Fourth Circuit – immigrationcourtside.com

🤮🏴‍☠️ “AMERICA FIRST” HAS ALWAYS BEEN ABOUT PUTTING MANY AMERICANS & AMERICAN VALUES LAST! — It’s An Ugly, Yet Long Standing, Part Of Our History Embodied In The Anti-Democracy MAGA Movement!

https://www.washingtonpost.com/outlook/2022/09/09/america-first-american-dream-trumpism/

Sarah Churchwell writes in the WashPost:

. . . .

The phrase “America First” fell rapidly into disrepute during World War II, largely because the America First Committee (whose most prominent spokesman was Charles Lindbergh) had urged non-intervention and appeasement and been accused of anti-semitism and fascist sympathies. It was then consigned to temporary obscurity, but not everyone forgot. The slogan was periodically recalled to articulate resurgent right-wing nationalism, often explicitly white nationalism, from Gerald L.K. Smith, once known as “America’s most notorious antisemite,” who founded the America First Party in the 1940s, to Barry Goldwater, hailed by his supporters as an “America First” politician and described by the conservative National Review in 1963 as standing for “States’ Rights, strict construction, limited government, private enterprise, and America first, last and always.” It was used to describe David Duke and George Wallace, before being resuscitated by Pat Buchanan (“We are not isolationists. We simply believe in America first, last and always,” he declared in 2000) in his presidential campaigns. A certain Donald Trump flirted with making his own run under Buchanan’s Reform Party banner, then brought the phrase triumphantly back a century after Wilson popularized it.

[Competing visions of the American Dream are driving Democrats and Republicans apart]

Now the America First Policy Institute declares that its slogan is “America First, Always” and that its immigration policy will mean no longer putting “America last” — echoing the language of a March 1922 editorial from what was then the nation’s most popular weekly, the Saturday Evening Post, as it harangued its readers about the “immigration problem” caused by “our policy of putting the alien and his interests first, and America last.”

These “America First” initiatives go beyond attempts at excluding the “alien” that were already divisive, and futile, a century ago. One of the most prominent spokesmen for “America First” today is Nicholas Fuentes, a white Christian nationalist who organized the America First Political Action Conference earlier this year. Fuentes was also present at the storming of the Capitol, as were his “Groyper” followers, waving his “AF” flags. Fuentes declared: “It is the American people, and our leader, Donald Trump, against everybody else in this country and this world.” That is certainly what “America First” has meant in the past, as its leaders promise that only they can put America first, by inflaming divisions against nearly every other human being. But it is “America First” that endures, not its erstwhile leaders — and its history offers a pretty good indication of what to expect from Trumpism without Trump.

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I highly recommend that everyone read Sarah’s full article at the link.

Immigrants are almost always the first target of this “confederacy of cowards” — because they are most vulnerable. U.S. courts have traditionally been unwilling to effectively enforce the constitutional and legal rights of “the other.” But, as pointed out in the article, the hate and resentment continues to pour out against additional groups and individuals until “almost every other human being” becomes a target.

We see it today in Virginia Governor Glenn “Junkman” Youngkin’s recent cowardly and unconstitutional “targeting and bullying” of transgender school kids under the ridiculously bogus rubric of “parents rights.” Just where does the “right” of neo-fascist parents to bully the children of others come from?

The Fourth Circuit Court of Appeals in the Grimm case in 2020 already has found that “Junkman’s” scofflaw attempt to force transgender kids to use the wrong bathroom likely will be held unconstitutional. But, the Constitution and laws have never been anything but “convenient props” for America Firsters!” Compare the courage of the Grimm plaintiff with the ugly cowardice of the “Junkman” and his followers. (This following “Junkman’s” outrageous trip to Maine to campaign for notorious racist GOP gubernatorial candidate Paul LePage).

But, the Fourth Circuit might be an aberration. Often, getting reactionary judges who lack the character and guts to stand up against demonization of their fellow humans helps fuel and protect the “America First” movement from accountability. That’s certainly been at the core modern GOP mis-governance, and the Dems have been painfully “slow on the uptake” in countering it. You have only to look at Merrick Garland’s astounding mis-handling of the reactionary, weaponized, and totally dysfunctional Immigration “Courts” under his control to see just how slow!

