Tag: Judge John S. Tigar

DUE PROCESS & RULE OF LAW PREVAIL ANYWAY — USD JUDGE TIGAR STOPS TRUMP’S ASYLUM TRAVESTY FOR NOW! — Conflicting Decisions On Same Day!

https://www.nytimes.com/2019/07/24/us/asylum-ruling-tro.html

Miriam Jordan
Miriam Jordan, National Immigration Reporter, NY Times
Zolan Kanno-Youngs
Zolan Kanno-Youngs
Reporter, NY Times

Miriam Jordan & Zolan Kanno-Youngs report for The NY Times:

LOS ANGELES — A federal judge on Wednesday ordered the Trump administration to continue accepting asylum claims from all eligible migrants arriving in the United States, temporarily thwarting the president’s latest attempt to stanch the flow of migrants crossing the southern border.

Judge Jon S. Tigar of the United States District Court in San Francisco issued a preliminary injunction against a new rule that would have effectively banned asylum claims in the United States for most Central American migrants, who have been arriving in record numbers this year. It would have also affected many migrants from Africa, Asia and other regions.

The decision came on the same day that a federal judge in Washington, hearing a separate challenge, let the new rule stand, briefly delivering the administration a win. But Judge Tigar’s order prevents the rule from being carried out until the legal issues can be debated more fully.

The rule, which has been applied on a limited basis in Texas, requires migrants to apply for and be denied asylum in the first safe country they arrive in on their way to the United States — in many of the current cases, Mexico — before applying for protections here. Because migrants from Honduras, El Salvador and Guatemala make up the vast majority of asylum seekers arriving at the southern border, the policy would virtually terminate asylum there.

“This new rule is likely invalid because it is inconsistent with the existing asylum laws,” Judge Tigar wrote in his ruling on Wednesday, adding that the government’s decision to put it in place was “arbitrary and capricious.”

The government, which is expected to appeal the decision, has said that the rule intends to prevent exploitation of the asylum system by those who unlawfully immigrate to the United States. By clogging the immigration courts with meritless claims, the government argues, these applicants harm asylum seekers with legitimate cases who must wait longer to secure the protection they deserve.

Under the policy, which the administration announced on July 15, only immigrants who have officially lost their bids for asylum in another country or who have been victims of “severe” human trafficking are permitted to apply in the United States.

Hondurans and Salvadorans have to apply for asylum and be denied in Guatemala or Mexico before they become eligible to apply in the United States, and Guatemalans have to apply and be denied in Mexico.

The policy reversed longstanding asylum laws that ensure people can seek safe haven no matter how they got to the United States. On July 16, the day the new rule went into effect — initially in the Rio Grande Valley of Texas — the American Civil Liberties Union challenged the policy in court in San Francisco. The case in Washington was filed separately by two advocacy organizations, the Capital Area Immigrants’ Rights Coalition and Refugee and Immigrant Center for Education and Legal Services, or Raices.

“The court recognized, as it did with the first asylum ban, that the Trump administration was attempting an unlawful end run around asylum protections enacted by Congress,” said Lee Gelernt, the A.C.L.U. lawyer who argued the case in San Francisco.

The groups challenging the rule argued that immigration laws enacted by Congress expressly state that a person is ineligible for asylum only if the applicant is “firmly resettled” in another country before arriving in the United States. The laws also require an asylum seeker to request protection elsewhere only if the United States has entered into an agreement with that country and the applicant was guaranteed a “full and fair procedure” there, they said.

Judge Tigar agreed. “The rule provides none of these protections,” he said in his ruling.

During a hearing in the case on Wednesday, a lawyer for the Justice Department, Scott Stewart, said that a large influx of migrant families had spawned a “crisis” that had become “particularly stark” and created a “strain” on the asylum system.

“Migrants understand the basics of the incentives and are informed about how changes in law and policy can affect their options,” Mr. Stewart told the judge.

Judge Tigar voiced concern about forcing asylum seekers to apply for protection in Mexico or Guatemala. “We don’t see how anyone could read this record and think those are safe countries,” he said, referring to the rule’s language that migrants must apply to the first safe country.

