"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
No way to explain this baby succinctly. So, if you’re interested, here is the decision; written by Justice Ginsburg with a concurring opinion by Justice Thomas, joined by Justice Alito. The case is Sessions v. Morales-Santana.
https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf
PWS
06-12-17
Here’s the text of the unanimous “per curium” decision by a panel consisting of Circuit Judges Michael Daly Hawkins, Ronald M. Gould, & Richard A. Paez:
And, here’s the related story in the NY Times, reported by Ronald Liptak:
https://www.nytimes.com/2017/06/12/us/politics/trump-travel-ban-court-of-appeals.html
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This order was more or less expected by most legal observers. The 9th Circuit did lift the part of the District Court’s injunction preventing the President from directing an internal review of vetting procedures. Also interestingly, the 9th Circuit found that the President’s attempt to “cut” FY 2017 refugee admissions from 110,000 to 50,000 exceeded his authority, to a large extent because he failed to undertake the “advance consultation with Congress” required by the INA.
The Supreme Court presently is deciding whether or not to review a similar case from the Fourth Circuit Court of Appeals upholding the injunction against Travel Ban 2.0.
The Ninth Circuit case is State of Hawaii v. Trump.
PWS
06-12-17
http://m.washingtontimes.com/news/2017/jun/11/illegal-immigration-across-southwest-border-increa/
Stephen Dinan reports in the Washington Times:
“Illegal immigration across the southwest border appears to have jumped 27 percent in May, according to numbers released this week by Homeland Security, breaking a three-month streak of declines under President Trump and suggesting that the slump in migrants has bottomed out.
The Border Patrol nabbed 14,535 illegal immigrants in the southwest last month, up from just 11,129 in April. Analysts said that the number of people caught is a rough measure of the overall flow of people trying to sneak in.
The number of illegal immigrants showing up at ports of entry without authorization also ticked up, from 4,649 to 5,432.
U.S. Customs and Border Protection, the agency that oversees the Border Patrol and the ports of entry, acknowledged the increase in crossings, but attributed it to “a seasonal uptick.”
CBP said it “expects the uptick to continue” through the summer months.
The numbers suggest that while Mr. Trump appears to have changed the calculations of many border crossers, there’s still a segment of the population — particularly among Central Americans — determined to make the journey.
Agents usually record an uptick from April to May, but the jump this year is the largest on record.
Still, it’s by far the lowest May total on record. For example, May 2016 saw more than 40,000 illegal immigrants caught at the border.
Illegal immigration from Cuba and Haiti had been a problem last year, but had dipped under the final months of President Obama and again under Mr. Trump.
Now, Cubans appear to be surging again, while Haitians remain low.
Two other special categories of migrants — unaccompanied minors and families traveling together — also saw increases last month, rising from a combined 2,117 nabbed by the Border Patrol in April to 3,070 in May.”
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We should also keep in mind that according to other recent reports, the largest flow of asylum applicants is now from Venezuela. Most of them are middle class and business-oriented individuals who already have visas enabling them to enter the U.S. legally. Once admitted, they can apply for asylum at any time during the first year following entry. Such individuals would not show up in any of the border or port of entry statistics.
PWS
06-12-17
http://m.washingtontimes.com/news/2017/jun/11/john-kelly-dhs-secretary-suggests-dreamer-amnesty/
The Washington Times reports:
http://m.washingtontimes.com/news/2017/jun/11/john-kelly-dhs-secretary-suggests-dreamer-amnesty/
“The Trump administration last week floated an amnesty idea for potentially 1 million illegal immigrants, looking to find permanent solutions for some of the most sympathetic cases in the long-running immigration debate.
In two days of testimony to Congress, Homeland Security Secretary John F. Kelly said he doubts his ability to oust some 250,000 immigrants from Central American countries who have been in the U.S. for nearly two decades on a temporary humanitarian relief program.
He also signaled that he would keep protecting 780,000 Dreamers from deportation and hoped Congress would grant them permanent status.
“You’ve got to solve this problem,” Mr. Kelly told the House Homeland Security Committee when members prodded him not to deport Dreamers.
He said he would not deport Dreamers but warned that the policy could change when someone else takes over his job, making the only solution congressional action. He said there is clear bipartisan support for some form of permanent legalization and urged lawmakers to take the opportunity that the Trump administration is giving.
