ANNE APPLEBAUM @ THE ATLANTIC: “History Will Judge the Complicit: Why have Republican leaders abandoned their principles in support of an immoral and dangerous president?” ☠️👎🏻

Anne Applebaum
Anne Applebaum
American Journalist & Historian

https://apple.news/Al__dZnidS7iBkjiQiuWRfg

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In February, many members of the Republican Party leadership, Republican senators, and people inside the administration used various versions of these rationales to justify their opposition to impeachment. All of them had seen the evidence that Trump had stepped over the line in his dealings with the president of Ukraine. All of them knew that he had tried to use American foreign-policy tools, including military funding, to force a foreign leader into investigating a domestic political opponent. Yet Republican senators, led by Mitch McConnell, never took the charges seriously. They mocked the Democratic House leaders who had presented the charges. They decided against hearing evidence. With the single exception of Romney, they voted in favor of ending the investigation. They did not use the opportunity to rid the country of a president whose operative value system—built around corruption, nascent authoritarianism, self-regard, and his family’s business interests—runs counter to everything that most of them claim to believe in.

Just a month later, in March, the consequences of that decision became suddenly clear. After the U.S. and the world were plunged into crisis by a coronavirus that had no cure, the damage done by the president’s self-focused, self-dealing narcissism—his one true “ideology”—was finally visible. He led a federal response to the virus that was historically chaotic. The disappearance of the federal government was not a carefully planned transfer of power to the states, as some tried to claim, or a thoughtful decision to use the talents of private companies. This was the inevitable result of a three-year assault on professionalism, loyalty, competence, and patriotism. Tens of thousands of people have died, and the economy has been ruined.

This utter disaster was avoidable. If the Senate had removed the president by impeachment a month earlier; if the Cabinet had invoked the Twenty-Fifth Amendment as soon as Trump’s unfitness became clear; if the anonymous and off-the-record officials who knew of Trump’s incompetence had jointly warned the public; if they had not, instead, been so concerned about maintaining their proximity to power; if senators had not been scared of their donors; if Pence, Pompeo, and Barr had not believed that God had chosen them to play special roles in this “biblical moment”—if any of these things had gone differently, then thousands of deaths and a historic economic collapse might have been avoided.

The price of collaboration in America has already turned out to be extraordinarily high. And yet, the movement down the slippery slope continues, just as it did in so many occupied countries in the past. First Trump’s enablers accepted lies about the inauguration; now they accept terrible tragedy and the loss of American leadership in the world. Worse could follow. Come November, will they tolerate—even abet—an assault on the electoral system: open efforts to prevent postal voting, to shut polling stations, to scare people away from voting? Will they countenance violence, as the president’s social-media fans incite demonstrators to launch physical attacks on state and city officials?

Each violation of our Constitution and our civic peace gets absorbed, rationalized, and accepted by people who once upon a time knew better. If, following what is almost certain to be one of the ugliest elections in American history, Trump wins a second term, these people may well accept even worse. Unless, of course, they decide not to.

When I visited Marianne Birthler, she didn’t think it was interesting to talk about collaboration in East Germany, because everybody collaborated in East Germany. So I asked her about dissidence instead: When all of your friends, all of your teachers, and all of your employers are firmly behind the system, how do you find the courage to oppose it? In her answer, Birthler resisted the use of the word courage; just as people can adapt to corruption or immorality, she told me, they can slowly learn to object as well. The choice to become a dissident can easily be the result of “a number of small decisions that you take”—to absent yourself from the May Day parade, for example, or not to sing the words of the party hymn. And then, one day, you find yourself irrevocably on the other side. Often, this process involves role models. You see people whom you admire, and you want to be like them. It can even be “selfish.” “You want to do something for yourself,” Birthler said, “to respect yourself.”

For some people, the struggle is made easier by their upbringing. Marko Martin’s parents hated the East German regime, and so did he. His father was a conscientious objector, and so was he. As far back as the Weimar Republic, his great-grandparents had been part of the “anarcho-syndicalist” anti-Communist left; he had access to their books. In the 1980s, he refused to join the Free German Youth, the Communist youth organization, and as a result he could not go to university. He instead embarked on a vocational course, to train to be an electrician (after refusing to become a butcher). In his electrician-training classes, one of the other students pulled him aside and warned him, subtly, that the Stasi was collecting information on him: “It’s not necessary that you tell me all the things you have in mind.” He was eventually allowed to emigrate, in May 1989, just a few months before the fall of the Berlin Wall.

In America we also have our Marianne Birthlers, our Marko Martins: people whose families taught them respect for the Constitution, who have faith in the rule of law, who believe in the importance of disinterested public service, who have values and role models from outside the world of the Trump administration. Over the past year, many such people have found the courage to stand up for what they believe. A few have been thrust into the limelight. Fiona Hill—an immigrant success story and a true believer in the American Constitution—was not afraid to testify at the House’s impeachment hearings, nor was she afraid to speak out against Republicans who were promulgating a false story of Ukrainian interference in the 2016 election. “This is a fictional narrative that has been perpetrated and propagated by the Russian security services themselves,” she said in her congressional testimony. “The unfortunate truth is that Russia was the foreign power that systematically attacked our democratic institutions in 2016.”

Lieutenant Colonel Alexander Vindman—another immigrant success story and another true believer in the American Constitution—also found the courage, first to report on the president’s improper telephone call with his Ukrainian counterpart, which Vindman had heard as a member of the National Security Council, and then to speak publicly about it. In his testimony, he made explicit reference to the values of the American political system, so different from those in the place where he was born. “In Russia,” he said, “offering public testimony involving the president would surely cost me my life.” But as “an American citizen and public servant … I can live free of fear for mine and my family’s safety.” A few days after the Senate impeachment vote, Vindman was physically escorted out of the White House by representatives of a vengeful president who did not appreciate Vindman’s hymn to American patriotism—although retired Marine Corps General John Kelly, the president’s former chief of staff, apparently did. Vindman’s behavior, Kelly said in a speech a few days later, was “exactly what we teach them to do from cradle to grave. He went and told his boss what he just heard.”

[Read: John Kelly finally lets loose on Trump]

But both Hill and Vindman had some important advantages. Neither had to answer to voters, or to donors. Neither had prominent status in the Republican Party. What would it take, by contrast, for Pence or Pompeo to conclude that the president bears responsibility for a catastrophic health and economic crisis? What would it take for Republican senators to admit to themselves that Trump’s loyalty cult is destroying the country they claim to love? What would it take for their aides and subordinates to come to the same conclusion, to resign, and to campaign against the president? What would it take, in other words, for someone like Lindsey Graham to behave like Wolfgang Leonhard?

If, as Stanley Hoffmann wrote, the honest historian would have to speak of “collaborationisms,” because the phenomenon comes in so many variations, the same is true of dissidence, which should probably be described as “dissidences.” People can suddenly change their minds because of spontaneous intellectual revelations like the one Wolfgang Leonhard had when walking into his fancy nomenklatura dining room, with its white tablecloths and three-course meals. They can also be persuaded by outside events: rapid political changes, for example. Awareness that the regime had lost its legitimacy is part of what made Harald Jaeger, an obscure and until that moment completely loyal East German border guard, decide on the night of November 9, 1989, to lift the gates and let his fellow citizens walk through the Berlin Wall—a decision that led, over the next days and months, to the end of East Germany itself. Jaeger’s decision was not planned; it was a spontaneous response to the fearlessness of the crowd. “Their will was so great,” he said years later, of those demanding to cross into West Berlin, “there was no other alternative than to open the border.”

But these things are all intertwined, and not easy to disentangle. The personal, the political, the intellectual, and the historical combine differently within every human brain, and the outcomes can be unpredictable. Leonhard’s “sudden” revelation may have been building for years, perhaps since his mother’s arrest. Jaeger was moved by the grandeur of the historical moment on that night in November, but he also had more petty concerns: He was annoyed at his boss, who had not given him clear instructions about what to do.

Could some similar combination of the petty and the political ever convince Lindsey Graham that he has helped lead his country down a blind alley? Perhaps a personal experience could move him, a prod from someone who represents his former value system—an old Air Force buddy, say, whose life has been damaged by Trump’s reckless behavior, or a friend from his hometown. Perhaps it requires a mass political event: When the voters begin to turn, maybe Graham will turn with them, arguing, as Jaeger did, that “their will was so great … there was no other alternative.” At some point, after all, the calculus of conformism will begin to shift. It will become awkward and uncomfortable to continue supporting “Trump First,” especially as Americans suffer from the worst recession in living memory and die from the coronavirus in numbers higher than in much of the rest of the world.

Or perhaps the only antidote is time. In due course, historians will write the story of our era and draw lessons from it, just as we write the history of the 1930s, or of the 1940s. The Miłoszes and the Hoffmanns of the future will make their judgments with the clarity of hindsight. They will see, more clearly than we can, the path that led the U.S. into a historic loss of international influence, into economic catastrophe, into political chaos of a kind we haven’t experienced since the years leading up to the Civil War. Then maybe Graham—along with Pence, Pompeo, McConnell, and a whole host of lesser figures—will understand what he has enabled.

In the meantime, I leave anyone who has the bad luck to be in public life at this moment with a final thought from Władysław Bartoszewski, who was a member of the wartime Polish underground, a prisoner of both the Nazis and the Stalinists, and then, finally, the foreign minister in two Polish democratic governments. Late in his life—he lived to be 93—he summed up the philosophy that had guided him through all of these tumultuous political changes. It was not idealism that drove him, or big ideas, he said. It was this: Warto być przyzwoitym—“Just try to be decent.” Whether you were decent—that’s what will be remembered.

This article appears in the July/August 2020 print edition with the headline “The Collaborators.”

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Read Applebaum’s entire, much longer article at the link. Part of it is a fascinating study of how and why, despite backgrounds pointing in exactly the opposite directions, Lindsey Graham abandoned principle and became one of Trump’s “chief collaborators,” while Mitt Romney stood up against Trump and his GOP collaborators in the Senate. 

These days, the GOP doesn’t produce many folks with intellectual honesty and capacity for self-examination. Indeed, those exhibiting anything suggesting those qualities might be lurking in their souls are shunned or railroaded out of the party (see, e.g., Jeff Flake). So, I wouldn’t hold my breath for any of Trump’s toadies to actually own up to or take responsibility for their “crimes against humanity.” 

And “decency,” well, that’s been absent from GOP politicos for some time now. Kids in cages. Taking away the legal and constitutional rights of asylum seekers. Sending abused women refugees back to be tortured by their abusers. Attacking California’s meager payments to our undocumented fellow humans, many performing essential services at risk to their health. Turning Immigration Courts into Star Chambers. Using false narratives to incite hate attacks on African Americans, Hispanic Americans, Asian Americans, and American Journalists. Failing to speak out forcefully against anti-semitic White Nationalist thugs. Looking the other way or even encouraging Trump to mistreat those courageous civil servants who dare speak truth to his lies. “Orbiting” vulnerable asylum seekers back to squalid danger zones. Denying detained kids toothbrushes.The list of indecent acts could go on almost forever. 

