🏴‍☠️SCOFFLAW NATION! — TRUMP US JUDGE, GOP NATIVIST AGs CONTINUE TO DUMP ON ASYLUM SEEKERS, ☠️ HANDING HUMAN SMUGGLERS A HUGE VICTORY!🤮

Andrea Castillo
Andrea Castillo
Immigration Reporter
LA Times
Source: LA Times website

Andrea Castillo reports for the LA Times:

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=80d73090-8dd0-48a7-a802-afbc852fc2f8

. . . .

A family in Tijuana who wanted to request asylum and advocacy groups including Innovation Law Lab sought to intervene in the lawsuit. They argued that a court order keeping Title 42 in place should only apply to states involved with the suit. Summerhays denied their request.

Alicia Duran Raymundo, her partner and their 6-year-old daughter fled El Salvador after gang members threatened to torture and kill them. She said in a news release from her lawyers last week that they wanted to live with extended family in California while pursuing asylum, but instead joined the thousands of migrants living in Mexican border towns while they wait for the U.S. to reopen its doors.

“We’ve tried many times to ask for asylum but they just tell us the border is closed,” Duran said.

Seeking asylum is a legal right guaranteed under federal and international law, regardless of how someone arrived on U.S. soil. Some of those turned away are fleeing persecution, while others pushed out by turmoil in their home countries seek jobs and security.

Though migrants can’t seek asylum under Title 42, they can still be screened under the United Nations Convention Against Torture. But those screenings are more difficult to pass.

Lee Gelernt
Lee Gelernt
Deputy Director
ACLU Immigrants’ Rights Program
PHOTO: ACLU

Lee Gelernt, deputy director of the American Civil Liberties Union’s immigrant rights project, noted that regardless of Friday’s decision, a prior ruling in Washington, D.C., District Court taking effect Monday prevents Title 42 from applying to families who face persecution or torture if they are expelled. Gelernt is lead attorney in that case.

“Hypocritically, the states that brought this lawsuit seemingly care about COVID restrictions only when they involve asylum seekers,” he said. “The lawsuit is a naked attempt to misuse a public health law to end protections for those fleeing danger.”

. . . .

Migrants have been removed from the U.S. nearly 2 million times since Title 42 was first used in March 2020, in some cases to dangerous situations in which they’ve been tortured or raped.

. . . .

Aaron Reichlin-Melnick
Aaron Reichlin-Melnick
Policy Counsel
American Immigration Council
Photo: Twitter

Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, predicted that Title 42 is likely to stay in place until at least next year.

Summerhays’ decision signals that while the Biden administration can establish a policy under emergency conditions, terminating it requires a rulemaking comment period that could take six months to a year.

Louisiana and the other states are not arguing that the policy can never end, Reichlin-Melnick said, but they’re imposing judicial roadblocks to delay it. The CDC is likely to try to end the policy again while satisfying the judge’s demands, he said.

In the meantime, he said, “we’re going to see an ever higher number of repeat crossings. Look at the border and tell me Title 42 works.”

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

The case is Louisiana v. CDC, WD LA, 05-20–22. Here’s a link to the opinion:

https://www.bloomberglaw.com/public/desktop/document/LouisianaetalvCentersforDiseaseControlPreventionetalDocketNo622cv/7?1653080541

Read Andrea’s full report at the above link!

Of course Title 42 doesn’t work! But, it’s never been about a “working” border asylum policy. NO, it’s always been about cruelty fueled by nativist racism!

🇺🇸Due Process Forever!

PWS

05-21-22

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.

 

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

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

THE DAILY BEAST: “Trump Administration Has Turned Immigration Court Into ‘Public Health Hazard’” — As Federal Judges Dither & Wobble, Trump Regime Endangers Public Health! ☠️☠️☠️☠️☠️

Sam Brodey
Sam Brodey
Congressional Reporter
The Daily Beast
Scott Bixby
Scott Bixby
National Reporter
The Daily Beast

Sam Brodey & Scott Bixby report in The Daily Beast:

https://www.thedailybeast.com/trump-administration-has-turned-immigration-court-into-public-health-hazard

In a country ground to a standstill by the coronavirus pandemic, there is one place normalcy reigns: immigration courts.

Overburdened judges oversee packed proceedings; attorneys shuttle clients and paperwork from room to room, often with interpreters in tow; aspiring legal citizens, or at least residents, follow closely, sitting through hearings famously described as death-penalty cases held in a traffic court.

The courts, along with visa applications, detention hearings and other immigration related bureaucracy, are seemingly the lone part of the federal government still expected to function as if a global pandemic hasn’t upended nearly every facet of American life. But those tasked with keeping the machine running say that they have received little guidance about how to keep the system running in the era of social isolation, and even less protection despite fears that immigration proceedings put some of the most vulnerable people in the country in the impossible position of choosing between their health or their home.

