Immigration Detention – Page 49 – immigrationcourtside.com

😇🌞🗽⚖️👍🏼“A LIGHT IN THE FOREST” — Michelle Mendez @ CLINIC Shows How Good Pro Bono Lawyering Saves Lives Even When The System Is Rigged Against Justice For Immigrants!

Subject: CLINIC BIA Pro Bono Project Recent Victories

Friends,

BIA and federal circuit court appeals often feel like an uphill battle, a true David and Goliath fight. It can be particularly discouraging right now, during an isolating pandemic, when DHS and DOJ issue new regulations and the BIA and AG publish opinions almost weekly with the purpose of making it more difficult for noncitizens to win their cases. However, CLINIC’s BIA Pro Bono Project continues to fight back and perform miracles—defeating Goliath—thanks to BIA Pro Bono Project Manager Rachel Naggar, BIA Pro Bono Project Legal Specialist Brenda Hernandez, and our many dedicated attorney volunteers. Rachel and Brenda shared with me the project’s awe-inspiring stories of success from this summer and the volunteers who made these victories possible. In turn, I share these success stories with you to offer inspiration to keep fighting for your clients while the Trump administration escalates its attacks on immigrant communities.

The BIA remanded the case of a Haitian asylum seeker on numerous grounds, including that the IJ did not apply the proper framework for assessing firm resettlement, the IJ mixed up the respondent’s political party when assessing his claim for withholding of removal, and the IJ did not meaningfully consider the respondent’s risk of future persecution. Thank you to Michael Ward of Alston&Bird!

The BIA overturned the IJ’s adverse credibility finding against an asylum seeker from Burkina Faso. The BIA also found that the IJ erred in concluding there was no nexus between the harm the respondent suffered and his political opinion, including that the prosecution he endured was actually pretext for persecution. Thank you to Gregory Proctor, Marjorie Sheldon, and Christian Roccotagliata of Kramer, Levin, Naftalis & Frankel!

The BIA granted asylum to a Cuban refugee. Contrary to the IJ, the BIA found that the harm suffered by the respondent did cumulatively rise to the level of past persecution and he did have a well-founded fear of persecution. Thank you to Austin Manes and Aaron Frankel of Kramer, Levin, Naftalis & Frankel!

The BIA remanded the case of a Cuban asylum seeker because the IJ failed to consider the evidence of past economic persecution along with the physical harm suffered. The BIA also reminded the IJ that where the persecution is committed by the government, it is presumed that internal relocation is not reasonable, and the burden shifts to DHS to demonstrate that it would be reasonable in this case. Thank you to Dean Galaro of Perkins Coie!

The BIA reopened the case of a Cuban asylum seeker because he had new evidence of harm and threats against his family that occurred after his final hearing with the immigration judge. Thank you to Astrid Ackerman and Aaron Webman of Kramer, Levin, Naftalis & Frankel!

The Ninth Circuit granted the petition for review of a Ghanaian asylum seeker, overturning the IJ’s negative credibility finding and concluding that the Board had failed to adequately consider the country conditions evidence when it denied CAT relief. You can read the full decision here. Thank you to Kari Hong of Boston College Law School!

The Third Circuit, in a published decision, granted a Honduran asylum seeker’s petition for review, finding that the IJ and BIA erred in analyzing whether the respondent had suffered past persecution. The Court also found that the IJ failed to conduct the proper analysis regarding the need for evidence in an application for CAT protection. You can read the full decision here. Thank you to Aaron Rabinowitz and Gary Levin of Baker & Hostetler!

The Sixth Circuit, in a published decision, granted a Russian asylum seeker’s petition for review, finding that the IJ and BIA erred in concluding that the respondent was not persecuted on account of his political opinions and that his indictment for peacefully protesting under Russian law was a pretext for persecution. You can read the full decision here. Thank you to Brenna Duncan and Andrew Caridas of Perkins Coie!

DHS withdrew its appeal of a grant of asylum from Mexico to a Cuban national. DHS conceded to the IJ that the respondent was eligible for asylum from Mexico, but not Cuba because of the Third Country Transit Bar. DHS changed its mind and filed an appeal, which was withdrawn after pro bono counsel filed his brief. Thank you to James Montana of The Law Office of James Montana!

The BIA dismissed an appeal by the Department of Homeland Security and upheld a Cuban woman’s grant of asylum. The Board found that the IJ was correct in deeming the respondent eligible for asylum and not subject to the Third Country Transit Bar. Thank you to Aaron Rabinowitz and Jeffrey Lyons of Baker & Hostetler!

ICE released a Venezuelan asylum seeker from detention to reunite with her spouse, after tremendous advocacy efforts by her pro bono attorney. Thank you to David Gottlieb!

The Ninth Circuit remanded the case of a Honduran victim of domestic violence, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had demonstrated that the Honduran government acquiesced in her persecution, whether the respondent is part of a viable particular social group, whether it would have been futile for her to report the harm to local authorities, and whether internal relocation would be reasonable. Thank you to Alicia Chen!

A victim of human rights violations by the notorious Eritrean military was granted withholding of removal, after the BIA overturned the IJ’s adverse credibility finding and found that the IJ failed to consider that the country conditions evidence corroborated the respondent’s claim. Thank you to Jonaki Singh and Susan Jacquemot of Kramer, Levin, Naftalis & Frankel!

The Ninth Circuit remanded the case of an asylum seeker from Mexico, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had been persecuted and sexually assaulted on account of her sexual orientation, and whether the government of Mexico could adequately protect her from future harm. Thank you to Tim Patton of the Appellate Immigration Project!

The Fourth Circuit granted the petition for review holding that a conviction under VA 18.2-280(A) is not a removable firearms offense, a result that would not have been possible had Mr. Gordon not continued to fight his case for so many years even despite being deported. You can read the decision here. Thank you to the CAIR Coalition and Ted Howard at Wiley Rein! Thank you also to the National Immigration Project of the National Lawyers Guild for the amicus support!

Jose came to the United States in 1985 to live with his father as a permanent resident. He built a life in the United States, becoming a father himself. After a run in with the law, he was placed in removal proceedings and was detained for 19 months. In a 2-1 decision, the Third Circuit found that under the unique circumstances of this case, Jose’s father was deprived of the equal protection of the laws. Jose is a United States citizen, the court declared, and has been since 1985. In the wake of the Supreme Court’s 2016 decision in Sessions v. Morales-Santana, Jose’s case was the first to benefit from this Supreme Court decision. You can read the full decision here. The government petitioned for rehearing, but the full Third Circuit declined to intervene. Ultimately, the government declined to ask the Supreme Court to review the case. For the better part of the last decade, Jose’s life has been filled with uncertainty and stress, but not anymore, which is very important as Jose is expecting his first grandchild. A huge thank you to Nick Curcio who has represented Jose for 7 years!

In its 19+ years of operation, the Project has reviewed more than 7,200 cases, pairing attorneys and law school clinics with vulnerable asylum seekers and long-time lawful permanent residents. If you are interested in representing a case through CLINIC’s BIA Pro Bono Project, please complete our volunteer form. If you prefer to show your support for the BIA Pro Bono Project via a monetary donation, please designate “BIA Pro Bono Project” in the “In honor of” field of our donations page.

Gratefully and in solidarity,

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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Thanks Michelle, my friend, colleague, and courageous leader of the NDPA. What a timely, wonderful, practical, “real life” illustration of Jason “The Asylumist” Dzubow’s “praise and call to action for pro bono” that I republished earlier this week! https://immigrationcourtside.com/2020/08/11/lifesaving-101-for-the-ndpa-begins-with-pro-bono-never-has-the-need-been-greater-pro-bonos-finest-hour-in-americas-time-of-darkness-cruelty-inhumanity/

Here’s what our colleague Judge Jeffrey Chase has to say about Michelle and CLINIC:

No surprise, Michelle. CLINIC is responsible for so much good case law. And the non-CLINIC successful attorneys probably used CLINIC training or practice advisories. Congrats to you and all of your outstanding attorneys and support staff, and thanks for all you do!

Even in times of our greatest national darkness and misery, there are plenty of lives that can be saved! Contrary to the “Dred Scottification” — dehumanization of persons in our country — unconscionably pushed by the regime and enabled by many public officials and courts that “should know better,” every person’s life is important!

And, despite the conscious misinterpretation and misapplication of the Fifth Amendment by far too many of those charged with upholding it, every person in the U.S., regardless of race or status, is entitled to due process, fundamental fairness, and to be treated with human dignity.

Think of how much progress we could make if we didn’t have to keep re-litigating all the same issues over and over again, often with differing results!