But, fortunately, as Applebaum suggests, that won’t save these GOP collaborators from the judgments of history. Unfortunately, however, historical vindication won’t save the lives of those victims who have died at the collaborators’ hands, nor will it undo the scars that some will bear for life as the result of the “crimes against humanity” committed by Trump and his GOP cronies. And, that’s the indelible shame of a nation that let Trump and the GOP wield their toxic political power in the first place.

Due Process Forever! Complicity in the Face of Tyranny, Never!

PWS

06-04-20

🏴‍☠️“BIZARRO COURTS” — THE CONSTITUTION APPLIES TO ALL PERSONS IN THE U.S., YET ICE & THEIR “PARTNERS” AT EOIR HAVE ESTABLISHED A CONSTITUTION-FREE “COURT SYSTEM” THAT OPERATES BEYOND THE LAW & MORALITY IN A LEGAL NEVER-NEVER LAND 🧚‍♂️ — How Do They Get Away With It Under The Noses Of Congress & Article III Courts? — An Outrageous Story of Gross 🤮 Institutional & Personal Failures & Ethical Lapses Across All Three Branches of Our Federal Government ☠️👎🏻!

Paul Moses
Paul Moses
Reporter
The Daily Beast
Tim Healy
Tim Healy
Reporter
The Daily Beast

 

Paul Moses and Tim Healy report for The Daily Beast:

‘The Bizarro-World’ Immigration Courts Where the Constitution Isn’t Applied Detainees can be held for weeks or months before seeing a judge. The Justice Department gave “the word of the agency under penalty of perjury” that it would fix that—but only in NY

 

·         ICE officials acknowledged that they couldn’t handle the volume of arrests their own agents made; the major clog was in getting a legal review from the agency’s understaffed legal unit.

 

·         In 11 of the 55 venues that heard more than 500 cases last year, detainees spent six weeks or more in jail before an initial hearing. Such long waits would be unconstitutional in criminal cases; the right to due process requires authorities to not only get a case filed but also to provide an arraignment promptly, generally in no more than 48 hours.

 

·         Among the 55 venues that handled 500 or more detainee cases last year, the longest waits from arrest to initial hearing were in hearing locations at privately run lockups under contract with ICE: Winn Correctional Center in Winnifield, Louisiana, a median of 140 days; T. Don Hutto Residential Center in Taylor, Texas, 72 days; Richwood Correctional Center in Richwood, Louisiana, 64 days…

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Ironically, by his own overt corruption and open disdain for our Constitution and the rule of law, Trump has exposed the deep flaws, grotesque derelictions of duty, and unethical complicity throughout our Constitutional institutions that are supposed to protect all of us, particularly the most vulnerable among us like civil immigration detainees and asylum seekers, from abuses by would-be authoritarian tyrants like Trump!

Here’s a gem:

 

“The larger question behind this mass of numbers is why DHS is detaining so many people when both its legal office and the court lack the staffing—not only judges but support staff as well—to handle them.

‘I would just say, they are the prosecuting agency and in this context, they have complete control over the timeline,’ said Aaron Hall, an immigration lawyer who practices at the court in Aurora, Colorado, which has had substantial delays. ‘If the charging document isn’t ready to go, why are they arresting them?’”

Good question! But don’t expect a straight answer from the “malicious incompetents” at DHS. Nor will today get anything except misleading nonsense from their “partners” at EOIR (“ICE Jr.”).

DOJ was forewarned of this disaster by an independent consultant back in 2017. But, rather than solving the problem, then AG Jeff “Gonzo Apocalypto” Sessions intentionally made things even worse at EOIR. You might remember “Gonzo” as the “mastermind” behind the regime’s unconstitutional child separation policy. His victims were returned to abuse, scarred for life, or imprisoned for the “crime” of asserting their Constitutional and legal rights to fair treatment.  

All of this is wrong, plain and simple! It’s part of “Dred Scotiffication” — now playing out across our nation in many ways. Finally, the systematic “dehumanization of the other” as aided, abetted, and actually encouraged by a majority of the Supremes, is getting some much-needed and long overdue “pushback.”

But the abuses of our Constitution and our values, and the unaccountability of corrupt public officials, present and former, of the Trump immigration kakistocracy, won’t cease until we get “regime change.” That requires substantial personnel and attitude changes across all three branches of our reeling Federal Government! And that definitely includes accountability for those who have failed to insure “equal justice for all” and instead permitted and sometimes aided and abetted the existence of “Constitution-Free Zones” right under their noses!

Due Process Forever! Complicit Officials & Institutions, Never!

PWS

6-04-20

ROUND TABLE STRIKES ANOTHER BLOW IN SUPPORT OF JUSTICE⚔️🛡: Immigration Detainees Have a Right to Due Process in Bond Hearings — PADILLA RAUDALES V. DECKER, 2D CIR.

CHRISTOPHER T. CASAMASSIMA
CHRISTOPHER T. CASAMASSIMA
Partner
Wilmer Hale
Los Angeles
SOUVIK SAHA
SOUVIK SAHA
Counsel
Wilmer Hale
Washington, D.C.
Knightess
Knightess of the Round Table

 

INTEREST OF AMICI CURIAE1

Amici curiae have served as Immigration Judges and as members of the Board of Immigration Appeals (“BIA”). Amici are invested in the resolution of this case because they have dedicated their careers to improving tghe fairness and

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efficiency of the U.S. immigration system. Through their centuries-long collective experience, amici have adjudicated hundreds—if not thousands—of immigration detention hearings. Amici have substantial knowledge of immigration detention issues, including the practical impact of the burden of proof in such hearings.

INTRODUCTION AND ARGUMENT SUMMARY

Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.

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Amici are invested in the resolution of

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efficiency of the U.S. immigration system. Through their centuries-long collective experience, amici have adjudicated hundreds—if not thousands—of immigration detention hearings. Amici have substantial knowledge of immigration detention issues, including the practical impact of the burden of proof in such hearings.

INTRODUCTION AND ARGUMENT SUMMARY

Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.

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Amici are invested in the resolution of this case because they have dedicated their careers to improving the fairness and

Board of Immigration Appeals (“BIA”).

Amici have filed substantially similar briefs in other cases involving burden of proof issues in proceedings under 8 U.S.C. § 1226(a). Here, no party or party’s counsel authored this brief in whole or in part, nor contributed money to preparing or submitting this brief. Only amici or their counsel contributed money to prepare or submit this brief. The parties have consented to the filing of this brief.

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A complete list of amici is included in this brief’s addendum.

Case 19-3220, Document 116, 06/03/2020, 2854056, Page13 of 56

Such restraint violates the Due Process Clause “unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. Yet, federal law provides far greater protections to criminal defendants than it does to noncitizens in civil proceedings—even though the distinctions between criminal and non-criminal proceedings mean very little to a person sitting behind bars.

Accordingly, noncitizens already face significant hurdles in detention proceedings brought under 8 U.S.C. § 1226(a). At issue in this appeal is whether another, even higher and more fundamental, barrier to due process can be erected in this Circuit: do noncitizens bear the burden of justifying their freedom from detention? For noncitizens, the answer to this question is no mere technicality—it can mean the difference between freedom and confinement. This burden’s allocation, therefore, “reflects the value society places on individual liberty.” Addington v. Texas, 441 U.S. 418, 425 (1979).

Given their collective experience in adjudicating immigration bond hearings, amici are particularly well-suited to address the monumental question in this case. To that end, amici wish to share the following observations for this Court’s benefit:

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Case 19-3220, Document 116, 06/03/2020, 2854056, Page14 of 56

First, noncitizens already enjoy fewer procedural protections than criminal defendants. We contrast the procedural rules for detaining criminal defendants and noncitizens to underscore the challenges that noncitizens face in immigration bond hearings, and to highlight the need for a presumption against detention as one of the last remaining bulwarks to protect noncitizens’ liberty.

Second, detention of noncitizens consumes the government’s already- limited administrative and judicial resources. Amici highlight the staggering costs that are associated with immigration detention, as well as the strain on immigration courts resulting from the unnecessary detention of noncitizens.

Third, contrary to the government’s position, placing the burden of proof on the government would not generate fiscal or administrative hardship. Amici advance that position with confidence because the government previously shouldered that exact burden over a fifteen-year period. Several of the amici served as Immigration Judges within that period and found that this older system did not cause additional costs or administrative hurdles.

Fourth, in amici’s experience, detaining noncitizens actually increases the burden on the immigration court system. While in detention, noncitizens face significant challenges in adequately preparing their cases. Further, the Executive Branch now utilizes “performance metrics” to encourage Immigration Judges to accelerate the fact-finding process in detention proceedings. With less time for

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Case 19-3220, Document 116, 06/03/2020, 2854056, Page15 of 56

individualized fact-finding, noncitizens will have even less opportunity to marshal the facts needed to satisfy the burden to avoid detention. Reallocating the burden of proof in immigration bond hearings, therefore, would reduce costs.

Fifth, and finally, amici offer alternatives to noncitizen detention that would inject much-needed resources to the immigration court system. The government’s aversion to such alternatives rest on a single statistic suggesting that the vast majority of noncitizens abscond upon release on bond. That statistic, however, is misleading and inconsistent with other available data, and bears little resemblance to the reality that amici encountered in years of adjudicating immigration cases.

Together, these observations should lead this Court to conclude that due process requires the government to make some sort of individualized showing before it may place noncitizens under lock and key.

. . . .

Read the full brief here: AS FILED No. 19-3220 Amici Br. Padilla Raudales v. Decker (2d Cir.)

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Thanks again not only to the signatory members of our Round Table, but especially to CHRISTOPHER T. CASAMASSIMA, SOUVIK SAHA, and the other members of their pro bono team over at  WILMER HALE.  Without assistance like yours, the “Voices of the Round Table” would not be heard in support of justice in so many cases throughout our nation!

DUE PROCESS FOREVER!

PWS

06-04-20

⚖️👍🏼🗽DUE PROCESS VICTORY: US District Judge Requires Baltimore Immigration Court to Comply With Due Process in Bond Hearings! — Round Table Warrior Judge Denise Noonan Slavin Provides Key Evidence! — Miranda v. Barr!

Miranda v. Barr, U.S.D.C. D. MD., U.S. District Judge Catherine C. Blake, 05-29-20

Preliminary Injunction Memo

KEY QUOTES:

. . . .