“I’m not going to let the Congress off the hook. You’ve got to solve it,” he said.
If lawmakers wait, he warned, a future secretary might take a stricter line on Dreamers and fully cancel President Obama’s 2012 amnesty, known in governmentspeak as DACA.”
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Finally, some of the common sense and nuance that many had hoped Secretary Kelly would bring to the table! And, some public recognition that it is neither desirable nor possible to restore or pursue all of these cases on already overwhelmed U.S. Immigration Court dockets. I also agree with the Secretary that Congress needs to step up to the plate and fashion some type of bipartisan legislative solution.
One thing that might favor a solution in this Congress: one of the strongest opponents of past bi-partisan efforts at common-sense immigration reform, Jeff “Gonzo-Apocalypto” Sessions, is no longer in the Senate. In fact he seems to be “otherwise occupied” these days defending himself on possible ethnics and perjury charges.
My friend, Nolan Rappaport, who has been touting bipartisan legislative solutions to immigration problems for ages should be cheered with this development! Nolan recently reported that some of his articles from The Hill were entered into the Congressional Record!
PWS
06-12-17
The AP reports:
“A Mexican woman was released from custody Friday while the U.S. government seeks to deport her after a judge rejected arguments she should wear a monitoring device because she was arrested twice while demonstrating in support of people in the country illegally.
Claudia Rueda, 22, plans to apply for Deferred Action for Childhood Arrivals, a program started in 2012 under President Barack Obama that shields immigrants who came to the U.S. as young children from being deported. Her case has drawn attention because she has no criminal record and is an immigration activist.
The immigration judge, Annie S. Garcy, said holding Rueda without bond was “unduly severe” and allowed her to be released on her own recognizance. She noted Ruedas’ academic and other achievements and was incredulous when a government attorney asked that Rueda be required to wear a monitoring device.
“Wow, an ankle bracelet? Really?” said Garcy, who is on temporary assignment from Newark, New Jersey, under an administration effort to give higher priority to cases along the U.S. border with Mexico.
The government attorney, Matthew Hanson, responded that Rueda was arrested twice, once for trespassing and once for disorderly conduct.
Her attorney, Monika Langarica, said those arrests occurred during peaceful demonstrations to support people in the country illegally. She was charged in only one case and it was dismissed.
Rueda, a student at California State University, Los Angeles, was arrested on immigration charges May 18 outside a relative’s Los Angeles home in connection with what the U.S. Border Patrol said was a drug smuggling investigation.
Her mother, Teresa Vidal-Jaime, was arrested on immigration violations in April in connection with the same investigation and later released from custody. Neither Rueda nor her mother was arrested on drug charges.
U.S. Immigration and Customs Enforcement said it would comply with the order to release Rueda and will consider any additional requests by her attorney.”
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Read the complete report at the link.
Under a rational policy, this respondent should have been released by DHS on recognizance and given time to apply for DACA. No wonder the U.S. Immigration Courts are near collapse when DHS wastes precious judicial time on cases that don’t belong in court in the first place.
I don’t blame the Assistant Chief Counsel, Mr Hanson. He’s probably just following instructions. The most knowledgeable folks in the DHS, their court lawyers, have been stripped of the authority to exercise sensible prosecutorial discretion. Instead, Gen. Kelly has turned line agents loose to do as they please.
In other words, he is presiding over a random enforcement system that wastes taxpayer money, abuses the courts, and harms individuals whose cases shouldn’t be in the enforcement system at all.
REALITY CHECK: According to TRAC, as of April 30, 2017, the Newark Immigration Court, where Judge Garcy normally sits, was setting “merits” cases for September 1, 2020, three plus years from now. Why on earth, then, was Judge Garcy sent to California to hear non-merits (i.e., bond) cases that didn’t even belong in court in the first place? Through a disastrous combination of “gonzo” enforcement policies and stunning incompetence the Trump Administration is destroying a key component of the US justice system. When and where will it end?
PWS
06-11-17
Click this link, and go to the “Comments” tab at the bottom. http://wp.me/p8eeJm-WJ
Additional thoughts and comments welcome!