What if the “precedents” concentrated on those cases that could be granted, rather than almost exclusively focusing on “roadmaps to denial?”

What if we promoted and supported great pro bono representation, rather than inhibiting and discouraging it?

What if meritorious cases were moved to the “head of the line” instead of continuously being “shuffled off to Buffalo” by “Aimless Docket Reshuffling” (“ADR”) thereby languishing in the mindlessly expanding backlog?

What if Federal Judges at all levels were the “best and the brightest” — selected from among those with demonstrated expertise in immigration, asylum and human rights and impeccable reputations for due process, fundamental fairness, and humanity, rather than being selected for “go along to get along” reputations or allegiance to perverse political ideologies that undermine equal justice for all?

What if our Immigration Court system were administered independently and professionally, rather than as a biased and weaponized tool of DHS enforcement and White Nationalist politicos?

What if our Justice System worked cooperatively with folks like Michelle, Jason, Judge Ashley Tabaddor, and many others with good, creative, practical ideas for institutionalizing “best practices” leading to to “due process with efficiency?”

What if we fairly implemented our refugee, asylum, and protection legal framework to “protect rather than reject?”

What if we consistently treated our fellow beings as humans, rather than as “less than human?”

What if we viewed immigration for what it really is: the foundation of our nation and a continuing source of great strength, pride, and optimism for our country of immigrants, rather than pretending that we live on an island and must “wall off” the rest of the world?

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

PWS

08-14-20

🏴‍☠️☠️🤮⚰️DEADLY GULAG: CMS Reports Continue To Document What We Already Know: The Trump Regime’s “New American Gulag” Needlessly Kills Migrants While Endangering Public Health & Wasting Lots Of Taxpayer Funding!

Donald M. Kerwin
Executive Director
Center for Migration Studies

Dear Colleagues,

Over the last few months, the Center for Migration Studies (CMS) has been trying to err on the side of pushing out work in progress, rather than waiting to publish polished and complete work. Some of our work in progress can be found on our web-page devoted to migration-related,

COVID-19 issues.https://cmsny.org/cms-initiatives/migration-covid/. We have also been regularly updating a “compendium” of US detention developments. The latest and final version of that working “report” can be found here:

https://cmsny.org/publications/immigrant-detention-covid/ . The short report is about how the well-documented problems in the US immigrant detention system, combined with the callous, politically-driven policies of the Trump administration, have predictably facilitated the spread of COVID-19 inside and beyond the US immigrant detention system. Since we finished this version of the report on August 3, at least two more detainees have died from COVID-19-related “complications” and, no doubt, more will follow and ICE will continue to promise full, agency-wide investigation of these deaths:

https://www.aila.org/infonet/deaths-at-adult-detention-centers. We will be broadly disseminating this report and an upcoming exhaustive report on immigrant essential workers. However, please help us to distribute this detention report to others. We hope it will be a useful resource.

Best wishes and thanks,

Don Kerwin

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

Thanks, Don!

Get the CMS reports at the above links!

They should be helpful evidence in litigating to put an end to this disgracefully unconstitutional and inhuman system. To paraphrase my friend and colleague Professor Phil Schrag of Georgetown Law, author of Baby Jails, in America we treat refugee children worse than convicted felons!

To once again state the obvious, the outrageous amount of money we waste on unnecessary and illegal DHS “civil” detention in the Gulag could be “repurposed” to more constructive uses like funding legal representation, resettling asylees, and transitioning to an independent Article I Immigration Court. America’s health and welfare, as well as our national moral standing, would be vastly improved.

PWS

08-13-20

WHITE NATIONALISTS BEWARE: 9th Cir. Fires Warning Shot Across Bow Of Racist Judges, Prosecutors, & Police — No Qualified Immunity For You, Neo-Nazis! — Reynaga Hernandez v. Skinner

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-fourth-amendment-reynaga-hernandez-v-skinner

Dan Kowalski reports for LexisNexis Immigration Community:

Daniel M. Kowalski

11 Aug 2020

Fourth Amendment

CA9 on Fourth Amendment: Reynaga Hernandez v. Skinner

Reynaga Hernandez v. Skinner

“In late 2017, a witness in a courtroom in Billings, Montana, testified that one of the other witnesses, Miguel Reynaga Hernandez (“Reynaga”), was “not a legal citizen.” On the basis of this statement, the Justice of the Peace presiding over the hearing spoke with the local Sheriff’s Office and asked that Reynaga be “picked up.” Deputy Sheriff Derrek Skinner responded to the call. Outside the courtroom, Skinner asked Reynaga for identification and questioned him regarding his immigration status in the United States. Reynaga produced an expired Mexican consular identification card but was unable to provide detailed information regarding his immigration status because he does not speak English fluently. Skinner then placed Reynaga in handcuffs, searched his person, and escorted him to a patrol car outside the courthouse. With Reynaga waiting in the back of the patrol car, Skinner ran a warrants check and, after Reynaga’s record came back clean, asked Immigration and Custom Enforcement (“ICE”) if the agency had any interest in Reynaga. Reynaga was ultimately taken to an ICE facility and remained in custody for three months. Upon his release, Reynaga sued Skinner and Pedro Hernandez, the presiding Justice of the Peace (“Hernandez”), under 42 U.S.C. § 1983 for violating his Fourth Amendment rights. On cross-motions for summary judgment, the district court denied each defendant qualified immunity and held that Reynaga’s Fourth Amendment rights had been violated. Skinner and Hernandez interlocutorily appeal the court’s denial of qualified immunity. We affirm.”

From NWIRP: “This decision is important as it makes clear that state and local law enforcement officers may be held liable under the civil rights statute if they unlawfully detain community members in order to turn them over to immigration enforcement,” said Matt Adams, legal director for NWIRP. “Police officers—and even local judicial officials—may be held accountable when, instead of serving the community, they take it upon themselves to stop people based on their suspected immigration status, the language they speak, or their ethnicity or the color of their skin.” “The harm that [Judge Hernandez and Deputy Skinner] did to me is hard to explain,” said Mr. Reynaga in reacting to the court of appeals decision. “It’s something that lives in me and in my family now. It’s hard to describe what this harm represents to a person. But I’m very grateful for the work NWIRP has done for me. I’m very happy and proud that now immigrants here in Montana and in other states can know that we also have rights.” Following the court of appeals decision, Mr. Reynaga’s case will return to the district court for further proceedings on the damages he is entitled to in light of the violation of his constitutional rights.”

[Hats way off to Matt Adams (argued), Leila Kang, Aaron Korthuis, and Anne Recinos, Northwest Immigrant Rights Project, Seattle, Washington, and Shahid Haque, Border Crossing Law Firm P.C., Helena, Montana; for Plaintiff-Appellee!]

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

Who knows what the Supremes might do on on this? So far they have been reluctant to enforce the Constitution against racism in law enforcement. Remember, they recently gave the Border Patrol a license to unconstitutionally shoot and kill a Mexican kid across the border in Mexico. And, the Supremes majority has happily found ways to impose possible death sentences on legal asylum seekers of color without any meaningful process at all.

The “JR Five” aren’t particularly creative thinkers —except when it comes to thinking of ways to dehumanize (“Dred Scottify”) persons of color under our Constitution. Then they often are happy to fabricate any rationale to deny due process and equal protection under our laws.

Due Process Forever!

PWS

08-12-20

LIFESAVING 101 FOR THE NDPA BEGINS WITH PRO BONO! – Never Has The Need Been Greater – Pro Bono’s Finest Hour In America’s Time Of Darkness, Cruelty, & Inhumanity! – From “The Asylumist” Jason Dzubow!

Here’s the link:

https://www.asylumist.com/2020/08/11/asylum-seekers-need-pro-bono-lawyers-now-more-than-ever/

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

Yes, never has pro bono been more important than it is now!

This is a regime of White Nationalist cowards. Part of their strategy for “Dred Scottification” and dehumanization of “the other” is to pick on asylum seekers and immigrants first, because they are the “easy marks” often stuck in a system they have no realistic chance of navigating with no representation. Then extend the “dehumanization” and abrogation of due process and equal protection to other categories of “the other:” Hispanics, Blacks, LGBTQ, women, Muslims, Asians, etc. until basically only GOP White Christian straight males and their “female fellow travelers” have any individual rights that will be protected by the Federal Courts.

