Immigration Crisis – Page 204 – immigrationcourtside.com

NPR: Sessions Out To Destroy US Immigration Court System — “All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ!”

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

Joel Rose reports for NPR:

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

Now Attorney General Jeff Sessions is considering overruling the judges.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I also have some comments on this article.

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

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

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

PWS

03-30-18

STEVE VLADECK: How U.S. Courts Undermine Our Constitution — A Constitution Without Remedy For Violations Is An Empty Document!

https://www.nytimes.com/2018/03/27/opinion/increasingly-unenforceable-constitution.html

Vladeck writes in a New York Times op-ed:

For all of the attention that we pay to our constitutional rights, we devote stunningly little attention to the more legalistic — but no less important — topic of how those rights are enforced. And as a largely unnoticed rulinglast week by the full United States Court of Appeals for the Fifth Circuit demonstrates, the Supreme Court has quietly made it all but impossible for most victims of constitutional violations by the federal government to obtain relief.

Not only is this development antithetical to the core purpose of having an independent judiciary, but it will almost certainly lead to more unconstitutional conduct by even the most well-meaning federal officers, who, in most cases, no longer have to seriously worry about the specter of judicial review.

Image
Maria Guadalupe Guereca’s son was shot dead in Mexico near the border by a patrol agent on the U.S. side.CreditYuri Cortez/Agence France-Presse — Getty Images

The case that the New Orleans-based federal appeals court ruled on involved the fatal cross-border shooting of an unarmed 15-year-old Mexican national on Mexican soil by a United States Border Patrol agent standing on American soil. The family of the victim, Sergio Hernández, sued the responsible agent, Jesus Mesa, claiming that the shooting was unprovoked and violated the teenager’s rights under the Fourth and Fifth Amendments. Whether the Constitution protects a foreign national standing on foreign soil in a case like this is an interesting and still-open question. But rather than resolving that issue, the Court of Appeals held, by a 13-2 vote, that it didn’t matter; even if the shooting violated clearly established constitutional rights, the majority concluded, the federal courts should not recognize a remedy of damages for fear of intruding upon the legislative and executive branches of government.

. . . .

That’s a troubling conclusion, because government officers like Agent Mesa will have less of a reason to worry about the constitutional rights of those with whom they interact. But at a deeper level, our constitutional rights aren’t worth all that much if there’s no mechanism for enforcing them. One can only hope that sometime soon the Supreme Court comes to its senses and agrees.

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Go on over to the NYT at the link for the full op-ed.

I decried the Fifth Circuit’s dereliction of duty in a recent blog focusing on the much more persuasively reasoned and powerful dissent by Judge Edward Prado. But, only one of his other 14 black-robed Ivory Towerists were willing to join Judge Prado, step up to the plate, and defend our constitutional rights. What kind of folks and jurists are getting these lifetime sinecures just to avoid controversy and not to stand up for what’s right?

Yup. Today it’s just some Mexican kid (who also happened to be a human being and someone’s son) who was shot by the Border Patrol. But, tomorrow it might be your son or daughter or you yourself whose rights are violated. And, who is going to step up and vindicate your constitutional rights? Certainly not the 13 judges of the Fifth Circuit majority in Hernandez v. Mesa who looked for and found ways to avoid their collective duty to uphold our Constitution.

PWS

03-29-18

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

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

By Joshua Matz March 27 at 7:14 PM

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

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

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

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

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

. . . .

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

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

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

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Go on over to the WashPost at the link for the complete article.

The problem, as noted by Matz, is that our system isn’t designed to deal with unremitting hate and bias from it’s most active, and supposedly most responsible, litigant, the U.S. Government. Usually, after a few “warning shots across the bow,” the Executive gets the picture and changes strategies.

But, led by White Nationalists like Trump and Sessions, this Administration simply “doubles down” on thinly disguised hate and bias motivated policies. At some point, the Article III courts are likely to become both frustrated and exhausted. By continuing to “knock down” bias-based policies and actions, the Article IIIs become part of the political fray, which makes them uncomfortable. Perhaps at that point, they will just start giving Trump & Co. “free passes.” Indeed, some Federal Courts, including perhaps the Supremes, already appear prepared to “punt” on the daily dose of legally questionable and indecent legal positions spewed forth by this Administration.