The judge also said that the government did not address the “adequacy of the asylum system in Guatemala,” which is not equipped to handle a surge in applications.

Charanya Krishnaswami, advocacy director for the Americas at Amnesty International, said it was inhumane and cruel to force people fleeing violence to seek safety in places that are as dangerous as the homes they fled. “Everyone seeking protection has the right to humane treatment and a fair asylum process under U.S. and international law,” she said.

In federal court in Washington, two advocacy groups made similar arguments against the new policy.

But that judge, Timothy J. Kelly, found that the groups did not sufficiently support their claim that “irreparable harm” would be done to the plaintiffs in the case if the policy were not blocked. While the rule would affect migrants seeking asylum, the judge said, “the plaintiffs before me here are not asylum seekers.”

“They are only two organizations, one of which operates in the D.C. area, far from the southern border,” he added.

In recent years, the number of migrants petitioning for asylum has skyrocketed.

Migrant families and unaccompanied children have been turning themselves in to Border Patrol agents and then requesting asylum, which typically enables them to remain in the United States for years as their cases wind through the backlogged immigration courts. Only about 20 percent of them ultimately win asylum, according to the government, and many of those whose applications are rejected remain in the country unlawfully.

The administration announced the new asylum policy despite the fact that Guatemala and Mexico had not agreed to the plan, which means those countries have made no assurances that they would grant asylum to migrants intending to go to the United States. Talks with Guatemala broke down and the country’s president, Jimmy Morales, backed out of a meeting that had been scheduled for July 15 at the White House. On Wednesday, President Trump said that his administration was considering imposing tariffs on Guatemalan exports or taxing money sent home by migrants.

The new asylum rule is just one of many efforts by the Trump administration to curb the entry of migrants.

At ports of entry, Customs and Border Protection agents have significantly slowed the processing of applicants through metering — limiting how many migrants are processed to as few as a dozen per day.

And some 16,000 migrants are waiting in Mexican border towns like Tijuana under a policy commonly referred to as “Remain in Mexico,” which forces asylum seekers to wait in Mexico until the day of their court hearing. The policy makes it more difficult for the migrants to secure a lawyer to represent them in the United States, undermining their chances of winning protections.

In November, President Trump unveiled a separate policy that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Judge Tigar, who was also hearing that case, issued a temporary restraining order blocking that rule. The case is currently on appeal in the Ninth Circuit.

Zolan Kanno-Youngs reported from Washington, and Miriam Jordan from Los Angeles.

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It’s a much more reasonable order than that issued by Judge Kelly in DC earlier in the day which declared “open season” on asylum seekers. Judge Tigar has been on the front lines of Trump’s war on Due Process and the rule of law. Significantly, he pointed out the absurdity of the Trump Administration’s outrageous scofflaw attempt to classify Guatemala, one of the most dangerous countries in the world, without a functioning asylum system, as a bogus “safe third country.”

It’s on to the appellate courts!

PWS

07-24-19

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MOLLY OLMSTEAD & MARK JOSEPH STERN @ SLATE: Administration Should Heed Judge Sullivan’s and Judge Tigar’s Warnings: “The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.”

https://slate.com/news-and-politics/2018/12/federal-judge-ruling-trump-domestic-violence-asylum-rules.html

Olmstead & Stern write:

A federal judge on Wednesday struck down Justice Department rules that made it harder for asylum seekers to make successful claims based on fear of domestic abuse or gang violence, offering yet another judicial blow to the Trump administration’s efforts to unilaterally rewrite immigration law.

In his ruling, Judge Emmet Sullivan of the U.S. District Court in Washington concluded that the policies—which were rolled out by former Attorney General Jeff Sessions in June—were “arbitrary” and “capricious,” violating federal immigration law as crafted by Congress.