Think we’re not moving in that direction? Check out Roberts’s “head in the sand” claim that picking on Dreamers had nothing to do with racism directed at Hispanics. Or the Supremes’ majority’s totally dishonest approach to voting rights of people of color: “Yes, we see the GOP ‘fix is on’ to disenfranchise you. But, we’re only the Supremes, so we aren’t going to do anything to protect your Constitutional right to vote. You’ll have to solve it politically at the same time you are being disenfranchised by a minority of white GOP politicos and GOP voters with our help. We help the ‘perps in power,’ not their ‘victims of color.’”

So totally emboldened is Trump by the Supremes’ complicity in racism that he is hatching plans to bar U.S. citizens and LPRs from entering over the Southern Border if they are “suspected of having COVID” while he lets COVID run wild in the U.S. and actively undermines science and rational attempts to control the pandemic. Want to bet on how many of those USCs and LPRs barred at the border will be White and how many will be Hispanic Americans? But, Roberts will “just say OK” because “lots of Hispanic Americans come over the Southern Border.”

Roberts once got all huffy and self-righteous when dissenting colleagues correctly accused him of reviving discredited precedents that supported internment of Japanese Americans. He even went through the motions of supposedly overruling that leading case. But, then he basically followed its racist and invidious doctrines by essentially substituting Muslims, Hispanics, asylum seekers, refugees, and immigrants for Japanese Americans. Dehumanization is alive and well at the Supremes today. The targets might change; but the ugliness and unlawfulness doesn’t.

One great way to fight back against these racist attacks by Trump is by insuring that unrepresented or underrepresented migrants are no longer the “low hanging fruit” of racist intimidation and unequal treatment before the law. Fill the Federal Courts with litigation and force complicit Federal Judges, from Immigration Judges all the way up to and including the Supremes, to look at the face at their own ugly racist enabling and human rights denying misfeasance in office every day. Make a public record to insure that their kids, grandkids, and all future generations know just how spinelessly their ancestors performed when confronted with clear, grotesque, and deadly violations of human rights and human dignity. How when the “chips were down” for democracy and human decency, they were MIA!

Right now, we’re in the long overdue process of tearing down the statutes of past racists like Chief Justice Roger Taney of “Dred Scott infamy.” But, we must insure that the statutes of the Federal Judges and other public officials who are enabling and promoting modern-day “Dred Scottification” never get built in the first place.

Remember my “Five Cs” – Constantly Confront Complicit Courts for Change!

Due Process Forever! And, of course, thanks every day to the legions of pro bono fighters among the ranks of our “New Due Process Army” who courageously champion the cause of the most vulnerable among us, thereby protecting all of our individual rights, at a time of great and disturbing national cowardice and unparalleled corruption and incompetence among the GOP “governing” class and their enablers and apologists.

PWS

08-11-20

🏴‍☠️KAKISTOCRACY WATCH: Billy The Bigot Appoints Another “Death Squad”☠️⚰️ To BIA!🤮👎

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

EOIR Announces Three New Appellate Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Michael P. Baird, Sunita B. Mahtabfar, and Sirce E. Owen as appellate immigration judges in EOIR’s Board of Immigration Appeals.

Biographical information follows:

Michael P. Baird, Appellate Immigration Judge

Attorney General William P. Barr appointed Michael P. Baird as an appellate immigration judge in August 2020. Judge Baird received a Bachelor of Business Administration in 1989 from Clayton State University and a Juris Doctorate in 1992 from Georgia State University College of Law. From 2009 to 2020, he served as an immigration judge first in Dallas, Texas and then later transferred to the Atlanta Immigration Court. From 2006 to 2009, he served as a senior assistant district attorney in the Appalachian Judicial Circuit, in Georgia. From 2004 to 2006, he served as a judge in the Municipal Court of Jonesboro, Georgia. From 1997 to 2004, he served as chief judge for the Magistrate Court of Clayton County, Georgia. From 1995 to 1996, he was in private practice. From 1993 to 1995, he served as senior assistant solicitor general at the Clayton County Solicitor’s Office. From 1992 to 1993, he was in private practice. From 1986 to 1990, he was a police officer. Judge Baird has taught as adjunct faculty at the Georgia State University College of Law, Clayton State University and the University of West Georgia. Judge Baird is a member of the State Bar of Georgia.

Sunita B. Mahtabfar, Appellate Immigration Judge

Attorney General William P. Barr appointed Sunita B. Mahtabfar as an appellate immigration judge in August 2020. Judge Mahtabfar earned a Bachelor of Arts in 1994 from the University of Texas at Austin and a Juris Doctorate in 1998 from Thurgood Marshall School of Law. From 2013 to 2020, she served as an immigration judge in the El Paso Immigration Court. From 2006 to 2013, she served as an attorney in the Office of the Assistant Chief Counsel, U.S. Customs and Border Protection, Department of Homeland Security (DHS), in El Paso, Texas. From 2003 to 2006, she served as an asylum officer, U.S. Citizenship and Immigration Services, DHS, in Houston. Judge Mahtabfar is a member of the State Bar of Texas.

Communications and Legislative Affairs Division

August 7, 2020

Page 2

Sirce E. Owen, Appellate Immigration Judge

Attorney General William P. Barr appointed Sirce E. Owen as an appellate immigration judge in August 2020. Judge Owen earned a Bachelor of Science in 1996 from Johns Hopkins University, a Master of Business Administration in 2002 from Georgia State University, and a Juris Doctor in 2005 from Georgia State University. From 2018 to 2020, she served as an assistant chief immigration judge, based in Atlanta. From June 2019 to January 2020, she served as acting deputy director of EOIR. From 2016 to 2018, she served as deputy chief counsel, Office of Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in Atlanta. From 2008 to 2016, she served as assistant chief counsel, ICE, DHS, in Atlanta. From 2005 to 2008, she was an associate attorney with Mozley, Finlayson & Loggins LLP, in Atlanta. Judge Owen is a member of the State Bar of Georgia.

— EOIR —

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Here’s what you really need to know about these so-called “judges.”

Baird – Asylum denial rate 91.4% (74^th highest of 456 ranked)

Mahtabfar – Asylum denial rate 98.7 (8^th highest of 456 ranked – but remember the 7 worse “judges” are probably already on the BIA)

Owen – Didn’t deny enough asylum to make the TRAC charts. Served mostly as a prosecutor and “management judge” (A/K/A “JINO” or “Judge In Name Only”). But rest assured – she hails from the Atlanta Immigration “Court” – deemed an “Asylum Free Zone” in “a petition filed before the Inter-American Commission on Human Rights (IACHR).” https://www.thenation.com/article/archive/these-jurisdictions-have-become-asylum-free-zones/

As my Round Table colleague Judge Jeffrey S. Chase summed it up: “Under [EOIR Director James] McHenry, a “liberal” is defined as one whose asylum denial rate is lower than their body temperature.”

Due Process Forever! The EOIR kakistocracy, never!

PWS

08-11-20

🛡⚔️🗽👍🏼🇺🇸ROUND TABLE SLAMS LATEST BOGUS “KILL ASYLUM” PROPOSED REGS IN COMMENTS TO REGIME!

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Comments – Security Bar (COVID) Asylum Reg (PDF)

The Round Table of Former Immigration Judges is composed of 46 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. We have centuries of combined experience adjudicating asylum applications and appeals. Our members include nationally- respected experts on asylum law; many regularly lecture at law schools and conferences and author articles on the topic.

We view the proposed rule as an improper attempt to legislate through rule making. The proposed rule is inconsistent with Congressional intent and with our nation’s obligations under international law. The rule is also overly broad, and as worded, could be applied to virtually anyone. It requires determinations to be made based on pure speculation by officials lacking any required expertise in the subject. And the rule fails to consider much lesser, more humane approaches to address the issue.

. . . .

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Read our complete comment at the above link.

Gimmicks, cruelty, illegally, gimmicks, cruelty, illegality. Over and over the regime targets asylum seekers with “crimes against humanity.”

Although all DHS statistics should be regarded as suspect, the recent assertions that the regime”s killer tactics are protecting America against COVID appear particularly bogus — especially given the Trump regime’s gross failure to protect Americans from the pandemic and the frequent myths and false claims blabbered by Trump in a pathetic attempt to downplay the disaster caused by his stupidity and malicious incompetence.

The net result of all these “Miller-hatched” cruel gimmicks to eliminate legal immigration (without legislative authority) appears to be steadily increasing levels of extralegal immigration. And that’s just the folks who get caught. Who knows how many get through and simply get lost in the interior? So, instead of a rational legal immigration and refugee system that encourages screening, testing where necessary, taxpaying, and data collection, thanks to the stupidity and cruelty of Trump and Miller, the fecklessness of Congress, and the complicity of the Supremes, we have created a larger than ever extralegal immigration system.