PWS

03-29-18

BIA IN FANTASYLAND: Evidence Continues To Mount That BIA’s Deference To Border Statements In Matter of J-C-H-F- Was a Flight of Fantasy That No Reasonable Fact Finder Would Have Reached – How You Can Fight Back Against This Blatant Perversion Of Justice!

http://immigrationimpact.com/2018/03/26/uscis-records-abusing-asylum-seekers/

AARON REICHLIN-MELNICK writes in Immigration Impact:

As thousands of Central American families arrived at the U.S.-Mexico border asking for asylum in 2014, human rights organizations raised alarms about asylum seekers’ treatment by Customs and Border Protection officials. But these organizations were not the only ones expressing concern—asylum officers within U.S. Citizenship and Immigration Services also raised alarms about CBP misbehavior.

A new Freedom of Information Act lawsuit hopes to reveal how asylum officials’ repeated concerns about CBP officer misconduct were left unaddressed. The lawsuit, filed by Human Rights Watch and Nixon Peabody LLP, seeks information about such misbehavior, including hundreds of reports that CBP failed to properly screen asylum seekers.

This lawsuit comes after Human Rights Watch, along with the American Immigration Council, filed a FOIA request asking for records of complaints made by officers in USCIS’s Asylum Division. The lawsuit asks USCIS to turn over all records of complaints about CBP misconduct from 2006 to 2015, arguing that the agency violated FOIA by failing to provide requested key documents following the original request. These documents included a spreadsheet where asylum officers purportedly documented hundreds of instances of “problematic Border Patrol practices.”

CBP officers at ports of entry and along the U.S. border are generally the first to encounter newly arriving asylum seekers. When asylum seekers express a fear of returning to their home country to a CBP officer, the officer is required to refer them to an asylum officer with USCIS for an interview. The asylum officer decides whether the asylum seeker has a “credible fear” of persecution, a determination which allows the asylum seeker to pursue an asylum case in immigration court.

Because these credible fear interviews occur after an asylum seeker has already been processed by CBP officers at the border or ports of entry, asylum officers are able to ask about any encounters with CBP. The limited records USCIS offered in response to the FOIA show that asylum officers often had serious concerns about the behavior of its sister agency.

The documents produced to date demonstrate how grave the problem is:

One email from an asylum officer to a supervisor expresses a belief that there are “significant issues in how some Border Patrol officers are screening individuals.”

A second email discusses an incident where “CBP mocked a transgender woman for hours and refused to record her fear” of returning to her home country. These internal reports of CBP abuse match the reports of many asylum seekers who encountered abuse at the hands of CBP officers during the same time period.

A third email from an asylum officer expressed concerns that an asylum seeker was coerced into withdrawing his request for asylum, with the officer writing that: “What is especially disturbing about this is that … the record indicates that [the asylum seeker] has been subjected to harassment, intimidation, and physical mistreatment by CBP upon his recent entry into the United States, and this mistreatment. . . affected his decision to dissolve his case.”

Records of CBP’s mistreatment of asylum seekers is especially important as the numbers of asylum-seekers at the border continue to rise. Last year, groups sued CBP, alleging a pattern or practice of unlawfully turning away asylum seekers who arrived at ports of entry and requested asylum. In light of CBP’s own inadequate complaint system, this new lawsuit could substantiate the many reports of the agency’s misconduct.

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Both Judge Jeffrey Chase and I have “roasted” in prior blogs the BIA’s disingenuous and “clearly erroneous greenlighting” of Border Patrol statements in Matter of J-C-H-F, 27 I&N Dec. 211 (BIA 2018). Quite contrary to the BIA’s unjustified “head in the sand” presumption of regularity given these flawed statements, there is clear public evidence, compiled over more than a decade, that such statements should be considered “presumptively unreliable.”

In addition to addressing the elements of the bogus “test” enunciated by the BIA in J-C-H-F- what should advocates do to fight this type of clearly biased, largely “fact free,” unwarranted pro-DHS decision-making by the BIA?

