Immigration Court – Page 204 – immigrationcourtside.com

WashPost Editorial: Refugees Belong In America — Anti-Refugee Scare Tactics, Not So Much!

https://www.washingtonpost.com/opinions/refugees-are-part-of-americas-fabric-and-its-promise/2017/02/06/c10179ba-ea59-11e6-80c2-30e57e57e05d_story.html

“AS THE Trump administration fought in court to revive its temporary ban on entry by refugees as well as travelers from seven majority-Muslim countries, the president persisted in perversely suggesting that the judicial branch will be responsible for any terrorist attack carried out by what he portrayed as the violent hordes clamoring to enter the country.

By conflating a dangerous fiction about immigrants with blatant disrespect for an equal branch of government, President Trump fans the xenophobic flames he did so much to ignite during the presidential campaign. “Just cannot believe a judge would put our country in such peril,” he tweeted over the weekend, after a ruling by U.S. District Judge James L. Robart in Seattle, who was nominated to the court by President George W. Bush. “If something happens blame him and court system. People pouring in. Bad!”

. . . .

Even if the courts uphold its actions, it is critical that the administration not use the inevitable imperfections of any vetting process as a pretext to ban refugees for more than the 120-day period covered by the Jan. 27 order. Already, Mr. Trump has slashed the current fiscal-year target for refugee admissions to 50,000, from 110,000.

That’s a trickle when measured against the United States’ traditional role as a beacon to those fleeing violence and tyranny, and against global demand. The United Nations counts some 16 million refugees (excluding Palestinians); more than half are children . By far the largest number, nearly 5 million , are Syrians, who are barred indefinitely under Mr. Trump’s order.

“These are not Jeffersonian democrats,” sneered Mr. Bannon, referring to Muslim immigrants who entered Europe. In 2015, he asked, “Why even let ’em in?”

Similar remarks were made a century ago about immigrants from Ireland, Italy, Germany and Eastern Europe, then widely seen as unschooled, unwashed and, often, violent. No one would ask now, “Why did we even let ’em in?”

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“Not Jeffersonian democrats,” Mr. Bannon? Says who? How would you know? Where have you dealt face to face with refugees?

In my “last previous incarnation,” I dealt with refugees from a wide variety of countries on a daily basis. Most of them were folks just like you or me. The just wanted a chance to live (rather than die, be imprisoned, beaten, or otherwise tortured), work, raise their families in safety and security, and contribute to our nation. Pretty much what all of us want, in my experience.

They also had a very keen appreciation of and deep respect for what American democracy and free political and intellectual participation meant — a much clearer understanding than I have ever heard from President Trump or Steve Bannon. Someone who has been imprisoned in squalid conditions, burned with cigarette butts, beaten on the bottoms of the feet, made to walk on their knees over hot sand, or seen family members abused has a much more practical, down to earth understanding of the privilege of living in the United States than most of us who had the good fortune (not merit, but pure good fortune) to be born here.

I wake up every morning thankful that I woke up and that I’m not a refugee (particularly in the Trump/Bannon world).

PWS

02/07/17

Julia Preston (Retired From The NYT, Now At The Marshall Project) Explains Trump’s Immigration Executive Orders

https://www.themarshallproject.org/2017/02/03/decoding-trump-s-immigration-orders?utm_medium=social&utm_campaign=share-tools&utm_source=facebook&utm_content=post-top#.aYfs86zr3

“The refugee program was not the only part of the immigration system that sustained shocks this week from three executive orders by President Donald Trump. While the White House scrambled to contain the widening furor over his ban on refugees and immigrants from seven Muslim-majority countries, the administration was laying the groundwork for a vast expansion of the nation’s deportation system. How vast? Here’s a close reading of Trump’s orders:”

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Read Julia’s full analysis at the link.

Not to beat a dead horse, but it’s hard to resist. To show what a “parallel universe” executives at the EOIR live in, the article says that without the Trump priorities EOIR believes it could have begun to reduce the backlog with 330 Immigration Judges (they currently have 305, and approximately 370 are authorized). What!!!!

Math wasn’t my strong point, but let’s do some basics here. There are more than 530,000 currently pending cases in the U.S. Immigration Courts. An experienced fully trained, fully productive Immigration Judge (which none of the new Immigration Judges will be for several years, if then) can do a reasonable job on at best 750 cases per year. So, 330 fully trained Immigration Judges might be able to do approximately 250,000 cases per year without stomping on individuals’ due process rights. That’s barely enough to keep up with the normal (pre-Trump Administration) annual filings of new cases, let alone make realistic progress on a one half million backlog.