In his June order, Sessions sought to reverse a 2014 decision by the Board of Immigration Appeals, which held that victims of domestic violence may qualify for asylum. The BIA found at the time that women who are persecuted by their husbands but unable to leave their marriages or obtain help from law enforcement constitute a “particular social group,” one of the factors that would give them a right to seek asylum in the United States. A quirk in immigration law, however, permits the attorney general to singlehandedly reverse BIA decisions—and that’s precisely what Sessions tried to do, asserting that victims of domestic violence are not a “particular social group” because they are defined by their “vulnerability to private criminal activity” rather than a specific protected trait. He held that these women do not suffer true persecution because persecution is “something a government does.”

Sessions’ logic extended to victims of gang violence, since they, too, face persecution from private individuals, not directly from the government. He claimed that affected applicants may only receive asylum status if they demonstrate that their home government “condoned” violence against them, or demonstrated “complete helplessness” to stop it. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime cannot itself establish an asylum claim,” he wrote.

In response to Sessions’ ruling, the American Civil Liberties Union filed suit in August on behalf of a dozen asylum seekers, mostly women from Central America, fleeing sexual and physical violence. Asylum officers found the asylum seekers’ stories credible—but they were still scheduled for “expedited removal” because asylum officers found they did not have a “credible fear of persecution” under Sessions’ new rules.

On Wednesday, Sullivan rejected Sessions’ interpretation of the law. He found that “there is no legal basis for an effective categorical ban on domestic violence and gang-related claims.” Like other asylum-seekers, would-be refugees who bring these claims have a right to a credible fear interview; the attorney general cannot carve out an exception with no basis in the text of the statute. Sullivan then repudiated Sessions’ cramped definition of “persecution.” Under federal statute, the judge wrote, a refugee faces persecution if her home government is “unable or unwilling to control” violence against her. She need not prove that the government refused to help her, an overly stringent standard that Sessions had no power to impose.

Finally, Sullivan found that victims of domestic abuse and gang violence may receive asylum as members of a “particular social group.” Not every victim will be permitted to remain in the U.S. But members of social groups—such as married women trapped in abusive relationships—may prove that their government was unable to protect them from violence, thus qualifying them for asylum. And the government must grant all such applicants credible fear interviews to determine who qualifies. Thanks to Sullivan’s order, asylum seekers denied an interview under Sessions’ policy will now be allowed to make their case.

Wednesday is not the first time a federal judge has found that the Trump administration has overstepped its ability to interpret immigration law, crossing over into unlawful policy-making in its campaign to curb immigration. This past summer, a District judge in San Diego ruled that family separation violated immigrants’ due process rights and ordered that the government reunite families that were separated under Trump’s “zero tolerance” policy. And just this month, the 9th U.S. Circuit Court of Appeals rebuked the administration for its attempt to rewrite a federal statute by denying asylum to immigrants who enter the country without authorization. The court affirmed an earlier decision by U.S. District Judge Jon S. Tigar holding that the new policy was unlawful. “Whatever the scope of the president’s authority,” Tigar wrote, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

The Trump administration would do well to heed Tigar’s warning. Over and over again, the president and his allies have tried to deport more asylum applicants by misreading or simply ignoring immigration statutes. These actions are unlawfully capricious, as Sullivan sternly reminded the country on Wednesday. His message is clear: The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.

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

This Administration has total contempt for Federal Courts and the rule of law. Just look at the ways in which the usually disingenuous Sessions routinely abused that term, along with his many bogus narratives and “legal positions” that were thinly veneered White Nationalist restrictionist “talking points.”

And, the Solicitor General and career lawyers in the DOJ whose job is supposed to be to uphold legal and ethical standards as “officers of the court” have gone “belly up.” They are obviously afraid to “just say no” to some of the invidiously motivated and semi-frivolous legal positions put forth by this Administration, particularly by Sessions, that are tying up the Federal Courts.

As I have predicted, I think that this Administration will put an end to the de facto role of the Solicitor’s General’s Office as the “Tenth Justice” and has also destroyed the “extra credibility” that Federal Courts traditionally assumed from DOJ lawyers by virtue of their oaths of office and the idea that they “speak for justice” rather than presenting the often more parochial interests of an individual client. Perhaps it’s just as well as the much touted “independence” of the DOJ has steadily become more myth than reality over the past three Administrations.

