blocking for now the government’s efforts to complete the survey in time to deliver apportionment data to the president by the end of the year.
The ruling late Thursday night by U.S. District Judge Lucy Koh of the Northern District of California follows a tense week in which the government appeared to try to circumvent a preliminary injunction against ending the count early.
After a surprise announcement Monday that the bureau was moving the end date by just five days, from Sept. 30 to Oct. 5, plaintiffs in the case asked Koh to provide clarification of her earlier order and other sanctions.
Rejecting the government’s argument that the request was “an attempt to radically modify the preliminary injunction,” Koh’s new ruling clarified that the end date for collection must revert to Oct. 31, as the bureau had originally planned.
It also ordered that on Friday, the government must send text messages to all Census Bureau employees notifying them of the Oct. 31 end date, and that Director Steven Dillingham must file a declaration by Monday that “unequivocally confirms Defendants’ ongoing compliance with the Injunction Order and details the steps Defendants have taken to prevent future violations of the Injunction Order.”
The suit, brought by the National Urban League and a group of counties, cities and others, said a truncated schedule would irreparably harm communities that might be undercounted.
On Friday, Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which is arguing the case, said, “Once again, the court has stopped the administration in its tracks.”Noting that some states with significant minority populations still face an undercount, she added, “Much work remains to be done to achieve an accurate census count that satisfies constitutional standards.”
The Justice and Commerce departments did not respond to requests for comment.
The government had appealed Koh’s Sep. 24 injunction to the U.S. Court of Appeals for the 9th Circuit, which denied the appeal Tuesday.
Nevertheless, Koh found that after her injunction, the government continued to tell employees to wind down operations by Sept. 30, and the Census Bureau’s website, “which is updated daily,” continued for four days after her injunction to say that data collection would end that day.
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Read the rest of the article at the link.
So, when is Judge Koh going to jail Wilber Ross, his census toadies, Billy the Bigot, and the DOJ lawyers who continue to defend clearly lawless, dishonest, and contemptuous actions in court? Why have corrupt Federal officials and their lawyers become exempt from ethical requirements and, in the case of lawyers, their role as “officers of the court?”
“The Trump administration proposed its annual refugee admissions ceiling just before midnight on Wednesday, September 30, committing to resettle just 15,000 individuals in Fiscal Year 2021, which would be the lowest admissions ceiling since the inception of the U.S. Refugee Admissions Program (USRAP).
The announcement comes on the heels of what was previously the lowest level of refugee admissions in American history. For FY 2020, which ended on September 30, the administration had set a goal to welcome just 18,000 refugees, in stark contrast to the average admissions ceiling of approximately 95,000 since the beginning of the USRAP. Despite this historically low target, the administration barely attained 65% of allotted admissions – resettling only 11,814 refugees this fiscal year, according to Lutheran Immigration and Refugee Service.
“In just four years, this Administration has cut the refugee resettlement program from 110,000 to a historic low of fifteen thousand. At a time of unprecedented global need, today’s decision to further cut the refugee admissions ceiling is a complete abdication of our humanitarian and moral duty.” said Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, a resettlement agency that has welcomed hundreds of thousands of refugees since 1939. “Let this serve as a wake-up call to those who believe this administration supports avenues of legal immigration. Refugees go through extreme vetting and have done everything our government has asked of them, yet they continue to be met with open hostility and egregious processing delays from this administration”
The record-low admissions figures have also disproportionately impacted certain groups. Admissions of Muslim refugees have declined to just 2,503, down from approximately 38,900 in FY 2016 and approximately 4,900 in FY 2019. Additionally, the Trump administration set aside 4,000 slots for Iraqi allies who assisted U.S. interests in their home country. However, it fell drastically short, resettling only 123 individuals in this category, or just 3% of the admissions goal.
“It shows the tragic extent to which we have abandoned our Iraqi allies who risked their lives, and those of their family members, to assist U.S. government and military personnel,” noted Vignarajah. “This further undermines our diplomatic and military efforts, rendering it nearly impossible to garner support from regional allies moving forward.”
Given FY2020’s record-low admissions numbers and an FY2021 proposed admissions ceiling of only 15,000, refugee advocates are deeply concerned by the human toll on the most vulnerable.