PWS
06-11-17
http://www.cnn.com/2017/06/11/us/venezuela-asylum-seekers-us/index.html
Marilia Brocchetto, Polo Sandoval and Jaide Timm-Garcia report for CNN:
“(CNN)The decision to come to the United States wasn’t an easy one. Carolina, a 33-year-old mother of three, said it was perhaps one of the toughest decisions of her life — one taken after many sleepless nights in her Barquisimeto, Venezuela, apartment.
http://trac.syr.edu/immigration/reports/468/
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE
Greetings. During the past 18 months, a total of 79 new judges have been appointed to the Immigration Court. Despite this spurt in hiring, it has not made a dent in the court’s mountainous backlog. Instead, the backlog along with wait times have steadily increased.
As of the end of April 2017, the number of cases waiting for a decision had reached an all-time high of 585,930. Nine courts that account for a quarter of this backlog currently require some individuals to wait for more than four additional years before a hearing is scheduled. The Immigration Court in San Francisco with nearly 42,000 backlogged cases has some cases waiting for more than five additional years – as much as 1,908 days longer – for their July 21, 2022 hearing date.
These extraordinary wait times imply that some individuals are not scheduled to have their day in court until after President Trump’s current four-year term in office has ended. And we are only a little more than 100 days into his four-year term.
How quickly a case can be heard varies by court location, and the priority assigned to the case. Individuals detained by ICE are generally given priority and their cases are heard more quickly. Thus, there is tremendous variation in scheduled wait times from an average of 22 days for the Immigration Court hearing cases in the Cibola County Correctional Center in Minnesota, to 1,820 average days for individuals heard by the Immigration Court sitting in Chicago, Illinois.
These findings are based upon the very latest case-by-case court records – current through the end of April – that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
To see the full report, including the backlog and wait until hearings are scheduled for individual Immigration Court hearing locations, go to:
http://trac.syr.edu/immigration/reports/468/
In addition, many of TRAC’s free query tools – which track new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through April 2017. For an index to the full list of TRAC’s immigration tools go to:
http://trac.syr.edu/imm/tools/
If you want to be sure to receive notifications whenever updated data become available, sign up at:
http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm
or follow us on Twitter @tracreports or like us on Facebook:
http://facebook.com/tracreports
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
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Wow! The Trump Administration has proved to be incompetent at just about everything except offending allies, paving the way for dirtier air and water, undermining civil rights, busting more vulnerable individuals, most of whom are doing the US no particular harm (actually most are “plusses” for America), and keeping judges, lawyers, and reporters busy.
Can this Congress, even this GOP-controlled version, just stand by and let an incompetent Executive Branch run an important judicial system into the ground? Stay tuned.
Thanks to Nolan Rappaport for alerting me to this report.
PWS
06-11-17
“Comic Riffs
New Yorker cover renders Trump as a ‘Modern’ clown of his own making
By Michael Cavna June 9
The New Yorker
WERE FILM FANS to pick a Charlie Chaplin picture that most summons thoughts of President Trump, some might choose “The Gold Rush” or “The Great Dictator,” if not a short titled “The Property Man,” “His New Job” or “Gentlemen of Nerve.”
For his latest topical New Yorker cover, though, Barry Blitt goes with man vs. political machinations in a sly spoof of Chaplin’s gear-grinding clowning in “Modern Times.”
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by Barry Blitt / The New Yorker 2017
“Both Chaplin and Trump are iconic clowns,” Blitt says. “In the classic ‘Modern Times,’ the iconic Little Trump character struggles to survive in a world fraught with calamities of his own making at every turn. Alas, his big red clown tie getting caught repeatedly in the works.” Continue reading POLITICS/SATIRE: Latest New Yorker Cover Says It All!🤡 — But, Over In The “Parallel Universe” Of Trump Backers & The GOP, Everything Is A-OK!
http://www.cnn.com/videos/politics/2017/06/09/swalwell-trump-clownish-performance-lead-sciutto-intv.cnn Continue reading 🤡 Just When You Thought Ringling Bros Was Dead — Listen To Rep. Eric Swalwell (D-CA) Describe The “Clown-In-Chief’s” 🤡 Rose Garden Reality Show — Trump Is Debasing & Trivializing The High Office To Which He Was Elected!
http://www.pbs.org/newshour/rundown/trump-old-deportation-orders-get-new-life/
PBS reports:
“LOS ANGELES — For years, immigrants facing deportation have been allowed to stay in the U.S. provided they show up for regular check-ins with federal deportation agents and stay out of trouble. After a brief meeting, they’re usually told to return months later to check in again.
