Judge Posner, Split 7th Circuit, Slam IJ, BIA On Denial Of Protection To Honduran With HIV!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D01-19/C:15-2619:J:Posner:aut:T:fnOp:N:1898108:S:0

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The case, full text at the above link, is VELASQUEZ‐BANEGAS, v. LYNCH.  

I agree with Judge Posner’s bottom line that protection should have been granted on this record.  But, I think that he was overly harsh on the Immigration Judge.

These would be difficult cases for any judge at any level of our system.  One of the significant problems is that the Appellate Division of the Immigration Court, the Board of Immigration Appeals (“BIA”) has failed to provide adequate positive guidance on granting protection.

The overwhelming number of BIA precedent cases dealing with asylum, withholding of removal, and relief under the Convention Against Torture are denials by the BIA.  But, even with asylum grant levels leveling off and actually falling slightly over the past several years, the majority of applicants for protection actually qualify for some form of relief at the trial level based on fear of persecution or torture.

The unnecessarily negative approach of the BIA in its precedent decisions both gives a misleading negative guidance to Immigration Judges and creates the impression with U.S. Court of Appeals Judges that the system is even more skewed against applicants than it actually is.

Although I agreed with the majority in Velasquez, I think that the concluding paragraph of the Judge Ripple’s dissent also makes some good points:

“Immigration cases always pose a special burden on United States judges. As Jacques Maritain so eloquently put it: “We are all wounded souls.” See Jacques Maritain, Réflexions sur lʹAmerique 87–91 (1958). Every American, including every United States judge, has a family memory that includes ancestors who came from some place where life was not as good as it is here. The DNA of our national character makes it very difficult to tell an individual that he cannot enjoy the same liberty, safety, and security that we enjoy. When the individual suffers from a medical condition that cannot be treated as well in the country to which he is returned, basic humanitarian values make the task even more difficult. No doubt, those who must make necessary policy choices and those who must enforce those choices feel, or should feel, that same angst. But immigration must be regulated, and, in this Country, national policy is set by Congress and enforced by the Executive. Our own task as judges is limited. Because the immigration judge’s determinations were supported by substantial evidence, I respectfully dissent.”

Food for thought.

PWS

01/23/17

 

N. Rappaport Critiques Latest “Sanctuary Cities” Bill!

http://thehill.com/blogs/pundits-blog/immigration/315706-gops-sanctuary-city-crackdown-takes-the-meat-cleaver-approach

Nolan Rappaport writes in The Hill:

“Federal financial assistance refers to assistance that non-federal entities, like cities, “receive or administer in the form of grants, loans, loan guarantees, property, cooperative agreements, interest subsidies, insurance, food commodities, direct appropriations, or other assistance.”

Conditioning federal funds in this manner has been found to be permissible when the conditions “bear some relationship to the purpose of the federal spending,” but Barletta’s bill does not require a showing that a substantial number of undocumented immigrants are receiving the federal financial assistance that it would cut off.

Sanctuary cities are subject to federal laws that prohibits withholding immigration related information from federal immigration officials, but the meat cleaver solution that Barletta is proposing to enforce those laws is not the answer.

Moreover, sanctuary cities have alternatives to defying federal law.”

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Nolan has written a number of previous articles, posted and indexed on immigrationcourtside, dealing with various aspects of the “Sanctuary Cities” issue.

PWS

01-23-16

Washington Post: As Promised, President Trump Imposes Federal Hiring Freeze — Impact On Immigration Courts Unclear!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/23/trump-freezes-federal-hiring/?tid=hybrid_collaborative_1_na&utm_term=.ec045f3827e3

“President Trump issued an executive order Monday freezing federal hiring. The hiring freeze excludes national security employees.

A hiring freeze was included in the Trump presidential campaign’s “Contract with the American Voter.” It was the second of six measures “to clean up the corruption and special interest collusion in Washington, D.C.” and part of his “100-day action plan to Make America Great Again.”

