Immigration Detention – Page 126 – immigrationcourtside.com

NEW SCHOLARSHIP FROM PROFESSOR RUTH ELLEN WASEM, LBJ SCHOOL @ UT TAKES ON PROBLEMS OF 21ST CENTURY IMMIGRATION GOVERNANCE — “Immigration is not a program to be administered; rather, it is a phenomenon to be managed.”

Immigration Governance for the Twenty-First

Ruth Ellen Wasem The University of Texas at Austin

6 Journal on Migration and Human Security 97 (2018)

KEY QUOTE:

Even with fragmented governance and strained resources, the US immigration system has enjoyed successes. Each year, approximately one million foreign nationals legally become permanent residents in the United States. In FY 2015 and FY 2016, the Bureau of Consular Affairs issued over 10 million visas each year to foreign nationals coming to the United States as nonimmigrants (i.e., for a temporary purpose and a temporary period of time) and over half a million visas to LPRs (Bureau of Consular Affairs 2017). CBP admitted almost 77 million foreign nationals as nonimmigrant admissions to the United States in FY 2015 (Office of Immigration Statistics 2016). That year, DOL processed 711,820 employer applications for 1,580,778 positions for temporary and permanent labor certifications Immigration Governance for the Twenty-First Century 117 (Office of Foreign Labor Certification 2016). In FY 2015, there were 730,259 LPRs who became US citizens. That same year, the United States admitted 69,920 refugees, and USCIS approved 26,124 asylees. DHS apprehended 462,388 foreign nationals and deported 444,431 foreign nationals in FY 2015. Another 253,509 foreign nationals were denied entry, and 129,122 foreign nationals returned home without a formal order of removal (Office of Immigration Statistics 2016). In FY 2016, EOIR judges received 328,122 cases and completed 273,390, including those of 8,726 foreign nationals who were granted asylum (EOIR 2017). Considerable credit is due to the people carrying out immigration-related responsibilities across the federal government.

Immigration is not a program to be administered; rather, it is a phenomenon to be managed. While there are limits to how much one government can control migration, the building blocks in Figure 3 offer a reasonable set of priorities. Effective immigration governance, coupled with laws and policies that incorporate the national interests, is key to maintaining a robust sovereign nation.

Get the entire article, which I highly recommend, at this link:

Wasem,ImmigrationGovernance21st Century

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Words of wisdom, to be sure. If only our policy makers had the same degree of understanding.

Today, we operate on an illusion that a few folks sitting in Washington, D.C. can “pull all the strings” to seal borders, override market forces, ignore international conditions and agreements, change behavior in foreign countries, and dominate forces of human migration that have been at work since before all of us were born and will continue long after we’re all gone. It’s a toxic mix of arrogance and ignorance that will leave immigration and refugee policy in tatters for years to come.

I can only hope that there are those out there in the upcoming generations who will bring to the immigration phenomenon practical scholarship, reason, humanity, fairness, and better ideas on management of our laws for the benefit of our country and humanity as a whole.

PWS

03-07-18

PROFESSOR CORI ALONSO-YODER ANALYZES SUPREME’S JENNINGS V. RODRIGUEZ

https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention

Mar. 5, 2018

Jennings v. Rodriguez, 583 U.S. ___ (2018) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Slip Opinion | New York Times | SCOTUSblog

Jennings v. Rodriguez: Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention

Today marks President Trump’s deadline to Congress for addressing the question of Deferred Action for Childhood Arrivals, known as DACA. In the months since the Administration announced the end of the DACA program, the debate on immigration reform has expanded from the initial ultimatum to create a legislative alternative to the program, to new issues of restriction on current legal immigration, including the elimination of certain family-based categories and the repeal of the visa lottery system. After months of opportunity to address these questions, congressional efforts to reform immigration appear stalled beyond salvation, in no small part due to a clear lack of direction from the President himself. As a result, DACA seems destined to expire today due to inaction from leaders at the legislative and executive levels.

Onto this backdrop, the Supreme Court handed down its decision in Jennings v. Rodriguez¹ on February 27th. Writing for a five-to-three majority on issues related to immigration detention, Justice Samuel Alito reversed the Ninth Circuit Court of Appeals’ decision granting semiannual bond hearings to certain categories of immigrant detainees. Only Chief Justice Roberts and Justice Kennedy joined the Alito opinion in full, with Justices Gorsuch and Thomas declining to endorse the plurality’s view of a jurisdictional question in the case (for which Justice Thomas authored a concurrence). In the dissent, Justices Sotomayor and Ginsburg signed onto Justice Breyer’s passionate and lengthy opinion arguing for bail provisions to be extended to these detainees.

At issue in Jennings are conditions of detention and related questions of bond eligibility for individuals falling within three statutory categories, all of whom have been detained longer than six months. Lead plaintiff, Alejandro Rodriguez, represents the class as a whole as well as the category of individuals detained under 8 U.S.C. § 1226(c) (individuals who have been convicted of certain crimes or engaged in terrorist activities). The class also includes individuals detained under § 1225(b)(1)(B)(ii) (asylum seekers), and under § 1225(b)(2)(A) (applicants for admission who are not clearly entitled to be admitted, otherwise known as “arriving aliens”).

In its opinion, the Court rejected the Ninth Circuit’s construction of §§ 1225(b), 1226(a), and 1226(c) as requiring a six-month periodic review to save the statutory framework from constitutional nullification. Relying on the Court’s decision in Zadvydas v. Davis² and the canon of constitutional avoidance, the lower court reasoned that a six-month bond review must be interpreted into the relevant provisions in order for the framework to survive constitutional scrutiny under the Fifth Amendment’s Due Process Clause. The Court found this interpretation “implausible,” holding that the clear language of those statutory provisions is susceptible to only one interpretation that does not contemplate a periodic custody review, and that the canon of constitutional avoidance only applies where more than one plausible interpretation of the statute is available.³ The Court also distinguished its decision in Zadvydas by underscoring the ambiguity of the potential length of detention in the statute at issue in that case. By contrast, in Jennings the Court reasons that Congress left no room for similar interpretation in this case, having explicitly provided for conclusion of detention of these individuals only in certain circumstances clearly expressed in the relevant statutes.

The majority proceeds to reverse the Ninth Circuit’s construction of the detention statutes, but declines to reach the Fifth Amendment and Due Process arguments raised by the respondents. Instead, the Court remands the case to the Court of Appeals for further proceedings to consider the constitutional merits of those claims, while simultaneously suggesting that a class action may not be the appropriate vehicle for those individualized claims.

The opinion of the Court is striking because the dissenting justices feel no such compunction to reserve the constitutional questions. In fact, Justice Breyer’s opinion rests almost exclusively on Due Process and, to a lesser extent, Eighth Amendment jurisprudence, spending little time relative to the majority in interpreting the relevant statutory provisions. Instead, Justice Breyer points to numerous factors to argue why the majority’s reading of the detention statutes cannot survive constitutional scrutiny and must be reconstructed to include a bond provision. Among these factors, he notes the sheer number of individuals detained under §§ 1225 and 1226, the increasingly lengthy terms of their detention, and the high likelihood of success on the merits for many within these categories in their claims for immigration relief.

Regarding the number of detainees affected by this decision, the dissent notes that nearly 20,000 individuals, 7500 asylum seekers, and 12,220 noncitizens who have completed terms of confinement for criminal convictions, fall within two of the three categories of detainee considered by the Court. The dissenting opinion also cites the length of detentions at issue, noting that they are now considerably longer than six months, and distinguishing this from the short-term detention of immigrant detainees addressed by the Court in Demore v. Kim.⁴ In concluding that the respondents should have access to a more flexible opportunity to apply for bond, the dissent is also persuaded by statistics showing that nearly two-thirds of the asylum seekers and 40% of those detained following criminal confinement ultimately prevail in applications to remain in the United States.

Also present in the dissent, but not in the opinion of the Court, is limited reference to increased immigration enforcement by the Trump Administration. While the politics of enforcement are not met head on, Justice Breyer’s dissent alludes to current events by citing President Trump’s Executive Order⁵ directing parole of detainees only under certain limited circumstances.⁶

As the lower court is left to address the constitutional questions, the Breyer dissent proves instructive by reaching elements of those arguments that the Court declines to take up in its majority opinion. Among the issues previewed in the dissent that are likely to arise on remand is the Government’s assertion that many of the respondents in Jennings cannot claim the protection of the Fifth Amendment because “the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory.”⁷ The dissent roundly dismisses this interpretation as “of course, false,”⁸ but the question will become an increasingly important one for the courts to address, especially as Jennings continues its trajectory through the federal appellate courts.