But, even that would be highly optimistic. The real minimum number of Immigration Judges needed to keep the system afloat and “guarantee fairness and due process for all,” even without the distorted Trump priorities, is 500 Immigration Judges as determined by the consensus of “outside-EOIR/DOJ management” observers. And, that’s not even considering that many of the best and most experienced Immigration Judges will be retiring over the next few years.

So, even without the Trump Executive Orders, EOIR executives were living in a dream world that had little relationship to what is happening at the “retail level” of the system, in the Immigration Courts. And, because none of the folks who sit in the EOIR HQ “Tower” in Falls Church, well intentioned as they might be, actually hear and decide cases in the Immigration Courts, the gap between reality and bureaucracy at EOIR is simply off the charts!

This system needs help, and it needs it fast! The DOJ and EOIR, as currently structured and operated, simply cannot solve the real problems of one of America’s largest, most important, most under-resourced, and most out off control court systems. Unless the Trump Administration and Congress can “get smart” in a hurry and pull together on legislation to get the Immigration Courts out of the DOJ and into an independent Article I structure, this system is heading for a monumental due process train wreck that could threaten to take the rest of the U.S. justice system along with it.

PWS

02/06/17

GW Hatchett: Professor Alberto Benitez’s GW Immigration Law Clinic Serves The Community While Teaching “Real Life” Legal Skills!

https://www.gwhatchet.com/2017/02/05/law-school-immigration-clinic-readies-for-trump-impact/

“As international students across the country grappled this week with the fallout from President Donald Trump’s immigration executive order, a group of law students were bracing to defend undocumented immigrants.

Student-attorneys from GW Law School’s Immigration Clinic arranged to hold information sessions for international students and collect donations to educate the public about what they called a misunderstood immigration system and the potential impact of Trump’s executive order.

The order blocked all refugee resettlement for four months and banned entry into the United States for citizens from seven Muslim-majority countries for 90 days. On Friday, a federal judge temporarily halted the order, reopening the country’s borders to previously blocked travelers and refugees.

While attorneys said no more students than usual have called for legal representation, they were barraged with emails from concerned international students.

The clinic co-hosted a “Know Your Rights” presentation Thursday with the Muslim Law Students Association to offer advice for non-resident students who were concerned about their immigration status.

“We’re trying to be more proactive. I think everybody right now wants to be more proactive and wants to know what can we do,” clinic attorney and law school student Fanny Wong said.

The clinic provides free legal representation for clients who face deportation or are seeking asylum or U.S. citizenship, student-attorneys said. On Tuesdays and Wednesdays, law school students wait by the phone fielding calls from immigrants who need help. Each of the nine law students takes in an average three clients at a time. The length of each case varies, some drag though the legal system for years requiring multiple students to take up the case.

Attorneys said the clinic currently didn’t have any clients from the seven affected countries, but Wong said she had a client from Sudan who became a naturalized citizen in October after a nearly nine-year-long process.

“Can you imagine the situation that she would have been had this been two months ago?” she said. “She’s relieved as well, but she’s also scared for her family and friends.”

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There will be no shortage of need for well-trained immigration and Constitutional lawyers on all sides of these issues. And, there also will be a continuing need for fair, thoughtful, scholarly judges who can find the way through the legal labyrinth of immigration and nationality law at the intersection with Constitutional protections and authorities.

PWS

02/06/15

Judge Edward F. Kelly Was Just Appointed To The “High Court Of Immigration” — Who Knew?

The answer is that “almost nobody knew” outside of the insular “tower” world of EOIR Headquarters in Falls Church, VA. It took some super sleuthing by ace Legal Reporter Allissa Wickham over at Law 360 to smoke this one out.

With a little help from her friends, the fabulous “AWick” came upon Judge Kelly’s name in the Roster of Board Members in The Board of Immigration Appeals (“BIA”) Online Practice Manual. (As the BIA Practice Manual was instituted during my tenure as BIA Chair, I’m gratified that someone out there is actually reading it.)

Armed with that tidbit of information, AWick was able to get confirmation of Judge Kelly’s appointment from EOIR spokesperson Kathryn Mattingly on Friday evening. Interestingly, Judge Kelly’s biography no longer appears in the online listing for the Office of Chief Immigration Judge, where he had served for a number of years as a Deputy Chief Immigration Judge. Nor has his name or biography appeared under the online listing for the BIA. In other words, Judge Kelly is somewhat “lost in EOIR space” — close to being a bureaucratic “non-person.”