First, as Jeffrey and I have pointed out, get the publicly available reports of the U.S. Commission on International Religious Freedom (“USCIRF”) which show that glaring errors in accuracy and reliability raised as long ago as 2006 remained unaddressed as of 2016.
Second, use the additional materials cited in the above article to show how DHS has suppressed its own internal documents establishing the unreliability of the Border Patrol statements.
Third, get in touch with Human Rights Watch and the American Immigration Council to see if any additional FOIA materials have been made available which establish unreliability.
Fourth, ask someone from Human Rights Watch about a database I have heard they are establishing to provide “hard evidence” to challenge the reliability of Border Patrol statements.

In the “Age of Sessions,” I wouldn’t hold my breath for the “captive” BIA to recede from its travesty in J-C-H-F-. That’s why it’s critically important for advocates to do a great job of “setting the record straight” in the Courts of Appeals.

But, to do that, evidence challenging the Border Patrol statements must be offered at the trial stage before the Immigration Judge. Documenting and exposing the BIA’s disingenuous decision-making will also undermine the BIA’s overall credibility before the Courts of Appeals and perhaps eventually lead to a reversal of the unjustified “Chevron deference” the Board currently receives.

Today’s Board masquerades as a deliberative “expert tribunal” that neither publicly deliberates nor possesses any obvious expertise — a situation aggravated because nobody who works for the biased White Nationalist xenophobe Jeff Sessions can legitimately be considered “unbiased” or “impartial” when it comes to adjudication of migrants rights. Don’t forget, even if the BIA rules in the respondent’s favor, something that happens less and less these days, each an every BIA decision is subject to an inappropriate “certification and reversal” process by Sessions that he has shown little hesitation in invoking recently.

How can a respondent receive a “fair hearing” from a “court” where the Government’s leading enforcement figure holds all the cards? Obviously, he or she can’t! You can help make a record that eventually should force the “Article III’s” to shut down this “caricature of American justice.”

Due Process Forever!

PWS

03-28-17

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

Bess writes in The Levin Report:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trump takes full responsibility for stock-market sell-off

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

Elsewhere!

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

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

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

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

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

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

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

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

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

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

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Go on over to Bess @ Vanity Fair for the complete Levin Report at this link:

http://tinyletter.com/besslevin/archive

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

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

PWS

03-28-17

TAL @ CNN: Administration’s Plan To Request Citizenship Information In Census Provokes New Litigation!

http://www.cnn.com/2018/03/27/politics/census-commerce-department-immigration-california/index.html

California sues over Census citizenship question

By Tal Kopan, CNN

Progressives, states and civil rights advocates are preparing a flurry of legal challenges to the Trump administration’s decision to add a question about citizenship to the next census, saying the move will penalize immigrants and threaten civil rights.

The late Monday move from the Commerce Department, which it said came in response a request by the Justice Department, would restore a question about citizenship that has not appeared on the census since the 1950s. The administration said the data was necessary to enforce the 1965 Voting Rights Act.

The state of California immediately challenged the plan in federal court.

California Attorney General Xavier Becerra and Secretary of State Alex Padilla trashed the move as anti-immigrant.

“The citizenship question is the latest attempt by President Trump to stoke the fires of anti-immigrant hostility,” Padilla said in a statement. “Now, in one fell swoop, the US Commerce Department has ignored its own protocols and years of preparation in a concerted effort to suppress a fair and accurate census count from our diverse communities. The administration’s claim that it is simply seeking to protect voting rights is not only laughable, but contemptible.”

Former Obama administration Attorney General Eric Holder also blasted the move and said his organization, which focuses on voting enfranchisement and redistricting, would also pursue litigation against what he called an “irresponsible decision.”

Holder said contrary to the rationale presented by the Justice Department, Holder said he and other modern-era attorneys general were “perfectly” able to handle those legal matters without such a question on the Census.

“The addition of a citizenship question to the census questionnaire is a direct attack on our representative democracy,” Holder said in a statement. “Make no mistake — this decision is motivated purely by politics. In deciding to add this question without even testing its effects, the administration is departing from decades of census policy and ignoring the warnings of census experts.”