A. Likelihood of success on the merits

i. Due process claim: burden of proof

The lead plaintiffs claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the government bears the burden of proving, by clear and convincing evidence, dangerousness or risk of flight. As explained above, neither the INA nor its implementing regulations speak to the burden of proof at § 1226(a) bond hearings, and the BIA has held that the burden lies with the noncitizen. See Guerra, 24 I. & N. Dec. at 37, 40. But, as the lead plaintiffs point out, when faced with challenges to the constitutionality of these hearings, district courts in the First, Second, Ninth, and Tenth Circuits have concluded that due process requires that the government bear the burden of justifying a noncitizen’s § 1226(a) detention. See, e.g., Singh v. Barr, 400 F. Supp. 3d 1005, 1017 (S.D. Cal. 2019) (“[T]he Fifth Amendment’s Due Process Clause requires the Government to bear the burden of proving . . . that continued detention is justified at a § 1226(a) bond redetermination hearing.”); Diaz-Ceja v. McAleenan, No. 19-CV-00824-NYW, 2019 WL 2774211, at *11 (D. Colo. July 2, 2019) (same); Darko v. Sessions, 342 F. Supp. 3d 429, 436 (S.D.N.Y. 2018) (same); Pensamiento, 315 F. Supp. 3d at 692 (same). While jurisdictions vary on the standard of proof required, compare, e.g., Darko, 342 F. Supp. 3d at 436 (clear and convincing standard) with Pensamiento, 315 F. Supp. 3d at 693 (“to the satisfaction of the IJ” standard), the “consensus view” is that due process requires that the burden lie with the government, see Darko, 342 F. Supp. 3d at 435 (collecting cases).

The defendants concede that “a growing chorus of district courts” have concluded that due process requires that the government bear the burden of proof at § 1226(a) bond hearings. (Opp’n at 22). But the defendants also point out that some courts to consider the issue have

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Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 16 of 29

concluded otherwise. In Borbot v. Warden Hudson Cty. Corr. Facility, the Third Circuit analyzed a § 1226(a) detainee’s claim that due process entitled him to a second bond hearing where “[t]he duration of [] detention [was] the sole basis for [the] due process challenge.” 906 F.3d 274, 276 (3d Cir. 2018). The Borbot court noted that the detainee “[did] not challenge the adequacy of his initial bond hearing,” id. at 276–77, and ultimately held that it “need not decide when, if ever, the Due Process Clause might entitle an alien detained under § 1226(a) to a new bond hearing,” id. at 280. But, in analyzing the detainee’s claims, the Borbot court stated that it “perceive[d] no problem” with requiring that § 1226(a) detainees bear the burden of proof at bond hearings. Id. at 279. Several district courts in the Third Circuit have subsequently concluded that Borbot compels a finding that due process does not require that the government bear the burden of proof at § 1226(a) bond hearings. See, e.g., Gomez v. Barr, No. 1:19-CV- 01818, 2020 WL 1504735, at *3 (M.D. Pa. Mar. 30, 2020) (collecting cases).

Based on its survey of the case law, the court is more persuaded by the reasoning of the district courts in the First, Second, Ninth, and Tenth Circuits. “Freedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Fifth Amendment’s Due Process] Clause protects.” Zadvydas, 533 U.S. at 690 (citation omitted). While detention pending removal is “a constitutionally valid aspect of the deportation process,” such detention must comport with due process. See Demore v. Kim, 538 U.S. 510, 523 (2003). Although the Supreme Court has not decided the proper allocation of the burden of proof in § 1226(a) bond hearings, it has held, in other civil commitment contexts, that “the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” See Addington v. Texas, 441 U.S. 418, 427 (1979)

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Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 17 of 29

(addressing the standard of proof required for mental illness-based civil commitment) (emphasis added).

Application of the Mathews v. Eldridge balancing test lends further support to the lead plaintiffs’ contention that due process requires a bond hearing where the government bears the burden of proof. In Mathews, the Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors”: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. 319, 335 (1976). While the court acknowledges that requiring the government to bear the burden of proof at § 1226(a) hearings would impose additional costs on the government, those costs are likely outweighed by the noncitizen’s significant interest in freedom from restraint, and the fact that erroneous deprivations of liberty are less likely when the government, rather than the noncitizen, bears the burden of proof. (See Decl. of Former Immigration Judge Denise Noonan Slavin ¶ 6, ECF 1-8 (“On numerous occasions, pro se individuals appeared before me for custody hearings without understanding what was required to meet their burden of proof. . . . Pro se individuals were rarely prepared to present evidence at the first custody hearing[.]”))

With respect to the quantum of proof required at § 1226(a) bond hearings, the court notes that “the overwhelming majority of district courts have . . . held that, in bond hearings under § 1226(a), due process requires the government to bear the burden of justifying detention by clear and convincing evidence.” Hernandez-Lara v. Immigration & Customs Enf’t, Acting Dir., No.

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Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 18 of 29

19-CV-394-LM, 2019 WL 3340697, at *3 (D.N.H. July 25, 2019) (collecting cases). As the Hernandez-Lara court reasoned, “[p]lacing the burden of proof on the government at a § 1226(a) hearing to show by clear and convincing evidence that the noncriminal alien should be detained pending completion of deportation proceedings is more faithful to Addington and other civil commitment cases,” id. at *6, “[b]ecause it is improper to ask the individual to ‘share equally with society the risk of error when the possible injury to the individual’—deprivation of liberty—is so significant,” id. (quoting Singh v. Holder, 638 F.3d 1196, 1203–04 (9th Cir. 2011)) (further citation omitted).

Moreover, on the quantum of proof question, the court finds instructive evolving jurisprudence on challenges to prolonged detention pursuant to 8 U.S.C. § 1226(c). As noted in note 2, supra, § 1226(c) mandates detention of noncitizens deemed deportable because of their convictions for certain crimes. See Jennings, 138 S. Ct. at 846. Although § 1226(c) “does not on its face limit the length of the detention it authorizes,” id., the Supreme Court has not foreclosed the possibility that unreasonably prolonged detention under § 1226(c) violates due process, id. at 851. Indeed, many courts have held that when § 1226(c) becomes unreasonably prolonged, a detainee must be afforded a bond hearing. See, e.g., Reid v. Donelan, 390 F. Supp. 3d 201, 215 (D. Mass. 2019); Portillo v. Hott, 322 F. Supp. 3d 698, 709 (E.D. Va. 2018); Jarpa, 211 F. Supp. 3d at 717. Notably, courts in this district and elsewhere have ordered § 1226(c) bond hearings where the government bears the burden of justifying continued detention by clear and convincing evidence. See Duncan v. Kavanagh, — F. Supp. 3d —-, 2020 WL 619173, at *10 (D. Md. Feb. 10, 2020); Reid, 390 F. Supp. 3d at 228; Portillo, 322 F. Supp. 3d at 709–10; Jarpa, 211 F. Supp. 3d at 721. As the Jarpa court explained, “against the backdrop of well-settled jurisprudence on the quantum and burden of proof required to pass constitutional muster in civil detention

18

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 19 of 29

proceedings generally, it makes little sense to give Mr. Jarpa at this stage fewer procedural protections than those provided to” civil detainees in other contexts. See Jarpa, 211 F. Supp. 3d at 722 (citing United States v. Comstock, 627 F.3d 513 (4th Cir. 2010)).

In light of the above, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires § 1226(a) bond hearings where the government must bear the burden of proving dangerousness or risk of flight. As to the quantum of proof required at these hearings, the court is persuaded that requiring a clear and convincing standard is in line with the Supreme Court’s reasoning in Addington, as well as consistent with the bond hearings ordered in cases involving § 1226(c) detention.

ii. Due process claim: ability to pay and suitability for release on alternative conditions of release

The lead plaintiffs also claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the IJ considers the noncitizen’s ability to pay a set bond amount and her suitability for release on alternative conditions of supervision. The defendants counter that due process does not so require, and also asserts that at Mr. de la Cruz Espinoza’s bond hearing, the IJ did consider his ability to pay, (Opp’n at 26).

As an initial matter, the court considers whether the IJ at Mr. de la Cruz Espinoza’s bond hearing considered his ability to pay. According to the Complaint, there is no requirement that IJs in Baltimore Immigration Court consider an individual’s ability to pay when setting a bond amount. (Compl. ¶ 27 & n.8). The defendants assert that because Mr. de la Cruz Espinoza’s motion for bond included arguments about his financial situation, the IJ did, in fact, consider his ability to pay. (Opp’n at 26). The court is not persuaded. The fact that an argument was raised does not ipso facto mean it was considered. Neither the transcript of Mr. de la Cruz Espinoza’s bond hearing, (ECF 15-11), nor the IJ’s order of bond, (ECF 1-18), suggest that the IJ actually

19

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 20 of 29

considered ability to pay. Accordingly, without clear evidence to the contrary, the court accepts the lead plaintiffs’ allegation that the IJ did not consider Mr. de la Cruz Espinoza’s ability to pay when setting bond.

The question remains whether due process requires that an IJ consider ability to pay and suitability for alternative conditions of release at a § 1226(a) bond hearing. As explained above, detention pending removal must comport with due process. See Demore, 538 U.S. at 523. Due process requires that detention “bear[s] [a] reasonable relation to the purpose for which the individual [was] committed.” See Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Federal regulations and BIA decisional law suggest that the purpose of § 1226(a) detention is to protect the public and to ensure the noncitizen’s appearance at future proceedings. See 8 C.F.R. §§ 1003.19, 1236.1; Guerra, 24 I. & N. Dec. at 38. But, the lead plaintiffs argue, when IJs are not required to consider ability to pay or alternative conditions of release, a noncitizen otherwise eligible for release may end up detained solely because of her financial circumstances.

Several courts to consider the question have concluded that § 1226(a) detention resulting from a prohibitively high bond amount is not reasonably related to the purposes of § 1226(a). In Hernandez v. Sessions, the Ninth Circuit held that “consideration of the detainees’ financial circumstances, as well as of possible alternative release conditions, [is] necessary to ensure that the conditions of their release will be reasonably related to the governmental interest in ensuring their appearance at future hearings[.]” See 872 F.3d at 990–91. While the Hernandez court did not explicitly conclude that a bond hearing without those considerations violates due process, see id. at 991 (“due process likely requires consideration of financial circumstances and alternative conditions of release” (emphasis added)), the court in Brito did reach that conclusion, see 415 F.

20

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 21 of 29

Supp. 3d at 267. The Brito court held that, with respect to § 1226(a) bond hearings, “due process requires an immigration court consider both an alien’s ability to pay in setting the bond amount and alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.” Id. at 267. Relatedly, in Abdi v. Nielsen, 287 F. Supp. 3d 327 (W.D.N.Y. 2018), which involved noncitizens held in civil immigration

9

detentionpursuantto8U.S.C.§1225(b), thecourt—relyingontheNinthCircuit’sreasoningin

Hernandez—held that “an IJ must consider ability to pay and alternative conditions of release in setting bond for an individual detained under § 1225(b).” Id. at 338. To hold otherwise, the Abdi court reasoned, would implicate “the due process concerns discussed in Hernandez, which are equally applicable to detentions pursuant to § 1225(b).”10

The court is persuaded by the reasoning of Hernandez, Brito, and Abdi. If an IJ does not make a finding of dangerousness or substantial risk of flight requiring detention without bond (as in Mr. de la Cruz Espinoza’s case), the only remaining purpose of § 1226(a) detention is to

11

that an individual may not be imprisoned “solely because of his lack of financial resources.” See

9 8 U.S.C. § 1225(b) authorizes indefinite, mandatory detention for certain classes of noncitizens. See Jennings, 138 S. Ct. at 842 (citing 8 U.S.C. §§ 1225(b)(1) and (b)(2)).