“In real terms, this means that families who have already waited years are forced to postpone reunification. It means that thousands who would otherwise find safety on our shores are left to languish in refugee camps, with no end in sight,” concluded Vignarajah. “This heartless decision is diametrically opposed to our values as a welcoming nation and it dishonors our common humanity at a time of dire need.”
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Here’s then”Trump Regression” — From international leader, to outlier, to outlaw state!🏴☠️
This Fall, vote for a return to humanity and the rule of law!
I am a lawyer specializing in asylum and refugee law. I have taught refugee law at George Washington University, University of San Francisco and Howard University. I have worked with the U.S. government and the UN Refugee Agency in refugee resettlement all over the world, most recently in Rwanda until COVID shut down our interviews.
In 2011 I self-published my legal memoir, My Trials: Inside America’s Deportation Factories, focusing upon the deportation system and my time as an immigration judge. It is time to update the book, given all the changes and destructive policies that have occured in recent years to our asylum system. The book received great reviews: “My Trials is both a scathing indictment of a broken immigration system that sends vulnerable immigrants back to perilous situations from which they fled, and a heartfelt call for a return to the values upon which our nation was founded.” American Immigration Lawyers Association. It was endorsed by renowned criminal defense attorney Gerry Spence.
The budget will include $2000 for editing and formatting, and $3000 for a limited publicity campaign. I am currently working with an editor to make the book available on Amazon by first week of October, so funds are essential now. It will be available on all other platforms mid-October.
This book has been a labor of love and education, and I have not profited from it. I will be tremendously grateful for assistance to make this updated book available at this critical junction in our nation’s history.
Click here it contribute to Paul’s “Go Fund Me” Campaign:
Judge, educator, public servant, humanitarian, author, role model, tireless advocate for due process, fundamental fairness, and equal justice for all: Thanks, Paul, for all you have done and continue to do. It’s a total honor to serve with you on the Round Table!🛡⚔️👍🏼
Justice Ruth Bader Ginsburg 1933-2020 Collection of the Supreme Court of the United States, Photographer: Steve Petteway Public RealmKaren Tumulty Political Columnist Photo: Rick Reinhard via Inter-American Dialogue Creative Commons License
In fact, McConnell’s actions are totally in keeping with the opportunism with which he has led the Senate. Given a chance, he will always abuse his power. Branding McConnell a hypocrite misses the point. Hypocrisy — coupled with an utter lack of shame — is not a character fault in his eyes. It is a management style, a means to an end.
[Obituary: Ruth Bader Ginsburg, Supreme Court justice and legal pioneer for gender equality, dies at 87]
And would we have expected anything different from Sen. Lindsey O. Graham (R-S.C.), the shape-shifting chairman of the Judiciary Committee?
Back in the days when he pretended to care about something more than sucking up to power, Graham used to say Republicans would have to live with what they had done to Obama’s 2016 nominee, Merrick Garland. In October 2018, shortly before taking the gavel of the committee that will consider Trump’s nomination, Graham promised: “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.”
Now — surprise! — Graham has promised, via Twitter: “I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.” His rationale, if you can dignify it by calling it that, is that Democrats did things that offended him. So it’s payback time.
Oh, and let’s consider the sanctimonious and pseudointellectual Sen. Ted Cruz (R-Tex.), whom Trump has said he would consider for future openings on the court. When running for president in early 2016, he loftily declared to NBC’s Chuck Todd: “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year. And what this means, Chuck, is we ought to make the 2016 election a referendum on the Supreme Court.”
What Cruz said wasn’t true, as is so often the case. There had indeed been instances of presidential nominees being confirmed during election years. In February 1988, a Democratic-led Senate voted 97-0 to put Ronald Reagan’s pick, Anthony M. Kennedy, on the court.
But this was only the beginning for Cruz. When it still appeared that Hillary Clinton would win in 2016, he also suggested that the court could get along just fine with only eight members indefinitely. Now — surprise! — Cruz is warning that having an even number of justices constitutes a “grave danger.”
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Read Karen’s complete op-ed at the link at the link.
As political sage Willie Nelson would say: “Vote ‘Em Out, Vote ‘Em Out!”