The Trump administration has refused to allow immigration courts and visa hearings to comply with the same social isolation standards followed by nearly every other civil aspect of government, and has not allowed for previously scheduled hearings to be postponed. The administration has also issued little in the way of guidance for judges, immigration attorneys or immigrants, whose hearings—which often take years to schedule—directly conflict with stay-at-home orders across the county.

“The immigration court’s refusal to adopt policies that protect the health of respondents, lawyers, judges and immigration court staff during the current pandemic forces immigrant families and their lawyers to make an impossible decision: endanger public health or risk being deported,” said Nadia Dahab, senior litigation attorney at Innovation Law Lab, one of half a dozen immigrants-rights groups that on Friday filed an emergency order challenging the operation of immigration courts despite the crisis.

“We are in the middle of a global pandemic, but the immigration court system is continuing to operate as if it’s business as usual,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The government has turned the court system into a public health hazard.”

. . . .

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

Read the rest of the article at the link. 

With very few exceptions, deportations are hardly “essential” during a worldwide pandemic. Indeed, given that even asymptomatic individuals can and have spread the disease, deportation will certainly spread the risk to other countries that likely won’t be able to control it. 

There is currently no cure, no vaccine, and no known way of controlling the coronavirus other than staying home. While this well-known information might have gone over the heads of EOIR and Article III Judges, you really wouldn’t need a law degree of even be very smart to figure out that Immigration Courts and the DHS Gulag need to be shut down. Now! No Article III Judge would actually want to trust his or her life to operating under the messed up “guidelines” issued by EOIR! So why is it OK for others?

Statistics show that the longer we wait to keep everyone home, the more individuals who will die! Why is that such a hard concept for EOIR officials and Article III Judges to grasp? 

This is a time for “radical prudence” not “criminal recklessness.” The Government should have to demonstrate “clear and convincing” reasons and “best health practices” to go forward with any individual removal case during the pandemic.

Because so many Federal Judges have little understanding of what it means to appear in the Immigration “Courts” (which are not “courts” in any sense of the word) and because they use exceptionally  poor judgement in believing regime bureaucrats who have no credibility on issues of public health or anything else, over experts in the field, individuals will unnecessarily suffer and die.

At some point in the future, there will have to be an accounting for the whole mess that has been allowed to unfold as a result of Trump’s biased and irrational immigration policies. Examination of the unconscionably poor response by the Article III Judiciary must be part of that process. They are a key part of unnecessarily “endangering public health” as described in this article.

The Article III Judges we have now are what we have — they have life tenure. But, going forward we can do better — much better. And, our lives and the future of humanity will depend on it.

Due Process Forever! Better Judges For A Better Future! Constantly Confront Complicit Courts 4 Change!

PWS

04-02-20

 

THE “MAINSTREAM MEDIA” HAS FALLEN FOR BILLY BARR’S LATEST “CON JOB” HOOK, LINE & SINKER — But YOU Shouldn’t — Bess Levin @! Vanity Fair Decodes Billy’s Real Message to His Don: “Let [me] turn the judicial branch into your own personal score-settling operation in peace!“  — Plus, My Bonus “Friday Essay” — “Don’t Believe A Word Billy Barr Says!”

Bess Levin
Bess Levin
Politics & Finance Writer
Vanity Fair

 

https://www.vanityfair.com/news/2020/02/william-barr-trump-doj-tweets

Bess writes:

Even before he was hired as Donald Trump’s attorney general, William Barr made it clear that he would be acting as the president’s lackey first and the chief lawyer for the United States second, having auditioned for the role by sending an unsolicited letter to the Justice Department calling the Russia inquiry “fatally misconceived” and describing Robert Mueller’s actions as “grossly irresponsible.” Since then, Barr has told Congress it’s perfectly okay for the president to instruct aides to lie to investigators, suggested that Mueller’s report fully exonerated Trump, which of course it did not, and attempted to bury the “urgent“ whistle-blower report that became the basis of the House’s impeachment proceedings.

Now, if it were up to Barr, he’d happily carry on doing the president’s dirty work, but for one problem: Trump, with his flapping yap and quick trigger finger, has been making it a little too obvious that the DOJ, in its current form, exists to punish his enemies and spare his friends. The most recent example of this, of course, came this week, when the president tweeted, at 1:48 a.m., that the sentencing recommendation of seven to nine years for his longtime pal Roger Stone was “horrible,” “very unfair,” and a “miscarriage of justice.” Then, after Barr’s DOJ intervened with a new filing calling for a much lighter sentence—which prompted the four prosecutors on the case to withdraw from it—the president tweeted his thanks, congratulating the attorney general on getting involved in matters relevant to his personal interests.