Critics of the move say that including such a question on a government survey will scare non-citizens and vulnerable immigrant communities into under-reporting. By undercounting these populations, they argue, there will be a major impact that follows on voting and federal funds.

Because the once-a-decade census is used to determine congressional and political districts and to dole out federal resources, an undercount in heavily immigrant areas could substantially impact certain states and major cities and potentially their representation at the federal level.

The question has not been on the full census since the 1950s, but does appear on the yearly American Community Survey administered by the Census Bureau to give a fuller picture of life in America and the population.

The Commerce Department said the decision came after a “thorough review” of the request from the Justice Department. The priority, Commerce said, was “obtaining complete and accurate data.”

“Having citizenship data at the census block level will permit more effective enforcement of the VRA, and Secretary Ross determined that obtaining complete and accurate information to meet this legitimate government purpose outweighed the limited potential adverse impacts,” the statement said.

Becerra and his state have been central to virtually every legal challenge of the Trump administration on issues ranging from immigration, to the environment, to health care. The Justice Department has also sued California over its so-called sanctuary policies to protect immigrants.

More challenges could soon follow.

Wendy Weiser, director of the Brennan Center’s Democracy Program, a nonprofit that works on issues of justice and civil rights, said the question had no place in the Census.

“Our Constitution requires a complete and accurate count of everyone living in the country, no matter her or his citizenship status. The administration’s decision to add a citizenship question is at best a dramatic misstep, and at worst a politically-motivated move that will undermine a fair and accurate census,” Weiser said. “This question is a dangerous move that could lead to a serious skewing of the final census results, which would have a deleterious effect on our system of representative democracy. We urge the administration to reconsider.”

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The idea that the Justice Department under Jeff Sessions wants this information to enforce the Voting Rights Act (“VRA”) is preposterous on its face! So far, the only interest that Sessions and his crew at the DOJ have shown in the VRA is to insure that White GOP voters are enfranchised and that African-Americans and other minorities are disenfranchised.

Because all individuals in a congressional district are entitled to representation, regardless of citizenship status or other legal status, promoting an undercount (which is what the Administration obviously intends) will work to the disadvantage of those districts with large populations of immigrants, whether legal or illegal.

Stay tuned. There probably are many more similar suits to come, and “Tal is on the ball” to keep us completely informed.

PWS

03-27-18

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

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

Nolan writes:

“. . . .

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

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

. . . .

DACA

Undocumented aliens were considered for the DACA program if they:

Were under the age of 31 as of June 15, 2012;

Came to the U.S. before reaching their 16th birthday;

Have continuously resided in the U.S. since June 15, 2007;

Were physically present in the U.S. on June 15, 2012, when they filed their DACA applications; and

Had no lawful status on June 15, 2012.

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

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

Trump’s Framework

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

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

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

This restriction continues even if they naturalize.

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

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

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

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

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

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

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

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

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

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

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

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

PWS

03-27-18

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

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

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

ByBy AZAM AHMEDMARCH 25, 2018

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

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

MARCH 25, 2018

Photo

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

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

His depiction of the border is both literal and figurative.

Continue reading the main story

Photo

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

. . . .

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

. . . .

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

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

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

PWS

03-26-18

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

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

Tal writes:

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

Known for his impassioned speech at the 2016 Democratic National Convention, Khan is a lawyer and the father of Capt. Humayun Khan, an Army captain who was killed when he moved to stop a car containing suicide bombers headed toward his base in Iraq, for which he was posthumously awarded the Bronze Star.

Originally from Pakistan and a Muslim, Khan filed the legal brief on Friday because, in his view, Trump’s travel ban “not only desecrates Humayun Khan’s service and sacrifice as a Muslim- American officer in the United States Army, but also violates Khizr Khan’s own constitutional rights,” his attorney wrote in the brief.

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

The brief describes the Khan family’s history and the service of Humayun Khan, mentioning as well Khan’s speech at the DNC where he held up a pocket Constitution and emotionally asked Trump if he’d read it.