The best, perhaps only, way to honor RGB’s legacy and life work is to remove from office the party of inhumanity, inequality, and unbridled corruption who would spit and stomp on her legacy, NOW! Think about the “cultists” running around in “Fill Her Seat” shirts! Do you want these “princes and princesses of darkness, ignorance, bias, racism, and institutionalized inequality” to be running YOUR nation and determining the future of YOUR children and grandchildren? Pull out all the stops, open your wallets, and tell all your family, friends, and neighbors to register and vote for Joe and Kamala. It’s clearly “the last stand” for American democracy and human decency as we envision it (but also a great opportunity to make America better by voting for Biden/Harris)!
The consensusamong legaland politicalanalysts is that Judge Amy Coney Barrett, whom Trump placed on a federal appeals court in 2017, is the leading candidate to fill Ginsburg’s seat. Barrett gained fame during her confirmation hearing after Democratic Sen. Dianne Feinstein made inappropriate comments about the judge’s devout Catholic faith. She is a hardcore conservative, but that description doesn’t quite capture how radically her jurisprudence differs from Ginsburg’s. The justice viewed the Bill of Rights and civil rights acts as generous guarantees of human dignity that must be read expansively to achieve their purpose. By contrast, Barrett’s view of the law is fundamentally cruel. During her three years on the 7th Circuit Court of Appeals, Barrett has either written or joined a remarkable number of opinions that harm unpopular and powerless individuals who rely on the judiciary to safeguard their rights.
Faced with two plausible readings of a law, fact, or precedent, Barrett always seems to choose the harsher, stingier interpretation. Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no. Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.
There is no question that, if confirmed, Barrett would cast the fifth vote to either hollow out Roe v. Wade or overturn it altogether. Similarly, there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country. It’s quite possible, perhaps even likely, that within a year of her confirmation, Americans will be forbidden from terminating a pregnancy in 21 states—but permitted to purchase assault weapons and carry firearms in public in every state.
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Read the rest of Mark’s article at the link.
Judge Barrett sounds like someone who could have trained in anti-humanitarian, anti-social, anti-due-process, anti-immigrant judging by Billy the Bigot on the BIA. She certainly fits the model of an unqualified far right attivist.
And what of the other leading contender, Judge Barbara Lagoa of the 11th Circuit. In addition to being a reliable right-wing zealot (she voted to uphold the GOP anti-democracy scheme to overrule the people of Florida and disenfranchise former convicts), she is a Cuban American from Florida, a state where Trump and Biden are running neck and neck. Anybody who thinks today’s Court isn’t “politicized” has been living under a rock!
Daniel Goldberg, Legal Director of the Alliance for Justice (“AFJ”) tells us about everything we need to know about Lagoa:
Daniel Goldberg, legal director of the liberal Alliance for Justice, was critical of Lagoa’s record, saying she is a judge “who has showed contempt for our democracy.” Goldberg said he has “no doubt that she will meet Donald Trump’s litmus test” for a Supreme Court nominee and support his pledge to overturn Roe and the Affordable Care Act.
If you don’t want more unqualified judges with cruel, perverted, and unjust visions of America, and contempt for democracy and the humanity of “the other” in society to be deciding your future and the future of your children and grandchildren, then you had better get out the vote for Biden. Otherwise, your future is likely to look like America’s Jim Crow past!
President Trump promised in 2016 that he would protect the Constitution’s “Article I, Article II, Article XII.” (There is no Article XII.) Instead, he has shown how fragile the constitutional order can be when a president does not respect the rule of law. He has not grown into the office; instead, he has learned how to more effectively abuse its powers. The damage of a second term might be irreparable.
Our Democracy in Peril
Part seven of a series of editorials on the damage President Trump has caused — and the danger he would pose in a second term.
A president’s core responsibility is to use the awesome power of his office fairly and with neutrality. Mr. Trump has shown that he has a different understanding: The law is a weapon with which to reward loyalists, punish enemies and frighten everyone else to fall in line.
His distortion of the criminal justice system began within months of his inauguration. When FBI Director James B. Comey tried to explain the proper relationship between the president and the FBI, Mr. Trump demanded loyalty and asked the FBI director to go easy on his former national security adviser Michael Flynn. Mr. Comey declined to promise the former or do the latter, and the president fired him.
The tumult that Mr. Comey’s dismissal elicited might have taught a lesson to a more sensible person: There is substance and expectation behind the presidential oath’s pledge to faithfully execute the laws. Mr. Trump did not learn that lesson. His pick for attorney general, Jeff Sessions, properly recused himself from the federal investigation into Russia’s attack on the 2016 U.S. presidential election — and any coordination with the Trump campaign — leading to the appointment of special counsel Robert S. Mueller III. So Mr. Trump viciously attacked Mr. Sessions, and then fired him, too.
