National Security – Page 254 – immigrationcourtside.com

N. Rappaport Reviews Travel Ban Litigation For HuffPost!

http://www.huffingtonpost.com/entry/5929ff8ce4b08861ed0cca0e

Man, Nolan sure gets around in terms of different publications! And, he is both timely and highly relevant! Here, Nolan writes in HyuffPost:

“In April 2016, I wrote an article entitled, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens.”

The article included a successful prediction of Trump’s temporary travel ban. But I failed to foresee that it would be rejected on the basis of his campaign statements, or that using campaign statements that way would put our country on the brink of a constitutional crisis.

. . . .

The campaign statements that Judge Gregory uses to justify his decision can be used again and again to attack anything Trump does that has a negative impact on a country with a large Muslim population.

If the Supreme Court does not reverse Judge Gregory’s decision, other courts will follow suit and President Trump ultimately will be faced with the constitutional crisis of not being able to meet his national security responsibilities as the Chief of the Executive Branch with respect to terrorism coming from Muslim countries unless he defies the orders of the Judicial Branch.”

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Read Nolan’s complete article on HuffPost at the above link!

I appreciate Nolan’s helpful summary of what has happened to date on the “Travel Ban” litigation. Nevertheless, I disagree with his conclusion that the President will not be able to “meet his national security responsibilities as Chief Executive.”

I have little doubt that if there were a legitimate “national security” crisis, the Federal Courts would give the Executive considerable discretion to operate. President Trump’s problem is that there is no obvious national security crisis at present. Therefore, his attack on nationals of predominantly Muslim countries seems to be out of bounds, and motivated by religious animus and a desire to fulfill campaign promises, rather than by any legitimate national security considerations.

FPWS

05-29-17

Split 1st Cir. Bops BIA For Failing To Consider Reg Requiring That Resettlement Be “Reasonable” — Garcia-Cruz v. Sessions

http://media.ca1.uscourts.gov/pdf.opinions/15-2272P-01A.pdf

“8 C.F.R. § 1208.13(b)(3), however, lists a number of factors that an adjudicator should consider. “[W]hile the IJ and BIA do not necessarily have to address each of [8 C.F.R. § 208.13(b)(3)’s] reasonableness factors explicitly . . . the agency must explain why the factors that cut against the asylum applicant outweigh the factors in his favor.” Khattak v. Holder, 704 F.3d 197, 207 (1st Cir. 2013); see also Saldarriaga v. Gonzales, 241 F. App’x 432, 434 (9th Cir. 2007) (remanding asylum petition for further review because “the IJ did not consider whether [the petitioner’s] relocation would be reasonable”). In Khattak, the BIA determined that the petitioner could relocate to another part of Pakistan where he owned a home and had briefly lived twenty years earlier. 704 F.3d at 206-07. We remanded to the BIA, however, because (1) “neither the IJ nor the BIA addressed evidence in the record indicating that” the petitioner would not be safe in that area and (2) “neither the IJ nor the BIA made any mention of [the reasonableness] factors.” Id. at 207.

          Relevant factors here include:

 “ongoing civil strife within the country “(the IJ found that “electoral violence” is common “in every electoral cycle”);
 “economic…infrastructure “(IJ found that relocation “would be economically difficult”);
 “socialandculturalconstraints”(García-Cruz speaks Quiché, a minority language that has no official status and is spoken mainly in Guatemala’s central highlands); and
 “familial ties”(all of García-Cruz’s extended family live in Chixocol).

-Yet the IJ and the BIA discussed only the fact that García-Cruz’s wife and children were in Salamá. They did not address evidence in the record that appears to undercut the conclusion that García- Cruz could reasonably relocate within Guatemala — for example, García-Cruz’s testimony that he could not live with his wife in Salamá and does not “have a home . . . [or] a job” there. Thus, neither the BIA nor the IJ “presented a reasoned analysis of the evidence as a whole.” Id. at 208 (quoting Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012)).