For many people long aware of Barr’s status as a boot-licking hack, this was a bridge too far. The calls for him to resign or be impeached were swift. And they got so bad that on Thursday, the attorney general felt compelled to sit down with ABC News and send the message to the president that if he’d like the DOJ to continue to do his dirty work, he needs to stop tweeting about it. Do criminals tell their social-media followers “Check out this sweet scam I just pulled”? No! Of course, rather than stating directly that the president’s penchant for telling the world about the many ways he’s corrupted the government have made it difficult for that corruption to continue, Barr had to pretend his comments were all about ensuring the DOJ’s independence, which would be a funny, not-at-all-believable thing for him to start caring about now.

“I’m not going to be bullied or influenced by anybody….whether it’s Congress, newspaper editorial boards, or the president,” Bill Barr tells @ABC News.

“I cannot do my job here at the department with a constant background commentary that undercuts me.” 

http://

abcn.ws/39yd9bE

 

“I’m not going to be bullied or influenced by anybody,” Barr insisted to ABC News chief justice correspondent Pierre Thomas. “Whether it’s Congress, a newspaper editorial board, or the president. I’m gonna do what I think is right. And you know…I cannot do my job here at the department with a constant background commentary that undercuts me.” Just in case that extremely obvious hint was lost on its intended audience, Barr added: “I think it’s time to stop the tweeting about Department of Justice criminal cases.”

Maybe it’s not the tweets damaging his integrity but the nakedly partisan and quasi-legal decisions he’s made on the tweeter’s behalf?  Just a thought. 

AG Bill Barr: “I’m not going to be bullied or influenced by anybody.” He says Trump’s tweets “make it impossible for me to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.” via @ABC @PierreTABC @alex_mallin

Asked about the decision to reverse the sentencing recommendation for Stone, Barr insisted that it definitely had nothing to do with the guy being a longtime friend of Trump’s, claiming that he came to the unbiased conclusion on his own that the seven-to-nine-years call was excessive and that he was planning to file an update even before Trump tweeted about it being “horrible and unfair.” (He was not asked about the NBC News report that he additionally removed a U.S. attorney from her post for failing to punish Trump’s enemy Andrew McCabe, or that the Justice Department also intervened to change the sentencing recommendation for convicted criminal and former national security adviser Michael Flynn.)

Barr said Trump’s middle-of-the-night tweet put him in a bad position. He insists he had already discussed with staff that the sentencing recommendation was too long. “Do you go forward with what you think is the right decision or do you pull back because of the tweet? And that just sort of illustrates how disruptive these tweets can be,” he said.

Barr also told ABC he was “a little surprised” that the entire Stone prosecution team had resigned from the case—and one from the DOJ entirely—which presumably has something to do with the fact that after using your department to do the president’s bidding for so long, you sometimes forget that other people will take issue with such behavior.

Asked if he expected Trump to react to his criticism of the tweets, Barr responded: “I hope he will react.”

“And respect it?” Thomas asked.

“Yes,” Barr said. You hear that, Mr. President? Let the man turn the judicial branch into your own personal score-settling operation in peace!

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

DON’T BELIEVE A WORD BILLY BARR SAYS!

By Paul Wickham Schmidt

Exclusive for immigrationcourtside.com

Feb. 14, 2020

Even smart folks like The NY Times’ David Leonhardt are babbling about, perhaps, giving Billy “the benefit of the doubt.” Come on, man! 

As Bess Levin points out, Barr’s faithfully been doing Trump’s “dirty work” for him since even before he set foot inside the DOJ again. It’s not like he’s suddenly had a “moral awakening” or discovered human decency. 

No, Trump is the “unitary Executive” that Billy and some of his GOP righty neo-fascists have always salivated over. But, understandably he’d prefer more privacy as he deconstructs the DOJ and undermines fair and impartial justice, including, of course, further trashing the Immigration Courts that, incredible as it might seem in a country that actually has a written Constitution supposedly guaranteeing Due Process to “all persons,” belong exclusively to him. 

Remarkably, and quite stunningly to anyone who has actually studied the law, the Article III Courts, all the way up to the feckless Supremes, have gone along with this absurd charade. You get the message: Immigrants, migrants, and asylum seekers aren’t really “persons” at all. They have been dehumanized by the regime and “Dred Scottified” by the Article IIIs.

There is no particular legal rationale or justification for this ongoing miscarriage of justice. It’s just a matter of enough folks in black robes being too cowardly or self-absorbed, or maybe in a few cases too ignorant, to stand up for the Constitutional and human rights of the most vulnerable among us.