In part because the president’s staff more effectively restrained him back then, the special counsel was allowed to complete his investigation relatively unhindered. But Mr. Trump had no patience for standard Justice Department procedure — recusal when conflicts of interests may exist, special care to avoid even the appearance of impropriety. He reportedly complained that he needed a “Roy Cohn” at the Justice Department — that is, an aggressive protector of his personal interests. So, after firing Mr. Sessions, he hired an attorney general with no apparent concern about the appearance or reality of impropriety, William P. Barr.
Whether out of ideological fervor or fear of Mr. Trump’s wrath, Mr. Barr has aided the president’s friends, hurt his enemies and vociferously attacked anyone who has found these actions untoward. Mr. Barr sicced handpicked prosecutors on the Russia probe, despite independent investigations concluding it was warranted. Then Mr. Barr intervened to lessen the charging recommendation for Trump friend and convicted felon Roger Stone. Mr. Barr also ordered charges against Mr. Flynn, the admitted felon whom Mr. Trump had asked Mr. Comey to help, to be dropped. Yet another Justice Department official, FBI General Counsel Dana Boente, was fired after he opposed cooperating with the plot to clear Mr. Flynn.
Mr. Trump waited until after Senate Republicans voted to dismiss articles of impeachment in February to do more of his own dirty work. His White House already had issued illegal orders to prevent current or former executive branch officers from turning over documents or giving testimony to Congress, betting correctly that lawmakers would not be able to litigate the issue in time for the information they sought to matter. Free of the threat of removal, he committed revenge firings of impeachment witnesses who had only done their jobs and followed the law, including patriots such as Army Lt. Col. Alexander S. Vindman — and, for good measure, Mr. Vindman’s brother, who had nothing to do with impeachment.
Mr. Trump fired intelligence community inspector general Michael Atkinson for forwarding to Congress a whistleblower complaint that had implicated the president in his scheme to use public funds to extract political help from a foreign government. The message was clear: The lawful performance of one’s duties is secondary to protecting the president.
Mr. Trump commuted Mr. Stone’s sentence so that his friend would not have to serve one day, mocking the notion of equal justice before the law. He fired the inspector general tapped to monitor the administration’s coronavirus response programs, for reasons that are unclear, beyond his aversion to authentic oversight. The White House has inquisitors dedicated to rooting out federal staff who are insufficiently loyal to Mr. Trump, and they appear to be planning a broader purge after the November election.
Because the courts move slowly, the president discovered that he can sustain even the most egregious stonewalling and violations for years. The remaining checks would be Congress, but Republicans have almost uniformly chosen subservience to Mr. ‘Trump over fealty to the Constitution, and the executive branch, but Mr. Trump has sought to fire or cow anyone who would stand in the way of his lawlessness.
Last month brought two bright warning signs that the president feels ever-less inhibited. The Government Accountability Office found that Chad Wolf’s appointment as acting director of the Department of Homeland Security is illegal, yet Mr. Wolf is still there, overseeing a department that assisted in Mr. Trump’s alarming overreaction to protesters in Portland, Ore. Mr. Trump then used the White House for his Republican National Convention acceptance speech, which almost certainly resulted in violations of a law that prohibits federal resources from being used for political purposes. The New York Times reported that Mr. Trump “relished the fact that no one could do anything to stop him.”
Americans have long been taught that the U.S. political system has effective checks and balances. But in the past years, a frightening truth has emerged. Much of that balance has depended on the good character of the president, and there are surprisingly few ways to check a malign president from abusing the enormous powers of his office. Mr. Trump is committed to using those powers for his own personal ends, and he has slowly but surely chipped away at any limitations. How many would remain after four more years?
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One reason it’s taken some folks so long to raise the alarm is because they lack understanding of our immigration and human rights laws and their foundational relationship to our democracy. Those of us who do, sounded the alarm early on!
The lack of progressive immigration and human rights expertise and influence across all three branches of our Government and in much of the media has been a major factor in the rapid deterioration of our democracy. The progressive talent is out there in abundance; it’s just in the wrong place, outside of the power structure.