The plan excludes the “military, public safety, and public health.”

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I imagine we will hear shortly from the DOJ/EOIR on how this affects hiring for the U.S. Immigration Courts.  Stay tuned.

PWS

01/23/17

Fox News: DACA Might Not Be On Trump’s Chopping Block, According To Priebus!

http://www.foxnews.com/politics/2017/01/22/priebus-hints-trump-has-no-immediate-plan-to-end-obamas-daca-for-young-illegals-seeks-long-term-fix.html

Fox News Politics reports:

“President Trump has no immediate plans to use his executive powers to undo the Obama administration’s order that protects some young illegal immigrants known as “dreamers,” White House Chief of Staff Reince Priebus made clear Sunday, in previewing the new administration’s first full week.

“I think we’re going to work with the House and Senate leadership, as well as to get a long-term solution on that issue,” Priebus told “Fox News Sunday.” “I’m not going to make any commitments to you, but … I’m obviously foreshadowed there a little bit.”

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Never a dull moment!  This seems to be moving along the lines that congressional columnist Nolan Rappaport had predicted in The Hill and on this blog.

Perhaps the Trump Administration will advance its own version of the “Dream Act” to put this issue to rest so that it can concentrate on enforcement initiatives.  And, President Donald Trump appears to be better positioned to promote a final resolution of this issue with Congress than President Obama was during the final six years of his tenure.

A burst of pragmatism with a dash of humanitarianism thrown in would be a great, and, frankly, not widely anticipated, start for the new Administration in addressing the complex interrelated issues of migration, law enforcement, national security, and fundamental fairness. Harnessing and keeping the talents, energy, determination, courage, and intellectual/vocational firepower of these fine young people for America would be a huge step in promoting an even greater future for our country, as President Trump has promised.  Stay tuned!

PWS

01/22/17

Positive News: A Bipartisan Group Of “Good Guy Pols” Work To Keep America Great!

https://www.washingtonpost.com/politics/8-politicians-who-will-make-you-feel-good-about-politics/2017/01/22/52e242e6-e0ba-11e6-879b-356663383f1b_story.html?hpid=hp_regional-hp-cards_rhp-card-politics%3Ahomepage%2Fcard&utm_term=.39f82245e7bf

Chris Cillizza writes in the Washington Post:

“The first 96 hours of President Trump’s tenure have been filled with claims, counterclaims, accusations of bias, outright falsehoods and lots of other things that make people hate politics, politicians and everything about Washington.

It’s enough even for me — a political junkie through and through — to wonder what we are even doing out here. It all feels terrible, unwatchable, nauseating.

But not all of politics — or all politicians — operates like this. There are lots of politicians doing it — by and large — right, working to represent their constituents and views with a modicum of humility and humor, not to mention a commitment to finding solutions, not just calling out problems.

It does the heart good to read about these folks. So here are a few politicians who should make you believe, again, in public service — even in these tempestuous times.”

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Find out who they are and more by clicking the link.

PWS

01/22/17

Beware: When Egotistical Nationalist Leaders Invoke “The Will Of The People,” Very Bad Things Are Likely To Happen!

http://billmoyers.com/story/a-date-that-will-live-in-infamy/

Retired professor of theology Charles Bayer writes on “Moyers & Company:”

“What shall we do now? I doubt we can pass this off as simply an intellectual or academic problem that can be solved by further conferences, documents, symposia or formal papers.

Perhaps we should rather look at what has produced serious positive change in the recent past. I think of a woman who just sat in the front seats of a bus, and the Freedom Riders who traveled throughout the American South at the risk of their lives. And I remember the tens of thousands of both young and older people who hit the streets and finally whose acts were critical in ending the disastrous Vietnam War. To the extent that these actions were nonviolent, they gained the respect of the American people. Violence just sets things back. New generations of in-the-street activists, not journalists or academics, might blunt the destructive nationalistic thrust of the new administration, and prepare the rest of us to play an important role in making America good again.”