To paraphrase an expression from the world of religion: “What would Jesus think about this blindness to human suffering?” Nothing good, I’m sure!

If he’s actually out there among us today, he’s undoubtedly among those suffering in the regime’s “New American Gulag” or waiting in squalor along the Mexican border for a “fixed hearing” that’s probably never going to happen anyway. I know where he isn’t: among the sign waving crazies shouting hateful slogans glorifying human rights abuses at the “hate fests” z/k/a “Trump rallies!”

In Immigration Court, the conflicts of interest and threats to human decency aren’t just “implied” or “apparent.” They are very real, and they are destroying real human lives, even killing innocent folks, every day. 

And, unlike U.S. District Judge Amy Berman Jackson, whose life tenure allows her to “ignore the noise and do what she thinks is right” (as Trump’s GOP toadies love to point out), Immigration Judges are “wholly owned commodities” of Billy and the regime: disposable, subservient, and told to “follow orders.” They can’t even schedule their own cases without political interference, let alone apply the law in a way that conflicts with Billy’s unethical precedents or those entered by his “wholly owned appellate body,” the Board of Immigration Appeals! 

The latter has recently gone out of its way to show total subservience to the regime’s White Nationalist anti-asylum, anti-due-process, anti-immigrant agenda. Indeed, they have even drawn the ire of at least one conservative GOP-appointed Article III Judge by contemptuously disobeying a direct court order in favor of a footnote in a letter from the Attorney General.

This remarkable, yet entirely predictable, event was first highlighted in Courtside.” https://immigrationcourtside.com/2020/01/25/contempt-for-courts-7th-cir-blasts-bia-for-misconduct-we-have-never-before-encountered-defiance-of-a-remand-order-and-we-hope-never-to-see-it-again-members-of-the-board-must-count-themse/

It was also the subject of a highly readable analysis by my good friend and NDPA leader Tess Hellgren, at Innovation Law Lab, certainly no stranger to scofflaw behavior by EOIR and “go along to get along” complicity by Article IIIs. https://immigrationcourtside.com/2020/02/01/tess-hellgren-innovation-law-lab-when-it-comes-to-the-captive-bia-weaponized-immigration-courts-the-article-iiis-need-to-put-away-the-rubber-stamp-restore-integrity-to-the-law-fac/

More recently, EOIR’s trashing of judicial norms under Billy Barr has been highlighted in another fine article in CNN by Professor Kimberly Wehle, herself a former DOJ prosecutor.https://www.politico.com/news/magazine/2020/02/12/a-conservative-judge-draws-a-line-in-the-sand-with-trump-administration-114185

“Shocking” as this professional malpractice and contempt for the justice system might be to those journalists and former DOJ employees who haven’t been paying attention, it’s nothing new to those of us involved in immigration. For the last three years, the regime has been actively and unethically “gaming” the unconstitutional Immigration “Court” system against the very migrants and asylum seekers whose legal rights and human dignity they are actually supposed to be protecting!  How is this “just OK?”

Feckless Article III Courts have largely “gone along to get along,” although they might be showing less patience now that the scofflaw actions and disrespectful attitudes promoted by Billy and his predecessor “Gonzo Apocalypto” Sessions are directed at them personally rather than just screwing vulnerable migrants and asylum seekers.  

While it’s nice that at least some Article III Judges are finally reacting to being “given the finger” by Barr, Trump, and their gang of White Nationalist thugs, outrage at their own disrespectful treatment pales in comparison with the death, torture, rape, extortion, and the other parade of horribles being inflicted daily on vulnerable migrants by the Immigration “Courts” and the human rights criminals in the Trump regime while the Article IIIs fail to step in and save lives. 

In the end of the day, as history will eventually show, human lives, which are the key to the “rule of law,” will prove to be more important than “hurt feelings” among the Article III “lifers” or the kind of legal gobbledygook (much of it on “jurisdiction” which often translates into “task avoidance”) that Article IIIs, particularly those from the right wing, like to throw around to obscure their legal tone-deafness and moral failings from their fellow humans.

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

 

PWS

02-14-20

TESS HELLGREN @ INNOVATION LAW LAB: When It Comes To The Captive BIA & Weaponized Immigration Courts, The Article IIIs Need To Put Away The Rubber Stamp & Restore Integrity To The Law! — “Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever.”

Tess Hellgren
Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

http://innovationlawlab.org/blog/the-role-of-judges-to-say-what-the-law-is-judicial-oversight-of-immigration-adjudication/

 

THE ROLE OF JUDGES TO “SAY WHAT THE LAW IS”: JUDICIAL OVERSIGHT OF IMMIGRATION ADJUDICATION

By Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

January 31, 2020

Since the beginning of the Trump Administration, the immigration court system has been used as a tool to further the executive branch’s anti-immigrant agenda. The Attorney General and other executive officials have enabled widespread due process violations and skyrocketing case backlogs while imposing case quotas and docketing rules that prevent judges from serving as impartial adjudicators.[1]

Last week, the Seventh Circuit highlighted a new abuse of power: the refusal of executive officials in the Board of Immigration Appeals (BIA) to follow a direct order from a federal court.