Diminishing ourselves as a nation,🤮 won’t stop human migration🗽!

PWS

08|10-20

🏴‍☠️☠️⚰️👎🏻🤮END OF REFUGEE PROGRAMS SIGNALS DEMISE OF AMERICA! — “Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here!”

🏴‍☠️☠️🏴‍☠️☠️🏴‍☠️☠️🏴‍☠️☠️⚰️⚰️⚰️⚰️⚰️👎🏻👎🏻👎🏻👎🏻👎🏻

https://www.washingtonpost.com/outlook/refugees-united-states-abandon/2020/08/07/6085e81c-d751-11ea-aff6-220dd3a14741_story.html

U.S. Asylum Officer Jason Marks writes in the WashPost Outlook Section:

. . . .

Collectively, we were told to implement restrictive new policies, expressly designed to deter people from seeking refuge. The Migrant Protection Protocols, for example, resulted in more than 60,000 asylum seekers being sent to Mexico in 2019, after fleeing the extreme brutality of MS-13 and the 18th Street gang in Honduras, Guatemala and El Salvador. Left to live in squalor without any protection, they are preyed upon by cartels and gangs as they wait, sometimes months, for an elusive court date before an immigration judge.

[I became an asylum officer to help people. Now I put them back in harm’s way.]

The pandemic put refugees and asylum seekers in even more desperate straits, as the United States paused refugee resettlement. Many already interviewed and accepted for resettlement in the U.S. now live stateless at the margins of cities, towns and villages where they have no rights or legal status, or in overcrowded refugee camps. Around the world, in places including Jordan, Kenya and Bangladesh, refugee camps are bursting at the seams. People there are unable to practice social distancing, and soap and water are limited.

Meanwhile, at our borders, Customs and Border Protection has turned away thousands of vulnerable people since March, without due process. Some applicants showing symptoms of the coronavirus were deported with no regard for safety measures (such as testing), causing outbreaks in the countries from which they had fled. Others languish in crowded detention facilities, even though many of them pose no security threat and Immigration and Customs Enforcement has the discretion to release them. By law, children must be let out after 20 days of incarceration. But rather than release them with their parents, our government has presented these families with an agonizing choice: Either have their children released, indefinitely separated from their parents — or remain locked up together in these facilities, many of which have already witnessed coronavirus outbreaks.

Amid all this, in June, the administration proposed 161 pages of sweeping regulations that would gut asylum and refugee law. Certain provisions, for example, drastically narrow the definitions of persecution and torture; others raise certain burdens of proof to nearly unreachable standards and redefine what constitutes the protected grounds of political opinion and membership in a particular social group. Still others could disqualify applicants if they made a mistake on their tax filings, or took two or more layover flights on their way here. In July, the administration proposed yet another new policy, allowing the United States to deny asylum to applicants if they come from any country with an outbreak of a highly contagious disease. (Public health experts have said this would serve no legitimate public health purpose.) It’s difficult to see how anyone could qualify for protection under this tangle of new rules, once they’re implemented.

Years of tightening restrictions have made it harder to obtain a wide range of legal immigration benefits, causing applications to plummet and, with them, the user fees that fund U.S. Citizenship and Immigration Services operations. Now, the pandemic has placed our agency on the brink of bankruptcy, and 70 percent of our workforce faces an indefinite furlough unless Congress intervenes. Without emergency funding, only a skeleton crew will remain to administer America’s immigration services system — resulting in even greater backlogs in the processing of applications for benefits including asylum, green cards, work permits and citizenship.

Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here. If the current administration’s policies continue unchecked, there will no longer be a pathway for refugees to have a new beginning in the United States. Even if a different presidential administration tried to change course, I fear that it would take many years to reverse the damage and rebuild our capacity to protect refugees. Many people will lose their lives before then.

In the closing words of his farewell address, President Ronald Reagan described our country as a “shining city upon a hill”: “If there had to be city walls,” he said in 1989, “the walls had doors, and the doors were open to anyone with the will and the heart to get here.” That is still something most Americans believe in.

[Read more from Outlook:]

[Coronavirus can’t be an excuse to continue President Trump’s assault on asylum seekers]

[Americans are the dangerous, disease-carrying foreigners now]

[During the covid-19 pandemic, immigrant farmworkers are heroes]

[Follow our updates on Facebook and Twitter.]

Jason Marks, an asylum training officer with the United States Citizenship and Immigration Services (USCIS), writes here as a shop steward for Local 1924, American Federation of Government Employees, which represents employees of the USCIS Asylum and Refugee Officer Corps.

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

Read the rest of Jason’s article at the above link.

It’s not rocket science! Misusing, misinterpreting, and misapplying refugee and asylum laws to “reject not protect” is clearly illegal, unconstitutional, and immoral to boot! It’s also, not surprisingly, toxic public policy because it squanders and misdirects resources on efforts to that actually hurt our economy, society, and reputation. In other words, fraud, waste, and abuse on a grand and deadly scale!

So, a career Asylum Officer has more legal knowledge, guts, and human decency than the life-tenured, yet removed from both reality and humanity, Supremes’ majority! What’s wrong with this picture!

75 years after the end of World War II, America has installed a racist, neo-Nazi White Supremacist Government. Go figure!

To make this happen, Trump and his cronies needed both a feckless Congress and Supremes committed to empowering authoritarian racism in the name of Executive authority. He got both!

We have an opportunity, perhaps our last as a nation, to return to a nobler vision of America. But it will require ousting not only the morally corrupt and maliciously incompetent Trump regime but also the equally immoral GOP Senators who have enabled and enthusiastically hastened our national demise. That will give us a start on the longer-term project of better Justices and Federal Judges for a better America.

There is no excuse whatsoever for the cowardly, disingenuous, and immoral failure of the Roberts Court to stand against Trump. Instead, they have embraced the “Dred Scottification” — that is, dehumanization — of refugees, asylum seekers, immigrants, and persons of color. Why is this judicially-enabled retrogression to the “Hay-day of Jim Crow” acceptable in 21st Century America?

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

PWS

08-09-20

🏴‍☠️☠️⚰️👎🏻DEATH IN THE GULAG: DHS Racks Up 17th Detainee Kill Of Fiscal Year — Doubling Previous Year’s Body Count ⚰️ With Months To Go As “DUD” Program Hits High Gear! — Death Either Here Or Upon Return To Danger Without Fair Hearings Is The “Ultimate Deterrent” For America’s White Nationalist Regime!

DUD = “Detain Until Dead”

https://apple.news/AEJpCWSaJQMyWS9vMdp33bQ

Danielle Silva reports for NBC News:

More than twice as many immigrants have died in the custody of Immigration and Customs and Enforcement this fiscal year than last after two detainees died this week. That brought this year’s total to 17, compared with eight deaths last year.

A 72-year-old Canadian man who had tested positive for the coronavirus died in ICE custody on Wednesday night at a Virginia hospital, the agency said Friday in a statement.

James Thomas Hill reported feeling shortness of breath to staff at an ICE detention facility in Farmville, Virginia, on July 10 and was admitted to Centra Southside Community Hospital before being transferred to Lynchburg General Hospital the following day, ICE said.

A COVID-19 test administered by hospital staff came back positive on July 11, the agency said.

Hill entered ICE custody on April 11 following his release from the Rivers Federal Correctional Institute in North Carolina after serving 13 years of a 26-year prison sentence for health care fraud and distributing a controlled substance, according to ICE. An immigration judge had ordered his removal on May 12, ICE said. At the time of his death, Hill was in ICE custody pending his removal to Canada, the agency said.

The agency said it had notified the Department of Homeland Security’s Office of Inspector General, the ICE Office of Professional Responsibility, the Canadian consulate and Hill’s next of kin. His death was first reported by BuzzFeed News.

A 51-year-old Taiwanese man died Wednesday afternoon at a Florida hospital after being a diagnosed with a “massive intercranial hemorrhage,” ICE said in a separate statement Thursday.

Kuan Hui Lee was found unresponsive at the Krome Service Processing Center in Florida on July 31 and taken to the Kendall Regional Medical Center.

. . . .

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

I think this is just the beginning of the true carnage that advocates have been predicting for months. And that doesn’t even count those killed after being “orbited” by DHS in violation of the statute and due process as a complicit Supremes majority egged them on.