10 The court notes that both Hernandez and Abdi reference now-invalidated precedent in both the Ninth and Second Circuits requiring the government to provide civil immigration detainees periodic bond hearings every six months. See Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852; Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852. But Jennings, which was decided on statutory interpretation grounds, explicitly did not include a constitutional holding. See Jennings, 138 S. Ct. at 851 (“[W]e do not reach th[e] [constitutional] arguments.”). And, as the Hernandez court noted, “the Supreme Court’s review of our holding . . . that noncitizens are entitled to certain unrelated additional procedural protections during the recurring bond hearings after prolonged detention does not affect our consideration of the lesser constitutional procedural protections sought at the initial bond hearings in this case.” 872 F.3d at 983 n.8.

11 The defendants offer no purpose for § 1226(a) detention beyond protecting the community and securing a noncitizen’s appearance at future proceedings.

The set bond amount, then, must be reasonably related to this purpose. But where a bond amount is set too high for an individual to pay, she is effectively detained without bond due to her financial circumstances. It is axiomatic

secure a noncitizen’s appearance at future proceeding.

 21

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 22 of 29

Bearden v. Georgia, 461 U.S. 660, 661–62, 665 (1983) (automatic revocation of probation for inability to pay a fine, without considering whether efforts had been made to pay the fine, violated due process and equal protection); cf. Tate v. Short, 401 U.S. 395, 398 (1971) (“The Constitution[’s equal protection clause] prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”). In the pretrial detention context, multiple Courts of Appeals have held that deprivation of the accused’s rights “to a greater extent than necessary to assure appearance at trial and security of the jail . . . would be inherently punitive and run afoul of due process requirements.” See Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)) (quotation marks omitted); accord ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir. 2018); see also Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976); accord Villarreal v. Woodham, 113 F.3d 202, 207 (11th Cir. 1997).

There is no suggestion that the IJs in Baltimore Immigration Court impose prohibitively high bond amounts with the intent of denying release to noncitizens who do not have the means to pay. But without consideration of a § 1226(a) detainee’s ability to pay, where a noncitizen remains detained due to her financial circumstances, the purpose of her detention—the lodestar of the due process analysis—becomes less clear. As the Ninth Circuit explained,

Setting a bond amount without considering financial circumstances or alternative conditions of release undermines the connection between the bond and the legitimate purpose of ensuring the non-citizen’s presence at future hearings. . . . [It is a] common-sense proposition that when the government detains someone based on his or her failure to satisfy a financial obligation, the government cannot reasonably determine if the detention is advancing its purported governmental purpose unless it first considers the individual’s financial circumstances and alternative ways of accomplishing its purpose.

Hernandez, 872 F.3d at 991.

The defendants assert that an IJ need not consider a noncitizen’s ability to pay a set bond

22

Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 23 of 29

amount because it had a “reasonable basis to enact a statute that grants the Executive branch discretion to set bonds to prevent individuals, whose ‘continuing presence in the country is in violation of the immigration laws,’ from failing to appear,” and that § 1226(a) passes muster under rational basis review. (Opp’n at 25–26 (quoting Reno v. American-Arab Anti- Discrimination Comm., 525 U.S. 471, 491 (1999)). But the appropriate analysis for a procedural due process challenge is the Mathews balancing test, not rational basis review, which is used to analyze equal protection claims, see, e.g., Schweiker v. Wilson, 450 U.S. 221, 234–35 (1981), and substantive due process claims, see, e.g., Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999). And, in applying the Mathews test, the court agrees with the Ninth Circuit’s conclusion that “the government’s refusal to require consideration of financial circumstances is impermissible under the Mathews test because the minimal costs to the government of [] a requirement [that ICE and IJs consider financial circumstances and alternative conditions of release] are greatly outweighed by the likely reduction it will effect in unnecessary deprivations of individuals’ physical liberty.” See Hernandez, 872 F.3d at 993.

Accordingly, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires a § 1226(a) bond hearing where the IJ considers a noncitizen’s ability to pay a set bond amount and the noncitizen’s suitability for alternative conditions of release.

Y. . . .

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

Thanks and congratulations to Judge Denise Slavin for “making a difference.” It’s a true honor to serve with you and our other colleagues in the Round Table of Former Immigration Judges! Judge Slavin’s Declaration is cited by Judge Blake at the end of the first full paragraph above “17” in the quoted excerpt.

fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel
Knightess
Knightess of the Round Table

To be brutally honest about it, Denise is exactly the type of scholarly, courageous, due-process-oriented Immigration Judge who in a functioning, merit-based system, focused on “using teamwork and innovation to develop best practices and guarantee fairness and due process for all” would have made an outstanding and deserving Appellate Immigration Judge on the BIA. Instead, in the totally dysfunctional “World of EOIR,” the “best and brightest” judges, like Denise, essentially are “pushed out the door” instead of being honored and given meaningful opportunities to use their exceptional skills to further the cause of justice, establish and reinforce “best judicial practices,” and serve as outstanding role models for others. What an unconscionable waste!

It’s a great decision! The bad news: Because the Immigration Courts remain improperly captive within a scofflaw, anti-immigrant, and anti-due-process DOJ, respondents in many other jurisdictions will continue to be denied the fundamentally fair bond hearings required by Constitutional Due Process.

Due Process Forever!

PWS

05-30-20

CATHERINE RAMPELL @ WASHPOST: Will Trump’s Incompetence Save America From His Maliciousness?

Catherine Rampell
Catherine Rampell
Opinion Columnist
Washington Post

https://www.washingtonpost.com/opinions/trump-is-all-about-deregulation–except-when-it-comes-to-his-enemies/2020/05/28/dcfb9638-a116-11ea-b5c9-570a91917d8d_story.html

Catherine writes:

. . . .

That’s because the pretense was nonsense from the start. Trump’s regulatory agenda was never about helping the economy; it was always about rewarding friends and punishing enemies. White House officials have weaponized the “administrative state” they claim to hate and have repeatedly tried to strangle disfavored groups with regulations and red tape.

Not just Twitter, either.

Arbitrary delays in processing visa applications, for example, have been used to punish immigrants and the companies that employ them. U.S. Citizenship and Immigration Services has rejected visa applications because applicants lack a middle name. It has also waited to mail approved visas until (oops!) after the visas had already expired.

The additional costs and uncertainty these processing changes create for workers and their employers are a feature, not a bug.

Elsewhere, both federal and state officials have ratcheted up bureaucratic hurdles for the poor, as Georgetown University professors Pamela Herd and Donald P. Moynihan have documented.

Right now, for example, states can decide a poor family is automatically eligible for food assistance if the family is enrolled in other means-tested safety-net programs. The Trump administration is trying to block states from doing this, and require more paperwork to prove eligibility. By the administration’s own calculations, this would cause 1 million children to lose their automatic eligibility for free school lunches.

The administration, of course, argues that its regulatory decisions are determined not by Trump’s political whims but by meticulous analysis of what’s best for the economy.Helpfully, a method exists to check their work: the cost-benefits analysis that agencies must produce ahead of major rule changes.

These records show, however, that the administration has repeatedly struggled to prove that its regulatory actions actually increase economic and social welfare.

To get the numbers to work out in its favor, the administration has had to cook the books.

. . . .

The only upside to this slapdash math is that it makes the administration’s most damaging and punitive regulatory changes less likely to hold up in court. Already, the Trump administration has lost more than 90 percent of the legal challenges to its regulatory policies, according to New York University’s Institute for Policy Integrity. By comparison, previous administrations lost only about 30 percent of the time.

“A lot of these losses have been because of the poor quality of the analysis — who’s harmed, who’s helped, by how much,” said Richard Revesz, a law professor who directs the institute.

The only thing that may save us from the administration’s regulatory vindictiveness is its incompetence.

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

Read the rest of Catherine’s article at the link.

As usual, Catherine’s analysis is “spot on.” My problem is this.

If the same private litigant and his or her lawyers kept presenting Federal Courts with false, misleading, or just plain faked evidence and statistics, the private lawyers likely would be facing discipline or disbarment for failure to provide “candor to a tribunal.” The client would be facing large penalties and likely contempt for continuing to institute or cause frivolous litigation.

Yet, except for occasional “harsh but toothless” language in judicial opinions or a couple of minor fines, Trump, his sycophantic toadies, and his battery of unethical Government lawyers get off scot-free for abusing the Article III Judiciary and our legal and judicial processes. Meanwhile, the private litigants are forced to file the same challenges over and over again in different jurisdictions across the country. In the area of immigration, asylum, and human rights, most of the lawyers are donating their time pro bono, while the unethical Government attorneys and their corrupt clients are on the taxpayer’s dime. 

The occasional Equal Access to Justice Act award against the Government seldom comes close to compensating private lawyers for their actual lost time and lost opportunities. Nor does it deter the Trump regime, because it comes out of “you of the taxpayers’” pocket.

A Federal Judge demands accurate statistics from DHS after private litigants show the last batch was bogus; the DHS merely submits another set of bogus or misleading data, forcing the private litigants to once again have to demonstrate their unreliability. Government officials and their attorneys claim, contrary to fact, that there is no “child separation” policy, but suffer no consequences other than to be told to stop violating the Constitution. Instead of doing that, they “repackage” unconstitutional child separation as a bogus “parental choice.” So, now the private litigants, who have already won once, have to show that the latest iteration of a clearly illegal and contemptuous policy is what it is: unlawful. 

A Federal Judge orders they DHS to make individualized release determinations for detainees held in overcrowded substandard conditions that violate the Government’s own health guidance. Instead of doing that, the DHS merely moves them to another, slightly less crowded facility with equally bad conditions and falsely claims they have “fixed” the problem. Again, the private litigants have to gather new evidence that the move has not materially reduced the health risks to the clients. And so on.

Essentially, the Trump regime and their lawyers are playing a big game of “hide the ball;” every time the private advocates show the Federal Judge where the ball actually is hidden, the Government simply moves it again. And, unfortunately, most Federal Judges give the regime and its ethics-challenged lawyers unlimited “plays” at the expense of the other side. Even when relief is ordered, it just solves the “problem of the moment” rather than halting the pattern of ethical abuses, contemptuous attitudes, and unlawful conduct by the regime and its complicit lawyers.

In effect, the regime has “weaponized” the Federal Courts and the Article III Judiciary in a way not dissimilar from how Sessions and Barr have “weaponized” the Immigration Courts. Turning the Article III Courts into a feckless “runaround” where the individuals and their lawyers “lose even when they win” makes the process punitive and serves as a deterrent to those seeking to challenge the regime’s overtly lawless agenda.

The November election is the chance to throw a scofflaw regime out of office. But, the deep-seated institutional and integrity problems of an Article III Judiciary, beginning with the dangerously complicit and spineless in the face of tyranny “Roberts Court,” that has allowed itself to be “weaponized” and used by the army of authoritarian scofflaws to punish those seeking to uphold the Constitution and the rule of law won’t be solved so quickly. The Article III Judiciary requires an institutional re-examination and a philosophical and ethical overhaul so that it serves the Constitution, due process of law, and equal justice for all, rather than protecting the interests of an insular right-wing minority that seeks nothing less than the disintegration of our nation and our cherished democratic institutions.