The BIA is the administrative body responsible for reviewing decisions that are appealed from sixty-eight immigration courts across the country. Like these immigration courts, the BIA is part of the Executive Office for Immigration Review (EOIR) – the immigration court system, located in the executive branch, that is ultimately overseen by the Attorney General of the United States. Despite the serious flaws inherent in the design of this system, BIA decisions may at least be appealed up to the appropriate federal circuit court, providing a crucial layer of independent judicial review in individual cases.[2]

In the case of Baez-Sanchez v. Barr, the Seventh Circuit had previously held that the immigration laws unambiguously grant immigration judges the power to waive a noncitizen’s inadmissibility to the United States, overruling the BIA’s prior decision to the contrary.[3] On remand, the BIA “flatly refused to implement” the court’s direct order.[4] Writing that the BIA’s decision “beggars belief,” the Seventh Circuit stated that

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that [the Respondent] has not asked us to hold them in contempt, with all the consequences that possibility entails.[5]

This language is an extraordinary rebuke: it is very rare for a circuit court to issue an implicit threat to hold members of an administrative agency in contempt for directly disregarding a court order. The Seventh Circuit was clear that the BIA was mistaken if it thought that “faced with a conflict between our views and those of the Attorney General it should follow the latter.”[6] Affirming foundational separation of powers principles, the Seventh Circuit admonished that

[I]t should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government . . . Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.[7]

The Seventh Circuit’s decision also noted that the Attorney General had submitted a brief asking the court to give the BIA another opportunity to issue “an authoritative decision” on this issue, arguing that such a decision could be entitled to judicial deference.[8] The court aptly responded that this “request is bizarre,” as the court had already held that the applicable regulation was unambiguous – and an agency “cannot rewrite an unambiguous [law] through the guise of interpretation.”[9] As the Supreme Court made clear in Kisor v. Wilkie, “if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense.”[10]

Notably, even if the Seventh Circuit had found the laws in question to be ambiguous, the Attorney General and members of the BIA do not have free reign to impose any interpretation they choose. It is true that federal courts must defer to the reasoned decisions of administrative agencies when Congress has left the agency’s discretion to interpret an ambiguous provision of law, under the doctrine of Chevron deference.[11] But this deference is not boundless. As the Supreme Court made clear in Chevron, courts should defer to agencies’ interpretation of ambiguous statutes when the agency interpretation is “a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute.”[12] The agency’s interpretation must thus still fall “within the bounds of reasonable interpretation.”[13]

This standard, and the Seventh Circuit’s reprimand, is especially important as the Attorney General attempts to aggressively expand his control of immigration court adjudication. Under the Trump Administration, the Attorneys General have issued a number of “certified” decisions that attempt to restrict eligibility for asylum based on factors such as domestic violence, gang violence, or past persecution due to family membership.[14] In these decisions, which upend years of established immigration precedent, the Attorney General has pointedly asserted his authority to construe the terms of the Immigration and Nationality Act and implied that federal courts must fall in line with his interpretations.[15]

Yet the Attorney General’s reasoning holds only if his interpretations are actually entitled to judicial deference: if the laws in question are ambiguous and the federal courts find his interpretations reasonable.[16] And as the Supreme Court has admonished, “let there be no mistake: That is a requirement an agency can fail.”[17] Indeed, in addressing the application of the Attorney General’s certified decision in Matter of A-B-, at least one federal court has already held that a “general rule against domestic violence and gang-related claims during a credible fear determination is arbitrary and capricious and violates the immigration laws.”[18]

Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever. As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[19]

[1] See generally Innovation Law Lab and Southern Poverty Law Center, The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, 14–15 (June 2019), https://innovationlawlab.org/reports/the-attorney-generals-judges/; Complaint, Las Americas v. Trump, No. 3:19-cv-02051-SB (D. Or. Dec. 18, 2019), https://innovationlawlab.org/wp-content/uploads/2019/12/ECF-1-Las-Americas-v.-Trump-No.-19-cv-02051-SB-D.-Or..pdf.

[2] See Immigration and Nationality Act § 242; 8 U.S.C. § 1252.

[3] Baez-Sanchez v. Sessions, 872 F.3d 854, 856 (7th Cir. 2017); Baez-Sanchez v. Barr, No. 19-1642, slip op. at 2–3 (7th Cir. Jan. 23, 2020).