The shame of our nation’s intentional dehumanization and mistreatment of asylum seekers and other migrants under the Trump regime won’t be eradicated. What kind of “democracy” runs a “Gulag” for non-criminals where all “sentences” are arbitrary and indefinite and the there is no readily available impartial review of detention by a neutral and detached magistrate? Where Supreme Court Justices worry more about the impact of “nationwide injunctions” and “bogus emergencies” declared by an patently unqualified and invidiously biased Executive than they do about the lives, health, and freedom of individuals whose “crime” is to assert their legal and Constitutional rights?

While the problem starts with a White Nationalist, racist regime and a feckless GOP-controlled Senate under Moscow Mitch, those Federal Judges at all levels who could have put an end to these “crimes against humanity,” but failed to do so, also bear responsibility for the death and destruction of human lives by the regime.

Due Process Forever! Complicit Courts, Never (Again). Better Justices & Judges For A Better America!

PWS

08-08-20

THREE STRIKES & YOU’RE OUT — Faced With BIA’s Third Wrong Deportation Order In Same Case, 9TH Cir. Finally Ends EOIR’s Decade-Long Effort To Misconstrue Law To Deport — Valenzuela Gallardo v. Barr (Valenzuela Gallardo III), Vacating Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018)

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/06/18-72593.pdf

Valenzuela Gallardo v. Barr, 9th Cir., 08-06-20, published

SYNOPSIS BY COURT STAFF:

Immigration

The panel granted Agustin Valenzuela Gallardo’s petition for review of a decision of the Board of Immigration Appeals and vacated his order of removal, holding that 8 U.S.C. §1101(a)(43)(S), which describes an aggravated felony “offense relating to obstruction of justice,” requires a nexus to an ongoing or pending proceeding or investigation and that, therefore, the BIA’s contrary construction of the statute was inconsistent with the statute’s unambiguous meaning.

In a prior published opinion, the BIA found Valenzuela Gallardo removable on the ground that his conviction for being an accessory to a felony, in violation of California Penal Code § 32, was an obstruction of justice aggravated felony under 8 U.S.C. §1101(a)(43)(S). Switching directions from its precedent, the BIA concluded that the existence of an ongoing proceeding was not an essential element of an offense relating to obstruction of justice. However, a prior panel of this court vacated the BIA’s redefinition because it raised serious questions about whether the statute is unconstitutionally vague. On remand, the BIA issued a published decision concluding that obstruction of justice offenses included not only offenses that interfered with ongoing or pending investigations or proceedings, but also those that interfered with investigations or proceedings that were reasonably

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

VALENZUELA GALLARDO V. BARR 3

foreseeable by the defendant. Valenzuela Gallardo again petitioned for review.

The panel began at Chevron Step Zero, where the court determines whether the Chevron framework applies at all. The panel noted amici’s argument that the BIA’s interpretation of the term “aggravated felony,” which includes offenses related to obstruction of justice, is ineligible for Chevron deference because the term has dual application in both civil proceedings, including removal proceedings, and criminal proceedings, including increased maximum prison terms for illegal reentry. The panel explained that deferring to the BIA’s construction of statutes with criminal applications raises serious constitutional concerns because only Congress has the power to write new federal criminal laws. However, the panel concluded that it was bound by the law of the case doctrine because the panel that decided Valenzuela Gallardo’s prior petition for review had applied the Chevron framework, and no exceptions to the doctrine applied.

At Chevron Step One, the panel concluded that 8 U.S.C. § 1101(a)(43)(S) is unambiguous in requiring a nexus to an ongoing or pending proceeding or investigation. The panel rejected the Government’s assertion that the court had already held that the statute is ambiguous in this regard. Next, the panel explained that the ordinary meaning of the term “obstruction of justice” when the statute was enacted in 1996 required a nexus to an extant investigation or proceeding. Looking to the term’s relevant statutory context – which the panel concluded to be Chapter 73 of Title 18, entitled “Obstruction of Justice” – the panel further explained that almost all of the substantive provisions in Chapter 73 that existed in 1996 required a nexus to an ongoing or pending proceeding or investigation.

4 VALENZUELA GALLARDO V. BARR

Because the panel concluded that § 1101(a)(43)(S) was unambiguous, it did not proceed to Chevron Step Two. The panel also noted that it would reach the same conclusion even if it were not to apply the Chevron framework.

Finally, the panel concluded that the statute under which Valenzuela Gallardo was convicted, California Penal Code § 32, is not a categorical match with obstruction of justice under § 1101(a)(43)(S) because the text of § 32 and its practical application demonstrate that it encompasses interference with proceedings or investigations that are not pending or ongoing. Accordingly, the panel vacated Valenzuela Gallardo’s removal order.

COUNSEL:

Frank Sprouls (argued) and John E. Ricci, Law Office of Ricci & Sprouls, San Francisco, California, for Petitioner.

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S. Hogan, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Amalia Wille and Judah Lakin, Van Der Hout Brigagliano & Nightingale LLP, San Francisco, California, for Amici Curiae American Immigration Lawyers Association, U.C. Davis School of Law Immigration Law Clinic, and Asian Americans Advancing Justice—Asian Law Caucus.

PANEL: Eugene E. Siler,* Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges.

The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

OPINION BY: Judge Wardlaw

KEY QUOTE:

Nonetheless, both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis of the precise question before us—whether the BIA’s new “reasonably foreseeable” definition is at odds with the plain meaning of the statute, which was not before the prior panel—lead us to the same conclusion: the statute is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board’s most recent interpretation is at odds with that unambiguous meaning.

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

So, let’s put this in perspective. Today’s EOIR has been “weaponized” by the Trump regime as a deportation assembly line. Immigration Judges and the BIA are pushed to cut corners and avoid careful legal analysis in a rush to deport.

Beyond that, the regime has, with the connivance of the Supremes, found ways to deport asylum seekers and others without any meaningful hearing whatsoever. Notwithstanding all these gimmicks, moronic “production quotas,” coercive detention, biased anti-immigrant “precedents,” and the appointment of mostly prosecutors to function as “judges,” the EOIR backlog continues to mushroom out of control because of the regime’s gross mismanagement.

Yet, in the middle of all this mess, the BIA finds time to spend a decade, including three trips to the Court of Appeals, trying to manipulate the law and disregard and misinterpret prior precedent in a misguided effort to wrongfully deport this particular individual. What if we had judges who just got it correct in the first place? No wonder this system is totally out of control.

Do we need a maliciously incompetent and misdirected system like this? Of course not!

With the same amount of resources, a group of independent, qualified expert judges committed to the rule of law and due process could drastically improve the functioning of the Immigration Courts by rendering fair decisions, granting more relief where possible, and working with all “stakeholders” to prioritize cases, find alternate dispositions for “non-priority cases,” and to move the cases that actually need to be tried through the system in a fair, reasonable, professional, and predictable manner. Such a system would produce more consistency and would avoid much of the wasteful litigation and constant intervention of the Courts of Appeals to correct mistakes that is now a staple of this system. It would be a “win” for everyone involved, including the DHS’s legitimate enforcement functions.

Of course, the particular problem with this case began when the “Post-Ashcroft-Purge” BIA started fabricating ways to deviate from one of the old “Schmidt Board” precedents, Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892–94 (BIA 1999) (en banc). That case had actually found in favor of the (unrepresented) respondent, an unheard of result in today’s “bend and distort the law to deport” climate fostered by “Billy the Bigot” Barr and his predecessor “Gonzo Apocalypto” Sessions! You basically can trace EOIR’s continuous downward “death spiral” from “The Purge.”

Due Process Forever!