PWS

05-29-20

2D CIR. JOINS 9TH IN REJECTING BIA’S PRECEDENT, MATTER OF MENDEZ, 27 I. & N. Dec. 219 (BIA 2018) (Holding Misprision of Felony is a CIMT) – Mendez v. Barr

https://www.ca2.uscourts.gov/decisions/isysquery/75dbe12d-c0a1-497d-848e-59f07e9aa4b2/3/doc/18-801_complete_opn.pdf

Mendez v. Barr, 2d Cir., 05-27-20, published

PANEL: PARKER, CHIN, and SULLIVAN, Circuit Judges.

OPINION BY: Judge Barrington D. Parker

DISSENTING OPINION: Judge Richard Sullivan

KEY QUOTE FROM MAJORITY:

Tomas Mendez was admitted to the United States in 2004 as a lawful

17  permanent resident. In 2010, he was convicted of misprision of a felony in

18  violation of 18 U.S.C. § 4. That section makes it a crime for one with knowledge

19  of the commission of a federal felony to conceal it and not promptly report it to

20  the appropriate authorities. 18 U.S.C § 4.

21  In 2016, upon returning from a trip abroad, the Department of Homeland

22  Security charged him, based on his misprision conviction, as inadmissible under

23  § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, because he was a

24  noncitizen convicted of a crime involving moral turpitude (“CIMT”). The

25  immigration judge sustained the charge, and the Board of Immigration Appeals

2

1  (“BIA”) affirmed. The BIA concluded that the violation of § 4 meant that he had

2  committed a CIMT. Matter of Mendez, 27 I. & N. Dec. 219, 225 (BIA 2018).

3  The BIA defines a CIMT as crime that is “inherently base, vile, or

4  depraved, and contrary to the accepted rules of morality and duties owed

5  between persons or to society in general.” Rodriguez v. Gonzales, 451 F.3d 60, 63

6  (2d Cir. 2006).1 For decades, the BIA never considered misprision a CIMT. Matter

7  of Sloan, 12 I. & N. Dec. 840, 842 (BIA 1966) (holding misprision does not

8  constitute a CIMT).

9  However, in 2002, the Eleventh Circuit held in Itani v. Ashcroft that a

10  conviction under § 4 is categorically a CIMT “because it necessarily involves an

11  affirmative act of concealment or participation in a felony, behavior that runs

12  contrary to accepted societal duties and involves dishonest or fraudulent

1 Unless otherwise indicated, in quoting cases all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.

3

1  activity.” 298 F.3d 1213, 1216 (11th Cir. 2002).2 Following the Eleventh Circuit’s

2  lead, the BIA did an about face and determined in a case arising in the Ninth

3  Circuit that misprision was a CIMT. In re Robles-Urrea, 24 I. & N. Dec. 22, 25 (BIA

4  2006).

5  The Ninth Circuit rejected the BIA’s conclusion. The court held that

6  because § 4 required only knowledge of the felony and did not require an intent

7  to defraud, or conceal, or to obstruct justice, the statute encompassed conduct

8  that was not inherently base or vile. Robles-Urrea v. Holder, 678 F.3d 702, 710-12

9  (9th Cir. 2012). The Ninth Circuit reasoned that “[n]othing in the statute

10  prohibiting misprision of a felony references the specific purpose for which the

11  concealment must be undertaken,” let alone a purpose sufficient to qualify

12  misprision as a categorical CIMT. Id. at 710.

2 In 2017, the Fifth Circuit joined the Eleventh Circuit to hold that misprision is categorically a CIMT. Villegas-Sarabia v. Sessions, 874 F.3d 871, 878 (5th Cir. 2017). We respectfully decline to follow the Fifth and Eleventh Circuit’s approach. We believe that neither Itani nor Villegas-Sarabia satisfactorily supports the assertion that specific intent, or intent to defraud, can be read into § 4, especially when Congress did not include such a requirement and has shown elsewhere in the criminal code that it knows how to include such a requirement if it so chooses. The Eleventh Circuit in Itani reasoned only “that misprision of a felony is a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.” 298 F.3d at 1216. We are reluctant to adopt this reasoning because, “any crime, by definition, runs contrary to some duty owed to society” and “[i]f this were the sole benchmark for a crime involving moral turpitude, every crime would involve moral turpitude.” Robles-Urrea v. Holder, 678 F.3d 702, 709 (9th Cir. 2012). We are also unpersuaded by Villegas-Sarabia, where the Fifth Circuit relied almost exclusively on Itani’s reasoning.

4

1  Mendez moved to terminate removal proceedings and for cancellation of

2  removal, arguing that misprision is not a CIMT. Relying on the BIA’s decision in

3  Robles-Urrea, the IJ found Mendez removable as charged. The IJ also pretermitted

4  Mendez’s application for cancellation of removal, concluding that because his

5  2010 misprision conviction constituted a CIMT, it stopped the clock for

6  calculating length of residency and prevented him from establishing the required

7  seven years of continuous residency. In February 2018, the BIA issued a

8  precedential decision in this case. Matter of Mendez, 27 I. & N. Dec. at 219. It

9  reaffirmed its holding that misprision is a CIMT and declined to follow the Ninth

10  Circuit’s rejection of its reasoning in Robles-Urrea.

11  Mendez petitions for review. We have jurisdiction under 8 U.S.C. § 1252

12  (a)(2)(D). Mendez argues that a conviction for misprision is not a CIMT because

13  it does not categorically involve conduct that is inherently base, vile, or

14  depraved. He also argues that, contrary to the BIA’s contention, its decision is

15  not entitled to Chevron deference. We agree on both points.

16  DISCUSSION

17  The dispositive issue is whether misprision is a CIMT. Because the BIA has

18  no particular expertise in construing federal criminal statutes (as opposed to the

19  INA), we owe no deference to its construction of § 4. United States v. Apel, 571 5

1  U.S. 359, 369 (2014); Mendez v. Mukasey 547 F.3d 345, 346 (2d Cir. 2008).

2  Accordingly, we review de novo the BIA’s conclusion that Mendez’s conviction

3  under § 4 is a conviction for a CIMT. Rodriguez, 451 F.3d at 63.

. . . .

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

There is a “Circuit split:” The 5th & 11th Circuits agree with the BIA’s decision in Matter of Mendez; the 9th and 2d Circuits reject it. That means it’s likiely to eventually be up to the Supremes to decide who’s right.

 

PWS

05-27-20

 

LAW YOU CAN USE: THE DEVIL👹 IS IN THE DETAILS: JEFFREY S. CHASE — OPINIONS/ANALYSIS ON IMMIGRATION LAW: “Just One More Thing…”

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

HTTPS://WWW.JEFFREYSCHASE.COM/BLOG/2020/5/27/JUST-ONE-MORE-THING

 

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“Just One More Thing…”

When reviewing asylum applications of late, I find myself thinking of the popular 1970s TV show “Columbo.”  After interviewing a suspect, it’s title character, a disheveled homicide detective, would famously stop on his way out to ask “just one more thing.” What he asked next was always critical to proving the case.

Asylum claims are increasingly reliant on nuance.  For example, in Hernandez-Chacon v. Barr, the Petitioner’s statement that she had resisted an attempted rape by one of the gang members “because [she had] every right to” was a significant reason for the Second Circuit’s conclusion that her subsequent persecution was on account of an imputed political opinion.

Similarly, in Lopez-Ordonez v. Barr, the Fourth Circuit’s finding of imputed political opinion relied largely on the Petitioner, while a soldier in the Guatemalan army, uttering a warning that he would “call the human rights right now” if a fellow soldier carried out his intent of harming a baby.

And in Orellana v. Barr, the Fourth Circuit found support for the Petitioner’s assertion that the Salvadoran government was unable or unwilling to provide protection from her domestic partner in her testimony that she would call the police when her partner would become abusive and lock herself in a room with her children while the partner paced outside with a machete, but that the police would not show up for hours, and sometimes not show up at all.

In the above examples, the critical statements came out during testimony in court.  But under pressure to meet unrealistic case completion goals, immigration judges are increasingly suggesting that respondents forego testimony and rely on their written applications, or waive direct examination and reserve the right to redirect.  In some instances, judges have imposed time limits on testimony.  There has been even greater pressure to forego the testimony of other witnesses and instead rely on their written submissions alone.

This pressure to make asylum adjudication more administratively efficient conflicts with the process through which such claims develop.  While the written evidence explains the claim, an unanticipated response to a probing question may provide a eureka moment that alters the legal analysis.  In my first year on the bench in 1995, a response from a female asylum seeker uttered with a certain degree of conviction caused me to make a connection to a 1993 decision of the Third Circuit in Fatin v. INS.  That decision, authored by then-circuit judge Samuel Alito, recognized a particular social group consisting of both gender and a refusal to conform to the government’s gender-specific laws.  After weeks of subsequent research and analysis, the case before me ended in a grant of asylum, a result that never would have occurred without the extensive testimony that elicited that one critical utterance.

While EOIR management’s present focus is on efficiency, it bears noting that claims for asylum and related reliefs have life-or-death consequences.  For example, a February report of Human Rights Watch documented 138 Salvadorans who were murdered after being deported from the U.S., and 70 other deportees who were subjected to beatings, sexual assault, or extortion. And those are just the statistics for one country.

It is therefore extremely important to find a way to anticipate the details that might turn a case from a denial to a grant, and to include those details in the written asylum application.  And this can be best achieved through the Columbo method of asking “just one more thing.”

Examples:

Domestic violence claims

Typically, applications describe the brutal mistreatment suffered by the asylum-seeker.  But in Matter of A-B-, the Attorney General claimed a lack of evidence that the persecutor “was aware of, and hostile to” a particular social group.  The A.G. rather attributed the motive for the attack to the persecutor’s “preexisting personal relationship with the victim.”

In such cases, ask “just one more thing” to establish that the abusive partner was at least partially motivated to harm the asylum seeker because of her gender (which should in turn be argued to constitute her particular social group).  For example, the respondent in A-B- described how her ex-husband believed “a woman’s place was in the home, like a servant.”  This statement established (1) that the persecutor was aware of a particular social group, consisting of women, and (2) his own hostility towards such group, through his relegating its members to a subservient role in society.

Additional “Columbo” questions would inquire whether the persecutor’s verbal abuse included gender-specific derogatory terms; how he generally spoke of or treated other women in his life; and whether he would have inflicted the same forms of abuse on e.g. his brother, a close male friend, or a male roommate.  The answers may well establish that the asylum seeker’s inclusion in a social group defined by her gender was at least “one central reason” for her being targeted for abuse.

“Just one more thing” should also be asked to flesh out imputed political opinion as a possible motive, as in the above-cited Hernandez-Chacon case.