García-Cruz asserts that “every single factor” supports a conclusion that he cannot reasonably relocate, but he does little to develop this argument. He then asserts that the BIA’s “unfounded conclusion . . . itself requires reversal.” That is not accurate. To reverse the BIA’s order, rather than simply remand it, the evidence must compel us to conclude that it would beunreasonableforGarcía-CruztorelocatewithinGuatemala. Id. at 207 (citing INS v. Elías-Zacarías, 502 U.S. 478, 481 n.1 (1992)). There is significant evidence in the record supporting a conclusion that relocation would be unreasonable. But García- Cruz has understandably focused on the BIA’s failure to properly analyze the reasonableness factors, rather than whether the evidence compels a finding that internal relocation would be unreasonable, and neither the IJ nor the BIA weighed the reasonableness factors. Given the limited analysis on this issue, we think it best to remand to the BIA to consider it fully. We therefore grant the petition for review, vacate the BIA’s order, and remand for further proceedings.”

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PRACTICE POINTER:

8 C.F.R. § 1208.13(b)(3) requires that internal relocation not just be “possible,” but also must be “reasonable” under all of the circumstances. Sometimes Immigration Judges at both the trial and appellate level ignore this requirement and the relevant regulation. Attorneys challenging “internal relocation” should be sure to cite the regulation and refer specifically to the non-exclusive list of the type of factors that should be considered.

Additionally, as pointed out by the 1st Circuit majority, the BIA and the IJ could have found that the respondent suffered past persecution, thus shifting the burden to the DHS to provide that there was no reasonably available internal relocation alternative. In cases of this type, where a finding granting protection could have been made, but the BIA chose not to, it appears that the BIA has both failed to follow the generous dictates of their own precedent in Mogharrabi, but also has abandoned the vision of “guaranteeing fairness and due process for all.” “Close cases” should go to the respondent under Cardoza-Fonseca and Mogharrabi. But, for the last decade plus, the BIA has been unwilling to follow the law and its own precedents mandating generous treatment of asylum seekers.

PWS

05-29-=17

NYT Sunday Maggie: The “Deportation Resistance” In Trump’s America — Re-energized Or Outgunned? — The “country woke up in Arizona!”

https://www.nytimes.com/2017/05/23/magazine/is-it-possible-to-resist-deportation-in-trumps-america.html?em_pos=medium&emc=edit_ma_20170525&nl=magazine&nl_art=1&nlid=79213886&ref=headline&te=1&_r=0

Marcela Valdes writes:

“On Monday, Feb. 6, two days before Guadalupe García Aguilar made headlines as the first person deported under President Donald Trump’s new executive orders on immigration, she and her family drove to the modest stucco offices of Puente, an organization that represents undocumented immigrants. It was a postcard day: warm and dry, hovering around 70 degrees, the kind of winter afternoon that had long ago turned Phoenix into a magnet for American retirees and the younger, mostly Latin American immigrants who mulch their gardens and build their homes.
García Aguilar and her family — her husband and two children — squeezed together with four Puente staff members into the cramped little office that the group uses for private consultations. Carlos Garcia, Puente’s executive director, had bought a fresh pack of cigarettes right before the talk; he needed nicotine to carry him through the discomfort of telling García Aguilar that she would almost certainly be deported on Wednesday. Until that moment, she and her family had not wanted to believe that the executive orders Trump signed on Jan. 25 had made her expulsion a priority. She had been living in the United States for 22 years, since she was 14 years old; she was the mother of two American citizens; she had missed being eligible for DACA by just a few months. Suddenly, none of that counted anymore.
García Aguilar’s troubles with Immigration and Customs Enforcement (ICE) began in 2008, after police raided Golfland Sunsplash, the amusement park in Mesa, Ariz., where she worked. She spent three months in jail and three months in detention. (ICE booked her under the last name “García de Rayos.”) In 2013, an immigration court ordered her removal. Yet under pressure from Puente, which ultimately filed a class-action lawsuit contending that Maricopa County’s work-site raids were unconstitutional, ICE allowed García Aguilar (and dozens of others) to remain in Arizona under what is known as an order of supervision. ICE could stay her removal because the Obama administration’s guidelines for the agency specified terrorists and violent criminals as priorities for deportation. But Trump’s January orders effectively vacated those guidelines; one order specifically instructed that “aliens ordered removed from the United States are promptly removed.” García Aguilar, who had a felony for using a fabricated Social Security number, was unlikely to be spared.
Orders of supervision are similar to parole; undocumented immigrants who have them must appear before ICE officers periodically for “check-ins.” García Aguilar’s next check-in was scheduled for Wednesday, Feb. 8. She had three options, Garcia explained. She could appear as usual and hope for the best. She could try to hide. Or she could put up a fight, either from a place of sanctuary or by appearing for her check-in amid media coverage that Puente would organize on her behalf. Whatever she decided, he said, she would be wise to spend Tuesday preparing for separation from her children.
The family was devastated. García Aguilar left the meeting red-faced with tears.
The next day a dozen activists gathered at Puente to strategize for García Aguilar’s case. After reviewing the logistics for the usual public maneuvers — Facebook post, news release, online petition, sidewalk rally, Twitter hashtag, phone campaign — they debated the pros and cons of using civil disobedience. In the final years of the Obama administration, activists in Arizona had come to rely on “C.D.,” as they called it, to make their dissatisfaction known. Puente members had blocked roads and chained themselves in front of the entrance to Phoenix’s Fourth Avenue Jail. Yet Francisca Porchas, one of Puente’s organizers, worried about setting an unrealistic precedent with its membership. “For Lupita we go cray-cray and then everyone expects that,” she said. What would they do if Puente members wanted them to risk arrest every time one of them had a check-in?
Ernesto Lopez argued that they needed to take advantage of this rare opportunity. A week earlier, thousands of people had swarmed airports around the country to protest the executive order barring citizens from seven Muslim-majority nations. “There’s been a lot of conversation about the ban, but for everything else it’s dead,” Lopez said. “Nobody is talking about people getting deported. In a couple of months, it won’t be possible to get that media attention.”
Garcia wasn’t sure a rally for García Aguilar would work. “We’re literally in survival mode,” Garcia told me that week. It was too early to tell how ICE would behave under Trump, but they were braced for the worst. Nobody had a long-term plan yet. Even as he and his staff moved to organize the news conference, his mind kept running through the possibilities: Would it help García Aguilar stay with her family? Would it snowball into an airport-style protest? Would it cause ICE to double down on her deportation? He decided it was worth trying.
Shortly before noon on Wednesday, García Aguilar and her lawyer, Ray Ybarra Maldonado, entered ICE’s field office as supporters chanted “No está sola!” (You are not alone!) behind her. Telemundo, Univision and ABC shot footage. Supporters posted their own videos on Twitter and Facebook. ICE security warily eyed the scene. An hour later, Ybarra Maldonado exited ICE alone. García Aguilar had been taken into custody. All around the tree-shaded patio adjacent to ICE’s building, Puente members teared up, imagining the same dark future for themselves. Ybarra Maldonado filed a stay of deportation, and Porchas told everyone to come back later for a candlelight vigil.
That night a handful of protesters tried to block several vans as they sped from the building’s side exit. More protesters came running from an ICE decoy bus that had initially distracted those attending the vigil out front. Manuel Saldaña, an Army veteran who did two tours in Afghanistan, planted himself on the ground next to one van’s front tire, wrapping his arms and legs around the wheel. The driver looked incredulous; if he moved the van forward now, he would break one of Saldaña’s legs. Peering through the van windows with cellphone flashlights, protesters found García Aguilar sitting in handcuffs. The crowd doubled in size. “Those shifty [expletive],” Ybarra Maldonado said as he stared at the van. ICE, he said, had never notified him that her stay of deportation had been denied.
Four hours later, García Aguilar was gone. After the Phoenix Police arrested seven people and dispersed the crowd, ICE took her to Nogales, Mexico. By then images of García Aguilar and the protest were already all over television and social media. She and her children became celebrities within the immigrant rights movement. Carlos Garcia, who was with her in Nogales, told me that Mexican officials stalked her hotel, hoping to snag a photo. “Everyone wanted to be the one to help her,” he said. “Everyone wanted a piece.” Later that month, her children — Jacqueline, 14, and Angel, 16 — sat in the audience of Trump’s first address to Congress, guests of two Democratic representatives from Arizona, Raúl Grijalva and Ruben Gallego.
During the Obama years, most immigrant rights organizations focused on big, idealistic legislation: the Dream Act and comprehensive immigration reform, neither of which ever made it through Congress. But Puente kept its focus on front-line battles against police-ICE collaboration. For Garcia, who was undocumented until a stepfather adopted him at 16, the most important thing is simply to contest all deportations, without exception. He estimates that Puente has had a hand in stopping about 300 deportations in Arizona since 2012.
Ever since Arizona passed Senate Bill 1070, one of the toughest anti-undocumented bills ever signed into law, the state has been known for pioneering the kind of draconian tactics that the Trump administration is now turning into federal policy. But if Arizona has been a testing ground for the nativist agenda, it has also been an incubator for resistance to it. Among the state’s many immigrant rights groups, Puente stands out as the most seasoned and most confrontational. In the weeks and months following Election Day 2016 — as progressive groups suddenly found themselves on defense, struggling to figure out how to handle America’s new political landscape — Garcia was inundated with calls for advice. He flew around the country for training sessions with field organizers, strategy meetings with lawyers and policy experts and an off-the-record round table with Senators Dick Durbin and Bernie Sanders in Washington. A soft-spoken man with a stoic demeanor and a long, black ponytail, Garcia was also stunned by Trump’s victory. But organizers in Phoenix had one clear advantage. “All the scary things that folks are talking about,” he told me, “we’ve seen before.” On Nov. 9, he likes to say, the country woke up in Arizona.”