Now, in cases spanning from Michigan to California, some of these immigrants are being told their time here is up.
Immigrants who already have deportation orders and were allowed to stay in the country under the prior administration have become a target under President Donald Trump’s new immigration policies, with some getting arrested on the spot during check-ins with officers. Such arrests have dismayed family members and sent chills through immigrant communities.
In other instances, immigrants have been fitted with ankle-monitoring bracelets. Others have been released much like they were during President Barack Obama’s administration in what immigration attorneys say appears to be a random series of decisions based more on detention space than public safety.
“Everywhere, people going in to report are just absolutely terrified,” said Stacy Tolchin, a Los Angeles immigration attorney.
Agents still consider requests to delay deportations at immigrants’ regularly scheduled check-ins if, for example, someone has a medical condition, said David Marin, who oversees enforcement and removal operations for Immigration and Customs Enforcement in Los Angeles. But decisions are made on an individual basis, and efforts are being stepped up to procure travel documents from foreign countries to send people back home.
“They still have the ability to file a stay, but again, we’re looking at it in a different light,” Marin said. “There has to be an end game here.”
RELATED RESOURCE: Millions targeted for possible deportation under Trump rules
Immigration and Customs Enforcement said it is tracking nearly 970,000 immigrants with deportation orders. The majority — 82 percent — have no criminal record, the agency said. ICE declined to say how many must regularly report to authorities or are tracked by ankle monitors, and it is unclear how many are being arrested.
Trump boosted immigration arrests by 38 percent in the early days of his administration, but deportations fell from a year ago as activity on the U.S.-Mexico border slowed.
For authorities keen on showing they’re beefing up immigration enforcement, immigrants who already have deportation orders are seen as an easy target. They can be removed from the country more quickly than newly arrested immigrants, whose cases can drag on for years in immigration court proceedings and appeals.
“I just assume they figure this is an easy removal. All we have to do is deport this person, and that adds to our numbers of people who are out of the United States,” said Heather Prendergast, chair of the American Immigration Lawyers Association’s National Immigration and Customs Enforcement Liaison Committee.
Many immigrants with old deportation orders have lived in the United States for years and set down roots here despite having no legal status, which deportation agents were known to weigh to decide who was a priority for removal.”
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Read the complete report at the link.
Our zany immigration laws encourage arbitrary enforcement. And Trump, Kelly, & Sessions revel in the chance to undo the modest attempts at rationality and humanity that Obama injected into the system and demonstrate their fake “toughness” through arbitrary actions directed at vulnerable populations who have actually become part of our society.
History will judge harshly those who pick on the downtrodden for their own cheap political ends and the satisfaction of abusing power over others. That’s why it is important to make a clear record of the immoral behavior of those in power.
For example, President Woodrow Wilson is finally being held accountable for his grotesque racism. Some of the early Jesuits of Georgetown Univeristy are just now being exposed for violating their sacred mission by selling African Americans literally “down the river” — splitting families in the process — to insure financial stability for Georgetown University. We are also coming to grips with the symbolic racism represented by many Confederate memorials, erected less to honor those who died in war than to symbolize continuing oppression of African Americans and glorify the systematic denial in the pre-1965 South of rights guaranteed by the U.S. Constitution.
PWS
06-10-17
http://www.cnn.com/2017/06/10/politics/sessions-senate-testimony/index.html
CNN reports:
“(CNN)Attorney General Jeff Sessions has announced he will appear before the Senate intelligence committee rather than House and Senate appropriations subcommittees on Tuesday, saying Deputy Attorney General Rod Rosenstein will testify on the latter panels in his place.
http://www.cnn.com/2017/06/10/politics/jeff-sessions-worst-week/index.html
“Washington (CNN)When stories about you offering to resign due to increasingly strained relations with your boss are the high point of your week, you know it’s not been a good seven days.
That’s how it went for Attorney General Jeff Sessions this week.
Things started off poorly when a series of pieces detailed his ongoing issues with President Donald Trump. This, from CNN’s Sara Murray and Stephen Collinson, paints an ugly picture for Sessions:
“Sessions and the President have had a series of heated exchanges in recent weeks, prompted by the attorney general’s decision to recuse himself from the probe into Russia interference in the election and alleged collusion by Trump aides, a source close to Sessions told CNN on Tuesday.”