Indeed, the unsettled nature of the Jennings decision foreshadows a future in which the courts are likely to wrestle with increased calls to address these issues of detention and enforcement. For example, 8 U.S.C. § 1357(a)(3) gives Customs and Border Protection Agents broad powers of search and seizure without a warrant to enforce immigration laws within a broad reach of an international border,⁹ generally held to reach within 100 miles of the U.S. interior.

In addition, the Trump Administration has signaled an intent to aggressively enforce the nation’s existing immigration laws, while also expanding the reaches of the law to further restrict legal immigration. Along with Executive Order No. 13,767, cited in the Jennings dissent, the Trump Administration also published Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.”¹⁰ Taken together (and issued the same day within the first week of the new administration), these two Executive Orders enshrined the campaign promises of the new President to act aggressively and expansively to secure the border and enforce immigration law within the interior of the United States.

According to Immigration and Customs Enforcement data, these efforts have proven effective, with immigration officials charting an increase of 42% in administrative arrests.¹¹ Meanwhile, the immigration courts’ backlogs continue to grow, expanding from approximately 212,000 cases at the beginning of fiscal year 2006 with a median wait pending time of 198 days, to approximately 437,000 cases in fiscal year 2015 with a median pending time of 404 days.¹² These numbers reflect a judiciary crippled by backlog and increased enforcement even before the injection of the new administration’s revamped and expanded priorities for enforcement. In the current climate of legislative inaction, it is likely the courts will continue to be the explainers and problem solvers for a system desperately in need of reform. As with questions of immigration reform, the Jennings remand means that we are likely to be revisiting these issues again not long from now.

Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.

Jennings v. Rodriguez, No. 15–1204, slip op. (U.S. Feb. 27, 2018).

533 U.S. 678 (2001) (requiring a custody review hearing after six months of detention in order to avoid unconstitutional indefinite detention where an individual cannot be removed from the United States).

Jennings, slip op. at 12–13.

538 U.S. 510, 530 (2003) (noting that the detention at issue in that case “lasts roughly a month and a half”).

Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 30, 2017).

Jennings, slip op. at 25 (Breyer, J., dissenting).

Id. at 7.

Id.

8 U.S.C. § 1357(a)(3) (2012).

Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 30, 2017).

Immigration & Customs Enf’t, ICE Impact in FY 2017 (2018), https://www.ice.gov/topics/fy2017.

U.S. Gov’t Accountability Off., GAO-17-438, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (2017).

Recommended Citation Cori Alonso-Yoder, Response, Jennings v. Rodriguez:Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention, Geo. Wash. L. Rev. On the Docket (Mar. 5, 2018), https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention.

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Thanks for a great article, Cori!

Here are links to previous posts on Jennings:

https://wp.me/p8eeJm-2e8

https://wp.me/p8eeJm-2cL

https://wp.me/p8eeJm-1wI

The third of these posts illustrates how Constitutionally required bond hearings change and save lives and how the majority’s short-shrifting of Constitutional Due Process could actually cost lives.

PWS

03-07-18

GONZO’S WORLD: WHILE PUTIN DISMANTLES US DEMOCRACY, GONZO ATTACKS CAL. – Gov. Brown Calls DOJ Suit “Political Stunt!”

https://www.huffingtonpost.com/entry/doj-sanctuary-cities-suit_us_5a9ec5a4e4b0e9381c12c0e8

Elise Foley reports for HuffPost:

WASHINGTON — The Trump administration will ramp up its fight against so-called “sanctuary” policies by filing a lawsuit on Tuesday against the state of California over its laws meant to protect undocumented immigrants.

The lawsuit, which Attorney General Jeff Sessions will formally announce on Wednesday, is the latest in a string of moves by the White House, Department of Justice and Department of Homeland Security to combat local efforts to limit police cooperation with deportation. Thus far, this has largely involved condemnations and threats, including the withholding of federal funds and prosecuting public officials.

Now, the administration is seeking to block three California laws by arguing that they violate the Constitution and federal law.

“The Department of Justice and the Trump administration are going to fight these unjust, unfair and unconstitutional policies that have been imposed on you,” Sessions is expected to tell law enforcement officers during a speech on Wednesday, according to prepared remarks. “We are fighting to make your jobs safer and to help you reduce crime in America. And I believe that we are going to win.”

To make its case, the DOJ is in part pointing to a ruling on a very different state-level immigration law: Arizona’s SB 1070, which was meant to expand local police efforts to find and arrest undocumented immigrants. The Supreme Court sided with the Obama administration by striking down major provisions of that law in 2012.

The Trump administration plans to argue that California is similarly overstepping its authority, senior DOJ officials said Tuesday. The lawsuit will challenge three laws that DOJ officials say hurt the government’s ability to carry out immigration enforcement.

Supporters of the California laws and “sanctuary” policies in general argue that they make communities safer by allowing local police to work better with immigrant communities and focus time and resources on duties other than immigration matters. (“Sanctuary” policies differ widely from place to place and there is no set definition for the term.)

California Gov. Jerry Brown (D) responded to Sessions’ suit Tuesday evening, calling it a “political stunt.”

“At a time of unprecedented political turmoil, Jeff Sessions has come to California to further divide and polarize America,” he said in a statement. “Jeff, these political stunts may be the norm in Washington, but they don’t work here. SAD!!!”

. . . .

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Read Elise’s full article at the above link.

So far, Gonzo hasn’t had much luck on his anti-Sanctuary Cities campaign. But, sooner or later, if he keeps filing suits, he’ll probably get a Federal Judge who agrees with at least part of his position.

The suit has little if anything to do with effective law enforcement and everything to do with right-wing politics. Strangely, for one who is so disdainful of lawyers and their functions in society, Gonzo’s regime has been essentially a “full employment for lawyers” boon. And, of course, “Chuckie” Cooper is on Gonzo’s personal retainer, trying, so far successfully, to keep him out of jail in the Russia investigation.

PWS

03-07-18

WASHPOST: ANOTHER DAY, ANOTHER ACT OF WANTON CRUELTY BY NIELSEN’S DHS — “Gratuitous malice toward children is not a characteristic one generally associates with the United States, but under Ms. Nielsen’s guidance, the Department of Homeland Security seems intent on changing that.”

https://www.washingtonpost.com/opinions/gratuitous-cruelty-by-homeland-security-separating-a-7-year-old-from-her-mother/2018/03/04/98fae4f0-1bff-11e8-ae5a-16e60e4605f3_story.html

Gratuitous cruelty by Homeland Security: Separating a 7-year-old from her mother

Homeland Security Secretary Kirstjen Nielsen in the White House on March 1. (Mandel Ngan/AFP/Getty Images)
By Editorial Board March 4 at 7:11 PM
WHAT, EXACTLY, did a 7-year-old Congolese girl do to the United States to deserve the trauma that has been visited upon her — including forcible separation from her mother — by Homeland Security Secretary Kirstjen Nielsen and her immigration agents?

There is no allegation that the little girl, known in court filings only as S.S., is a terrorist, nor is there any suggestion her mother is one. Neither was involved with smuggling, nor contraband, nor lawbreaking of any other variety. Rather, S.S.’s 39-year-old mother presented herself and her daughter to U.S. officials when they crossed the border from Mexico four months ago, explaining they had fled extreme violence in Congo, and requesting asylum.

A U.S. asylum officer interviewed Ms. L, as the mother is called in a lawsuit filed on her behalf by the American Civil Liberties Union, determined that she had a credible fear of harm if she were returned to Congo and stood a decent chance of ultimately being granted asylum. Despite that preliminary finding, officials decided that the right thing to do was to wrench S.S. from her mother, whereupon the mother “could hear her daughter in the next room frantically screaming that she wanted to remain with her mother,” the lawsuit states.

The Trump administration has said that it is considering separating parents from their children as a means of deterring other families, most of them Central American, from undertaking the perilous trip necessary to reach the United States and seek asylum. Now, without any formal announcement, that cruel practice, ruled out by previous administrations, has become increasingly common, immigrant advocacy groups say. In the nine months preceding February, government agents separated children from their parents 53 times, according to data compiled by the Lutheran Immigration and Refugee Service.

Make no mistake: Ms. L and S.S. could have been placed together in a family detention center. There has been no explanation of why the determination was made to separate them; nor is there any allegation that Ms. L. is an unfit parent. The only principle at work, if it can be called that, is the idea that future asylum seekers might be deterred if they are convinced that the United States is actually a crueler and more heartless place than their native country.