. . . .

On May 3, the day Arreola was to have been deported, Arreola and Andiola gathered with friends, family and supporters for a prayer breakfast at the First Congregational United Church of Christ in Phoenix, which had offered to house Arreola if she chose sanctuary. Pastor James Pennington had been active in the fight for gay rights. The patio of First Congregational was decorated with several flags, including a rainbow flag, an Arizona state flag and an American flag. Inside the church, members of Puente and former members of ADAC formed a circle with several non-Hispanics who had only recently allied themselves with the undocumented. Standing together they recited Psalm 30 in Spanish:

Te ensalzaré, oh Señor, porque me has elevado, y no has permitido que mis enemigos se rían de mi.

I’ll praise you, Lord, because you’ve lifted me up. You haven’t let my enemies laugh at me.

Yet their enemies remained hard at work. A week later, Marco Tulio Coss Ponce, who had been living in Arizona under an order of supervision since 2013, appeared at ICE’s field office in Phoenix with his lawyer, Ravindar Arora, for a check-in. ICE officers, Arora said, knew that Coss Ponce was about to file an application for asylum — several of his relatives had been recently killed or threatened by the Sinaloa cartel in Mexico — and they had assured Arora several times that Coss Ponce would not be removed. They said he simply needed to wear an ankle monitor to make sure he didn’t disappear. The fitting was delayed several times until finally Arora had to leave to argue a case in court. After he departed, ICE officers handcuffed Coss Ponce and put him in a van, alone. Three hours later, he was in Nogales.”

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Read the entire, very lengthy but worthwhile, article at the link.

Wow, can’t help but think “what if” all the energy, emotion, and activity on both sides of the immigration issue were re-directed at working together to “make America greater,” rather than engaging in a dangerous, counterproductive “grown up” game of hide and seek aimed at intimidating and removing productive members of American society who aren’t causing anyone any particular harm!

I’ve got some bad news for “the enforcers.” The U.S. families of most of the deportees aren’t going anywhere. And, there will be a steep price to pay in future generations for intentionally alienating some of America’s “best and brightest,” and our hope for the future as a nation.

Actions have consequences. Hate and disrespect aren’t quickly forgotten. Witness that even today, more than a century after the event, we’re still struggling as a nation with the misguided and hateful cause that created the short-lived “Confederate States of America,” killed hundreds of thousands of Americans of all races, and ruined millions of lives.

Something to think about on Memorial Day.

PWS

05-29-17

Colbert King Op-Ed In WashPost: Terror Threat On The Right!

https://www.washingtonpost.com/opinions/the-us-has-a-homegrown-terrorist-problem–and-its-coming-from-the-right/2017/05/26/10d88bba-4197-11e7-9869-bac8b446820a_story.html

King writes:

“As the Anti-Defamation League noted in a new report, “A Dark & Constant Rage: 25 Years of Right-Wing Terrorism in the United States,” the United States has experienced a long string of terrorist incidents, with many connected not to Islamist terrorists but to right-wing extremists.

The findings were startling.

The ADL analyzed 150 terrorist acts in the United States that were committed, attempted or plotted by right-wing extremists. “More than 800 people were killed or injured in these attacks,” the ADL said, noting that the attacks “surged during the mid-to-late 1990s and again starting in 2009” — the beginning of Barack Obama’s presidency.

The also looked at other acts of violence and determined that “from 2007 to 2016, a range of domestic extremists of all kinds were responsible for the deaths of at least 372 people across the country. Seventy-four percent of these murders came at the hands of right-wing extremists such as white supremacists, sovereign citizens and militia adherents.”

And, reported the ADL, the hate and terror mongers choose their marks carefully: Jews, Muslims and — the most common racial target — African Americans.