“At one point, Sessions made clear he would be willing to resign if Trump no longer wanted him.”
Comey: AG may have met ambassador a third time
Comey: AG may have met ambassador a third time 01:34
Trump doesn’t like to ever apologize, retreat or concede. On anything. Sessions did just that, in Trump’s eyes, when he recused himself from the federal Russia probe after it was revealed he had not disclosed two meetings with Russian Ambassador Sergey Kislyak during the 2016 campaign. Trump didn’t like the decision at the time and has come to view it as the root of everything that led to the appointment of Bob Mueller as special counsel to oversee the Russia investigation.”
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Read Cillizza’s full story at the link.
Regardless of whether he gets indicted, Gonzo Apocalypto’s sleaze factor is high. And his “gonzo” policies on immigration, crime, civil rights, and human rights are bad for American justice. It was also clear from Comey’s testimony that he didn’t view Sessions as a person of integrity, nor did he trust him as far as he could throw him.
Liz was right!
PWS
06-10-17
Alvarez writes:
“President Trump’s proposal to shift towards a “merit-based” immigration system would upend an approach that has existed for half a century.
Since the 1960s, the United States’ immigration system has largely based entry on family ties, giving preference to those with relatives who are citizens. But in his first address to a joint session of Congress in February, Donald Trump proposed moving away from that policy, focusing instead on an immigration system that would prioritize high-skilled immigrants.
Trump and his advisors have argued that the current levels of immigration harm American workers by lowering wages and preventing assimilation. A merit-based system, restrictionist advocates believe, would help lower immigration rates and ensure that the immigrants who do come are high-skilled workers who never need public assistance. “The current, outdated system depresses wages for our poorest workers, and puts great pressure on taxpayers,” Trump said in his speech to Congress.
The first example of the U.S. establishing qualifications for new immigrants was in 1917, when the government imposed a literacy test on those seeking to enter the country. In the 1960s, Congress lifted restrictions that heavily curtailed immigration from non-European nations, and reshaped the immigration system toward prioritizing admission of close relatives of immigrants already living in the United States. The overwhelming majority of immigrants are now admitted through that family-preference system, which significantly changed the ethnic composition of U.S. immigrant population by admitting more Latin American and Asian immigrants.
In 2015, for example, of the more than one million legal permanent residents admitted, “44 percent were immediate relatives of U.S. citizens, [and] 20 percent entered through a family-sponsored preference,” according to the Migration Policy Institute, a nonpartisan think tank. Only 14 percent of those admitted came through a job-based preference. The “merit-based” immigration system, in theory, would increase the latter figure, as it would prioritize those who are highly educated and therefore considered more employable.
Such a policy would likely limit the supply of low-skilled workers, and might allow the administration to filter which immigrants it chooses to admit. And a merit-based immigration system could also help realize a longtime conservative policy goal—a reduction in the number of immigrants admitted overall.
Some Republican lawmakers have already pushed for legislation that would limit legal immigration. Last month, Republican Senators Tom Cotton and David Perdue introduced legislation that would cut the number of immigrants legally admitted to the United States in half. It would do so in part by limiting the number of family members immigrants can sponsor for citizenship, a policy long sought by immigration restrictionist groups.
Dan Stein, the president of the Federation for American Immigration Reform, which supports curtailing immigration, said a merit-based approach could reduce the flow of immigrants coming into the United States. “The merit-system is also a surrogate for moving away from a system that the country doesn’t really get to control and regulate how many come in every year and who they are because of chain migration, the family-preference system,” Stein said, adding that a points system would be one part of the whole.
Nevertheless, assessing “merit” is difficult. A system that deliberately excluded low-skilled workers might raise labor costs in industries that rely on those workers, increasing prices for consumers but boosting wages for workers.”
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Read the full article at the link.
Third-year law student Saurabh Gupta introduced this article as part of our class discussion of “Family-Based Immigration” during my Immigration Law and Policy class at Georgetown Law last week. Needless to say, it provoked a lively and informative discussion, with students exploring the arguments on both sides as well of the practicalities of running such a system on a larger scale.
PWS
06-10-17