For those who don’t know, the BIA is the highest administrative tribunal in the filed of immigration. With an authorized membership of 16 Appellate Immigration Judges (Judge Kelly became #15, leaving one vacancy), the BIA received more than 29,000 cases and completed more than 34,000 cases in FY 2015 and had nearly 17,000 pending at the end of that year. By comparison, for the same period, the U.S. Supreme Court received 6,475 cases and took only 81 for oral argument.

The Board also issues nationwide precedents that are binding on the U.S. Immigration Courts and the DHS. Although a part of the Executive, not the Judicial Branch, the BIA effectively occupies a position in our justice system just below that of a U.S. Court of Appeals.

Moreover, as I have pointed out in other blogs, because of the idiosyncrasies of the Supreme Court’s so called “Chevron doctrine,” the Courts of Appeals actually are required to “defer” to the BIA’s interpretation of ambiguous questions of law. Indeed, under the Supreme Court’s remarkable “Brand X doctrine” (“Chevron on steroids”) under some circumstances the BIA can reject the legal reasoning of a Court of Appeals and apply its own interpretation instead.

In other words, notwithstanding their rather cloistered existence, and attempt to remain “below the radar screen,” BIA Appellate Immigration Judges are some of the most powerful judges in the entire Federal Justice system. That makes the lack of publicity about Judge Kelly’s elevation to the appellate bench even more curious.

For those who don’t know him, Judge Kelly started moving “up the ladder” at EOIR when I appointed him to a newly created staff supervisory position at the BIA in the mid-1990s. He was selected because of his reputation for fairness, scholarship, strong writing, collegiality, and ability to teach and inspire others. In other staff positions at the BIA, Judge Kelly became a master of understanding, explaining, and recommending improvements to the case management system. I believe it was those skills and understanding of the mechanics of the Immigration Court System that made him rise to a Deputy Chief Judge position within the Office of Chief Immigration Judge in Falls Church.

Judge Kelly was at the BIA in the late 1990s when the EOIR Executive Group developed the “EOIR Vision” of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Although over the years, Department of Justice and EOIR management have essentially downplayed and moved away from any public expression or reinforcement of this noble vision, I’m confident that Judge Kelly remains committed to the due process mission we all embarked upon together several decades ago.

From his prior vantage point as a Deputy Chief Immigration Judge, Judge Kelly saw first-hand the docket and due process disaster caused by the DOJ’s politicized meddling in the daily case management practices of the U.S. Immigration Courts over the past several years. He also witnessed the general failure of the BIA to step up and stand up for the due process rights of individuals being hustled through the system with neither lawyers nor any realistic chance of effectively presenting their claims for potential life saving protection.

I hope that as the “new Appellate Immigration Judge on the block,” Judge Kelly will bring a forceful voice for due process and fairness to his colleagues’ deliberations. By doing so, perhaps he can persuade them to face and address some of the important due process and fairness issues in the Immigration Courts that they have been avoiding.

Judge Kelly’s professional bio (taken from his appointment as Deputy Chief Judge, in the absence of a formal announcement from DOJ/EOIR) is reprinted here:

“FALLS CHURCH, Va. – The Executive Office for Immigration Review (EOIR) today announced the appointment of a second deputy chief immigration judge (DCIJ). Effective March 10, 2013, Assistant Chief Immigration Judge (ACIJ) Edward F. Kelly will become a DCIJ. Judge Kelly will assume direct supervision of the program components in the Office of the Chief Immigration Judge (OCIJ), including the legal unit, the language service unit, the organizational results unit, the chief clerk, and the executive officer.

“Judge Kelly’s appointment as deputy chief immigration judge is in recognition of his tremendous contributions to OCIJ’s efficiencies and services,” said Chief Immigration Judge Brian M. O’Leary. “With his expanded role, I am confident OCIJ will continue to improve our operations and inspire our staff.”

Biographical information follows:

Attorney General Holder appointed Judge Kelly as an ACIJ in March 2011. He received a bachelor of arts degree in 1982 and a juris doctorate in 1987, both from the University of Notre Dame. From November 2009 to March 2011, Judge Kelly served as senior counsel and chief of staff for OCIJ. From 2007 to 2009, he was counsel for operations for OCIJ at EOIR. From 1998 to 2007, Judge Kelly was a senior legal advisor for the Board of Immigration Appeals (BIA), EOIR. From 1995 to 1998, he served as a supervisory attorney and team leader for the BIA. From 1989 to 1993 and again from 1994 to 1995, Judge Kelly was an attorney advisor for the BIA. From 1987 to 1989, he served as an assistant counsel, Subcommittee on Immigration, Refugees, and International Law, U.S. House of Representatives, Washington, D.C. From 1982 to 1984, he served in the U.S. Peace Corps in Gabon, Africa. Judge Kelly is a member of the Virginia State Bar.”