PWS

08-07-20

🏴‍☠️☠️🤮⚰️👎🏻 “PERP NATION” — DHS’S “NEW AMERICAN GULAG” IS A DEATH TRAP FOR MIGRANTS SEEKING JUSTICE — So Why Haven’t Congress & The Federal Courts Required DHS To Comply With The Constitution? — Because We Have The Wrong Folks In Congress & The Federal Courts!

https://www.washingtonpost.com/opinions/migrants-at-ice-detention-centers-are-sitting-ducks-because-of-an-inhumane-policy/2020/08/04/578c668c-c2f7-11ea-9fdd-b7ac6b051dc8_story.html

From WashPost Editorial Board:

Opinion by the Editorial Board August 4 at 6:20 PM ET

COVID-19 has exploded at migrant detention centers nationwide, infecting detainees and employees alike and seeding the disease aboard deportation flights to countries ill-equipped to respond, especially in Latin America. The facilities, run by U.S. Immigration and Customs Enforcement, are petri dishes of contagion, and the residents — many of whom have no serious criminal record — are sitting ducks in the crosshairs of an inhumane policy. A federal judge has ordered the release of migrant children at two ICE family detention centers in Texas and one in Pennsylvania, having found them at risk to the virus and to spotty enforcement of safety measures. But across the country, scores more facilities have been hit hard by the pandemic, and ICE has been unable to contain it. [Full coverage of the coronavirus pandemic] Roughly 1,000 new covid-19 cases have been diagnosed in ICE facilities since early July, bringing the number who have tested positive for the disease since March to roughly 4,000. That’s roughly a fifth of all those who have been tested, though some were infected before ICE took them into custody. Courts have ordered more than 500 at-risk detainees released, and ICE has released an additional 900 at its own initiative. Those reductions, along with ongoing deportations, have cut the detainee population by 40 percent since March, to roughly 22,000 now. That’s good, but it is clear that the agency’s steps to mitigate the outbreak have been inadequate. It is also clear that testing at the facilities has lagged, proper distancing at some is insufficient, and health care is not equal to the task of containment. At the Farmville Detention Center in Virginia, west of Richmond, nearly two-thirds of 400 detainees have tested positive for the virus in recent weeks. Moreover, ICE has been complicit in accelerating the pandemic’s reach into Central America, the Caribbean and elsewhere, by deporting tens of thousands of migrants since the spring, including some who were infected. At least a dozen countries assert that deportees arrived with the virus. Many were not tested before boarding the flights. On one deportation flight to India in May, 22 passengers — about 15 percent of those onboard — tested positive upon arriving in India. In Guatemala, authorities say more than 160 deportees who have arrived since April tested positive for the virus. “We understand the United States wants to deport people,” said Guatemalan President Alejandro Giammattei in May. “What we don’t understand is why they send us all these contaminated flights.” [We are interested in hearing about how the struggle to reopen amid the pandemic is affecting people’s lives. Please tell us yours.] Advocates and public health officials have urged ICE to accelerate the release of at-risk detainees, who can be fitted with ankle monitors to encourage their appearance at immigration court proceedings. ICE has done some of that; it is critical that it do more. To continue detaining nonviolent detainees as the virus tightens its grip on ICE facilities is pointless and dangerous — for detainees and for employees, scores of whom have been infected with covid-19. It’s past time for ICE to intensify the fight against covid-19, and reassess a policy that has failed to contain a pandemic behind bars.

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

ICE is a White Nationalist enabler operating within a White Nationalist kakistocracy.

Expecting ICE to do the right thing without being ordered to do so by Congress or the Federal Courts is absurd. We’re in the middle of a deadly meltdown of our democratic institutions.

And, led by the Roberts’ Court’s spineless complicity in the face of clear unconstitutionality, illegality, immorality, and inhumanity from the Trump regime, the failure of the Federal Courts to take a strong, unified approach against the “crimes against humanity” committed by the Trump regime on migrants and others is a national disgrace. Something we have to consider as a nation moving forward.

Better judges for a better America! Time to stop appointing “Dred Scottifyers” and non-believers in due process, human rights, and equal justice for all to our life-tenured courts! The damage they have done will take decades to repair. We can’t afford to continue the GOP’s recent tradition of elevating bad judges who won’t stand up for and don’t believe in American democracy.

When our nation is experiencing massive and deadly institutional failure and a failure of legal and moral leadership, we must start looking at the qualifications and values (or in some cases the rather obvious lack thereof) of the folks in those failing institutions! In a democracy, bad leadership doesn’t “drop out of the sky.” It’s a product of bad decisions and apathy among those with the power to select our leaders. That means all of us who can vote or encourage others to vote.

This November, vote like your life and the future of our democracy depend on it! Because they do!

Due Process Forever!

PWS

08-05-20

🏴‍☠️🤮👎🏻⚰️”PERP NATION” — Cowardly Regime Uses COVID-19 As Pretext For Grotesque Abuses Of Migrant Children, As Congress, Federal Courts Spinelessly Allow It To Happen! — “Crimes Against Humanity” Have Consequences For “Perp Nations!”

Lomi Kriel
Immigration Reporter
Texas Tribune & Pro Publica

https://www.texastribune.org/2020/08/04/border-migrant-children-hotels/

Federal agents are expelling asylum seekers as young as 8 months from the border, citing COVID-19 risks

Thousands of migrant children have been expelled by the Trump administration since March. Some have been held in hotels without access to lawyers or family. Advocates say many are now “virtually impossible” to find.

BY LOMI KRIEL, THE TEXAS TRIBUNE AND PROPUBLICA AUG. 4, 20208 HOURS AGO

A teenage girl carrying her baby arrived at the U.S. border this summer and begged for help. She told federal agents that she feared returning to Guatemala. The man who raped her she said had threatened to make her “disappear.”

Then, advocates say, the child briefly vanished — into the custody of the U.S. government, which held her and her baby for days in a hotel with almost no outside contact before federal officers summarily expelled them from the country.

Similar actions have played out along the border for months under an emergency health order the Trump administration issued in March. Citing the threat of COVID-19, it granted federal agents sweeping powers to almost immediately return anyone at the border, including infants as young as 8 months. Children are typically entitled to special protections under the law, including the right to have their asylum claims adjudicated by a judge.

Under this new policy, the administration is not deporting children — a proceeding based on years of established law that requires a formal hearing in immigration court.

It is instead expelling them — without a judge’s ruling and after only a cursory government screening and no access to social workers or lawyers, sometimes not even their family, while in U.S. custody. The children are not even granted the primary registration number by which the Department of Homeland Security tracks all immigrants in its care, making it “virtually impossible” to find them, Efrén C. Olivares, a lawyer with the Texas Civil Rights Project, wrote in a court declaration arguing that the practice is illegal.

Little is known about how the process works, but published government figures suggest almost all children arriving at the border are being rapidly returned.

. . . .

A sense of deja vu

Thirty-five years ago, a 15-year-old Salvadoran girl fleeing a civil war in her homeland was also imprisoned in an American hotel under the care of unlicensed private security guards. Jenny Flores’ case forced the most significant overhaul yet of how U.S. authorities can detain migrant children. In fact, the 1997 federal settlement is named for her.

Carlos Holguín, who began litigating that case in 1985, said there is now a sense of “deja vu … but the degree of lawlessness is even beyond what was going on then.”

Since taking office, the Trump administration has tried to end the Flores Settlement, arguing that it and a 2008 trafficking law work as “loopholes” encouraging families to send children here alone. The government has attempted to undo the settlement through regulations and requested Congress curtail the Trafficking Victims Protection Reauthorization Act, which requires certain safeguards for children arriving alone at the border.

So far, both efforts have failed.

The administration tried separating parents and children at the border, but a federal judge largely ruled against the practice in 2018, allowing it only in narrow circumstances such as if the adult poses a danger.

U.S. District Judge Dolly Gee, who is in charge of the Flores Settlement, has determined the administration must quickly release children locked up with their parents in immigrant detention centers, most recently citing the risk of coronavirus spreading.

“The family residential centers are on fire and there is no more time for half measures,” she wrote in a June 26 order.

The government is now arguing it can force detained parents to choose between freeing their children or staying indefinitely imprisoned with them.

But none of the administration’s attempts to undo either the settlement or the law have been as effective as the expulsion order, which is “eviscerating every single protection mechanism outlined by Congress and the courts with one sweeping gesture,” said Podkul of KIND.

Late last month, the ACLU sued to allow its lawyers access to children detained in the McAllen Hampton Inn after a video went viral showing a Texas Civil Rights Project lawyer forcibly pushed away.

“The children are in imminent danger of unlawful removal,” the attorneys wrote.

Facing a public relations scandal, Hilton quickly announced that all three hotels had canceled reservations with MVM.

“We expect all Hilton properties to reject business that would use a hotel in this way,” a Hilton spokesperson said.

Government attorneys agreed to pause the expulsion of the migrants who they said remained in the McAllen hotel on the date of the lawsuit — once again, ACLU attorneys said, mooting litigation on the broader policy. A separate suit involving a 13-year-old Salvadoran girl who was expelled this summer is still pending in a Washington, D.C., federal court.

By the time the administration stopped the removal of the migrants detained at the Hampton Inn, most who had been held there had already been expelled or transferred elsewhere — some, advocates said, just before the ACLU filed its lawsuit. Only 17 family members, including one unaccompanied child, remained in that hotel.

What happened to the rest? No one would say.

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

Read the rest of the article at the link.

It might be “below the radar screen” during COVID-19. After all, that’s what criminals like the Trump kakistocracy and their DHS accomplices count on — a diversion so that they can abuse children and violate human rights and human dignity to the content of their evil, White Nationalist hearts.

But, eventually, the truth about the “crimes against humanity” by the regime’s cowards as well as the complicity of legislators, the Roberts Court, and a host of others will come out.