In the end, it will be up to the upcoming generation to decide what kind of America they want to live in: An America that respects and honors the dignity, worth, and human potential of all of its inhabitants and serves as a model of tolerance and inclusion for the rest of the world? Or, an America where a minority of extreme right wing authoritarians are at war with the rest of us and, indeed, with humanity itself. Your choice!

🇺🇸 Due Process Forever!

PWS

09-18-22

🏴‍☠️🤮👎🏻RACISM IN AMERICA: With Racially Tone-Deaf Judge J. Harvie Wilkinson & His Righty Buddy Judge Paul Niemeyer Leading the Way, Split 4th Circuit Panel, Says “Yes” To Trump/Miller White Nationalist Attack On Public Benefits For Immigrants of Color!

Dean Kevin Johnson @ ImmigrationProf Blog reports:

https://lawprofessors.typepad.com/immigration/2020/08/fourth-circuit-vacates-injunction-against-public-charge-immigration-rule.html

Thursday, August 6, 2020

Fourth Circuit Vacates Injunction Against Public Charge Immigration Rule

By Immigration Prof

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Courthouse News Service reports that the Fourth Circuit yesterday ruled 2-1 (opinion by Judge J. Harvie Wilkinson, with Judge Robert B. King dissenting) in favor of a Trump administration policy that makes it more difficult for noncitizens to become lawful permanent residents if they have received public benefits.

The ruling does not, however, change an injunction issued last week by a federal judge in New York barring enforcement of the so-called public charge rule.

The Second Circuit affirmed the injunction but limited its scope to New York, Connecticut and Vermont. The appeals court found the government’s justification for the rule is “unmoored from the nuanced views of Congress.”

KJ

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Judge Wilkinson’s racially insensitive judging recently was publicly “called out” by Fourth Circuit Chief Judge Roger Gregory in a remarkably honest and incisive opinion. https://immigrationcourtside.com/2020/07/16/%e2%9a%96%ef%b8%8fcalling-out-white-nationalist-judging-in-a-remarkable-opinion-4th-cir-chief-judge-roger-gregory-blasts-colleagues-retrograde-views-on-race-judging-policing-communiti/

Perhaps, dissenting Judge Robert B. King best sums up his colleagues’ willingness to distort the law and pervert rationality in support of the regime’s racist-driven, White Nationalist Immigration agenda:

In the face of the extensive history accompanying the term “public charge,” to conclude that the DHS Rule’s definition of “public charge” is reasonable makes a mockery of the term “public charge,” “does violence to the English language and the statutory context,” and disrespects the choice — made consistently by Congress over the last century and a quarter — to retain the term in our immigration laws. See Cook Cty., 962 F.3d at 229. For those reasons, the Rule’s “public charge” definition ventures far beyond any ambiguity inherent in the meaning of the term “public charge,” as used in the Public Charge Statute, and thus fails at Chevron’s second step. In light of the foregoing, the plaintiffs are likely to succeed on the merits of their claim that the Rule is unlawful, and the majority is wrong to conclude otherwise.

Equal justice for all, due process, reasonableness, and non-racist judging aren’t “rocket science.” That’s why Wilkinson had to cloak his anti-immigrant bias with 71 pages of irrational nonsense and legal gobbledygook.

Just another example of the U.S. District Judge “getting it right” only to be undermined by bad judging from higher Federal Courts. Unwillingness of the Federal Judiciary to take a unified strand for equal justice and against institutionalized racism and the White Nationalist agenda of the Trump regime is literally ripping our nation apart as well as showing the fatal weakness of the Federal Judiciary as a protector of our democracy and our individual rights.

Folks like Wilkinson and Niemeyer are what they are. But, we have the power to elect a President and a Senate who will appoint judges who actually believe in Constitutional due process and equal justice for all, regardless of color or status. Judges who will “tell it like it is,” “just say no” to “Dred Scottification” of “the other,” and courageously stand up for an unbiased interpretation the law and for simple human decency, rather than pretzeling themselves to defend an indefensible Executive agenda of unbridled White Nationalism and racism.