[4] Baez-Sanchez, slip op. at 3.

[5] Id. at 3–4.

[6] Id. at 4.

[7] Id. 

[8] Id. at 4–5.

[9] Id. at 5.

[10] Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019).

[11] Chevron  v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

[12] Id. at 844–45; see also 5 U.S.C. § 706(2) (a reviewing court shall set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

[13] See Kisor, 139 S.Ct. at 2416, quoting Arlington v. FCC, 569 U.S. 290, 296 (2013).

[14] See Matter of A-B-, 27 I&N Dec. 316 (2018); Matter of L-E-A-, 27 I&N Dec. 581 (2019). Note inconsistencies

[15] See Matter of A-B-, 27 I&N at 326–27; Matter of L-E-A-, 27 I&N at 591–92.

[16] See Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (allowing for agency interpretation to override judicial interpretation in certain circumstances, when the agency interpretation is “otherwise entitled to Chevron deference”).

[17] See Kisor, 139 S.Ct. at 2416.

[18] Grace v. Whitaker, 344 F. Supp. 3d 96, 127 (D.D.C. 2018).

[19] See Marbury v. Madison, 5 U.S. 137, 177 (1803).

 

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Well said, Tess!

 

Thanks for being such a NDPA stalwart!

 

Due Process Forever!

 

PWS

02-01-20

 

CONFRONTING THE “AMERICAN STAR CHAMBER” — Innovation Law Lab, SPLC, CLINIC, & Others Force Article III Courts To Face Their Judicial Complicity In Allowing EOIR’s “Asylum Free Zones” & Other Human Rights Atrocities To Operate Under Their Noses

Tess Hellgren
Tress Hellgren
Staff Attorney/Fellow
Innovation Law Lab

My friend Tess Hellgren, Staff Attorney/Justice Catalyst Legal Fellow @ Innovation Law Lab reports:

 

Hi all,

 

As some of you are already aware, I am very pleased to share that Innovation Law Lab and the Southern Poverty Law Center filed a lawsuit this morning challenging the weaponization of the nation’s immigration court system to serve the Trump administration’s anti-immigrant agenda.  More information is available below and at http://innovationlawlab.org/faircourts/.

 

I would like to thank all of you again for participating in our IJ roundtable and sharing your experiences for our report on the immigration court system (you will see a reference to it in our press release below). The insights we gained over the course of that report were vital in helping us identify and understand the problems in the immigration courts under the current administration.

 

Sincerely,

 

Tess

 

 

FOR IMMEDIATE RELEASE

December 18, 2019

 

Contact:
Marion Steinfels, marionsteinfels@gmail.com / 202-557-0430

Ramon Valdez, ramon@innovationlawlab.org / 971-238-1804
Immigration Advocates File Major Lawsuit Challenging

Weaponization of the Nation’s Immigration Court System

Advocates Launch Immigration Court Watch App to Ensure

Greater Accountability, Transparency in Courts

 

WASHINGTON, DC – The Southern Poverty Law Center (SPLC), Innovation Law Lab (Law Lab),  Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC) and Santa Fe Dreamers Project (SFDP) have filed a federal lawsuit challenging the weaponization of the nation’s immigration court system to serve the Trump administration’s anti-immigrant agenda.

 

“Under the leadership of President Trump and the attorney general, the immigration court system has become fixated on the goal of producing deportations, not adjudications,” said Stephen Manning, executive director of Innovation Law Lab. “The system is riddled with policies that undermine the work of legal service providers and set asylum seekers up to lose without a fair hearing of their case.”

 

The complaint outlines pervasive dysfunction and bias within the immigration court system, including:

 

  • Areas that have become known as “asylum-free zones,” where virtually no asylum claims have been granted for the past several years.
  • The nationwide backlog of pending immigration cases, which has now surpassed 1 million — meaning that thousands of asylum seekers must wait three or four years for a court date.
  • The Enforcement Metrics Policy, implemented last year, which gives judges a personal financial stake in every case they decide and pushes them to deny more cases more quickly.
  • The “family unit” court docket, which stigmatizes the cases of recently arrived families and rushes their court dates, often giving families inadequate time to find an attorney and prepare for their hearings.

 

“The immigration courts make life-and-death decisions every day for vulnerable people seeking asylum – people who depend on a functioning court system to protect them from persecution, torture, and death,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “While prior administrations have turned a blind eye to the dysfunction, the Trump administration has actively weaponized the courts, with devastating results for asylum seekers and the organizations that represent them.”

 

The lawsuit was filed on behalf of six legal service providers whose work for asylum seekers has been badly impaired as a result of the unjust immigration court system.