Family-based claims

These claims often arise in the gang context, when gang members unable to target a particular individual target family members of that individual instead.  Although courts for decades have held family to be the quintessential example of a particular social group for asylum purposes, two recent administrative decisions have complicated these claims.  First, the BIA in Matter of L-E-A- dismissed the threat to the family member as being motivated by financial considerations and not by an actual animus towards the family.  The Attorney General then weighed in, questioning whether a family enjoys the required distinction in the eyes of society to constitute a particular social group.

Regarding nexus, the “Columbo” questions should focus on circumstantial evidence of intent.  Keep in mind the BIA’s decision in Matter of S-P.  One of the factors set out in that decision for determining when purported criminal prosecution might actually be political persecution is where the abuse is “out of proportion to nonpolitical ends.”  For example, if someone accused of jaywalking is sentenced to ten years in prison and subjected to torture and interrogation sessions, it’s safe to assume that it isn’t really about the jaywalking.

With this in mind, the “just one more thing” issue in such cases is to elicit details about the purported motive vs. the seriousness of the threatened harm.  Where the issue is extortion, and the Board might therefore view the motive as economic, ask exactly how much money was involved.  Under the S-P- test, a threat to rape and kill someone because their family member neglected to pay $20 in renta probably isn’t about the money.  The same might be found even where a larger sum is involved where the threats are directed at, e.g., a teenage child who lacks any realistic ability to pay.  Or where the family has managed to avoid paying for years, is there a point where a dispute that began purely over money starts to take on some animus towards the family as well?

Regarding social distinction, “just one more thing” should be asked to establish how the asylum-seeker’s family was viewed in the society in which they lived, as well as the general distinctions that all families enjoy in such society.  Was it known throughout the community that MS-13 is targeting the client’s family?  If so, might that knowledge have caused the family to achieve social distinction?  It is also worth asking whether the institution of family is addressed in the country’s constitution, or how kinship is treated regarding the country’s inheritance and guardianship laws.

Unwilling/unable issues:

As in Orellana v. Barr above, ask “just one more thing” about how many times your client turned to the police, and how many times they actually responded.  Also, how long did it take them to respond, and what did the response consist of?  How did the authorities treat the abuser?  Did they take the position that the issue was a “personal matter” not proper for police intervention?

If the client did not bother to call the police because they viewed it as futile, ask “just one more thing” about what caused them to form such a view.  Do they know of relatives, friends, or neighbors whose experiences with the authorities support such a view?  Can they cite examples in which there were repercussions for those who called on the authorities for protection?  Have the authorities asked for bribes, or made statements exhibiting bias or corruption?  Or have they gone as far as to admit that they are unable to provide effective protection?

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Reprinted by permission.

(Disclaimer: The foregoing is meant as “food for thought,” and is not to be interpreted or relied upon as legal advice, or to create an attorney-client relationship.  And as the law changes, by the time you read this, the information contained therein might not be up to date.)

MAY 27, 2020

 

 

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

Thanks, Jeffrey, my friend!

 

I’ve always said about asylum litigation in Immigration Court: The Devil 👹 is in the details. And, if you don’t find that Devil, the Assistant Chief Counsel will.  And, YOU will burn🔥!

 

PWS

 

05-27-20

 

 

 

🤮KAKISTOCRACY KORNER: Trump Regime’s “Malicious Incompetence” 🤡 Bankrupts Once-Self-Supporting Government Agency — With No Mission, No Leadership, No Integrity, & Low to No Morale, USCIS Seeks “Taxpayer Bailout” 💸🔥 From Congress!

Geneva Sands
CNN Digital Expansion 2019, Geneva Sands
Phil Mattingly
Phil Mattingly
Congressional Correspondent
CNN

https://apple.news/AOZfzNDVvT0Oxx63CeRSlyw

Geneva Sands & Phil Mattingly report for CNN:

Federal immigration agency to furlough employees unless Congress provides funding

6:05 PM EDT May 26, 2020

US Citizenship and Immigration Services, the federal agency responsible for visa and asylum processing, is expected to furlough part of its workforce this summer if Congress doesn’t provide emergency funding to sustain operations during the coronavirus pandemic.

“Unfortunately, as of now, without congressional intervention, the agency will need to administratively furlough a portion of our employees on approximately July 20,” USCIS Deputy Director for Policy Joseph Edlow wrote in a letter sent to the workforce on Tuesday. 

Earlier this month, the agency — which has 19,000 government employees and contractors working at more than 200 offices — requested $1.2 billion from Congress due to its budget shortfall. 

Since then, the agency, a component of the Department of Homeland Security, has been working with members of Congress and their staffs to educate Capitol Hill on the agency’s finances and operations. 

Communications from the agency to Congress have grown more urgent as the threat of potential rolling furloughs could number in the thousands, according to one source familiar with the discussions.

The goal would be to attach the needed funds to the next coronavirus relief bill, which lawmakers plan to negotiate next. Still, with both parties far apart on any resolution, there is currently no clear pathway for lawmakers to fulfill the emergency request.

The immigration agency is primarily fee-funded and typically continues most operations during lapses in funding, such as last year’s government shutdown. However, during the pandemic the agency suspended its in-person services, including all interviews and naturalization ceremonies.

“Due to the COVID-19 pandemic, USCIS has seen a dramatic decrease in revenue and is seeking a one-time emergency request for funding to ensure we can carry out our mission of administering our nation’s lawful immigration system, safeguarding its integrity, and protecting the American people,” said a USCIS spokesperson. 

The agency proposed a 10% surcharge on USCIS application fees to reimburse taxpayers at a later time. USCIS previously estimated that application and petition receipts will drop by approximately 61% through the end of fiscal year 2020, exhausting funding this summer, according to the agency. 

Sarah Pierce, a policy analyst for the US Immigration Policy Program at the Migration Policy Institute, told CNN earlier this month that USCIS’ depleted funds are the “inevitable result” of the administration’s policies, which decreased the number of petitions — and thus fees — received by the agency. 

“Between the end of fiscal years 2017 and 2019, USCIS received nearly 900,000 fewer petitions. This decrease was largely driven by the administration’s own decisions, such as ending Temporary Protected Status for nationals of several countries or drastically decreasing the number of refugees admitted to the United States,” she said. 

. . . .

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Read the rest of the article at the link.

Sarah Pierce of MPI is totally right! This self-created “emergency” has to do mostly with the Trump regime’s ill-advised decision to turn what was supposed to be an agency providing impartial, expert, professional services to the public, and specifically the immigrant community, into a “junior branch of DHS enforcement.”

The need for a bailout or huge fee increases appears specious. How about giving USCIS the money that the regime illegally reprogrammed for Trump’s unneeded wall or the money used to maintain unfilled detention spaces and unneeded detention programs? 

Right now, USCIS is engaged in improperly “slow walking” naturalization applications to prevent new citizens from being able to vote in the Fall 2020 elections. As a minimum requirement for further bailout, Congress should require that the “Naturalization Program” be removed from USCIS and returned to the supervision of the Article III Federal Courts.

I actually was once a “big fan” of “administrative naturalization,” believing that it could be  done most efficiently and with the best public service by adjudicators serving within the Examinations Branch of the “Legacy INS” which eventually “morphed” into USCIS. I supported the concept and helped lay the groundwork for it during my time at the “Legacy INS.”

The Trump kakistocrats have proved me wrong. The function is too important, too politicized, and too tied into the White Nationalist anti-immigrant agenda to remain within the Executive Branch. It also requires competent, professional, apolitical leadership which does not exist within today’s “DHS mass of disastrous politicized incompetence.”

PWS

05-27-20

☠️RUSE FOR CHILD ABUSE: Trump Regime Uses COVID-19 Chaos As Cover For Evading Court Order, Inflicting Gratuitous Cruelty On Vulnerable Families & Children!

Child-Abuser-in-Chief
Child-Abuser-in-Chief

https://www.washingtonpost.com/opinions/migrant-children-are-still-confined-and-vulnerable-its-a-gratuitous-act-of-cruelty/2020/05/25/8884fc4a-9bb5-11ea-a2b3-5c3f2d1586df_story.html

From the WashPost Editorial Board:

Opinions

Migrant children are still confined and vulnerable. It’s a gratuitous act of cruelty.

By Editorial Board

May 25 at 2:09 PM ET

As the pandemic gathered speed In March, a federal judge called the government’s immigrant detention centers “hotbeds of contagion” and ordered that migrant children be released from them without delay. Some have been. But the Trump administration has dragged its feet in freeing many migrant children detained with their families, offering parents the formal “option” of letting their children go — to be separated from their mothers and fathers.

That Hobson’s choice was presented in mid-May to several hundred asylum-seeking parents at the three migrant family detention centers, in Texas and Pennsylvania, run by U.S. Immigration and Customs Enforcement. Many Americans may have assumed that the administration, scalded by its last experiment with separating migrant children from their families, would not again broach that subject. But it did.

[[Full coverage of the coronavirus pandemic]]

On May 13 and 14, parents at those facilities, mainly mothers, were herded into sudden encounters with ICE officials, who presented them with forms to sign. The detainees’ lawyers were neither notified nor aware of what was going on. The forms presented parents with the option of allowing government agents to place their children with relatives or other sponsors elsewhere in the United States, while the parents would stay behind in detention. Very few of the parents assented, though plenty were shaken by the experience; some agreed without realizing the repercussions, according to a subsequent court filing.

Judge Dolly M. Gee, of the U.S. District Court in Los Angeles, has jurisdiction over detained migrant children under the 1997 Flores settlement, which prohibits the long-term detention of migrant minors. In March, as covid-19 cases were spreading rapidly in migrant detention facilities, she ordered the administration to speed up the release of minors; hundreds were placed with sponsors. However, the Flores agreement grants the judge no jurisdiction over parents detained with their children.

That apparently prompted ICE to undertake its proceedings in the family detention centers, in which agents asked asylum-seeking parents if they were willing to part with their children, some of them babies and toddlers. In fact, ICE has the authority to release families pending their next appearance in immigration court, and has done so routinely in the past. The Trump administration has taken a different tack, raising the bar on asylum as it subjects migrant families to months-long confinements even if children suffer in the process — which they do.

According to advocates and attorneys for the migrant parents, the parents summoned by ICE officials were confused and intimidated. Some thought they risked being deported if they refused to let their children be taken away. In at least one instance, according to a court filing, a mother who signed the form asked an ICE officer if she could change her mind; she was told no.

[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]

The administration closed the U.S. southern border to asylum seekers this spring, citing the risk of the pandemic. Most detained migrants had entered the country months earlier, and more than 1,000 covid-19 cases have been reported in detention facilities nationwide, including among detainees and staff members. None have been confirmed in the three family detention centers, perhaps because there has been little testing. Still, hundreds of migrant minors detained with their families remain at risk of contracting the virus. At this point, their continuing confinement seems a gratuitous act of cruelty.

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

A regime of scofflaws, child abusers, and human rights violators. How will we explain that to future generations?

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

PWS

05-26-20

☠️⚰️DHS DEATHWATCH: Second Detainee Dies of COVID-19

Hamed Aleaziz
Hamed Aleaziz
Immigration Reporter
BuzzFeed News

https://www.buzzfeednews.com/article/hamedaleaziz/immigrant-ice-coronavirus-death

Hamed Aleaziz reports for BuzzFeed News:

A 34-year-old Guatemalan man who tested positive for COVID-19 died in Immigration and Customs Enforcement custody at a Georgia hospital on Sunday, according to an internal government report obtained by BuzzFeed News.