According to The Post, a study by the Center for the Study of Hate and Extremism at California State University at San Bernardino showed an overall increase of 13 percent in hate crimes reported, with 1,812 incidents reported in 2016 — the year of our nasty, hate-filled presidential race.
So how about pivoting from Saudi Arabia to turn White House attention to our own homegrown terrorist problem? After all, right-wing extremism may be the predicate that led a hate-filled white student to pick up a knife in the middle of spring commencement celebrations and stab an innocent and promising young man of color to death.

Surely that is worth a presidential thought or two.

Manchester has prompted elevation of Britain’s threat level to its highest.

In light of Richard Collins’s murder, the discovery of a noose in a fraternity house this month, as well as white supremacist fliers posted on campus earlier this year, where is the University of Maryland’s threat level? How about America’s?

After all, haters seem emboldened as never before.”

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Read King’s entire op-ed at the link.

Food for thought, particularly in our gun-fueled society.

PWS

05-29-17

Kushner In Hot Water As Russia Investigation Heats Up — White House Caught Up In Web Of Deceit!

https://www.nytimes.com/2017/05/26/us/politics/kushner-talked-to-russian-envoy-about-creating-secret-channel-with-kremlin.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news

The NYT reports:

“President Trump’s son-in-law and senior adviser, Jared Kushner, at the White House last week. Credit Doug Mills/The New York Times
WASHINGTON — Jared Kushner, President Trump’s son-in-law and senior adviser, spoke in December with Russia’s ambassador to the United States about establishing a secret communications channel between the Trump transition team and Moscow to discuss strategy in Syria and other policy issues, according to three people with knowledge of the discussion.

The conversation between Mr. Kushner and the ambassador, Sergey I. Kislyak, took place during a meeting at Trump Tower that Mr. Trump’s presidential transition team did not acknowledge at the time. Also present at the meeting was Michael T. Flynn, the retired general who would become Mr. Trump’s short-lived national security adviser, the three people said.

It is unclear who first proposed the communications channel, but the people familiar with the meeting said the idea was to have Mr. Flynn speak directly with a senior military official in Moscow to discuss Syria and other security issues. The communications channel was never set up, the people said.

The three people were not authorized to discuss the December meeting and spoke on the condition of anonymity.

News of the discussion was first reported by The Washington Post. The revelation has stoked new questions about Mr. Kushner’s connections to Russian officials at a time when the F.B.I. is conducting a wide-ranging investigation into Russia’s attempts to disrupt last year’s presidential election and whether any of Mr. Trump’s advisers assisted in the Russian campaign.

Current and former American officials said Mr. Kushner’s activities, like those of many others around Mr. Trump, are under scrutiny as part of the investigation. But Mr. Kushner is not currently the subject of a criminal investigation.

In the days after the meeting with Mr. Kislyak, Mr. Kushner had a separate meeting with Sergey N. Gorkov, a Russian banker with close ties to Russia’s president, Vladimir V. Putin.

American intelligence agencies first learned about the discussion several months ago, according to a senior American official who had been briefed on intelligence reports. It is unclear whether they learned about it from intercepted Russian communications or by other means.

Mr. Trump came into office promising improved relations with Russia on numerous issues, including greater cooperation to try to end the civil war in Syria. During the presidential campaign, he frequently criticized the Obama administration’s Syria policy as unnecessarily antagonistic toward Russia.

The idea behind the secret communications channel, the three people said, was for Russian military officials to brief Mr. Flynn about the Syrian war and to discuss ways to cooperate there. Neither side followed up on it. And less than two weeks later, the idea was dropped when Mr. Trump announced that Rex W. Tillerson, a former chief executive of Exxon Mobil who had worked closely with Russian officials on energy deals, was his choice to become secretary of state.

The interactions between Mr. Trump’s advisers and Mr. Kislyak have been a constant source of trouble for the new administration.”

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Read all about it at the link.

No matter what Trump might say or do, this story isn’t going away. Obviously, the Administration from top down has been unwilling to “come clean” on exactly what was going on.