Gratuitous malice toward children is not a characteristic one generally associates with the United States, but under Ms. Nielsen’s guidance, the Department of Homeland Security seems intent on changing that. A Homeland Security spokesman would not comment on this case but said that the department does not “currently” have a policy regarding separating asylum-seeking parents and children who are detained.

Separating children from their parents while they await adjudication of asylum claims is of a piece with arresting and deporting upstanding, otherwise law-abiding unauthorized immigrants who have lived and worked for decades in the United States and are the parents of U.S.-born children. That practice, too, carried out by Homeland Security deportation agents, has become far more common under the Trump administration.

Since being torn away in early November, S.S., who is being held at a facility in Chicago, has been permitted to speak with her mother, who is in a detention center in San Diego, just half a dozen times by phone. The girl, who turned 7 in December, routinely cries on the phone, according to the ACLU lawsuit. Is this the kind of protection Americans want from their Department of Homeland Security?

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It’s almost (but not quite) unfair to blame Nielsen for this garbage. After all, she was selected for the DHS position precisely because she is a gutless intellectual lightweight who will just do the foul bidding of Trump, Sessions, Kelly, and Miller no questions asked and no resistance tolerated. That’s what “government by sycophants” is all about.

In the meantime, the New Due Process Army and the rest of us who still believe in our Constitution and humane values have to redouble our resistance to the evil of the Trumpsters and their allies. In the end, it’s a fight for the heart and soul of America as nation!

PWS

03-05-18

THE GUARDIAN: USCIS TURNS ITS BACK ON THE REAL AMERICA – “TRULY A NATION OF IMMIGRANTS!” – “The recent barrage of exclusionary immigration policy proposals are attempts to sow the seeds of fear, anxiety, and distrust. Rather than pursue policies that set immigrants apart, we should seek to integrate immigrants and highlight the assets they bring to communities across our nation.”

https://www.theguardian.com/commentisfree/2018/mar/02/america-nation-immigrants-uscis-deleted?CMP=Share_iOSApp_Other

Professors Linda R. Tropp and Dina G. Okamoto write in The Guardian:

“For more than a century, the identity of the United States has been grounded in the notion that we are a “nation of immigrants.” Immigrants have made innumerable contributions to our economy, infrastructure, and culture – building our railroads and bridges, bringing innovation and new ideas, and settling in communities that thrive throughout our country today. But now, the United States Citizenship and Immigration Services (USCIS), a federal agency charged with immigrant affairs, has turned its back on this rich legacy.

As of last week, the mission statement of the USCIS has changed. No longer does its mission speak to “America’s promise as a nation of immigrants” that promotes “an awareness and understanding of citizenship” along with “ensuring the integrity of our immigration system.” Now, the new version focuses on “adjudicating requests for immigrant benefits” while “protecting Americans” and “securing the homeland”.

Why do changes to the USCIS’s mission statement matter? It may seem like just a few words, but this new language is happening within the context of other alarming changes to our national immigration policies and practices.

Refugee admissions have been curbed to a historic low, and people with “temporary protected status” who fled their homelands due to natural disasters or civil wars are being sent back.

Several crucial programs are at risk of being terminated, including programs that allow 50,000 people from countries underrepresented in current immigration streams to come to the US, pathways for those who arrived in the US as children without legal documents to remain in the US to work and attend school, and the family-based system of immigration – a cornerstone of US immigration policy – which allows US citizens to reunite with family members by sponsoring their migration to the US.

All of these changes have been presented under the guise of protecting against threats to our national security. But these policies stand in stark contrast to the will of the American people. Despite increased attention on anti-immigrant sentiments, Americans across the country largely embrace immigrants of all faiths and cultures and want our government to do the same.

Most Americans believe the numbers of immigrants coming to the United States should be kept at its present level or increased. And 60% percent of Americans oppose building a wall on our border with Mexico. Nearly three-quarters of Americans now supportgranting legal status to immigrants originally brought to the US without papers as children, driven by the same moral imperative that has guided family reunification efforts over the last 50 years.

These levels of endorsement in national polls are bolstered by the actions of US citizens from many walks of life who have taken to the streets in protest, boldly stating that “immigrants are welcome here”.

Indeed, across the country, people and communities have been sending the clear message that immigrants are not only welcomed, but valued. Hundreds of local governments have advocated for their cities and towns to be recognized as “welcoming cities” for immigrants.

Spanning from the industrial rust-belt of the midwest to our nation’s borders, civic leaders have gone to great lengths to welcome immigrants, because they open up new businesses, populate local schools, revitalize housing markets, and infuse new life into local communities. And while the majority of immigrants in the US are here legally, nearly 500 US cities have chosen to become “sanctuary cities” to protect immigrants without legal status from deportation, even at the risk of losing federal funding.

These actions by everyday Americans uphold our nation’s values and reflect the best of who we are as a country, while our federal immigration policies are seeking to close doors and build walls. One of the best ways to honor our values as a nation is not to close opportunities to immigrants, but to successfully integrate them into the fabric of our society. As researchers who have been studying immigration and race relations for 20 years, our research shows that one of the best ways to integrate immigrants into the fabric of society is to interact with and welcome them.

Such encouraging effects of contact between US citizens and immigrants are not limited to big cities or liberal-leaning areas. Recent immigrants have established themselves both in diverse urban areas and new destinations across the United States.

According to recent poll data, more than 75% of US adults report that there are immigrants living in their community, with about a quarter (27%) reporting many recent immigrants in the community where they live. Our surveys of US citizens, including both white and black Americans, show that the more they encounter and interact with immigrants, the more inclined they are to welcome them into their communities.

This significance of welcoming does not simply serve to express our national values or concern about immigrants and their wellbeing. Welcoming immigrants is also important for creating a shared sense of identity and community within our nation. Parallel surveys we have conducted with immigrants show that the more they feel welcome by Americans, the more they come to identify as American themselves and to seek to become US citizens – factors that can fuel greater civic participation and contributions to our society.

The recent barrage of exclusionary immigration policy proposals are attempts to sow the seeds of fear, anxiety, and distrust. Rather than pursue policies that set immigrants apart, we should seek to integrate immigrants and highlight the assets they bring to communities across our nation.

Linda R Tropp is a professor of social psychology at the University of Massachusetts Amherst. Dina G Okamoto is the director of the Center for Research on Race and Ethnicity in Society at Indiana University. They are both visiting scholars at the Russell Sage Foundation.”

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Trump and the GOP restrictionists are trying to “whitewash” American history by denying and downplaying the achievements of immigrants, particularly those of color, without which American could never have survived and prospered. Don’t let them get away with their disingenuous and anti-historical efforts. Don’t let this (unjustifiably) disgruntled minority of (largely White, badly misinformed) Americans hijack our country and its future.

PWS

PROFESSOR DANIEL PENA — Supremes Anti-Latino Decision In Jennings v. Rodriguez Threatens The Due Process Rights of All Americans — When The Thugs Come for YOU, Who Will Stand Up For YOUR Rights If YOU Stand By While Others’ Rights Are Trashed?

https://www.nbcnews.com/think/opinion/supreme-court-s-latest-immigration-ruling-formalizes-terror-against-latinos-ncna851966

Pena writes:

“The U.S. Supreme Court ruling in Jennings v. Rodriguez on Tuesday is a bizarre and dark new development in the American experiment. Not only because it’s a breakdown of the court’s ability to properly interpret the constitution (as they formally institutionalize a de facto second class of citizens), but because it’s a dereliction of the court’s duty as a part of a system of checks and balances designed to protect the constitutional rights of people in this country, regardless of country of origin, from a tyrannical government that would subvert our founding document for political or racist ends.

This ruling only formalizes what many of us in the Latinx community have known for generations: that the perpetuation of systems and laws that instill fear in immigrants (detained or not) is a form of state-sponsored terror. Now the court is complicit and part of that terror. And as pathways to legal status for immigrants come under attack by the current administration, this kind of terror is increasingly designed to incarcerate people for no other reason than for their inability to access pathways toward legal status — which is how this ruling will likely be used by this current administration.

The court ruled in Jennings v. Rodriguez that all immigrants, even those with protected legal status or asylum seekers, do not have a right to periodic bond hearing after detention, which makes it possible for them to be detained indefinitely. The defendant, Alejandro Rodriguez, who was brought to the United States from Mexico as an infant and became a permanent legal resident, was detained for three years for joy riding and possession of a controlled substance; the ACLU was fighting for his right to a hearing.