This November vote like your life and the future of our nation depend on it. Because they do.

PWS

08-06-20

“GONZO APOCALYPTO” SLAMMED: UNANIMOUS PANEL OF 4TH CIR. REJECTS MATTER OF CASTO-TUM — Exposes Irrationality Of Biased, Unqualified Restrictionist Former AG — “ADR” Outed — “Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving IJs and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding, as illustrated by Avetisyan, and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate.”

Zuniga Romero – CA4 Decision (8-29-2019)

ZUNIGA ROMERO V. BARR, NO. 18-1850, 4th Cir., 08-29-19, published

PANEL: AGEE, FLOYD, and THACKER, Circuit Judges.

OPINION BY: Judge Agee

KEY QUOTE:

In the absence of Auer deference, the weight given to a BIA decision “hinges on the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade”—that is, whether the interpretation should be afforded Skidmore deference. Zavaleta–Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (internal quotation marks omitted). And here, a court reviewing Castro-Tum for Skidmore deference would not be persuaded to adopt the agency’s own interpretation of its regulation for substantially the same reasons it is not entitled to Auer deference: because it represents a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements. As a result, it lacks the “power to persuade.” Id.; see also Kisor, 139 S. Ct. at 2427 (Gorsuch, J., concurring) (contending that an agency interpretation of a regulation should as an initial matter be “entitled only to a weight proportional to ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade’” (quoting Skidmore, 323 U.S. at 140)). Put another way, even under the view set forth by Justice Gorsuch in Kisor, the Attorney General’s interpretation would amount to a failure of proof because the evidence—that is, Castro- Tum—comes too late in the game.

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In sum, the result is that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon IJs and the BIA the general authority to administratively close cases such that the BIA’s decision should be vacated and remanded.

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A huge victory for the “New Due Process Army.” The “Roundtable of Former Immigration Judges” actually filed an amicus brief before Sessions in Castro-Tum raising many of the points found determinative by the Fourth Circuit. Our brief was, of course, ignored by “Gonzo,” who undoubtedly had already drafted his decision along the lines dictated to him by some restrictionist interest group.

Finally, an Article III Court “gets” how the DOJ under the Trump Administration is promoting “Aimless Docket Reshuffling” (“ADR”) in an attempt to build the backlog, destroy the system, blame the victims (respondents and their, largely pro bono, attorneys), and dishonestly call upon GOP Legislators to mount a pernicious attack on constitutional Due Process by statute!

The idea that adding 330,000 cases to the already backlogged Immigration Courts was legally required or a good policy idea clearly is a piece of White Nationalist restrictionist propaganda promoted by corrupt public officials like Miller, Sessions, and Barr.

With the Democrats in control of the House, there is no way that Congress will eliminate “Administrative Closing” by statute. And, while the DOJ under the sycophantic Barr might try to change the regulation, this decision makes it very clear that there is no rational basis for doing so. Therefore, any future regulation change is likely to be tied up in litigation in the Article III Courts for years, adding to the confusion and ADR, as well as threatening to immobilize the Article III Courts.

Unless the Article III Courts want their dockets to be totally swamped with immigration appeals, the answer is to end this unconstitutional system administered by an Attorney General clearly unfit to act in a quasi-judicial capacity and place the Immigration Courts under a court-appointed independent “Special Master” to insure fairness, impartiality, and other aspects of Due Process until Congress fixes the glaring Constitutional defect by creating an independent U.S. Immigration Court outside of the DOJ.

PWS

08-29-19

SOPHIA GENOVESE: Advocates Must Keep Pushing Back Against DOJ’s Bias & Unduly Restrictive Interpretations Of Asylum Law!

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/acting-ag-whitaker-takes-aim-at-asylum-seekers-fleeing-family-based-persecution—sophia-genovese

Sophia writes in an article that was published at LexisNexis:

Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution – Sophia Genovese

Sophia Genovese, Dec. 10, 2018 – “Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under 8 U.S.C. 1101(a)(42)(A) based on the alien’s membership in a family unit.”