Perhaps, eventually, EOIR will announce Judge Kelly’s appointment. Who knows?

Additionally, those of you with full Law 360 access (which I don’t have) can read AWick’s full article at the Lexis link below.

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/02/03/board-of-immigration-appeals-gains-new-member.aspx?Redirected=true

PWS

02/04/17

Newsweek: Bannon Wants “American Gulag” — Will Anyone Have The Guts To Stop Him?

http://www.newsweek.com/steve-bannon-fever-dream-american-gulag-551472

Jeff Stein writes in this week’s Newsweek:

“Imagine: Miles upon miles of new concrete jails stretching across the scrub-brush horizons of Texas, New Mexico, Arizona and California, with millions of people incarcerated in orange jumpsuits and awaiting deportation.

Such is the fevered vision of a little-noticed segment of President Donald Trump’s sulfurous executive order on border security and immigration enforcement security. Section 5 of the January 25 order calls for the “immediate” construction of detention facilities and allocation of personnel and legal resources “to detain aliens at or near the land border with Mexico” and process them for deportation. But another, much overlooked, order signed the same day spells out, in ominous terms, who will go.

Trump promised a week after the November elections that he would expel or imprison some 2 million or 3 million undocumented immigrants with criminal convictions—a number that exists mainly in his imagination. (Only about 820,000 undocumented immigrants currently have a criminal record, according to the Migration Policy Institute, a nonpartisan think tank. Many of those have traffic infractions and other misdemeanors.)

Still, the spectre of new, pop-up jails housing hundreds of thousands of people is as powerful a fright-dream for liberals as it is a triumph for the president’s “America first” Svengali, Steve Bannon. But, like the fuzzy Trump order dropping the gate on travelers from seven Muslim-majority states, the deportation measure presents so many fiscal and legal restraints that is also looks suspiciously like just another act of ideological showboating from the rumpled White House strategy chief.

“I’m a Leninist,” Bannon proudly proclaimed to the writer Ronald Radosh at a party at his Capitol Hill townhouse in November 2013. “Lenin,” he said of the Russian revolutionary, “wanted to destroy the state, and that’s my goal too. I want to bring everything crashing down, and destroy all of today’s establishment.”

The executive orders were “not issued as result of any recommendation or threat assessment made by DHS to the White House,” Department of Homeland Security officials conceded in a closed-door briefing on Capitol Hill Wednesday, according to a statement from Missouri Senator Claire McCaskill. They were all Bannon-style revolutionary theater.

. . . .

Expect DHS to start advertising for bids from private prison operators, a much-maligned industry that was collapsing in the latter years of the Obama administration. Two of the largest, GEO Group Inc. and CoreCivic Inc., are already seeing windfalls from their second chance at life: Their stock prices have nearly doubled since the election.

All of which recalls another Leninist idea that Bannon may have forgotten: Prisons are universities for revolution.”

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Stein’s article confirms what many of us had suspected all along — these draconian and unnecessary measures were were “’not issued as result of any recommendation or threat assessment made by DHS to the White House.’” No, they were part of a pre-hatched anti-immigrant, anti-Muslim program cooked up by Bannon and others in the White House to “make good” on Trump’s campaign promises (regardless of whether the measures were necessary of sensible).

But they will be a boon for two important U.S. industries: the private prison industry and the legal industry, as both sides “lawyer up” for a long-term, avoidable, and wasteful fight. Who needs foreign enemies when the Administration is so determined to wage warfare against a large number of our own citizens and residents who disagree with his ill-considered and ill-timed policies?

Stein’s full article (well worth the read) is at the link.

PWS

02/03/17

AMICUS INVITATION (PROTECTED CLASS OF VICTIMS), DUE MARCH 6, 2017

Amicus Invitation No. 17-02-02
AMICUS INVITATION (PROTECTED CLASS OF VICTIMS), DUE MARCH 6, 2017

FEBRUARY 2, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUE PRESENTED:

(1) Whether, in light of the decision of the United States Court of Appeals for the Ninth Circuit in Ortega-Lopez v. Lynch, 834 F.3d 1015 (9th Cir. 2016), a conviction under 7 U.S.C. § 2156(a)(1), constitutes a crime involving moral turpitude under the Immigration and Nationality Act. In this regard, discuss whether a crime involving moral turpitude requires a protected class of victims and, if so, whether animals may constitute a protected class of victims.