A U.S. Immigration and Customs Enforcement (ICE) agent. David Maung / Bloomberg Via Getty Images

It comes a day after another Supreme Court decision not to rule on the Obama-era Deferred Action for Childhood Arrivals program, which in effect leaves that program safe for at least another year. But while the ruling on DACA might give the impression of an impartial system of courts, the latter development undermines that illusion by giving this discriminatory Trump administration its seal of approval in the name of the law.

All three branches are now in sync with their consensus to terrorize detained immigrants, documented and undocumented alike. And the explicit message of this ruling against Rodriguez is that, no matter your legal status, the constitution does not work for you if you’re an immigrant. You can be extracted from the American fabric for seemingly arbitrary reasons, by virtue of that now-institutionalized second class status.

What we’ve seen is the majority of this court, our last branch of un-bought government, actively buying out of the idea of America as a melting pot, as a nation of immigrants who deserve certain unalienable rights, not unlike life, liberty and the pursuit of happiness.

U.S. Immigration and Customs Enforcement agents serve an employment audit notice at a 7-Eleven convenience store on January 10, 2018, in Los Angeles. Chris Carlson / AP

This should be a wake-up call to anyone who thought (maybe still thinks) that they have nothing to fear because they are documented, or that they have nothing to fear because they’re not Latinx, or that they have nothing to fear because they are another type of immigrant, or they have nothing to fear because they’ve done nothing wrong. The ruling makes it possible to target, criminalize and then indefinitely detain someone for no other offense than being systematically denied a pathway toward legal status in the first place — or even if they did.”

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Read Pena’s full article at the link.

I’ve pointed out before that it’s still not clear on what side of history this version of the Supremes stand. So far, as a group, they have shown little backbone or desire to stand up to the Trump Administrations’s all-out assaults on the Constitution, the “rule of law,” and human rights. That could be a big mistake, since the Trumpsters, to a man (not many women in the “land of misogyny”) have shown total disrespect and disdain for judges at all levels, particularly Federal Judges.

Latinos must get to the polls in larger numbers and “un-elect” at all levels a GOP that has largely gone over to a White Nationalist, anti-Latino racist agenda. Votes are power! That’s why the GOP cherishes voter suppression and gerrymandering so much.

PWS

03-04-18

ICE ENFORCEMENT: CRUELTY WITHOUT BOUNDS – Wisconsin Rapids Family & Community Ripped Apart By Mindless “Gonzo” Immigration Enforcement — While Worthwhile USG Programs Are Being Cut, Your Tax Dollars Being Squandered To Make America Worse!

https://www.greenbaypressgazette.com/story/news/2018/03/02/family-fights-keep-wisconsin-rapids-father-truck-driver-deportation-ice/389513002/

Melissa Siegler reports in the Green Bay Press Gazette:

“WISCONSIN RAPIDS – Katrina Jabbi’s daughters keep asking for their daddy.

Her husband, Buba Jabbi, 41, on Feb. 15 was detained by immigration officials when he voluntarily reported at an annual check-in. He has since then been held in federal detention, and Katrina has been notified by U.S. government officials that on Tuesday he will be deported to The Gambia — a West African country he hasn’t called home for more than 20 years.

“I don’t want my kids to feel like their father abandoned them,” she said. “They’re asking and crying for daddy every single day.”

Katrina Jabbi is a Wisconsin Rapids native. She met Buba on a Greyhound bus in 2009, she said, and fell in love with him for his kind, loving spirit. They got married in 2013 and have two daughters, Nalia, 5, and Aisha, 1. Katrina said she works part-time from home; her husband had been working as a truck driver.

The couple moved back to Wisconsin Rapids in 2016 to be closer to Katrina’s family. They are expecting their third child in October.

Buba Jabbi appears to be part of efforts by the Trump administration to increase strict enforcement of immigration laws. He has not been charged with a crime in Wisconsin and his detention was not the result of an arrest.

According to the U.S. Immigration and Customs Enforcement data, the U.S. is stopping fewer people crossing the border illegally but deporting more who already were in the country without legal documentation. According to the data, ICE removed more that 81,000 illegal immigrants in 2017. Of those, 61,000 occurred after Jan. 20 of last year, which was an increase of 37 percent over the same time period in 2016.

The New Sanctuary Movement of Milwaukee, organized by immigration advocacy group Voces de la Frontera, has also seen an increase in the number of people being detained, according to the movement’s coordinator, Shana Harvey.

RELATED: Wisconsin Rapids father of two to be deported to West Africa

RELATED: UWSP students uncertain about a future without DACA protection

Buba Jabbi came to the United States in 1995 on a temporary travel visa to attend the 1996 Summer Olympics in Atlanta, Georgia, according to Katrina. She said she wasn’t sure about the amount of time his visa allowed him to remain in the country, but that he overstayed the visa. When he tried to change his status, the paperwork he filed was incorrect and he was moved into removal proceedings, where he remained for several years, she said.

“He kind of got stuck in a system,” Katrina Jabbi said. “It was hard for him to move out of that.”

However, Buba Jabbi was considered “undeportable” because his country would not provide travel documents on his behalf, she said. Instead, he was given orders of supervision, requiring him to report to immigration once a year and obtain work authorization, which, according to Katrina Jabbi, he has done for the last 10 years.

Buba was at his annual appointment Feb. 15 in Milwaukee with immigration officials when he was detained and told he would be deported, according to Katrina.

Katrina and Buba Jabbi with their daughters, Nalia, 5, and Aisha, 1. (Photo: Courtesy of Katrina Jabbi)

His attorney filed a stay of removal on Buba’s behalf. According to ICE Public Affairs Officer Nicole Alberico, a stay of removal can be granted for up to one year and is meant to give the deportee time to get their affairs in order.

Alberico declined to speak about the details of Buba Jabbi’s case.

Katrina said she will continue to fight for her husband by filing a 601 Waiver, which argues that the Jabbi family would endure extreme hardship as a result of Buba’s deportation.

Katrina, who first shared her family’s story on a GoFundMe page, said she finds comfort in knowing that Buba will be with his family in The Gambia, including his parents, whom he hasn’t seen since coming to the U.S.

“I really appreciate everyone’s support and kindness,” she said. “It’s humbling to know so many people are supportive of our situation. It is a very complex situation. I appreciate the people that open their minds and try to understand.”

But, the affected U.s. citizens do have the “ultimate remedy.” They can vote Trump and his enablers out of office and demand sane, humane, sensible immigration laws and enforcement that benefits, not hurts, America and our future. “Green Card ” holders can eventually become citizens and vote. If everyone in America who has been affected by the evils of Trumpism goes to the polls, the next two years could be better, and Trump can be removed after four years.

U.S. citizen children who now are helpless victims of Trump’s ICE will eventually grow up and become voters. They should remember who took their mothers, fathers, brothers, and sisters away from them!

PWS

03-04-18

WHEN EVERYTHING & EVERYBODY IS A PRIORITY, THERE ARE NO PRIORITIES — WHAT “GONZO” IMMIGRATION ENFORCEMENT IS REALLY ABOUT!

At CNN, the “Amazing Tal” has it all for you:

Happy Friday!
Hope you’re battening down the hatches during this Nor’easter.
You may have already seen, but wanted to send you my latest story this morning, a deep dive into immigration arrests.
Have a great weekend and stay safe!
Tal