How will we explain to future generations what we have done to our fellow humans, particularly the most vulnerable who have sought our legal protection and found only cruelty, racism, and lawlessness? How will we justify racist-driven institutionalized child abuse and “Dred Scottification” of “the other” on our watch? We have become “Perp Nation!”

Due Process Forever!

PWS

08-05-20

MUST SEE TV: “IMMIGRATION NATION” PREMIERES TODAY ON NETFLIX: Time Magazine Says “Netflix’s Searing Docuseries Immigration Nation Is The Most Important TV Show You’ll See In 2020!”

Immigration Nation

Directed by Christina Clusiau and Shaul Schwarz

I appear, along with many others, in a later episode.

As you watch, ask this question: What does most of the enforcement you see have to do with any legitimate notion of “homeland security” except in the sense that abusing, terrorizing, separating, and removing individuals of color evidently makes some folks in the U.S., particularly Trump supporters, feel “more secure?”

No, it’s not “just enforcing the law!” No law is enforced 100% and most U.S. laws are enforced to just a limited extent due to priorities, funding, and sensible prosecutorial discretion used by every law enforcement agency.

How much does the Trump Administration “enforce” environmental protection laws, civil rights laws, laws protecting the LGBTQ community from discrimination, fair housing laws, financial laws, health and safety laws, tax laws, or for that matter ethics laws, whistleblower protections, or anti-corruption laws?

Indeed, as hate crimes directed against the Hispanic, Asian, and Black communities have risen, prosecutions have actually fallen under Trump. See e.g., https://www.cnn.com/2020/08/02/us/hate-crimes-latinos-el-paso-shooting/index.html.

Although domestic violence hasn’t decreased in ethnic communities, prosecutions have gone down as a result of the Administration’s “terror tactics” as illustrated in Immigration Nation. Jeff “Gonzo Apocalypoto” Sessions’s racially-motivated prosecutions of minor immigration violators, intended to promote family separation and “deter” others from asserting legal rights, actually diverted Federal prosecutorial resources from real crimes like drug trafficking and white collar crimes.

Remember, Jeff Sessions walks free (his biggest “trauma” being a well-deserved primary defeat in Alabama); his victims aren’t so lucky; some of their trauma is permanent; their lives changed for the worse, and in some cases eradicated, forever! Where’s the “justice” and the “rule of law” in this?

Prosecutions are always prioritized and “targeted” in some way or another, sometimes rationally, reasonably, and prudently, and other times with bias and malice. So, as you watch this and hear folks like former Acting ICE Director Tom Homan and other Government officials pontificate about “just enforcing the law” or “required by law,” you should recognize it for the total BS that it is!

The Trump Administration’s immigration enforcement program is clearly designed by folks like Stephen Miller, Sessions, and others to be invidiously motivated and to terrorize communities of color including U.S. citizens and lawful residents who are part of those communities. They are an affront to the concepts of “equal justice under law” and eliminating “institutional racism.”

The Administration’s policies are actually “Dred Scottification” or “dehumanization of the other.” You can see and hear it in the voices of DHS enforcement officials, a number of whom eventually view other humans as “numbers,” “priorities,” “quotas,” “missions,” “ops” (“operations”), “beds,” or “collateral damage.”

That’s exactly how repressive bureaucracies in Germany, the Soviet Union, China, and other authoritarian states have worked and prospered, at least for a time. By breaking dehumanization into “little bureaucratic steps” individuals are relieved of moral responsibility and lulled into losing sight of the “big picture.”

Did the folks repairing the tracks and switches for the German railroads focus on where the boxcars were heading and what eventually would happen to their passengers? Did they even know, wonder, or care what was in those boxcars?

And, in case you wonder, family and child separations, supposedly eventually abandoned by Trump, might have diminished as a result of court cases, but they still regularly occur. Only now they are kept largely “below the radar screen” and disingenuously disguised under the bureaucratic rubric “binary choice.”

What has really diminished is less the abuses and more the national and international outrage about those abuses. Dishonesty, immorality, and cruelty have simply become “normalized” under Trump as long it’s largely “out of sight, out of mind.”

What do you imagine happens to those turned away at our borders without any meaningful process and “orbited” to the Northern Triangle — essentially “war zones?” (Preliminary studies show that many die or disappear.) A majority of the Supremes don’t care, and apparently most Americans don’t either as long as the carnage and tears aren’t popping up on their TV screens.

And, in many cases, the “removals” and denials of fair process, both the ones you see in Immigration Nation and the ones you don’t, are actually detrimental to our nation, our values, our society, and our future. The series mentions “being one on the wrong side of history;” that’s precisely where the DHS is under Trump. But, so is the rest of our nation for having allowed an evil charlatan like Trump to have power over our humanity.

This November, vote like your life and the future of our nation depend on it! Because they do! We can’t undo the past! But, we can make Trump part of that past and change our future for the better!

PWS

08-03-20

🏴‍☠️☠️👎🏻NATIONAL SECURITY: The Threat Isn’t On The Streets Of Portland Or From The Virtually Non-Existent & Largely Mythical “Antifa” — Leaving Aside The Existential Threat Posed By Trump, The Biggest Threat To America’s Future Existence Is On Our Payroll & Operates With Impunity From The 5th Floor Of The USDOJ — “Billy The Bigot” Barr Is Hell-Bent On Seeing The US Become A Hitlerian/Putinist State! — “It isn’t arguable; it’s wrong.” — So Why Does The “JR Five” Give Billy A Pass While Failing To Protect Humanity & The Rule of Law?

From the LA Times:

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=9c0e081f-1c63-4c31-af1d-af5fddcb108d&v=sdk

What makes Barr a danger to democracy

The attorney general channels Trump

HARRY LITMAN

Atty. Gen. William Barr left us with a terrifying certainty in the wake of his testimony Tuesday in front of the House Judiciary Committee: Under him, the Department of Justice stands ready to advance any pro-Trump policy, justifying it on the basis of a blinkered, tenuous view of the facts and the law, or maybe just Barr’s personal ideological intuitions.

For all its finger-wagging, the Judiciary Committee is not in a position to constrain the attorney general. There is no real brake on Barr’s conduct short of a Trump loss in November. Or, to adopt Barr’s own unsettling gloss, a Trump loss that is sufficiently “clear” that he and his boss would accept it.

Since the hearing, commentators have seized on a couple of blows that Democrats on the Judiciary Committee — Reps. Eric Swalwell (D-Dublin) and Pramila Jayapal (D-Wash.) primarily — landed on the attorney general. But there was nothing close to a knockdown, and the hard facts remain: The House will not impeach Barr and President Trump will continue to give him full rein.

It’s no secret that the Democrats in Congress (and more than half of the country) view Barr as Mephistopheles — dishonest, partisan, corrupt, even racist. He did nothing Tuesday to try to revise that view; in fact, he seemed indifferent to it.

Norms of evenhandedness, professionalism and especially political disinterest, which traditionally check U.S. attorneys general, do not moderate his conduct. He championed every partisan act his DOJ has taken on the president’s behalf, blandly claiming they reflected the faithful application of the rule of law.

For example, when he defended the highly unusual deployment of federal agents in Portland, Ore., Barr described a “Batman”-like dystopia in which a few U.S. marshals were beset by a marauding horde of uncontrollable professional anarchists. If that were accurate, it would be hard to quibble with sending in the feds.

But the justification dries up immediately if the protests were, as a lot of the reporting on the ground indicates, largely peaceful, and if local law enforcement were capable of defending the Portland federal courthouse and separating lawbreakers from peaceful protestors. (The announcement Wednesday that the Department of Homeland Security’s mystery troops were withdrawing suggests the argument for the invasion was tenuous all along.)

Or consider Barr’s legally tortured defense of the president’s memo attempting to exclude immigrants who are in the U.S. illegally from the 2020 census. The plain language of the 14th Amendment, as well as a unanimous opinion of the Supreme Court, leaves no room for argument: Everyone who “inhabits” the U.S. must be counted.

But Barr claims that Congress has delegated to the Commerce Department an ability to advance an Orwellian definition of “inhabitant.” He called it an “arguable position.” It isn’t arguable; it’s wrong.

And given that it is the attorney general’s job to uphold the law of the land, he shouldn’t even bring up the theory, regardless of the half- or quarter-baked views of the president.

Barr’s partisan proclamations went on and on, with this whopper as a high point: “From my experience, the president has played a role properly and traditionally played by presidents.”

. . . .

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

Read the rest of the op-ed at the link.