That doesn’t mean that we shouldn’t expect better from DOJ lawyers. But, that’s not likely to happen without some “regime change” and a Senate that takes their “advice and consent” role more seriously.

PWs

12-19-18

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https://static1.squarespace.com/static/50b1609de4b054abacd5ab6c/t/5aab2aac758d467bf8761e84/1521167020690/Habeas+Order,+Floricel+Liborio+Ramos+v.+Sessions,+2018.03.13.pdf

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On Wednesday, March 14, 2018, Pangea client, Floricel Liborio Ramos, was freed from immigration detention after substantial litigation, multiple appeals, and requests for her release. Today, on her first day free after 11 months, Floricel came out to speak in gratitude for the massive community love and support she received throughout her detention. We hope that her case can set a positive example for judges and courts across the United States.  Read the Federal District Court’s order here.

Community members from Faith in Action, RISE, California Immigrant Youth Justice Alliance, the Immigrant Liberation Movement, and others out in support of Floricel’s hearing at the Federal District Court in Northern California (San Francisco, March 13, 2017)

 

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

 IMMIGRANT RIGHTS ACTIVISTS CELEBRATE THE MOMENTOUS REUNITING OF FLORICEL LIBORIO RAMOS WITH HER FAMILY AFTER ORDER BY UNITED STATES DISTRICT COURT JUDGE JON S. TIGAR REQUIRING HER RELEASE. THE ORDER SHOULD SERVE AS A LESSON TO IMMIGRATION JUDGES THAT THEY CANNOT DENY BOND TO IMMIGRANTS SIMPLY BECAUSE OF A DUI.

WHAT: Press conference in celebration of Floricel’s returning home to her children after over 11 months in immigration custody

WHERE: Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94111

WHEN: 11:30am on Thursday, March 15, 2018

WHO: Floricel, immigrant rights activists, faith leaders and other supporters

San Francisco, CA- Immigrant rights activists hold press conference at SF Federal District Court Building welcoming Floricel Liborio Ramos after she was released on Wednesday following a District Court order granting her immediate release from the West County Detention Facility.  Ms. Liborio Ramos detention comes to a celebrated closure after District Court Judge Jon S. Tigar ruled that the Government failed to meet its burden to demonstrate by clear and convincing evidence that Ms. Liborio Ramos poses a threat to the community.

Judge Tigar found Immigration Judge Burch had erred when she unfairly ruled that Floricel was a danger to the community given her previous DUIs, “The IJ’s decision not to release Liborio Ramos rests firmly on Liborio Ramos’s two DUI convictions.[…] while an immigrant’s criminal history is relevant, ‘criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness.’”

“[T]wo non-violent [DUI] misdemeanors in which no one was injured, in light of the other facts in this record, simply do not justify indefinite detention,” Judge Tigar’s ruling continued. In a few days, Ms. Liborio Ramos would have been detained for nearly a year, more than the longest sentence she could have served under California law for a misdemeanor DUI.

“We’re seeing undocumented immigrants punished twice by the immigration courts,” claimed Jehan Laner Romero, Ms. Liborio Ramos’ attorney at Pangea Legal Services. “This was the case with Floricel, who was complying with the criminal court order for her prior DUI conviction.”

Community supporters of Ms. Liborio have much to celebrate after 8 months of arduous efforts to support her case by packing the courtroom during her hearings, holding rallies and uplifting their support for Floricel. Immigration Judge Valerie A. Burch had denied her bond on two different occasions, even though the Government failed to sustain its burden to prove Ms. Liborio Ramos was a danger to the community. To many, this only highlights the unjust practices of some immigration courts — and the importance of higher courts and community members to hold immigration judges accountable. “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice,” said Blanca Vazquez, one of the organizers supporting Ms. Liborio Ramos’ case with the Immigrant Liberation Movement. “We hope Floricel’s case serves as a lesson for all immigration judges across the United States.” 

Floricel speaks at press conference before the court that ordered her release (San Francisco, March 15, 2018)

 

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