The brief also notes Trump’s comments on the campaign trail that he wanted to institute a “Muslim ban,” a key component of critics’ arguments that the administration’s travel ban is a thinly veiled attempt to target Muslims.

Supreme Court sets travel ban arguments for final day of term

“The taint of discrimination has not been washed away,” the brief argues, saying the latest travel ban and its predecessors all flow from that original idea.

“The message is that Muslims are unwelcome outsiders,” it continues. “And that message has been received loud and clear — not only by Muslims like Mr. Khan, but by those who have been denigrating and attacking Muslims with increasing frequency and vehemence since President Trump called for, and then began trying to implement, his unconstitutional Muslim Ban.”

Gold Star father Khizr Khan slams John Kelly’s defense of Trump

“The message is that Muslims are outsiders, regardless of the depth of their devotion to the Constitution, and despite paying the ultimate price to defend it. That message is painfully clear to Mr. Khan,” the brief states.

Khan’s attorney, Dan Jackson, said the Gold Star father felt compelled to weigh in because of the impact of the travel ban on his son’s legacy, and added Khan has a “fierce devotion” to the Constitution.”

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

Go on over to CNN at the link to read Tal’s complete article.

The rich irony here is that the individuals who “designed” the “travel ban” — Trump, Sessions, Miller — have shown a total disdain for our Constitution. Time and time again, they have failed in their duty to protect the rights of everyone in America, regardless of race, religion, gender, or status. What kind of country disrespects the memory of those who have died in its defense while allowing itself to be governed by biased, morally bankrupt, intellectually dishonest individuals who reject the very notion of a Constitutional republic?

PWS

03-24-18

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

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

Here’s Tal’s report:

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

“The Republicans are with you, they want to get your situation taken care of,” Trump said at the White House, as he complained about the $1.3 trillion spending bill program, speaking directly to recipients of the Deferred Action for Childhood Arrivals program. “The Democrats fought us, they just fought every single inch of the way. They did not want DACA in this bill.”

But as Congress left town increasingly unlikely to pass any major immigration legislation before November’s midterms, the White House has repeatedly rejected deals to fix DACA, the Obama-era policy he ended then implored Congress to save.

Here’s a timeline of DACA under Trump:

September 5, 2017: Trump announced an end to the DACA program, which protected young undocumented immigrants who came to the US as children from deportation. President Barack Obama instituted the work permits and protections in 2012.

September 13: Trump has dinner with Senate Democratic Leader Chuck Schumer and House Democratic Leader Nancy Pelosi at the White House, after which the two Democrats say they agreed in broad strokes to a DACA-border security deal that doesn’t include Trump’s wall. Trump initially seems on the same page, then the White House and Republicans walk it back. Trump tweets about how “good, educated and accomplished” DACA recipients are.

October 8: The White House unveils what it calls its priorities for a DACA deal, a laundry list of aggressive conservative immigration measures that Democrats and a handful of Republicans rejected as rife with poison pills.

November 1: After a terrorist attack in New York City, Trump begins to emphasize ending the diversity visa lottery and family-based migration.

November 2: Republican lawmakers meet with Trump at the White House and rule out attaching any DACA deal to year-end funding bill before a possible shutdown.

December 21: Lawmakers pass government funding into the new year and leave town without a deal, despite Democrats’ previous pledges to not go home without one.

January 9: Trump holds bipartisan meeting at the White House that cameras televise for nearly an hour. He indicates multiple times he is willing to compromise on DACA, despite some contradictions within the meetings, and says “when this group comes back — hopefully with an agreement — this group and others from the Senate, from the House, comes back with an agreement, I’m signing it.” The so-called “four pillars” also come out of this meeting — that a deal shall include DACA, family-based migration, the diversity lottery and border security.

January 9: Federal court puts hold on Trump’s plan to end DACA, ordering renewals of permits to continue but no new applications.

January 11: After months of meetings, Democrat Dick Durbin and Republican Lindsey Graham go to the White House to propose to Trump a compromise worked out by their group of six bipartisan senators. The offer includes a path to citizenship for eligible young immigrants, the first year of Trump’s border wall funding, ending the diversity visa lottery and reallocating those visas, and restricting the ability of former DACA recipients to sponsor family.