http://www.cnn.com/2018/03/02/politics/ice-immigration-deportations/index.html

How Trump changed the rules to arrest more non-criminal immigrants
By Tal Kopan, CNN
A businessman and father from Ohio. An Arizona mother. The Indiana husband of a Trump supporter. They were unassuming members of their community, parents of US citizens and undocumented. And they were deported by the Trump administration.
It’s left many wondering why the US government is arresting and deporting a number of individuals who have often lived in the country for decades, checked in regularly with immigration officials and posed no danger to their community. Many have family members who are American citizens, including school-aged children.
President Donald Trump famously said in a presidential debate that his focus is getting the “bad hombres” and the “bad, bad people” out first to secure the border, but one of his first actions after taking office was an executive order that effectively granted immigration agents the authority to arrest and detain any undocumented immigrant they wanted.
Where the Obama administration focused deportation efforts almost exclusively on criminals and national security threats, as well as immigrants who recently arrived illegally, the Trump administration has also targeted immigrants with what are called final orders of removal — an order from a judge that a person can be deported and has no more appeals left.
In Trump’s first year, US Immigration and Customs Enforcement arrested 109,000 criminals and 46,000 people without criminal records — a 171% increase in the number of non-criminal individuals arrested over 2016.
The Trump administration regularly says its focus is criminals and safety threats, but has also repeatedly made clear that no one in the country illegally will be exempted from enforcement.
“We target criminal aliens, but we’re not going to exempt an entire class of (non)citizens,” Department of Homeland Security spokesman Tyler Houlton told reporters Wednesday.
“All of those in violation of immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States,” ICE spokeswoman Sarah Rodriguez added in a statement.
Critics say including people with decades-old final orders of removal as priorities is more about boosting numbers by targeting easily catchable individuals than about public safety threats.
“A final order of removal is absolutely not indicative of a person’s threat to public safety,” said former Obama administration ICE chief and DHS counsel John Sandweg. “You cannot equate convicted criminals with final orders of removal.”
Sandweg said that people with final orders, especially those who are checking in regularly with ICE, are easy to locate and can be immediately deported without much legal recourse. Identifying and locating criminals and gang members takes more investigative work.
There are more than 90,000 people on so-called orders of supervision who check in regularly with ICE officials, according to the agency. And there are more than 1 million who have removal proceedings pending or who have been ordered to leave the country but have not.
As a result of the change in ICE policy, headlines about heart-wrenching cases of deportation separating children from parents or caregivers have been a regular occurrence.
The story of Amer Adi, an Ohio businessman who lived in the US nearly 40 years, and has a wife and four daughters who are all American citizens, drew national media coverage last month. Through a complicated dispute about his first marriage, Adi lost his status and was ordered deported in 2009, but ICE never opted to remove him from the country. His congressman even introduced a bill to protect Adi, saying he was a “pillar” of the community, but last fall, ICE told Adi to prepare to be deported.
At a check-in on January 15, he was taken into custody and not allowed to see his family before being put on a plane back to his home country of Jordan on January 30.
“We shouldn’t spend one penny on low-hanging fruit,” said Sarah Saldana, the most recent director of ICE before Trump’s inauguration. “What we should be spending money is on getting people who are truly a threat to public safety.”

‘ICE fugitives’
The Trump administration has subtly blurred the distinction between criminals and those with final orders of removal, which is a civil, not criminal charge.
ICE has combined “ICE fugitives” — people who have been ordered to leave the country but haven’t yet — with convicted criminals who have pending criminal charges and reinstated final orders of removal, allowing the agency to say 92% of those arrested under Trump had criminal convictions or one of the other factors — when the number with criminal records is closer to 70%.
With an estimated 11 million undocumented immigrants in the US, ICE has typically had resources to arrest and deport only roughly 150,000-250,000 individuals per year — requiring the agency to make choices about who to prioritize to proactively seek out for arrest.
ICE says its mission is carrying out the law and that it “must” deport these individuals.
“The immigration laws of the United States allow an alien to pursue relief from removal; however, once they have exhausted all due process and appeals, they remain subject to a final order of removal from an immigration judge and that order must be carried out,” said Rodriguez. “Failing to carry out final orders of removal would be inconsistent with the entire federal framework of immigration enforcement established by Congress, and undermine the integrity of the US immigration system.”
Administration officials also argue the publicizing of these cases sends a message to would-be border crossers that undocumented immigrants are never safe in the US, even when sympathetic.
“If we don’t fix these loopholes, we’re going to entice others to make that dangerous journey,” ICE Director Tom Homan told the President at a roundtable earlier last month. “So it’s just not about law enforcement, it’s about saving lives.”

Limited resources
But Saldana and other former immigration officials question the prudence of going after that population indiscriminately, saying it diverts resources from more serious security concerns.
If 20 officers are assigned to identify targets with final orders, “those are 20 officers who won’t be out focused on finding gang members or criminals,” said Bo Cooper, a career official who served as general counsel of ICE’s predecessor, the Immigration and Naturalization Service, under Presidents Bill Clinton and George W. Bush.
“When there are a finite amount of resources, choices you make come at the expense of other choices,” Cooper said. “It really is a significant policy choice.”
Sandweg said the Obama administration in 2014 changed its priorities to move away from those with old removal orders in order to give itself more resources to pick up targets from jails, which can be hours away from ICE offices, when they get word that a criminal could be detained on immigration charges.
Sandweg and Cooper noted that other law enforcement agencies also prioritize — the Drug Enforcement Administration doesn’t bother with low-level marijuana possession, but focuses on cartels, Sandweg said — and it’s a part of agency culture.
“Setting enforcement priorities is not micromanagement, that’s what every law enforcement agency does,” agreed Cooper.
As for whether ICE was handcuffed during the Obama era, Saldana said that even in Trump’s executive order, there is room for discretion.
“That’s silly,” Saldana said. “Can you imagine having 11, 12 million in the system? The cost would be extraordinary, so you have to make priorities and work that way. … You can’t sweep everybody into one category. Not everyone is a contributor to society, and not everyone is a criminal.”

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Homan’s shtick about “saving lives” is as preposterous as it is insulting! The “dangers” of seeking to come to the US actually are well known by those making the journey. Whether they are educated or not, they are smart, brave, resourceful people — the kinds of folks we actually could use more of in America.

What Homan and others (including some of the jurists at all levels hearing these cases and getting the results wrong) fail to recognize is that the dangers of remaining in failed states controlled by gangs and corrupt politicos is much greater than the dangers of the journey and the chance of being returned. That being the case, folks have been coming and will continue to come, no matter how nasty and arbitrary we are and no matter how much we mock our Constitution, our own laws on asylum and protection, and the international standards to which we claim adherence.

Too many of those being returned were denied relief under arcane legal standards even when the judges hearing the cases acknowledged that they had established a likelihood of persecution or death upon return. But, they failed to show a “nexus to a protected ground” or “government acquiescence” as those terms are often intentionally restrictively defined by the BIA and some courts.

I know that I had such cases, and I can’t say as anyone ever understood why I was sending them back to possible severe harm or death. Homan and others like him don’t actually have to pronounce such judgments on other human beings face to face as do U.S. Immigration Judges. Neither do the Appellate Immigration Judges sitting in the “BIA Tower” in Falls Church, VA for that matter!

But, the DHS always has discretion as to whether to execute such an order. How on earth does sending productive members of our society and others who have committed no crimes back to be killed, extorted, raped, or forced to join gangs “save lives.” What total hypocrisy!

Indeed, the only “message” we’re actually sending to such folks is that they might as well join the gangs because their lives don’t matter to us. There will be a reckoning for such attitudes for Homan and others some day, even if its only that the judgement of history and the shame of future generations for their lack of empathy, intellectual honesty, common sense, and humanity!

We can diminish ourselves as a nation, but that won‘t stop human migration!

PWS

03-03-18

LAUREN MARKHAM IN THE NEW REPUBLIC: Why “Trumpism” Ultimately Will Fail – Those Ignorant of Human History & Unwilling To Learn From It Will Just Keep Repeating The Same Expensive Mistakes – “One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. . . . The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.”

https://newrepublic.com/article/146919/this-route-doesnt-exist-map

“How efforts to block refugees and asylum-seekers from Europe have only made the global migration crisis more complex and harrowing

By LAUREN MARKHAM

February 26, 2018

By 7 p.m., the sun had set and groups of young men had begun to gather inside a small, nameless restaurant on a narrow street in Tapachula, Mexico. Anywhere else in the city, a hub of transit and commerce about ten miles north of the Guatemalan border, there would be no mistaking that you were in Latin America: The open colonial plaza, with its splaying palms and marimba players, men with megaphones announcing Jesus, and women hawking woven trinkets and small bags of cut fruit suggested as much. But inside the restaurant, the atmosphere was markedly different. The patrons hailed not from Mexico or points due south but from other far-flung and unexpected corners of the globe—India, Pakistan, Eritrea, Cameroon, Sierra Leone, Congo. Men, and all of the diners were men, gathered around tables, eating not Mexican or Central American fare but steaming plates of beef curry, yellow lentils, and blistered rounds of chapati. The restaurant’s proprietor, a stern, stocky Bangladeshi man in his thirties named Sadek, circulated among the diners. He stopped at one table of South Asian men and spoke to them in Hindi about how much they owed him for the items he’d collected on their tab. The waitress, patiently taking orders and maneuvering among the crowds of men, was the only Spanish speaker in the room.