Beyond Congressional fecklessness, perhaps the most disturbing and scary aspect of Billy’s anti-democracy, anti-humanity, racist agenda is that it has received only “light pushback” from the supposedly independent Article III Courts, particularly the Supremes’ majority led by Roberts.

Private practitioners who made the types of specious, disingenuous, and wrong arguments to Federal Courts advanced by Billy and fellow Trump toady Solicitor General Noel Francisco and their minions would probably have been disbarred or even in jail by now. Not only do these guys continue their wanton destruction of our legal system, but Roberts & Co. sometimes actually reward the DOJ’s fraud, racism, and bad faith.

Crooked and corrupt politicos are one thing. But, Supreme Court Justices who won’t call them out for their invidious motivations, won’t stand up for equal justice under law, allow racist abuses in the guise of patently bogus “national security” and Executive prerogative pretexts, won’t protect refugees, asylum seekers, children, or migrants of color, favor tyranny over humanity, and allow their courts to be paralyzed by frivolous Government litigation, dilatory appeals, and transparently bogus procedural gimmicks are the real problem here!

As Litman points out, despite the “smokescreens” thrown up by Barr and complicit courts, there’s really no ambiguity about what’s happening here. It’s straightforward! It’s a full scale attack on our justice system, our democracy, and our humanity by a bunch of would-be facist thugs operating out of the Executive Branch of our Government. America needs better Justices and Federal Judges who will cut through the legalistic BS, show courage, have integrity, and stand up for democracy, humanity, and equal justice for all!

Due Process Forever! Complicit Courts Never!

PWS

08-03-20

BAD NEWS FOR BIGOTLAND: Even As Billy The Bigot Blatantly Bashes The “Categorical Approach,” 10th Cir. Blasts Billy’s Biased BIA’s Bogus Blowing Of Same To Illegally Deport Under CO Controlled Substances Law!

10th-Johnson-drugs19-9550

From: Dan Kowalski

Sent: Friday, July 31, 2020 4:16 PM
To: ICLINIC@LIST.MSU.EDU; Immigration Law Professors List
Subject: [immprof] FW: victory in Johnson v. Barr – Colorado possession statute overbroad and indivisble!!!

team,

a huge victory today for one of our clients, and hopefully many other folks in our community.

in Johnson v. Barr, the 10th circuit ruled that the Colorado statute of possession of a controlled substance is overboard as to the federal schedule and indivisible as to the particular controlled substance within a schedule.

the court honed in on the categorical approach, looking first to the plain language of the statute, the penalties assigned under the statute, its unpublished decision in Arellano, and persuasive state case law in deciding in our favor.

-this means that no conviction for possession of a schedule I or II CS can support the CS grounds of inadmissibility or deportability. this will hopefully help countless people who were found inadmissible, deportable, subject to mandatory detention, and ineligible for relief to seek redress of those legal errors.

-by extension, this decision is likely to apply to simply possession of a schedule III-V because it is also overbroad and structured nearly identically to the possession statute at issue in Johnson. moreover, due to legislative change last year classifying all PCS of schedule I-V CS as a DM1 offense starting in 2020, all future PCS offenses are likely also overbroad and indivisible.

this is definitely a day to celebrate. we will see whether the govt seeks rehearing or cert.

keep loving, keep fighting.

h

—

Hans Meyer

The Meyer Law Office, P.C.

—

To unsubscribe from this group and stop receiving emails from it, send an email to immprof+unsubscribe@lists.ucla.edu.

Hans Meyer ESQ
Meyer Law
Denver, CO

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

Congratulations, Hans!

As noted by Hans, this decision could have “big-time” impact and result in numerous motions to reopen and “redos.” It’s just another example of how the gimmicks and misinterpretations used and encouraged by the Trump regime as part of their “haste makes waste” deport everyone policies actually create backlogs and waste resources while doing grave injustices.

America needs an independent Article I U.S. Immigration Court with real expert judges, with a commitment to human rights and due process, dedicated to seeing that individual results are fair and just, rather than carrying out a perverted, race and hate driven nativist political agenda to maximize deportations in disregard of the law.

Due Process Forever!

PWS

08-02-20

RICHARD A. CLARKE @ WASHPOST: High Time To End The DHS Farce 🤡🤹‍♀️🎪☠️🤮: “Trump has done far more damage to the DHS, however, than leaving it leaderless. He has branded it as the department that cages children, swoops innocent citizens off U.S. streets, sends warriors dressed for the apocalypse to deal with protests, hunts down hard-working people doing “essential jobs” to forcibly deport them, and harasses foreign students at leading universities.”

https://www.washingtonpost.com/opinions/dismantle-the-department-of-homeland-security/2020/07/30/24ef8ba0-d279-11ea-8c55-61e7fa5e82ab_story.html

Richard A. Clarke served on the National Security Council for Presidents George H.W. Bush, Bill Clinton and George W. Bush.

President Trump has, often intentionally, damaged essential federal departments and agencies, driving from their ranks thousands of career civil servants who are global experts and national treasures. The country is seeing the results play out at the Centers for Disease Control and Prevention, but such damage has happened across the federal bureaucracy.

No national institution has been more damaged than the Department of Homeland Security. The youngest of the federal departments, the DHS is among the largest by employee count, ranking just below the Defense Department and Veterans Affairs. It was created in 2003 by smashing together 17 agencies from five departments in an ill-conceived response to the 9/11 terrorist attacks. Its divisions and agencies are now largely leaderless, because the White House refuses to nominate senior managers to replace those who have left. Quick, who is the secretary of homeland security?

You get my point.

Trump has done far more damage to the DHS, however, than leaving it leaderless. He has branded it as the department that cages children, swoops innocent citizens off U.S. streets, sends warriors dressed for the apocalypse to deal with protests, hunts down hard-working people doing “essential jobs” to forcibly deport them, and harasses foreign students at leading universities. The DHS has become synonymous with unsympathetic government overreach, malevolence and dysfunction.

For the patriotic, underpaid Americans working hard in the agencies of the DHS, what Trump has done to their reputations is a tragedy. The department, however, was doomed from the start. When such an agency was proposed before the Sept. 11 attacks, I was working in the White House, where I coordinated many “homeland” issues for almost a decade under President Bill Clinton and, later, President George W. Bush. Blocking the creation of the DHS was one of the few things on which Vice President Dick Cheney and I agreed. We thought that such a department would be too large, too diverse in function and too difficult to integrate into a well-functioning institution.

Congressional leaders, however, wanted to “do something” after 9/11, and it became impossible for the Bush administration to maintain its opposition to the idea of a homeland security agency. Instead, the Bush administration embraced it and quickly merged a raft of agencies ripped from their home departments. The new department never really came together.

For more than a decade, reports from the Government Accountability Office, think tanks and congressional committees have documented the failures of the DHS to coalesce into an effective entity. Its image steadily declined and was not helped by the popular television series “Homeland,” which despite its name depicted a dark world of CIA intrigue, portraying missions and functions that the DHS never actually had.. Contrary to popular belief, Homeland Security has never been the government’s lead counterterrorism entity. The FBI, part of the Justice Department, leads counterterrorism efforts within the United States.

The next administration would be well advised not to try to make the existing DHS structure work, for it will end up as another presidential administration that has failed in that task. Instead, the department should be reimagined — perhaps as part of a Reinventing Government effort, the first of which was led by then-Vice President Al Gore — with more manageable and mission-consistent entities. It should also shed its Orwellian name.

Federal departments and agencies develop personalities and images from their mission, and they attract people who identify with those personas. These identities are almost immutable, but new organizational designs and branding can reinvigorate and redirect agencies. Breaking up the DHS could have positive results.

. . . .

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

Read the rest of the article at the link.

You read it Courtside long ago: No mission, no leadership, no values, no discipline, no decency. DHS as currently constituted is a dysfunctional mess that America won’t miss.

Break it up, reassign the truly necessary functions, reduce the funding, and use the money saved by eliminating detention, grotesque mismanagement and maladministration, stupid walls, undisciplined and counterproductive, “civil” enforcement, and other demonstrably destructive functions for something more constructive. Yes, if you strip out the neo-Nazi wannabes, racists, and incompetents, there is some real talent there. Some of that talent passed through my courtroom in Arlington. Some of it is in the Asylum Office and at USCIS. There is some in the anti-smuggling and fraud detection programs. But, it’s totally wasted in the current corrupt dysfunctional configuration. Indeed, the totally toxic reputation of DHS under Trump actually hinders the useful functions.

This November, vote like your life depends on it! Because it does!

PWS

07-31-20

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