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PWS

01/22/17

In Memoriam: U.S. Immigration Judge Philip L. Morace — Scholar, Outstanding Jurist, Beloved Colleague, And Kind Compassionate Human Being

I am sad to announce the death on Friday, January 20, 2017, of one of the most admired and respected U.S. Immigration Judges, Hon. Philip L. Morace of the U.S. Immigration Court in New York, New York.  Judge Morace was widely known by his colleagues, the government, the private bar, and the immigrant community as a gentleman, a scholar, an amazing colleague, and the very embodiment of the Immigration Court’s ideal of “through teamwork and innovation . . . guaranteeing fairness and due process for all.”

Judge Morace was educated at Fordham University and the Brooklyn Law School and served in private practice and with the U.S. Marine Corps before being appointed to the bench in September 1995.  He was a member of the New York Bar.

Please join me in offering sympathy to Judge Morace’s family, his colleagues, and the New York immigration community on this great loss.  Judge Morace’s inspiring example will be long remembered and emulated.

PWS

01/22/17

Looking Back At The Refugee Ball — The REAL America Celebrates What Makes America REALLY GREAT!

http://www.asylumist.com/2017/01/19/the-refugee-ball-post-game-report-why-it-matters/

Jason Dzubow (“The Asylumist”) who got the idea and made it happen (see what can be accomplished when one person energizes the many) writes:

“For me, though, the most important message of the Ball was that of the courage and perseverance displayed by the refugees and asylum seekers who I saw there. Many of the people who participated in the event were themselves victims of terrible torture and persecution. But there they were at the Ball–singing and dancing, giving speeches, making art and food for us to enjoy. Each of them provides an example of how the human spirit can survive extreme adversity and go on to create beauty, and of how life can triumph over death. I can’t help but be inspired by their examples.

So while we really do not know what to expect in the days and months ahead, we can draw strength from each other, and from the examples set by the refugees and asylum seekers themselves, who have endured great hardships, but who still have hope that America will live up to the high ideals that we have set for ourselves.

To those who participated in, supported, and attended the Refugee Ball, Thank you. Thank you for contributing your time, talent, energy, and money to supporting the cause of refugees and asylum seekers. Thank you for inspiring me, and for reminding me of why I work as an asylum attorney. I feel optimistic knowing that we are united in our goal of welcoming the stranger, and that we are all in this together to support each other.”

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Celebrate the real America and what makes us really great, every day!

Due process forever!

PWS

01/21/17

Uniting America, Trump Style — I Never Found Much Common Ground With George Will (Except, Sometimes, On Baseball) — But, I Woke Up The Morning After To Find We Were “Brothers!”

https://www.washingtonpost.com/blogs/post-partisan/wp/2017/01/20/a-most-dreadful-inaugural-address/?utm_term=.36d0d9ef923f

George Will writes in the op-ed page of today’s Washington Post:

“A most dreadful inaugural address
Trump’s inaugural address in three minutes

Play Video2:59

On Jan. 20, 2017, President Trump took the oath of office, pledging in his inaugural address to embark on a strategy of “America first.” Here are key moments from that speech. (Sarah Parnass/The Washington Post)

Twenty minutes into his presidency, Donald Trump, who is always claiming to have made, or to be about to make, astonishing history, had done so. Living down to expectations, he had delivered the most dreadful inaugural address in history.

Kellyanne Conway, Trump’s White House counselor, had promised that the speech would be “elegant.” This is not the adjective that came to mind as he described “American carnage.” That was a phrase the likes of which has never hitherto been spoken at an inauguration.

Oblivious to the moment and the setting, the always remarkable Trump proved that something dystopian can be strangely exhilarating: In what should have been a civic liturgy serving national unity and confidence, he vindicated his severest critics by serving up reheated campaign rhetoric about “rusted out factories scattered like tombstones across the landscape” and an education system producing students “deprived of all knowledge.” Yes, all.
But cheer up, because the carnage will vanish if we “follow two simple rules: Buy American and hire American.” “Simple” is the right word.