 

“As the political rhetoric surrounding immigrants has become sharper, we’ve noticed a decline in the treatment our clients receive in immigration court,” said Linda Corchado, Director of Legal Services, Las Americas Immigrant Advocacy Center. “While asylum seekers are entitled to a full and fair hearing, their proceedings are too often rushed, and judges deny our requests for time to properly prepare their cases and collect and translate crucial evidence from across the world.”

 

In addition to filing on behalf of their own organizations, plaintiffs include Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC) and Santa Fe Dreamers Project (SFDP).

 

The complaint can be viewed here and here: http://innovationlawlab.org/faircourts.

 

In an effort to ensure greater transparency and accountability in the nation’s immigration courts, Innovation Law Lab also announced the full launch of an Immigration CourtWatch app, which enables court observers to record and upload information on the conduct of immigration judges.

 

The new tool allows data on immigration judge conduct to be gathered and stored in both individual and aggregate forms. This will provide advocates with valuable information to fight systemic bias and other unlawful court practices. This data can be used to bolster policy recommendations, along with advocacy and legal strategies.

 

Advocates, attorneys and other court watchers are encouraged to download and access the app available here: http://innovationlawlab.org/courtwatch.

In June, Law Lab and SPLC released a report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, on the failure of the immigration court system to fulfill the constitutional and statutory promise of fair and impartial case-by-case review. The report can be accessed here: The Attorney General’s Judges:  How the U.S. Immigration Courts Became a Deportation Tool.

###

 

The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, D.C., is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, see www.splcenter.org and follow us on social media: Southern Poverty Law Center on Facebook and @splcenter on Twitter.  

 

Innovation Law Lab, based in Portland, Oregon with projects around the country and in Mexico, is a nonprofit organization that harnesses technology, lawyers, and activists to advance immigrant justice. For more information, visit www.innovationlawlab.org.

 

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Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

 

And, here’s a statement in support of this much-needed litigation action from my distinguished Round Table colleague Judge (Ret.) Ilyce Shugall:

 

These were my remarks during the press conference:

 

I am Ilyce Shugall, a former immigration judge.  I became an IJ in 9/2017 and resigned in 3/2019.  I was sworn in by then-Chief IJ Mary Beth Keller.  She has also resigned.  I swore to uphold the constitution at my investiture.  When the administration made it impossible to continue to do so, I resigned.

 

I defended immigrants in immigration court for 18 years before I became an immigration judge, so I understood the inherent problems and limitations on judicial independence in a court system housed inside the Department of Justice, a prosecuting arm of the executive branch.  However, as Melissa said, this administration’s policies have entirely eroded what independence and legitimacy remained in the immigration court system.

 

As an immigration judge, I watched independence being stripped from the judge corps on a regular basis.  The attorney general ended administrative closure, taking away a vital docketing tool from the judges, while simultaneously contributing to the court’s ever-growing backlog.  The attorney general also significantly limited the judges’ ability to grant continuances.  Then, the attorney general and EOIR director implemented performance metrics which required judges complete 700 cases per year and created time limits on the adjudication of cases.  And this was only the beginning.  These policies have had a drastic impact on those appearing in immigration court, particularly those fleeing horrific violence who have been preventing from effectively presenting their cases.

 

New policies, memoranda, and regulations are being published regularly by this administration. Each one, an attack on the system, and each one with the goal to eliminate due process and expedite deportations.  I hope this lawsuit will eventually lead to a truly independent immigration court system, where judges can uphold their oaths and therefore immigrants receive the due process they are entitled and deserve.

 

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Every one of us in America is entitled to Due Process; every day, vulnerable asylum applicants and other migrants are being dehumanized and denied their Due Process rights by an ridiculously unconstitutional Immigration “Court” system operating with the complicity of life tenured Federal Judges, all the way up to the Supremes, who are failing to live up to their oaths of office.

 

The grotesque, constant, open abuse of the legal and constitutional rights of the most vulnerable among us threatens the rights of each of us, including those individuals responsible for putting the Trump regime in power, maintaining it, and the Article III judges who are failing to stand up to the regime’s unconstitutional cruelty and mocking of our the rule of law. Enough! It’s long past time for the Article IIIs to live up to their responsibilities and stand up for the victims of tyranny!

The case is

LAS AMERICAS IMMIGRANT ADVOCACY CENTER, et. al v. TRUMP  (D OR)

Due Process Forever; Complicit Courts Never!

 

PWS

 

12-18-19

 

AMERICA’S SHAME: Congress Dithers, Life-Tenured Article III Circuit Judges & Supreme Court Justices Shirk Their Duty, While Trump’s “False Courts” Violate Constitutional, Statutory, Treaty, & Human Rights On A Daily Basis With Impunity! — History Will Remember Those Who Are Complicit In & Who Are Morally Responsible For Unlawful Killings & Other Unspeakable Acts Committed Against Those Most Vulnerable Who Are Merely Seeking Fairness Under Our Broken & Fraudulent Justice System!