While I agree with the Post’s “bottom line,” I disagree somewhat with the analysis of why our Judicial System has failed so miserably when we most needed it. It’s not just an institutional weakness of “slowness;” it’s a defect in the qualifications, ideology, and character of too many GOP-appointed Federal Judges including the majority of our Supremes.
Yes, the wheels of justice can grind slowly. But, there is no institutional bar to integrity, creative emergency responses, or putting ideology aside to “do the right thing” for the rule of law and for human decency and human dignity. It’s happened before; but not this time around, with our nation in peril.
We saw an early example of the lack of legal and moral leadership on our highest Court with the invidious and blatantly unconstitutional and outright fraudulent “Muslim Ban.”
The lower Federal Courts reacted immediately with proper urgency to “just say no” to this invidious, unconstitutional, dishonest political gimmick. Because their answer clearly was correct, the Supremes had only to reinforce that message to the regime — that Trump would be required to operate within the law and to conduct himself with professionalism, honesty, and the same modicum of human decency exhibited by all other Presidents. This should have been “a piece of cake” and a golden moment for the Court to assert its independence and reinforce human decency regardless of ideology.
Rather than upholding and reinforcing this courageous and timely conduct by their subordinate jurists, the Supremes improperly and incorrectly undermined them. Then, after unnecessary delay, they let the Trump bigot/scofflaws/liars off the hook. The rout of honesty, human dignity, and our Constitution was on!
Since then, the Roberts Court has engaged in a “pattern or practice” of improper intervention to disable timely actions by the lower courts and thereby aid the White Nationalist regime’s illegal, racism-driven actions and unethical legal tactics. Nowhere has that been worse than in the gross and deadly erosion of immigrants’ rights and human rights. Real human beings continue to suffer grotesque degradations and die because some Justices wouldn’t do their jobs!
Roberts & Co. should spend some time suffering with their fellow humans in the squalid camps in Mexico they helped create; in dangerous and disgusting DHS detention that falls below standards we would inflict on convicted felons; in “baby jails;” on flights returning refugees to danger after not even taking the time to fairly listen and evaluate their claims; in “safe” third countries that are actually functionally war zones without functioning legal systems, let alone asylum systems, where corrupt regimes have neither the interest nor the ability to protect those being persecuted; or in our “Modern Star Chambers” known as “Immigration Courts” where maliciously incompetent management and a systemic contempt for due process actually threatens the lives of not only migrants, but also lawyers on both sides, the “judges,” and “court” staff.
Too many “righty judges” exist outside the reality of the daily human misery inflicted on others by their intransigence and warped anti-humanity ideology! Even some so-called“liberal” judges too often live in an “intellectual bubble” far removed from the unending ugliness and human despair daily unfolding at the “retail level of our justice system” — known as Immigration “Courts” that these days are nothing remotely resembling actual “courts.”
Those rights of the most vulnerable among us being ground into mush are all of our rights to equal justice and fundamental fairness under law. The failure to stand up for equal justice under law and social justice for all is currently ripping our nation apart and fueling a resurgence of Jim Crow racism.
Life tenure insures that our judiciary will only change over time. But, more anti-democracy, right wing jurists on our Federal Bench will exponentially decrease our chances of saving our republic. And, we can be sure that the Trump/Mitch pick to replace Justice Ruth Bader Ginsburg will push American Justice to the precipice.
We need fundamental changes in what type of persons with what type of values control and comprise all three Branches of our Government. Wemust start now, before it is too late. No system will stand up to the actions of individuals who don’t believe in its fundamental Constitutional guarantees of due process, fundamental fairness, and equal justice for all persons under law!
It’s also long past time for future Democratic Administrations aggressively to embrace and elevate the pool of tremendous legal expertise, administrative talent, moral and intellectual courage, and proven problem solving ability now out there in the private, academic, and NGO human rights and immigrants’ rights community!
These are the “anti-Stephen-Millers,” “anti Billy-the-Bigots,” and “anti-Wolfmans,” who would strive to make our Constitutional promises finally come alive for all Americans, insure equality for all before the law, and make our nation a better place for everyone, not just the privileged and powerful. Government utilizing the skills of smart, practical, humane problem solvers would also be much more efficient in spending our tax dollars than the current Government of bigots and incompetents driven by extreme bias, an exclusive vision, and highly counterproductive ideologies!
This Fall, vote like your life and the future of our Constitutional republic depend on it. Because they most certainly do!