Because in 1981 the inauguration ceremony for a cheerful man from the American West was moved from the Capitol’s East Portico to its West Front, Trump stood facing west, down the Mall with its stately monuments celebrating some of those who made America great — Washington, Jefferson, Lincoln. Looking out toward where the fields of the republic roll on, Trump, a Gatsby-for-our-time, said: “What truly matters is not which party controls our government but whether our government is controlled by the people.” Well.

“A dependence on the people,” James Madison wrote, “is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” He meant the checks and balances of our constitutional architecture. They are necessary because, as Madison anticipated and as the nation was reminded on Friday, “Enlightened statesmen will not always be at the helm.”

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Right on, George, you “nailed” it this time!

And, he was by no means the only one. Perhaps predictably, the “headliner” on the lead Washington Post Editorial was: “In his inaugural address, Trump leaves America’s better angels behind.” Wow, how “presidential” does it get?

https://www.washingtonpost.com/opinions/in-his-inaugural-address-trump-leaves-americas-better-angels-behind/2017/01/20/d0f06378-df40-11e6-ad42-f3375f271c9c_story.html?utm_term=.a2e4249340c

Even the Wall Street Journal, by no means a shill for progressive liberalism, had to remark on President Trump’s complete failure to acknowledge the Constitutional limits on his power or to recognize that he will need to work with another Constitutional Branch of Government, the U.S. Congress (and, probably not just the Republicans there) to get things accomplished.  And, in the spirit of the “new unity,” I acknowledge that the Wall Street Journal has always had a very clear understanding of the essential contributions of immigrants, regardless of status upon arrival, to America’s economic, social, and political success.  Although I often disagree with its stances, I find that the Journal’s overall optimism about America and our future stands in stark contrast to the dark, sinister caricature of America set forth by President Trump yesterday.

Here is the link to the WSJ editorial:

http://www.wsj.com/articles/trumps-populist-manifesto-1484957386

Remarkably, President Trump appears to view himself as not just the representative of the American people (which, as President, he is) but also the very embodiment of the American people. That’s a very odd assertion for a leader who came into power while losing the popular vote by 2.8 million. Such appeals to narrow, totally self-interested nationalism are not new for world leaders past and present; however, they are seldom heard from leaders of true republican democracies. Does President Trump really understand how unbridled nationalism caused two disastrous world wars along with genocides and mass political exterminations during the past century?

Even more disturbing, President Trump’s definition of the “American people” seems inappropriately narrow: it excludes not only the majority of American voters who favored his opponent, but also doesn’t appear to fully acknowledge the existence of many Americans who can’t vote, such as children and, in particular, immigrants, regardless of status, whose interests, according  to the U.S. Supreme Court, are entitled, along with those of other non-voters, to fair representation by our elected officials all the way up to our President. That’s why the Supreme Court upheld apportionment by total population, not just the population of U.S. citizens or registered voters. For example, the large number of electoral votes that President Trump picked up in Texas owes, in no small measure, to the large number of immigrants, legal and undocumented, who have fueled Texas’s overall population surge at the expense of other states in the East and Midwest with dwindling populations.

I try to remain optimistic. I approach the news each day with the hope, however slim, that I will discover some evidence that our President understands the real America out there and his responsibilities to represent and inspire all Americans, not just the minority who happen to agree with him.  (I also heard and read enough “anecdotal” interviews with Trump voters after the election to know that some of them don’t necessarily share his dark and exclusive vision of America; they just want some change and hope that as a successful businessman President Trump will bring them and their communities at least some of the same material success that he has accumulated over a lifetime.)

But, as one of my “around 70” friends said to me recently, “Schmidt, at our ages we are what we are; what you see is pretty much what you get.”  And, President Trump has been around even longer than we have.  That’s something that might not bode well for the real America out there.  We’ll just have to hope for the best, for all Americans.

Celebrate the really great America, every day!

Due process forever!

PWS

01/21/17