Outside, dozens of other such men, travelers from around the world, mingled on the avenue. They reclined against the walls of restaurants and smoked cigarettes on the street-side balconies of cheap hotels. They’d all recently crossed into the country from Guatemala, and most had, until recently, been held in Tapachula’s migrant detention center, Siglo XXI. Just released, they had congregated in this packed migrants’ quarter as they prepared to continue their journeys out of Mexico and into the United States. They had traveled a great distance already: a transatlantic journey by airplane or ship to Brazil; by car, bus, or on foot to Peru, Ecuador, and Colombia; through Panama, Costa Rica, and Nicaragua; on to Honduras, Guatemala, and into Mexico. Again and again, I heard their itinerary repeated in an almost metronomic cadence, each country a link in a daunting, dangerous chain. They’d crossed oceans and continents; slogged through jungles and city slums; braved detention centers and robberies; and they were now, after many months, or even longer, tantalizingly close to their final goal of the United States and refugee status.

Police in Tapachula, a Mexican city used as a waypoint for migrants known as *extra-continentales*, patrol past a Cameroonian traveler (in a striped shirt).

They are the extreme outliers of a global migration crisis of enormous scale. Today, more than 65 million people around the world have been forced from their homes—a higher number than ever recorded, as people flee war, political upheaval, extreme poverty, natural disasters, and the impacts of climate change. Since 2014, nearly 2 million migrants have crossed into Europe by sea, typically landing in Italy or Greece. They hail from dozens of countries, but most are from Syria, Afghanistan, Iraq, and Nigeria—countries struggling with war, political repression, climate change, and endemic poverty.

Their passage to supposed safety, which takes them across Libya and the Sinai, as well as the Mediterranean, has become increasingly perilous. According to the United Nations High Commissioner for Refugees, nearly 150,000 people crossed the Mediterranean in 2017. More than 3,000 are believed to have drowned. Stories of detention in Libya, as well as physical and sexual abuse, are commonplace among those who manage to make it to Europe. A recent CNN report depicted a Libyan slave auction, where people were being sold for as little as $400. Even the lucky ones who wash up on Europe’s shores may end up stuck for years in transit camps and detention centers in the south of the continent, in some cases only in the end to be deported. In 2013, in an effort to curb migration and ease the burden of migrants within its borders, the European Union began ramping up deportations. In 2016, nearly 500,000 people were deported from Europe.

Globally, more than 65 million people have currently been forced from their homes—a higher number than ever recorded.

While the global drivers of migration have not subsided—devastation in Syria and Afghanistan, political repression in parts of sub-Saharan Africa—200,000 fewer migrants attempted to cross into Europe in 2017 than the year before. In response to the migrant crisis, European countries have sent strong messages that newcomers are no longer welcome; they’ve built fences to stop refugees from crossing their borders and elected far-right politicians with staunchly anti-immigrant messages. Meanwhile, most asylum cases are stalled in overburdened court systems, with slim prospects for any near-term resolution, which leaves many migrants stuck in the wicked limbo of a squalid, under-resourced refugee camp or austere detention facility. Today, European authorities have stiffened their resistance not only to new arrivals, but to the hundreds of thousands of asylum-seekers who arrived years before and remain in an eerie liminal zone: forbidden to live or work freely in Europe and unwilling, or often unable, to go home.

Because of the high risks of crossing and the low odds of being permitted to stay, more and more would-be asylum-seekers are now forgoing Europe, choosing instead to chance the journey through the Americas that brings them to Sadek’s restaurant in Tapachula. Each year, thousands of migrants from the Middle East, Africa, and Asia make their way to South America and then move northward, bound for the United States—and their numbers have been increasing steadily. It’s impossible to know how many migrants from outside the Americas begin the journey and do not make it to the United States, or how many make it to the country and slip through undetected. But the number of “irregular migrants”—they’re called extra-continentales in Tapachula—apprehended on the U.S. side of the border with Mexico has tripled since 2010.

They remain a tiny fraction of the hundreds of thousands of Mexicans and Central Americans crossing into the United States. But it is a hastening trickle that may well become a flood. “These ‘extra-continental’ migrants will probably increase,” said Roeland De Wilde, chief of mission for the International Organization for Migrationin Costa Rica, “given the increased difficulties in entering Europe, relative ease of entry in some South American countries, and smugglers’ increased organization across continents.”

A migrant from Bangladesh, Sadek (in a red shirt) is part restaurateur, part migratory middleman. He can help a traveler with a good meal—or a good travel agent or immigration attorney.

One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. All Europe has done is redirect the flow of vulnerable humanity, fostering the development of a global superhighway to move people over this great distance. The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.

“Cette route,” a French-speaking man from Cameroon told me, one sweltering afternoon in Tapachula on the breezeless balcony of a hotel frequented by irregular migrants, “n’existe pas sur le map.” This route doesn’t exist on the map.”

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

Read Lauren’s much longer complete article at the above link. It’s one of the most incisive treatments of the worldwide migration phenomenon that I have seen recently. I highly recommend it.

Thanks to dedicated “Courtsider” Roxanne Lea Fantl of Richmond, VA for sending this item my way!

Shortly after I arrived at the Arlington Immigration Court, one of my wonderful colleagues told me “Paul, desperate people do desperate things. Don’t take it personally, and don’t blame them. We just do our jobs, as best we can under the circumstances.” Good advice, to be sure!

We can diminish ourselves as a nation, but that won’t stop human migration!

PWS

03-02-18

AMERICA THE UGLY: WHY ARE WE ALLOWING OUR GOVERNMENT TO ABUSE THE HUMAN RIGHTS OF FAMILIES & CHILDREN? — “This policy is tantamount to state-sponsored traumatization.”

https://www.nytimes.com/2018/02/28/opinion/immigrant-children-deportation-parents.html

DORA GALACATOS, ALAN SHAPIRO and BRETT STARK in the NY Times:

“The Department of Homeland Security may soon formalize the abhorrent practice of detaining the children of asylum-seekers separately from their parents. Immigrant families apprehended at the southwest border already endure a deeply flawed system in which they can be detained indefinitely. In this immigration system, detainees too often lack adequate access to counsel. But to unnecessarily tear apart families who cross the border to start a better life is immoral.

Sadly, such separations are already happening. The Florence Project in Arizona documented 155 such cases by October and other immigrant advocacy organizations report that children are being taken away from their parents. If the secretary orders this practice to be made standard procedure, thousands of families could face unnecessary separation.

The Trump administration’s goal is to strong-arm families into accepting deportation to get their children back. Kirstjen Nielsen, the secretary of homeland security, admitted this when she told the Senate on Jan. 16 that separating families may “discourage parents” from seeking refuge in America.

But the increasing informal use of family separation has not proved to be a deterrent. Last year, the number of family apprehensions at the southwestern border skyrocketed from 1,118 families in April to 8,120 in December.

Parents will continue to flee violence to protect their children and themselves. It is reprehensible to punish them for that basic human impulse. It is also despicable that the government would use children as bargaining chips. This policy is tantamount to state-sponsored traumatization.

Those of us who have seen the sites where families are detained and work directly with children and families who have gone through the system know what’s at stake.

The children we work with call the Border Patrol processing stations for migrants stopped at the border “iceboxes” (hieleras) and “dog kennels” (perreras). “I was wet from crossing the river and it was so cold I thought I would die,” one child said.

Another told us: “The lights were kept on day and night. I became disoriented and didn’t know how long I had been there.” A third said: “I was separated from my older sister. She is the closest person in my life. I couldn’t stop crying until I saw her again a few days later.”

In our work we have heard countless stories about detention. But the shock of bearing witness to them is hard to put into words. In McAllen, Tex., you enter a nondescript warehouse, the color of the dry barren landscape that surrounds it. It could be storage for just about anything, but is in actuality a cavernous, cold space holding hundreds upon hundreds of mostly women and children.

Chain-link fencing divides the harshly illuminated space into pens, one for boys, a second for girls and a third for their mothers and infant siblings. The pens are unusually quiet except for the crinkling of silver Mylar blankets. This is where family separation begins, as does the nightmare for parents and children.

The parents whose sons and daughters have been taken from them are given two options: either agree to return home with their children — or endure having those children sent on to shelters run by the Health and Human Services Department while they themselves languish in detention centers scattered around the country.

This country’s medical and mental health organizations have rightly recognized the trauma of this practice. The American Academy of Pediatrics has condemned immigrant family separation, and family detention overall, as “harsh and counterproductive.” The American Medical Association has denounced family separation as causing “unnecessary distress, depression and anxiety.”

Studies overwhelmingly demonstrate the irreparable harm to children caused by separation from their parents. A parent or caregiver’s role is to mitigate stress. Family separation robs children of that buffer and can create toxic stress, which can damage brain development and lead to chronic conditions like depression, post-traumatic stress disorder and heart disease. For that reason, more than 200 child welfare, juvenile justice and child development organizations signed a letterdemanding that the Trump administration abandon this ill-conceived policy.