As background, the Board of Immigration Appeals (BIA) in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) recognized that membership in a family unit constitutes a particular social group. However, it held that to establish eligibility for asylum on such a basis, “an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” The BIA denied asylum to the respondent, L-E-A-, for failing to meet this nexus requirement. The respondent was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to abduct him, but he was able to get away. The respondent fled to the United States and sought asylum. The IJ and BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, they argued, the persecution was not due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The BIA in Matter of L-E-A- recognized the long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Indeed, the BIA found that L-E-A-’s membership in his family constituted a particular social group. Instead, the key issue was whether the harm he experienced or feared was on account of his membership in that particular social group. The BIA in L-E-A- upheld the IJ’s decision below, opining that “any motive to harm the respondent because he was a member of his family was, at most, incidental…[Rather,] the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.” 27 I&N Dec. at 46.

As we and others have previously discussed, the BIA missed the mark in L-E-A-. The BIA in L-E-A- critically notes that “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” 27 I&N Dec. at 44. Under this reasoning, L-E-A- should have been granted asylum. But for L-E-A-’s familial relationship with his father, he would not have been targeted by the cartel. In other words, despite their motivation of wanting to sell drugs at his father’s store, the cartel’s motivation in targeting L-E-A- was to get to his father, thus satisfying the nexus criteria. There is a reason why the cartel did not target the father’s neighbor – because the neighbor does not have a close, i.e. family, relationship to him. That the cartel ultimately had monetary motivations is irrelevant in the analysis of why they persecuted L-E-A-.

It is unclear how the Acting AG, or the incoming AG (anticipated to be William Barr), will rule in a case that has already made the obstacles more onerous for asylum-seekers. Given the administration’s animus towards asylum-seekers, it is unlikely that they seek to redress the problems with the BIA’s holding. Rather, it is likely that the Acting AG seeks to build upon the BIA’s flawed reasoning and make it even more difficult for those to flee persecution and obtain asylum. The BIA in Matter of L-E-A- affirmed, without question, that kinship ties are inherently a particular social group. Given the wording of the Acting AG’s question Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018), he will likely attack the case on this front.

As outlined by the BIA in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), and reiterated above, there is no clearer definition of particular social group than kinship ties. To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. Family units very clearly satisfy each of these requirements, where you cannot change who your family is, where who members of your family are can be defined with particularity, and where others in society can recognize you as a member of your family. A challenge to the family unit particular social group would undermine the construction of nearly all particular social groups thereafter.

Once formulating one’s social group, the applicant must also show that their persecution was on account of their membership in the social group (the “nexus requirement”), and that the government in the country of origin is unable or unwilling to afford them protection from such persecution. As we’ve previously argued, the Courts need to clarify the nexus requirement. In Matter of L-E-A-, for example, the nexus analysis needed to have focused specifically on why L-E-A- was targeted and persecuted – not what the cartel’s ultimate aim was after targeting him. Clarification on this issue is imperative for uniform adjudication of particular social group asylum cases. Additionally, given AG Sessions’ holding in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), future courts and advocates will need to clarify the state protection analysis, especially when the persecution is carried out by private actors. In particular, advocates will need to demonstrate through country conditions reports and expert testimony that the country of origin is unable or unwilling to provide protection from these private actors. In Matter of L-E-A- in particular, one can demonstrate that the cartel acts as a quasi-government in the respondent’s town, and that the police do not have control (or choose not to have control) over them.

Although the legitimacy of Acting AG Whitaker’s appointment, and thus his self-referral of cases, has been called into question, advocates must instead focus their efforts on litigating the asylum requirements. The constant self-referral of cases and unilateral, sweeping changes to the law have been tiresome for immigration advocates; however, we should use these opportunities to litigate existing, flawed case law to create a more robust asylum framework so that we can actually protect those fleeing violent persecution.”

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Sophia is absolutely correct!

Like Sessions, Whitaker combines a White Nationalist agenda with some poor intellectual and lawyering skills. Not surprising, because lawyers advancing a racially biased restrictionist agenda are obviously driven by something outside, and usually not even very closely related to, the law and conventional human values.