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-02-02. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-02-02. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by March 6, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

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PWS

02/03/17

BREAKING: NYT: Tillerson New Secretary Of State!

https://www.nytimes.com/2017/02/01/us/politics/rex-tillerson-secretary-of-state-confirmed.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news&_r=0

The NYT reports:

“WASHINGTON — Rex W. Tillerson, the former chairman and chief executive of Exxon Mobil, was confirmed by the Senate on Wednesday in a 56 to 43 vote to become the nation’s 69th secretary of state just as serious strains have emerged with important international allies.

The many votes against Mr. Tillerson’s confirmation made his selection among the most contentious for a secretary of state in recent history, and he takes his post just as many traditional American allies are questioning the policies of President Trump. In the past 50 years, the most contentious confirmations for secretary of state were those of Condoleezza Rice in 2005, who passed by a vote of 85 to 13, and Henry Kissinger in 1973, who was confirmed 78 to 7.

Mr. Trump is the most unapologetically nationalistic president of the modern era who has questioned the value of many of the alliances and multilateral institutions that the United States has nurtured since World War II to keep world order.”

How Mr. Tillerson’s translates Mr. Trump’s vow of “America First” into the kind of polite diplomatic parlance that will maintain vital alliances will be a significant test.”

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Among Secretary Tillerson’s most Important duties as Secretary of State will be supervising the visa issuance process under the Immigration and Nationality Act, dealing with the foreign policy implications of U.S. immigration and refugee policies, negotiating international treaties, and overseeing the preparation of the U.S. Department of State’s Country Reports on Human Rights Conditions which are an important source of background information used in deciding many cases in Immigration Court and at the DHS Asylum Office as well as a tool used by refugee adjudicators in other nations that are signatories to the 1952 U.N. Refugee Convention.

Human Rights is also (or at least has been up until now) an important focus for the Secretary. And, the Administration’s inclination to turn its back on the African continent because there is “nothing in it for us” (after all, what’s the value of saving thousands of human lives compared to profit making business opportunities — America First — Humanity, why bother?) But, at some point, Secretary Tillerson is likely to discover that the Administration’s short-sighted dismissive attitude toward 1.3 billion of the earth’s inhabitants will come back to haunt him (and us).

PWS

02/01/17

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

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

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

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

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

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

PWS

01/01/17

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

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

The Hill writes:

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

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

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

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

Among the most immediate questions:

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

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

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

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

PWS

02/01/17

New From BIA — Matter of Kim, 26 I&N Dec. 912 (BIA 2017) — CA Mayhem A COV

https://www.justice.gov/eoir/page/file/933996/download

BIA headnote:

“The crime of mayhem in violation of section 203 of the California Penal Code, which requires a malicious act that results in great bodily injury to another person, necessarily involves the use of violent force and is therefore categorically a crime of violence under 18 U.S.C. § 16(a) (2012).”

PANEL: JUDGES PAULEY, MALPHRUS, MULLAINE

Decision by Judge Malphrus

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PWS

01/31/17

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

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

Philip Rucker and Robert Costa write in the Washington Post:

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

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

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

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

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

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

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

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

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

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

PWS

01/30/17

Jill Family: Due Process On The Run

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

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

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

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

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

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

PWS

01/29/17

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

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

Case No. 1:17-cv-116

Date: January 28, 2017

Ammar Aqel Mohammed Aziz, by their next friend,

Aqel Muhammad Aziz, and

John Does 1-60, Petitioners,

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

Respondents.
TEMPORARY RESTRAINING ORDER

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

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

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

Dates: January 28, 2017

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

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

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

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

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

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

PWS

01/29/17

N. Rappaport Explains Trump’s EO On Interior Enforcement In The Hill!

http://thehill.com/blogs/pundits-blog/immigration/316654-on-immigration-trump-will-learn-promises-are-easier-made-than

Nolan concludes:

“President Trump deserves credit for trying to carry out his campaign promises on interior immigration enforcement, but it is a tall order. It always was.”

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

PWS

01/28/17

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

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

AIMEE PICCHI/MONEYWATCH writes:

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

01/28/17

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