NEW REPORT EXAMINES WEAPONIZATION OF IMMIGRATION COURT SYSTEM

Advocates Launch Immigration Court Watch App to Ensure Greater Accountability, Transparency.

WASHINGTON, DC – The immigration court system has failed to fulfill the constitutional and statutory promise of fair and impartial case-by-case review, according to a new report released today by Innovation Law Lab and the Southern Poverty Law Center, entitled The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool.Download the press release here.The report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, links the current crisis of accountability to the Attorney General’s absolute control over the immigration court system.In conjunction with the report, the groups also announced the launch of an Immigration Court Watch app, which enables court observers to record and upload information on immigration judge conduct to create greater judicial accountability.

Under the Immigration and Nationality Act, the attorney general is required to create an immigration court system in which independent judges decide cases by applying law to the evidence on the record following a full and fair hearing. According to the report, however, today’s immigration courts are plagued by systemic bias and neglect.

“Despite the life-and-death stakes of many immigration cases within the current system, case outcomes have less to do with the rule of law than with the luck of the draw,” said Melissa Crow, Southern Poverty Law Center senior supervising attorney. “Under the Trump administration, the attorneys general have gone even further by actively weaponizing the immigration court system against asylum-seekers.”

The report explains how the Office of Attorney General has created an immigration court system that is biased, inconsistent and driven by political whims. It also examines the conflict that arises when immigration judges, who are expected to be neutral arbiters, are supervised by the United States’ chief law enforcement officer who prioritizes deterrence and deportation of immigrants, instead of an impartial review process.

The report recommends removing the immigration courts from the attorney general’s control and recreating them as Article I courts. To ensure that immigration judges are insulated from political pressures, they must be selected based on merit, receive tenure and be removed only for good cause. The immigration courts must also include more effective mechanisms of internal and appellate accountability.

“One of the key factors driving the immigration court crisis is the failure of judicial accountability,” said Stephen Manning, executive director of Innovation Law Lab. “The new Immigration Court Watch app addresses that lack of accountability, ensures greater transparency and will be a valuable resource for collecting and storing usable data on the pervasive abuses in the immigration court system.”

The new tool will allow data on immigration judge conduct to be gathered and stored in both individual and aggregate forms. This will provide advocates with valuable information to fight systemic patterns of bias and other unlawful court practices. This data can be used to bolster policy recommendations, advocacy and legal strategies.

Advocates, attorneys and other court watchers are encouraged to access the app available here.

“By establishing a presence in immigration courts within their communities and sharing their observations and information, advocates can help us leverage the power of technology, collaboration and strategic alignment to create the first interconnected information system which captures data about due process issues in U.S. immigration courts in real-time,” Manning said.

The report can be found here.

For more information, contact:

Marion Steinfels marionsteinfels@gmail.com / 202-557-0430

Ramon Valdez ramon@innovationlawlab.org / 971-238-1804

The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, DC, is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, visit www.splcenter.org.

Innovation Law Lab is a nonprofit organization dedicated to upholding the rights of immigrants and refugees. By bringing technology to the fight for justice, Law Lab builds power for lawyers, human rights advocates, and immigrants in hostile immigration court jurisdictions, remote immigration detention facilities, and along the U.S.-Mexico border. For more information, visit www.innovationlawlab.org.

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Maybe the “Article III Enablers In Robes” need to start envisioning their kids and grandkids in cages, their daughters and granddaughters being gang raped, and their close relatives and best friends unnecessarily suffering and dying from intentionally life threatening conditions in prison where they are sentenced to indefinite confinement without rights and without being convicted of a crime.

No, American institutions aren’t “standing up” to Trump. From the Supremes legally wrong , immoral, and unconstitutional decision in Jennings, to their licensing of blatant racial and religious bias in Travel Ban 3.0, to the Ninth Circuit’s complicity in the mocking of legal, statutory, and Constitutional rights under the fraudulent and illegal “Remain in Mexico,” which they now “own” lock stock, and barrel, to the Eleventh Circuit’s refusal to stop the “law, asylum, justice, and human dignity free zone” in the Atlanta Immigration Courts, Article III Judges are ignoring their oaths of office and turning blind eyes to immigration outrages that are transparent on the records they review and have been building in plain sight for years.

Those in positions of power who fail to fulfill their Constitutional duty to prevent abuse of the most vulnerable among us deserve to be condemned by public opinion and by history. And that goes for Article III Judges, as well as legislators, politicos, and bureaucrats.

PWS

06-12-19

 

PWS

06-12-19