Trump and the White House invite hardline Republicans to the meeting and he rejects the deal, making his now-infamous “shithole countries” comment in the process.

January 19: House before a government funding deadline, Schumer and Trump meet for lunch at the White House. Schumer offered Trump the upwards of $20 billion he wanted for his border wall in exchange for a pathway to citizenship for the eligible immigrant population. The deal is rejected, and government shuts down at midnight.

January 22: Government reopens after Republicans Graham and Jeff Flake secure a public commitment from Senate Majority leader Mitch McConnell to hold a future immigration floor vote. Bipartisan negotiations resume.

January 25: White House releases its proposal for a DACA deal under the four pillars, which includes a generous path to citizenship for eligible immigrants, but also a number of impossible-to-swallow provisions for Democrats and some Republicans under the auspices of family-based migration and border security.

February 14: A bipartisan group of senators unveils a compromise plan, which includes $25 billion for the border, a pathway to citizenship for the immigrants, cuts to one slim category of family-based migration and prevents the parents who brought their children to the US illegally from ever being sponsored for citizenship by those children.

February 15: White House goes all out to stop the bipartisan compromise deal, which fails to get the necessary 60 votes in the Senate, with 54 votes.

February 26: Supreme Court declines to take up an immediate appeal of court decisions resuming DACA renewals, ensuring no deportations of DACA recipients for months and taking pressure of Congress.

March 14: With roughly a week to go before the major government spending package known as the omnibus must pass, White House suddenly signals a desire for a DACA-border deal. Publicly, the White House says they oppose a temporary fix.

March 22: Congress passes an omnibus without DACA, virtually ensuring it will not be addressed before midterms.

March 23: Trump signs the omnibus, rails on Democrats for, he says, not caring about DACA.

CNN’s Jeremy Diamond contributed to this report.”

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

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

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

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

PWS

03-24-18

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

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

Mar 22 Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker

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

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

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

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

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

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

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

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

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

NEW AG CERTIFICATION: SESSIONS CONTINUES ALL OUT ATTACK ON FAIRNESS FOR IMMIGRANTS IN IMMIGRATION COURT — Continuances To Apply For “Collateral Relief” Before USCIS Latest Target — Matter of L-A-B-R- et al., 27 I&N Dec. 245 (A.G. 2018)!

https://www.justice.gov/eoir/page/file/1045661/download

Cite as 27 I&N Dec. 245 (A.G. 2018) Interim Decision #3921

Matter of L-A-B-R- et al., Respondents

Decided by Attorney General March 22, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l (h)(1)(i) (2017), I direct the Board of Immigration Appeals to refer these cases to me for review of its decisions. The Board’s decisions in these matters are automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of these cases, including the following question:

An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to “grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application”). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 17, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 24, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before May 2, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

245

Cite as 27 I&N Dec. 245 (A.G. 2018) Interim Decision #3921

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

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Bad news for truth, justice, and the American way!

PWS

03-22-18

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

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

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

Levitz writes:

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

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

ADVERTISEMENT

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

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

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

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

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

PWS

03-22-18

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

https://www.jeffreyschase.com/blog/2018/3/21/amicus-brief-filed-in-cjlg-v-sessions

Mar 21 Amicus Brief Filed in C.J.L.G. v. Sessions

On March 15, lawyers with the firm of Simpson, Thacher & Bartlett filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit on behalf of 11 former immigration judges and BIA Board members in the case of C.J.L.G. v. Sessions. The case involves a child from Honduras who appeared in immigration court accompanied only by his mother. As the respondent could not obtain a lawyer in the time afforded, the immigration judge went forward with the hearing, informing the mother that she would “represent” her son.