Family separation is also unjustifiable legally, as “family unity” is central to our immigration laws and our longstanding policy of reuniting citizens and permanent residents with their relatives.

More fundamentally, family separation is anathema to basic decency and human rights. For our government to essentially hold immigrant children as hostages in exchange for the “ransom” of their parents’ deportation is simply despicable.

It is every parent’s nightmare to have a child snatched away. To adopt this as standard procedure to facilitate deportations is inhumane and does nothing to make Americans safer. This country, and Secretary Nielsen, must reject family separation.

ANOTHER AMICUS OPPORTUNITY FOR RETIRED IMMIGRATION JUDGES AND BIA APPELLATE JUDGES – Join My Friend & Colleague Judge Eliza Klein, Pro Bono Counsel Sidley Austin, The Heartland Alliance, & Me In A 10th Circuit Case Involving Access To Counsel In Immigration Detention (There Isn’t Any, For All Practical Purposes)

Judge Klein,

I hope you’re well. Allow me to introduce you to a team of lawyers from the firm Sidley Austin who are working on an amicus brief on behalf of immigration judges in the 10^th Circuit case that I mentioned to you. As we discussed, the case involves an arriving asylum seeker who was detained in a remote facility with no LOP, and with no realistic access to counsel. And, to complicate matters, at the time of his hearing, there was not meaningful phone access to the jail. The goal of the brief will be to address, from a judge’s perspective, the challenges of adjudicating such cases where there’s no real option for counsel and also to hopefully address some of the ways in which IJs have had to work around the absence of counsel to develop an adequate record in such cases.

The team from Sidley will get going on drafting, but in the meantime, I think it would be very helpful if you could work with them to reach out to other IJs who you certainly know better than any of us. We’ve provided Sidley a list of former IJs who have been willing to sign amicus briefs in other contexts, so hopefully that list (and your inside info) will help with the outreach.

Keren Zwick (Pronouns: she/her/ella)

Associate Director of Litigation

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

208 S. LaSalle Street, Suite 1300, Chicago, IL 60604
T: 312.660.1364 | F: 312.660.1505 | E: kzwick@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

If you can help out, please respond directly to the attorney drafting the brief Jean-Claude Andre of Sidley Austin: JCAndre@sidley.com

I recently had the honor and pleasure of working with the Sidley Austin litigators on an Amicus Brief in the 6th Circuit case Hamama v. Homan (Due Process for Chaldean Christians). It was great!

PWS

03-01-18

JUSTICE BREYER IS RIGHTFULLY CONCERNED ABOUT THE “DREDSCOTTIFICATION’” OF IMMIGRANTS AS SHOWN IN THE LEGALLY & MORALLY BANKRUPT VIEWS OF THE MAJORITY IN JENNINGS V. RODRIGUEZ!

https://slate.com/news-and-politics/2018/03/justice-alito-just-signaled-the-supreme-courts-conservatives-might-not-consider-immigrants-to-be-people.html

Mark Joseph Stern reports for Slate:

“Tuesday’s Supreme Court decision in Jennings v. Rodriguez was widely viewed as an anticlimax. The case involves a group of immigrants being held in custody without any hope of bail. They argue that their indefinite detention violates due process, but the majority declined to resolve the constitutional question, sending the case back down to the lower court. In a sense, the plaintiffs are back where they started.

Justice Stephen Breyer, however, saw something far more chilling in the majority’s opinion. Taking the rare and dramatic step of reading his dissent from the bench, Breyer cautioned that the court’s conservative majority may be willing to strip immigrants of personhood in a manner that harkens back to Dred Scott. The justice used his impassioned dissent to sound an alarm. We ignore him at our own peril.

Jennings involves three groups of noncitizen plaintiffs: asylum-seekers, immigrants who have committed crimes but finished serving their sentences, and immigrants who believe they’re entitled to enter the country for reasons unrelated to persecution. A high percentage of these types of immigrants ultimately win the right to enter the U.S. But federal law authorizes the government to detain them while it adjudicates their claims in case it secures the authority to deport them instead.

The detention of these immigrants—often in brutal facilities that impose inhuman punishments—has, in practice, dragged on for months, even years. There is no clear recourse for detained immigrants who remain locked up without a hearing. In 2001’s Zadvydas v. Davis, the court found that a similar scheme applied to “deportable aliens” would almost certainly violate the Fifth Amendment’s Due Process Clause. To avoid this constitutional problem, the court construed the law as limiting detention to six months.

But in Jennings, the court’s five-member conservative majority interpreted another federal law to permit indefinite detention of thousands of aliens, with no apparent concern for the constitutional problems that reading creates. Justice Samuel Alito, writing for the majority, revealed from the outset of his opinion that he dislikes Zadvydas, dismissing it as a “notably generous” holding that avoided the constitutional issue in order to secure due process for immigrants. Unlike the Zadvydas court, Alito has no interest in protecting the constitutional rights of noncitizens. Instead, he read the current statute as stingily as possible, concluding that it did, indeed, allow the government to detain all three groups of immigrants indefinitely.

Oddly, Alito then chose not to address whether this interpretation of the statute rendered it unconstitutional. Instead, he sent the case back down to the lower courts to re-examine the due process question. But in the process, the justice telegraphed where he stands on the issue by attempting to sabotage the plaintiffs on their way out the door. In the lower courts, this case proceeded as a class action, allowing the plaintiffs to fight for the rights of every other similarly situated immigrant. The government didn’t ask the Supreme Court to review whether it was proper for it to litigate the plaintiffs’ claims as a class. But Alito did it anyway, strongly suggesting that the lower court should dissolve the class and force every plaintiff to litigate his case by himself.

Alito’s antics infuriated Breyer, who dissented along with Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused, presumably because she worked on the case as solicitor general.) Using Zadvydas as a jumping-off point, he interpreted the statute to require a bail hearing for immigrants after six months’ confinement—provided they pose no risk of flight or danger to the community. “The Due Process Clause foresees eligibility for bail as part of ‘due process,’ ” Breyer explained. By its own terms, that clause applies to every “person” in the country. Thus, the Constitution only permits the government to detain these immigrants without bail if they are not considered “persons” within the United States.

That is essentially what the government argued, asserting that immigrants detained at the border have no rights. This theory justifiably fills Breyer with righteous disgust. “We cannot here engage in this legal fiction,” he wrote. “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.” Breyer continued:

Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

Unfortunately, Breyer is not quite right that “no one” could claim, at least since “the time of slavery,” that noncitizens held in the U.S. “are totally without constitutional protection.” Just last October, Judge Karen L. Henderson of the U.S. Court of Appeals for the District of Columbia Circuit argued exactly that. In a stunning dissent, Henderson wrote that a pregnant, undocumented minor held in custody was “not entitled to the due process protections of the Fifth Amendment” because “[she] has never entered the United States as a matter of law … ” (The Due Process Clause protects women’s rights to abortion access.) In fact, the minor had entered the country and lived here for several months. But because she entered illegally, Henderson asserted that she had no constitutional rights. That’s precisely the “legal fiction” that Breyer rejected. It’s shockingly similar to the theory used to justify slavery and Dred Scott.

Do the Supreme Court’s conservatives agree with Henderson that undocumented immigrants detained in the U.S. have no constitutional protections? Breyer seems to fear that they do. In a striking peroration, Breyer reminded his colleagues that “at heart,” the issues before them “are simple”:

We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that … liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.

We should all be concerned that Breyer found it necessary to explain these first principles to the court. So many rights flow from the Due Process Clause’s liberty component: not just the right to be free from arbitrary detention and degrading treatment, but also the right to bodily integrity and to equal dignity. Should the court rule that undocumented immigrants lack these basic liberties, what’s to stop the government from torturing them, executing them, or keeping them imprisoned forever?

If that sounds dramatic, consider Breyer’s somber warning about possible starvation, beatings, and lashings. The justice plainly recognizes that, with Jennings, the court may have already taken a step down this dark and dangerous path.”

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As an appellate judge, I remember being infuriated by the callous attitude of some of my “Ivory Tower” colleagues and some trial judges who tended to minimize and sometimes trivialize human pain and suffering to arrive at nonsensical legalistic definitions of what constituted “persecution” or “torture.”

They simply didn’t want to recognize truth, because it would have resulted in more people being granted relief. In frustration, I occasionally privately suggested to staff that perhaps we needed an “interactive session” at the Annual Immigration Judges Conference (back in the days when we used to have such things) where those jurists who were immune to others’ pain and suffering would be locked in a room and subjected to some of the same treatment themselves. I imagine they would have been less stoic if it were happening to them rather than to someone else.