Santiago Baten-Oxlaj, 34, had been in ICE custody at Stewart Detention Center, in Lumpkin, since early March and was granted a voluntary departure to Guatemala, ICE later confirmed in a press release.

Baten-Oxlaj was arrested on March 2 at a probation office in Marietta, Georgia “pursuant to his conviction for driving under the influence,” ICE said. On March 26, an immigration judge granted him voluntary departure. “At the time of his death, Baten was awaiting departure from the United States,” ICE added.

On April 17, he was admitted to a local hospital for treatment of decreased oxygen saturation levels, hospital officials tested the man for COVID-19 and the result was positive.

On Sunday, he died at the hospital, according to the report, which listed his preliminary cause of death as COVID-19.

ICE said it “is undertaking a comprehensive agency-wide review of this incident, as it does in all such cases.”

His death comes weeks after a 57-year-old man in ICE custody in San Diego died after testing positive for COVID-19. The San Diego County medical examiner’s office said the man, Carlos Ernesto Escobar Mejia, died of acute respiratory failure due to pneumonia resulting from COVID-19. He was the first immigrant in ICE custody to die of the disease.

As of May 16, 1,201 immigrant detainees have tested positive for the disease in ICE custody out of 2,394 who had been tested.

. . . .

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

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

Unfortunately, this won’t be the last victim. According to the article, over 50% of those detainees tested for COVID-19 were positive.

With the BIA basically taking a “pass/dive” on requiring health and safety considerations to be serious factors in custody decisions, custody cases will continue to be litigated in U.S. District Courts throughout the country. Why have a BIA incapable of functioning as an independent tribunal consistent with due process?

PWS

05-26-20

NATASCHA UHLMANN: We Shouldn’t Let Restrictionist Terms & Myths Frame The “Immigration Debate” — “What if Democrats approached immigration not as something to be restricted or controlled, but as a basic human right?“

 

Natascha Uhlmann
Natascha Uhlmann
Writer, Activist

https://apple.news/AiY6v3tN0SU6ES08RMUe29g

Natascha Uhlmann writes in Teen Vogue:

This op-ed argues that the terms we use to discuss immigration rely on a lot of anti-immigrant assumptions.

The United States has a long history of hostility toward immigrants, from barringundesirables” (a shifting category that has targeted the nonwhite, the disabled, and women) to turning away desperate asylum seekers who went on to gruesome deaths. Even after these cruel laws have been rolled back (and some haven’t), they’ve fundamentally shaped the way we as a nation think of immigration. A lot of the modern policy we consider “common sense” was directly molded by this history. It means that often the terms of the immigration debate rely on a lot of anti-immigrant assumptions. Even the best-intentioned progressives can fall into these traps, which is why examining how we talk about these issues is so important.

THE NOTION THAT THERE ARE “GOOD” AND “BAD” IMMIGRANTS

One common talking point holds that we should welcome the “good” immigrants while getting rid of the “bad” or “criminal” ones. This framing obscures the realities of the U.S. justice system, which disproportionately arrests, convicts, and incarcerates people of color. Black immigrants make up just 7.2% of the noncitizen population, yet they make up over 20% of people facing deportation on criminal grounds. The “good” vs. “bad” framework also obscures how laws are an expression of class power: Financial crimes committed by wealthy individuals and corporations often go unpunished, while everyday people are often punished for their poverty. And even people convicted of crimes shouldn’t lose their humanity, especially in a system that is incentivized to incarcerate.

Anti-immigration advocates often invoke misleading language and statistics suggesting that immigrants commit more crime, while ignoring a vast legal framework set out to criminalize immigrants for minor infractions. Many studies have found that undocumented immigrants actually commit crimes at lower rates than native-born Americans, but our very definition of what constitutes a crime has grown dramatically over the past few decades. A set of 1996 laws expanded deportable offenses by reclassifying more minor crimes as “aggravated felonies” in the context of immigration. As a result, immigrants can be considered felons for acts like drug possession or failing to appear in court.

DISTINGUISHING “REAL” REFUGEES FROM ECONOMIC MIGRANTS

Another dangerous misconception is the differentiation between “real” refugees (people whose search for safety we consider valid) and “economic migrants,” who are perceived as “gaming the system” to obtain a higher standard of living in America. This is a fundamentally false dichotomy: People, and the systems we live in, are far too complex to fit in these binaries. Who gets to be considered a “real” refugee is significantly informed by America’s ideological attitudes; for decades, the system was based more on Cold War politics than any real concern for the safety of asylum seekers. Those fleeing political or religious persecution are seen as legitimate, while those fleeing violent crime or a lack of economic opportunity — causes that also have political roots — are, too often, not. It’s a pattern that continues today: People coming to the U.S. from countries where America has vested geopolitical interests have historically had a harder time gaining asylum than those from countries the U.S. ideologically opposes, even if they have strong claims of persecution.

This hierarchy has stark consequences. As the bar becomes ever higher for who is a “true” refugee, many who flee certain death are turned away. Meanwhile, those who flee “less serious” violence, like poverty and starvation, often have no avenue for help. Their experiences expose the glaring gaps in our asylum policy. Why should certain types of violence be taken more seriously than others? Who is to say that the fear of gang violence is worse than that of not being able to feed your children?

. . . .

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

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

Whether you accept Uhlmann’s conclusions or not, her point that immigrants’ advocates often accept the terms and framework set forth by nativists and restrictionists is basically valid. One false concept that appears to govern much of the debate is that immigration is fundamentally “negative” and therefore 1) must be limited to those who can provide immediate economic benefits to us (leaving aside the range of human interests of the immigrants themselves), and 2) that any increases in “desirable” immigration must be offset by cuts, restrictions, and/or removals of “undesirables.” 

In many ways, this explains the sad failure of the Obama Administration to adopt more humane and effective immigration policies. They apparently never could get over the idea that they had to “prove their toughness” by deporting record numbers of folks and inflicting some gratuitous cruelty on migrants, particularly helpless asylum seekers, to “establish their creds” and get the GOP to the table to discuss serious immigration reform. No chance!

With restrictionists, even record levels of removals and historically low levels of border apprehensions are “never enough.” That’s because they are coming from a place of ideological nativism which is neither fact nor reality driven. It’s driven by inherent biases and nativist myths.

Overall, immigration is both a human reality — one that actually predated the establishment of “nation-states” — and a plus for both the immigrants and the receiving countries. 

That being said, I personally think that immigration should be robust, legal, humane, and orderly. But, I doubt that “immigration without limits” is politically realistic, particularly in today’s climate.

Generally, global “market forces” affect immigration much more than nativists are willing to admit. When the legal system is too far out of line with the realities of “supply and demand” the excess is simply forced into the “extralegal market.” 

That’s why we have approximately 11 million so-called “undocumented immigrants” residing in the U.S. today. Most are law abiding, gainfully employed, and have helped fuel our recent economic success. Many have formed the backbone of the unheralded “essential workforce” that has gotten us through the pandemic to this point. Many pay taxes now and all could be brought into the tax system by wiser government policies.

That’s why the mass removals touted by Trump and his White Nationalists are both impractical and counterproductive, as well as being incredibly cruel, inhumane, and cost ineffective. 

There is a theory out there that although Trump’s uber-enforcement policies might be doomed to long-term failure, he is “succeeding” in another, much more damaging, way. By attacking the safety net, government, education, science, the environment, worker safety, and the rule of law while spreading racism, xenophobia, divisiveness, and maximizing income inequality, Trump has finally succeeded in making the U.S. a less desirable place for “immigrants with choices” to live. 

As Bill Gelfeld wrote recently in International Policy Digest:

This pandemic has laid bare national weaknesses, and these weaknesses will have not gone unnoticed by potential and future migrants. Where they have a choice, and many skilled and even unskilled migrants do indeed have a choice, they will increasingly opt for those locales that have figured out universal health care, pandemic and crisis response, and unified national action, and these are the nations that now stand to gain from this migratory boon. https://apple.news/AiY6v3tN0SU6ES08RMUe29g

In the “post-pandemic world economy,” as our birthrate continues to go down and we need immigrants to fuel continued economic growth, the U.S. might well find itself losing the international competition for immigrants, particularly those we most want to attract. 

The latter is likely if we give in to the restrictionist demand that we cut legal immigration. That simply forces more immigrants into the “extralegal market.” “Immigrants with choices” are more likely to choose destinations where they can live legally, integrate into society, and fully utilize their skills over a destination that forces them to live underground.

PWS

05-25-20

1ST CIR. THWARTS BIA’S ATTEMPT TO USE “SUA SPONTE” AUTHORITY TO COVER UP ARBITRARINESS, BIAS, & CLEAR LEGAL ERROR! — Thompson v. Barr

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

 

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-on-pardons-thompson-v-barr

Dan Kowalski reports on LexisNexis Immigration Community:

pastedGraphic.png

Daniel M. Kowalski

22 May 2020

CA1 on Pardons: Thompson v. Barr

Thompson v. Barr

“Petitioner Richard Marvin Thompson (“Thompson”) appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen sua sponte his immigration proceedings, alleging that the BIA committed a clear legal error. Thompson asks this Court to exercise jurisdiction to review whether the BIA clearly erred when it determined that he was not entitled to relief from deportation under section 237(a)(2)(A)(vi) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2) (A)(vi) (the “Pardon Waiver Clause”), because a pardon issued by the Connecticut Board of Pardons and Paroles is “not effective for purposes of establishing entitlement to” a waiver of deportation. Because we find that this Court has jurisdiction to review this colorable legal question and because, here, the BIA departed from its settled course of adjudication, we vacate the decision of the BIA and remand for further proceedings consistent with this opinion.”

[Hats off to Gregory Romanovsky, William M. Tong, Attorney General of Connecticut, Jane Rosenberg, Assistant Attorney General, Clare Kindall, Solicitor General, amicus curiae for the State of Connecticut, Trina Realmuto, Kristin Macleod-Ball and Emma Winger!]

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

So, let’s take a little closer look. Thompson immigrated legally to the U.S. in 1997, at age 14. Nearly two decades ago, Thompson was convicted of second degree assault in Connecticut and given a suspended sentence and 3-years probation. In other words, no jail time. 

He successfully completed probation, got a GED, and worked as a commercial operator for 10 years. Essentially, Thompson successfully rehabilitated and became a productive member of society. 

In 2012, the Obama Administration DHS, in its wisdom, instituted removal proceedings against Thompson based on his 2001 Connecticut assault conviction. After being found removable and losing on appeal, Thompson received a full and complete pardon from the Connecticut State Board of Pardons, the highest pardoning authority in the state. Although established by the legislature, the Board of Pardons’ action was deliberative and based on an assessment of the factors in Thompson’s individual case. It was not an “automatic expungement” pursuant to legislation.