Their arrogant and outrageous disregard of the law and facts provides a good opportunity for asking Article III Courts and Congress to finally adopt and enforce a legally appropriate, generous, humanitarian approach to asylum law as was directed by the Supremes back in INS v. Cardoza-Fonseca. Notwithstanding some meaningful advances over the three decades since that decision, the “promise of Cardoza” for U.S. asylum law has never been fully recognized.

And this Administration is hell-bent on rolling back even the modest advances that had been painstakingly made. Now is the time to make asylum law work as it was supposed to! Human lives and our integrity as a nation of laws and values depend upon it!

Join the New Due Process Army and fight to hold the “Department of Injustice” and its biased and deviant officials accountable to the law and to history for their naked racism, extreme intellectual dishonesty, failure to uphold the rule of law, and cowardly contempt for human life! Yes, it’s annoying. Yes, it’s hard work! But, in the end it will be worth it to know that you did something worthwhile in your life. And there are few things more worthwhile than protecting the rights and saving the lives of the most helpless, exploited, and vulnerable among us.

For those of you new to “Courtside,” both Judge Jeffrey Chase and I have previously written about how the BIA stood the law of causation on its head to deny a very grantable asylum claim in Matter of L-E-A-. https://wp.me/p8eeJm-UI

https://wp.me/p8eeJm-UI;

Indeed, the Fourth Circuit later absolutely trashed the BIA’s L-E-A- rationale on nexus in Salgado-Sosa v. Sessions, without mentioning L-E-A- by name. https://wp.me/p8eeJm-2aS.

The Fourth and other Circuits have also been very strong in recognizing “family” as a PSG. Indeed, one of the seminal “family-based” cases was Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). That was a case where the Fourth Circuit reversed and slammed the BIA while affirming my finding as an Immigration Judge that a family-based PSG was cognizable. In other words, I was right and the BIA was wrong. But, hey, who’s keeping track?

Now, Whitaker seeks to make things even worse. We should all be totally outraged that the Immigration Courts are under the control of the DOJ and political officials who are completely unqualified to sit in a quasi-judicial capacity. It’s “Clown Court;” but, in this case, the “clowns” are threatening innocent people’s lives!🤡

PWS

12-13-18

NOT YOUR FATHER’S FOURTH CIRCUIT: Technology, Innovation, & A More Diverse Judiciary Change Tribunal Sitting In The Former Capital Of The Confederacy!

https://www.washingtonpost.com/opinions/after-a-ruling-on-trumps-travel-ban-all-eyes-are-on-the-4th-circuit/2017/06/02/b7a555f2-4545-11e7-bcde-624ad94170ab_story.html?utm_term=.825d55d2e2d7

Carl Tobias reports for the Washington Post.

“The U.S. Court of Appeals for the 4th Circuit is a court in transition. The Richmond-based appeals court was long considered the most ideologically conservative of the 12 regional circuits, the intermediate appellate tribunals across the country that are the courts of last resort for 99 percent of appeals. When a case heard in Maryland and Virginia federal district courts is appealed, it goes to the 4th Circuit. This is the court that has resolved appeals involving Maryland gun laws and Virginia transgender students’ rights, for example.

And change has come to the 4th Circuit.

This was recently on display when the entire court — all judges in active service who did not have conflicts of interest — substantially affirmed a Maryland district court’s nationwide injunction that blocked enforcement of President Trump’s revised travel ban. Notably, a majority of the judges proclaimed that the Constitution “protects Plaintiffs’ right to challenge the Executive Order that in text speaks in vague words of national security, but in context drips with religious intolerance, animus and discrimination.”

For decades, the 4th Circuit was a conservative stronghold. Seated in the former capital of the Confederacy, the court hears appeals in the Lewis F. Powell Jr. Courthouse, a building that served as the official headquarters for Confederate President Jefferson Davis. The circuit retains Southern manners. For instance, judges descend from the bench after oral arguments to shake the hands of counsel.

President George W. Bush tried to continue the court’s conservative legacy when numerous vacancies materialized in his administration. However, the White House insisted on pressing for confirmation of nominees whom many Democratic senators considered outside the mainstream, even after Democrats had captured a Senate majority in November 2006. Political machinations left four vacancies at the Bush administration’s close, enabling President Barack Obama to appoint numerous judges. The court now has nine members whom Democratic presidents appointed, five whom Republican presidents confirmed and Chief Judge Roger Gregory, whom President Bill Clinton recess-appointed and Bush confirmed.