I doubt that any of the five Justices who joined the tone-deaf majority in Jennings would last more than a few days, not to mention years, in the kind of intentionally cruel, substandard, and deplorable conditions in which individuals, the majority of whom have valid claims to remain here under U.S. and international law, are detained in the “New American Gulag.” So, why is there no obvious Constitutional Due Process problem with subjecting individuals to so-called “civil” immigration detention, without recourse, under conditions that no human being, judge or not, should be forced to endure?

No, “Tone-Deaf Five,” folks fighting for their lives in immigration detention, many of whom lack basic legal representation that others take for granted, don’t have time to bring so-called “Bivens actions” (which the Court has pretty much judicially eliminated anyway) for “so-called “Constitutional torts!” Come on man, get serious!

Privileged jurists like Alito and Thomas speak in undecipherable legal trivialities and “pretzel themselves up” to help out corporate entities and other members of the privileged classes, yet have no time for clear violations of the Constitutional rights of the most vulnerable among us.

A much wiser, more humble, and less arrogant “judge” than Justice Alito and friends once said “Most certainly I tell you, inasmuch as you did it to one of the least of these my brothers, you did it to me.” When will the arrogant ever learn, when will they ever learn? Maybe not until it happens to them! Harm to the most vulnerable among us is harm to all of us! We should all be concerned that Justice Alito and his fellow judicial “corporate elitists” have “dissed” the Due Process Clause of our Constitution which protects everyone in America, not just corporations, gun owners, and over-privileged, under-humanized jurists!

Based upon recent statistics, approximately one person per month will die in the “DHS New American Gulag” while this case is “on remand” to the lower courts. How would Alito, Roberts, Thomas, Kennedy, and Gorsuch feel if it were their loved ones who perished, rather than some faceless (to them) “alien” (who also happens to be a human being)? Dehumanizing the least among us, like the Dred Scott decision did, de-humanizes all of us! For that, there is no defense at the bar of history and humanity.

PWS

03-01-18

ANOTHER WIN FOR THE “GOOD GUYS” (A/K/A NDPA) — GW Law Immigration Clinic Scores U Visa Win!

“Please join me in congratulating Immigration Clinic client C-R, from Venezuela. His U nonimmigrant visa application, filed on April 30, 2014, was granted Wednesday. C-R will be eligible to adjust status to lawful permanent residence in three years. U nonimmigrant visas are available to aliens who within the USA have been victims of criminal activity, and who have been helpful to law enforcement in investigating and prosecuting that crime. C-R was a victim of domestic violence at the hands of his ex-wife. Reports are that there are at least 90,000 U visa applications pending at USCIS.

Jessica Leal, Jonathan Bialosky, Sarena Bhatia, Chen Liang, Mark Webb, and Paulina Vera have worked on this case.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…”
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Congrats to all involved!

I’m proud to say that Paulina Vera and Jessica Leal are “distinguished alums” of the Arlington Immigration Court Internship Program as well as “charter members” of the New Due Process Army (“NDPA”)!

These guys keep proving my point: with time and access to good representation, probably the majority of those who flee from the so-called Northern Triangle are eligible for immigration relief of some type.

Consequently, a rational Attorney General, committed to Due Process, would work to insure that such individuals are released after initial screening and able to go to locations where pro bono counsel are readily available and where cases are scheduled in a manner that they can be completely prepared and presented efficiently. Individuals with counsel reliably appear in Immigration Court as scheduled. He would also encourage the issuance of more favorable precedents leading to more expedited grants of relief and facilitate Immigration Judges working with DHS to have cases taken off the Immigration Court docket and granted by DHS, either at the Asylum Office or elsewhere in USCIS on an expedited basis.

Instead, Sessions treats refugees and asylum seekers as if they were criminals and seeks to use the detention system to prevent individuals from obtaining counsel and achieving due process. His misuse of the Immigration Courts as part of a DHS enforcement regime to discourage individuals from asserting their statutory and Constitutional rights is nothing short of reprehensible!

PWS

02-28-18

BIA Amicus Invitation – Conviction for Possession of Controlled Substance, Florida (Due Mar. 29, 2018)

Amicus Invitation No. 18-02-27
AMICUS INVITATION (CONVICTION FOR POSSESSION OF A CONTROLLED SUBSTANCE IN FLORIDA),
DUE March 29, 2018

FEBRUARY 27, 2018

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

ISSUES PRESENTED:

(1) Considering that knowledge of the illicit nature of a substance is not an element of the crime of possession of a controlled substance pursuant to Fla. Stat. § 893.13(6)(a), does the statute categorically define a violation “relating to” a controlled substance as provided in sections 212(a)(2)(A)(i)(II) and 237(a)(2)(B)(i) of the Act? Please discuss in light of Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014).

(2) Is the definition of cocaine provided in Fla. Stat. § 893.03(2)(a) coextensive with the definitionprovidedinthefederalcontrolledsubstanceschedules? Ifnot,whatistheimport of any difference in these definitions? Is any difference clearly evident from the Florida statute’s text?

(3) If the definition of cocaine provided in Fla. Stat. § 893.03(2)(a) is not coextensive with the definition provided in the federal controlled substance schedules, is the Florida statute divisible as to the nature of the controlled substance such that the application of the modified categorical approach is appropriate?

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. 18-02-27. 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. 18-02-27. 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.

1

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 29, 2018. 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

02-28-18

LEGAL AID JUSTICE CENTER OF VIRGINIA HUGE WIN – USD Judge Brinkema Certifies Class & Orders Bond Hearings For Individuals In “Withholding Only Proceedings” — Rogelio Amilcar Cabrera Diaz v. Hott — Get Links To All The Essential Court Docs Here!

https://www.justice4all.org/2018/02/26/case-establishes-right-to-bond-hearings/

Case Establishes Right to Bond Hearings

Posted February 26, 2018 by Tim Wallace

FOR IMMEDIATE RELEASE

Legal Aid Justice Center has won an important first-in-the-nation class action case in federal court in Alexandria, establishing the right to bond hearings for a class of detained immigrants whom the government is holding in long-term no-bond detention.

When immigrants are deported to countries where human rights violations are rampant, they often find themselves subject to persecution, torture, or even death threats. And since the U.S. government almost never gives a visa to someone who has already been deported, these individuals may find themselves with no option other than to try to return to the United States and cross the border illegally to seek a form of legal protection from persecution known as “withholding of removal.”

Previously, ICE and the immigration courts refused to grant bond to these individuals, holding them in prison-like conditions in immigration detention centers for months if not years while they fought out their cases. Legal Aid Justice Center filed a lawsuit last year on behalf of five immigrants held in this prolonged no-bond detention, and won release for two of them, but the government refused to apply the decision more broadly to other similarly situated immigrants held in detention.

We then filed a first-in-the-nation class action, seeking access to bond hearings for all immigrants detained in Virginia who fall into this category. On February 26, 2018, federal district judge Leonie M. Brinkema granted our motions in full, giving our clients and the class members all of the relief we asked for. We understand that there are about 50 immigrants currently detained at the Farmville detention center who meet this description, with more being arrested every week. Now, they will have the chance to pay a bond and leave detention, reunite with their families, and resume normal lives while they fight their cases for protection.

Special thanks to our pro bono co-counsel at Mayer Brown LLP, Murray Osorio LLP, Law Office of James Reyes, and Blessinger Legal PLLC – we couldn’t possibly do it without you!

The judge’s opinion can be found here: Memorandum Opinion (PDF)

The judge’s order can be found here: Order (PDF)

The opinion applies to all immigrants who are in pending withholding-only proceedings, and “as of December 7, 2017 or at any time thereafter are detained within the Commonwealth of Virginia under the authority of [ICE].” The government has been ordered to notify all class members by March 13, 2018, and to provide them with a bond hearing (or a Joseph hearing, if appropriate) by March 28, 2018.

We will be monitoring compliance with this opinion, and want to hear from Virginia attorneys who represent a class member. If you represent a class member, or if you have questions as to whether your client might be a class member, please e-mail LAJC attorney Rachel McFarland at rmcfarland@justice4all.org to let us know.

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“Super Congrats” to Simon Y. Sandoval-Moshenberg—Director, Immigrant Advocacy Program & his team of Firms and pro bono attorneys for making this happy.

I am particularly delighted that one of my “star” former Georgetown Law RLP students, Rachel McFarland, has been involved in this case. Rachel is a “charter member” of the “New Due Process Army!”

PWS

02-28-18

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