Since the time for filing a motion to reopen had expired, Thompson asked the BIA to reopen his case “sua sponte” — on its own motion — to recognize that the pardon had eradicated the legal basis for removal.

Following its previous rulings, as well as sound policy and common sense, the BIA should promptly have granted Thompson’s motion and terminated proceedings in a two or three sentence order. Instead, the BIA, now operating under the “Trump removal regime in 2018,” denied the motion based on specious reasons that deviated without rational explanation from their prior treatment of substantially identical motions. 

The BIA’s action touched off approximately 20 months of furious litigation involving a small army of lawyers on both sides, including the Connecticut Attorney General and the Connecticut Solicitor General, as well as the American Immigration Council, filing briefs in support of Thompson.

Following this 34-page opus by the First Circuit, Thompson’s case is by no means over. It’s been “orbited” back to the “Weird World of EOIR” where Thompson might, or might not, receive justice at some undetermined point in the future. To make matters even worse, Thompson remains detained at the Etowah County Detention Center in Gadsden, Alabama. Alabama is one of the current “hot spots” for COVID-19.

Is it any wonder that a “weaponized,” overtly anti-immigrant “court system” that looks for “reasons to deny” meritorious cases, rather than promoting prompt and efficient due process in deserving cases is running a backlog of approximately 1.4 million “on and off calendar” cases?

The longer the reviewing Circuit Courts keep up the fiction of treating EOIR as a legitimate adjudicative organization rather than the biased, “non-expert,” unconstitutional extension of DHS Enforcement that it has become, the bigger the mess will get and the more injustice that will be done to individuals like Thompson.  

Meanwhile, legions of lawyers and judges at all levels, who could and should be devoting their talents to operating a constitutional immigration justice system that provides “due process and fundamental fairness with efficiency and humanity for all concerned” will instead continue to flail as a result of this “designed and operated to fail” system run by a kakistocracy to produce injustice and to squander judicial time and legal resources on a massive scale. When will it ever end?

Due Process Forever!

PWS

05-24-20

FORBES PROFILES DUE PROCESS WARRIOR STEPHEN MANNING OF INNOVATION LAW LAB!

Stephen Manning ESQUIRE
Stephen Manning ESQUIRE
Founder, Innovation Law Lab
Portland, OR

https://apple.news/ADjIgsd5vTR6lN15QEpey1w

Over the last several years, America has been rocked by evidence of the mistreatment of migrants in detention centers. While the nation makes its political judgments about the future of immigration policy, Stephen Manning has assembled a team of lawyers, organizers, and tech innovators working to squeeze more humanity out of the current system while imagining its replacement. We talked to Stephen about how he pursues justice and reform.

How did you get involved in immigration law in the first place?

I was volunteer teaching at an elementary school, helping immigrant children from Central America with homework. I asked, “Why don’t you do your homework?” and I found their answer hard to believe: “We’re going to be deported.” No one deports second-graders, I thought. It must be an administrative matter. Naively, I took the whole family to Immigration, unprepared for the experience. I discovered a system based on the otherization and exclusion of human beings, as core principles. I could have gotten the whole family deported but luckily everyone was ok, and are still ok—I’ve since presided over two of their weddings.

What is so dehumanizing about immigration?

In fact, immigration could be a deeply humanizing experience—it could be the ultimate humanizing concept, actually. Instead, though, today it is the opposite. Its purpose is to categorize persons and judge their desirability. Racism and other biases have corrupted these functions. For example, on April 22nd, President Trump issued a proclamation to end family-based immigration. The next day his advisor explained that they want to “re-white” the country. The Remain in Mexico program does the same thing. Take a person seeking asylum: they are treated based not on their individual lives and circumstances, but on their assignment to a less desirable macro category—the asylum-seeker. They lose their individuality and simply become members of an undesired group. That classification has nothing to do with their hopes, fears, dreams or their contributions to our collective prosperity.

The same sense of power affects the whole system and shows up in myriad small ways. For example, I remember being at a detention center filled with families, working on a very compelling claim by a mother and her children. I’m working on my laptop surrounded by small children playing. We had sent a letter to the officer showing cause for their release. He showed up armed, in aviator glasses, ignored the children, and crumpled up and threw away the letter right in front of everyone. That’s dehumanization on a micro scale.

What surprises people when they learn about the realities of the U.S. immigration system?

People expect law to reflect some kind of morality. We expect the power of the law to be used justly. When law and power seem to align against common sense—that’s a tough lesson, even for lawyers. The immigration legal system is a world unto itself, and even for experienced lawyers, nothing prepares them for it.

You started and lead Innovation Law Lab, one of the largest pro bono projects in the country, to push for reforms. How do you recruit lawyers to volunteer?

Innovation Law Lab is equal parts lawyers, organizers, and coders. Our core team is about 20 people. For volunteers, actually, we don’t have any formal recruitment mechanisms. The work itself is demanding—you’re volunteering, giving up family time, spending your own money to participate. What we offer is a chance to use the law for justice and to join a team of like-minded people. And we’ve also structured it so that it can scale. We ask, Can you come for a day, a week, three weeks? Big law does not have to worry—there’s no mass exodus coming, but there is a small trend towards movement-based lawyering. The last time I looked, our numbers at Innovation Law Lab were in the tens of thousands of volunteers. And about 30% are repeat volunteers; they participate in multiple projects.

. . . .

Stephen Manning is an Ashoka Fellow. You can read more about him and his work here.

 

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You can read the rest of the profile at the link.

Innovation Law Lab is doing some spectacular work in defending the Constitution, the rule of law, and humanity against the Trump regime’s relentless onslaught.

PWS

05-22-20

🏴‍☠️”FAMILY SEPARATION 2.0″ — NEW REPORT FROM AMNESTY INTERNATIONAL: 200+ Years of American Democracy No Match For Trump Regime’s Blackshirts! — “One officer told several mothers that “‘it doesn’t matter what you sign because we will do what we want.’”

Child-Abuser-in-Chief
Child-Abuser-in-Chief

Amnesty International USA-Family Separation 2.0_May 21, 2020

Family Separation 2.0: “You aren’t going to separate me from my only child.”

On April 7, 2020, Amnesty International issued a report, ‘We are adrift, about to sink’: The looming COVID-19 disaster in US immigration detention facilities, documenting how the Trump administration was failing to adequately protect tens of thousands of immigrants and asylum- seekers whom the U.S. Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement (“ICE”) agency was detaining in over 200 detention centers across the United States.1

Three of these facilities detain families, including infants as young as 1-year-old who are still breast-feeding. Deceptively named “family residential centers” (FRC), these detention facilities are: the Berks County Residential Center (“Berks”) in Leesport, Pennsylvania; the South Texas Family Residential Center (“Dilley”) in Dilley, Texas; and the Karnes County Residential Center (“Karnes”) in Karnes City, Texas.

While the dangerous conditions in immigration detention remain little changed since Amnesty International published its April report, ICE has now introduced a new element of harm: family separation. Once again, this administration is weaponizing its public health response to COVID- 19 to punish and deter people seeking safety.

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Read the complete report at the above link.

The regime’s “Dred Scottification” — dehumanization of “the other” before the law — continues unabated as those institutions charged with preventing such abuses tank.

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

PWS

O5-22-20

CHILD ABUSE BY COWARDLY REGIME OFFICIALS RAMPS UP AS COURTS TANK IN FACE OF LATEST ASSAULT ON RULE OF LAW & HUMANITY ☠️ — “This incredibly callous treatment of young migrants as well as their families is part of the Trump administration’s attempt to erase any vestige of due process at the border with Mexico.“

Esther Wang
Esther Wang
Senior Reporter
Jezebel

https://apple.news/AfPeFLsDGQTyTuvEeyuQsIg

Esther Wang writes in Jezebel:

Another day, another extreme cruelty: according to a report in the New York Times, the Trump administration has deported almost 1,000 migrant children and teens during the past two months of the covid-19 pandemic, sending them out of the United States alone and at times putting them on a flight without even telling their family members. Stephen Miller, who is unfortunately still alive, must be thrilled.

Trump’s latest tactic in the service of slashing immigration is, as the New York Times points out, a complete 180 from past policy:

The deportations represent an extraordinary shift in policy that has been unfolding in recent weeks on the southwestern border, under which safeguards that have for decades been granted to migrant children by both Democratic and Republican administrations appear to have been abandoned.

Historically, young migrants who showed up at the border without adult guardians were provided with shelter, education, medical care and a lengthy administrative process that allowed them to make a case for staying in the United States. Those who were eventually deported were sent home only after arrangements had been made to assure they had a safe place to return to.

But now, not even children who are already in the United States with pending asylum cases are safe from deportation. As the Times reported, in addition to the more than 900 children and teens who were deported in March and April shortly after arriving at the border, 60 young people who were already being held in government shelters were also abruptly sent out of the United States, at times “rousted from their beds in the middle of the night.”

According to the Times, even young children have been put on flights by themselves. Take the case of Sandra Rodríguez and her 10-year-old son Gerson, whom she sent across the southern border with the expectation that once Gerson arrived in the United States, he would be able to eventually live with Rodríguez’s brother in Houston. But instead, shortly after entering the U.S., Gerson was sent to Honduras alone.

This incredibly callous treatment of young migrants as well as their families is part of the Trump administration’s attempt to erase any vestige of due process at the border with Mexico. Citing the pandemic, immigration officials have used provisions in the 1944 Public Health Act as justification to essentially close the United States to all asylum seekers who cross the border. The impact has been severe: In an almost two-month period from mid-March to May, only two people seeking protection on humanitarian grounds at the border were allowed to stay within the United States.

“What is happening at the border right now is a tragedy. We are abandoning our legal commitment to provide asylum to people whose lives are in danger in other countries,” Kari Hong, an immigration attorney and Boston College law school professor, told the Washington Post. “By invoking these emergency orders, the Trump administration is simply doing what it’s wanted to do all along, which is to end asylum law in its entirety,” she said.

While Trump administration officials have justified their likely illegal use of emergency orders in the name of public health, the fact that officials have also deported children and teens who were already in the care of the federal government sure indicates that something else is going on here. I wonder what that could be.

 

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Who would have thought that America would become a nation of child abusers and that Federal Courts would be so feckless and complicit in the face of such clear abuses? Three years of concerted failure, led by John Roberts and the Supremes, to give meaning to Due Process and Equal Protection in the face of the “New Jim Crow” have emboldened the regime’s White Nationalist, anti-American abusers while kneecapping democratic and constitutional institutions.

Then, there’s the extreme, wanton cruelty and dehumanization inflicted on the mostly vulnerable among us that has come to symbolize our nation in the Age of Trump. Like all the other abuses by the regime, it’s been “normalized” by feckless legislators and judges: “Another day, another extreme cruelty!” ☠️⚰️🤮🏴‍☠️

Somewhere down there in the fires of the underworld, Chief Justice Roger Taney, author of the infamous “Dred Scott Decision” must be feeling totally vindicated by Roberts and his gang!

Is this really how we want to be remembered by future generations? If not, vote ‘em out this November!

PWS

05-21-20