The respondent is an asylum applicant whose gang-related claim rested on his ability to precisely delineate a particular social group pursuant to requirements complex enough to stump most attorneys. As his mother lacked any legal training, his hearing did not go well. On appeal, the BIA affirmed the IJ’s denial of the claim. In its decision, the BIA determined that the respondent did not suffer past persecution when at the age of 13, members of MS-13, a brutal, multinational gang, threatened to kill him, his mother, and his aunt if he refused to join their ranks, put a gun to his head to emphasize their point, and told him that he had one day to decide. The BIA also found the hearing before the IJ to have been fair, and that the respondent was not denied due process because the immigration laws do not require the appointment of counsel in removal proceedings.

Hon. Dana Marks, an outstanding jurist and president emeritus of the National Association of Immigration Judges, often states that immigration judges hear “death penalty cases under traffic court conditions.” What she means by this is that a genuine asylum seeker who is denied relief and deported faces the risk of death in the country from which he or she fled. Yet the conditions under which such life-or-death claims are heard are inadequate; the limited time and resources afforded to the judges hearing such claims are better suited for a court hearing much lower stakes matters such as traffic tickets. Courts hearing cases involving matters of life and liberty have a higher obligation to afford due process. First and foremost, a defendant facing criminal charges in a state or federal court is entitled to assigned counsel. However, although the stakes may be higher in an asylum case, respondents in immigration court have no such entitlement. Although the respondent in C.J.L.G. may face death if deported, having a judge determine it was fine to proceed, and telling his mother that she would represent him sounds like something that might be appropriate in traffic court.

A three-judge panel of the Ninth Circuit denied the respondent’s petition for review. Interestingly, the respondent was found credible in his recounting of the death threats he suffered and as to his fear of return; the court accepted the statistics provided by respondent’s counsel that unrepresented respondents succeed on their claims only 10 percent of the time, whereas as represented minors enjoy a 47 percent success rate. The court also assumed that the respondent qualifies as an indigent (due to his mother’s inability to afford private counsel), and that ordering him removed would send him “back to a hostile environment where he has faced death threats in the past implicates his freedom.” The court further acknowledged that the immigration laws and regulations include assuring minors “the right to a ‘full and fair hearing,’ which includes the ‘opportunity to present evidence and testimony on one’s behalf,’ cross-examine witnesses, and examine and object to adverse evidence.” It would be difficult to argue that an unrepresented minor is capable of exercising such rights.

In spite of this, the court denied the petition, determining that there was no Constitutional right to assigned counsel at government expense to minors in removal proceedings. The court further found that the respondent had not demonstrated prejudice, as he had not established a nexus to a protected ground as required to establish eligibility.

The ACLU has filed a petition for the Ninth Circuit to rehear the case en banc. It is in support of this latest petition that the latest amicus brief was filed. I am one of the former IJs included in the brief; I join my colleagues in being proud to assist in such a noble effort as securing assigned counsel for immigrant children facing the legal complexities and dire consequences of immigration proceedings. In a nutshell, the brief argues that the efforts of an immigration judge to provide a fair hearing is no substitute for counsel. Immigration judges can only do so much faced with “overburdened and growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy.”

The problem is compounded in cases in which the asylum claim is based on membership in a particular social group. The BIA has recently held that an asylum applicant must specifically delineate such group, a requirement that is clearly beyond the ability of a child (or his or her mother) to do. As the brief points out, in this case, the respondent “ and his mother showed no understanding of why a gang-related threat alone would not warrant asylum, but the IJ’s cursory inquiry ended without seeking the motivation for the threat.”

Of course, the entire issue could be resolved by the Department of Justice choosing to do what is right by agreeing to provide assigned counsel at government expense to this most vulnerable group.

Heartfelt thanks to partner Harrison J. “Buzz” Frahn and associate Lee Brand of the law firm of Simpson Thacher & Bartlett for their dedication and effort in drafting the excellent brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE
Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog Archive Contact

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As pointed out by Jeffrey, this is an incredibly important case for Due Process under our Constitution! Let’s hope that the en banc Ninth gives it a close look.

PWS

03-22-18

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

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

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

Immigration and Customs Enforcement headquarters in Washington. (Salwan Georges/The Washington Post)

By Editorial Board March 20 at 7:31 PM

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

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

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

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

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

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

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

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

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

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

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

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

PWS

03-21-18

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

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