Two recent developments in the travel ban appeal demonstrate change in the court. First, all of the active judges without conflicts heard the appeal, called an initial en banc proceeding, which is so extraordinary that the last one was decades ago. One judge, not the parties, suggested this procedure, and the court requested the litigants’ views on an en banc process, while a circuit majority favored it apparently because of the appeal’s exceptional public importance.

Another sign of change was the court’s April 27 announcement that the argument would be livestreamed. Allowing “cameras in the courtroom” has proved extremely controversial at the Supreme Court, which has never permitted live broadcast of arguments. Indeed, since-retired Justice David Souter famously declared “over my dead body.” A few lower federal courts allow broadcasts. The 9th Circuit began livestreaming all oral arguments in 2015.”

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Read the complete article at the above link.

As a U.S. Immigration Judge sitting in the Fourth Circuit, I credited the Fourth Circuit’s carefully-crafted asylum jurisprudence and overriding concern for due process and fairness for asylum seekers as reasons why asylum grant rates were relatively high in the Arlington and Baltimore Immigration Courts (of course, along with my judicial colleagues’ careful attention the what the Fourth Circuit was saying; new Fourth Circuit rulings were a frequent topic of our lunch conversations.)

Apparently, however, the word didn’t reach as far south as the Charlotte Immigration Court, where advocates regularly complain of the rights of asylum seekers being “steamrolled.” To date, the BIA has failed to step in and fix the Charlotte situation. And, I wouldn’t expect it to happen with Jeff Sessions in charge of the U.S. Immigration Courts.

PWS

06-04-17

BREAKING: 4th Circuit Slams Travel Ban — Losses Continue To Pile Up For Trump — Majority Finds Trump Acted In Bad Faith!

Here’s a key excerpt from the majority opinion by Chief Judge Gregory:

“As we previously determined, the Government’s asserted national security interest in enforcing Section 2(c) appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country. We remain unconvinced that Section 2(c) has more to do with national security than it does with effectuating the President’s promised Muslim ban. We do not discount that EO-2 may have some national security purpose, nor do we disclaim that the injunction may have some impact on the Government. But our inquiry, whether for determining Section 2(c)’s primary purpose or for weighing the harm to the parties, is one of balance, and on balance, we cannot say that the Government’s asserted national security interest outweighs the competing harm to Plaintiffs of the likely Establishment Clause violation.

For similar reasons, we find that the public interest counsels in favor of upholding the preliminary injunction. As this and other courts have recognized, upholding the Constitution undeniably promotes the public interest. Giovani Carandola, 303 F.3d at 521 (“[U]pholding constitutional rights surely serves the public interest.”); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” (quoting Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002))); Dayton Area Visually Impaired Pers., Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (“[T]he public as a whole has a significant interest in ensuring…protection of First Amendment liberties.”). These cases recognize that when we protect the constitutional rights of the few, it inures to the benefit of all. And even more so here, where the constitutional violation injures Plaintiffs and in the process permeates and ripples across entire religious groups, communities, and society at large.

When the government chooses sides on religious issues, the “inevitable result” is “hatred, disrespect and even contempt” towards those who fall on the wrong side of the line. Engel v. Vitale, 370 U.S. 421, 431 (1962). Improper government involvement with religion “tends to destroy government and to degrade religion,” id., encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group. “The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J. concurring). We therefore conclude that enjoining Section 2(c) promotes the public interest of the highest order. And because Plaintiffs have satisfied all the requirements for securing a preliminary injunction, we find that the district court did not abuse its discretion in enjoining Section 2(c) of EO-2.”

Here’s the Court’s entire 205-page opinion including separate opinions:http://www.ca4.uscourts.gov/Opinions/Published/171351.P.pdf

Judges Agee, Niemeyer, and Shedd dissented.

PWS

05-25-17

WashPost: Professors (And Former USG Senior Execs) Martin & Legomsky Analyze Judge Brinkema’s Travel Ban Decision — Religious Discrimination Finding Might Be Key To Opponents’ Future Success (Or Not)!

https://www.washingtonpost.com/local/public-safety/why-virginia-matters-in-the-travel-ban-fight/2017/02/14/27cfff3c-f2ec-11e6-b9c9-e83fce42fb61_story.html?utm_term=.880047c24800

Rachel Weiner reports:

“’Judge Brinkema spells out a lot more; she really fleshes out one of the possible claims, and that’s the religious discrimination claim,’” said David Martin, a professor at the University of Virginia who, for many years, helped shape immigration policy inside the government. ‘That may well prove to be the strongest or more fruitful line of inquiry for the plaintiffs in these various cases, particularly if they’re trying to reach past green-card holders or people on immigrant visas. It’s hard to get there without a religious discrimination case of some kind.’”

. . . .

“’It was a very well-reasoned, thoughtful decision. Frankly, I think, a more careful decision than the 9th Circuit decision,’ said Steve Legomsky, former chief counsel for immigration services in the Department of Homeland Security. In her opinion, Legomsky said, Brinkema ‘pretty methodically went through the various statements by Trump. . . . They put great weight on the opinions of the former national security officials to show the absence of counterevidence from the Trump administration. For both of those reasons, I think the Virginia opinion is very important.’
Brinkema also brings to the case extensive national security experience. She presided over the trial of Sept. 11, 2001, conspirator Zacarias Moussaoui, among other high-profile cases.

‘It was a thoughtful opinion, it’s well considered, it wasn’t hastily done like some of these other decisions had to be in light of circumstances,’ said Justin Cox of the National Immigration Law Center. His group is involved in several lawsuits against the ban, including one filed in Maryland last week focused on refugees. That case is specifically focused on religious discrimination.

‘Legally [the Virginia ruling] is actually quite significant because it’s the first court to squarely hold that the executive order violates the establishment clause,’ Cox said.

The danger for opponents of the ban is that, should the Justice Department appeal Brinkema’s decision, they will face the more conservative 4th Circuit rather than the left-leaning 9th Circuit.

‘It would be a close call,’ Legomsky said. ‘There is such strong evidence of religious discrimination — it’s really hard to know.’”

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

As noted in this article, in addition to being leading academic “immigration gurus,” both Professor Martin and Professor Legomsky have lived in the “real world” of shaping Government policies and managing programs that actually implement those policies.

As they point out, while many of the objections to the “travel ban” could be eliminated by applying it just prospectively to those outside the U.S. who have not previously been admitted, that wouldn’t necessarily overcome Judge Brinkema’s finding that the “national security” reasons asserted by the Government in her court were merely “pretext” for unconstitutional religious discrimination.

While Justin Cox might be correct that the Fourth Circuit is not as liberal as the Ninth Circuit, that distinction probably would apply to every other Circuit Court of Appeals. Having spent 13 years as an Immigration Judge in Arlington, where my decisions ultimately could be reviewed by the Fourth Circuit and Fourth Circuit law applied, I found their immigration rulings very balanced. Indeed, they sometimes cited Ninth Circuit precedent and even were ahead of the Ninth in recognizing some migrants’ rights.

While the Fourth Circuit affirmed the overwhelming majority of BIA and Immigration Judge decisions in unpublished, non-precedential decisions, when they spoke in published precedents they always had important guidance to offer. The Fourth Circuit also was not afraid to stand up to the Government and “call them out” when necessary in the field of immigration.

And, at least in the Arlington Immigration Court, we trial judges paid close attention. I think that the Fourth Circuit’s very fair and well-reasoned asylum jurisprudence, in some significant ways more faithful to the asylum law and regulations than rulings of the BIA, was one reason why asylum applicants were often successful in Arlington. That’s also why many asylum cases in Arlington could be resolved by the parties in “short hearings” based on extensive written documentation and application of the Fourth Circuit law.

There is also a wonderful pastel portrait of Judge Brinkema in her court with the full article at the link. Check it out!

PWS

02/16/17

Sarah Churchwell writes in the WashPost:

🇺🇸 Due Process Forever!

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