PWS

05-26-17

Noah Feldman In Bloomberg View: 4th Circuit’s Stunning Rebuke Of Trump — Court Basically Calls Prez A Liar!

https://www.bloomberg.com/view/articles/2017-05-25/court-essentially-says-trump-lied-about-travel-ban

Feldman writes:

“In a remarkable 10-to-3 decision, a federal appeals court on Thursday affirmed the freeze on the second iteration of President Donald Trump’s executive order on immigration from six majority Muslim countries. The court said that national security “is not the true reason” for the order, despite Trump’s insistence to the contrary. It’s extraordinary for a federal court to tell the president directly that he’s lying; I certainly can’t think of any other examples in my lifetime.

The decision and the breakdown of the judges voting against the ban — which includes Republican appointees — presages defeat for the executive order in the U.S. Supreme Court, should the Trump administration decide to seek review there. Faced with this degree of repudiation from the federal judiciary, Trump would be well advised not to go to the Supreme Court at all.

The decision for the 4th Circuit Court of Appeals was written by Chief Judge Roger Gregory, who has the distinction of having been appointed to the court first by Bill Clinton, in a recess appointment that would have expired, and then by George W. Bush — a reminder of bipartisanship in the judicial nomination process that seems almost inconceivable today.

Gregory’s opinion had three basic parts, of which the middle one was the most important.

First, Gregory found that the plaintiffs in the case had standing to challenge the executive order as a violation of the First Amendment’s establishment clause. He pointed out that under the “endorsement test” first offered by Justice Sandra Day O’Connor, the establishment clause is violated when the government sends a message to some people that they are insiders, favored members of the political community, or a message to others that they are outsiders, disfavored as citizens.

In O’Connor’s analysis, feelings count. As the 4th Circuit put it in the passage quoted by Gregory, “feelings of marginalization and exclusion are cognizable forms of injury” under the endorsement test. Thus, Muslim plaintiffs who alleged that they experienced a sense of exclusion and harm have the constitutional right to bring a lawsuit. 1

Although the 4th Circuit dissenters objected plausibly that this reliance on emotional experience would allow anyone “who develops negative feelings” to bring an establishment clause case, their objection isn’t really to Gregory’s reasoning, but to the endorsement test itself. And that’s part of constitutional doctrine.

That led Gregory to the heart of his opinion — and the condemnation of Trump as a liar. The strongest legal argument available to the Trump administration was based on a 1972 Supreme Court case called Kleindienst v. Mandel.

In the Mandel case, immigration authorities denied a visa to a Belgian Marxist who had been invited to give lectures in the U.S. The professors who invited him argued that his exclusion violated the freedom of speech.

The Supreme Court denied the claim, stating that when the executive branch excludes a noncitizen from the country “on the basis of a facially legitimate and bona fide reason,” the courts would not “look behind the exercise of that discretion.” That holding looked pretty good for the Trump executive order, which on its face asserts a national security interest in denying visas to people from the six majority Muslim countries.

Here’s where the opinion got personal. Gregory acknowledged that the executive order was “facially legitimate.” But, he said, “bona fide” literally means “in good faith.”

And here, he reasoned, the plaintiffs had provided “ample evidence that national security is not the true reason” for the order. That evidence, the court said, came mostly from Trump himself, in the form of his “numerous campaign statements expressing animus towards the Islamic faith.”

This was really the punchline of the opinion: Trump’s own statements show that he lied when he said the purpose of the executive order was national security. Once that conclusion was on the table, Gregory easily went on to show that such animus violated the establishment clause by sending a message to Muslims that they are outsiders in the political community.

One other George W. Bush nominee, Judge Allyson Duncan, joined the opinion. The three dissents came from Judge Paul Niemeyer, appointed by George H.W. Bush, and two court’s two other George W. Bush nominees. Thus, the breakdown was mostly partisan.

As a result, it’s plausible that Trump might get a few votes for the executive order at the Supreme Court. But he isn’t going to win. Justice Anthony Kennedy will be moved by the argument that the executive order was adopted in bad faith. And even conservative Justice Samuel Alito is likely to be unsympathetic, given his strong record as a defender of religious liberty.
Trump’s lawyers should be telling him right now that it would be a mistake for him to seek Supreme Court review. Not only is he likely to lose, he is likely to lose in a way that undermines his legitimacy and credibility. But it’s doubtful whether he will listen. If Trump had been listening to his lawyers, he wouldn’t be in the situation he’s in now, where the judiciary is telling him to his face that he has bad faith.”

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I’m not even sure the Supremes will take this case.

First, it’s in an odd procedural posture of a preliminary injunction. No trial has ever been held.

Second, the “urgency” — which was fake anyway — clearly doesn’t exist.

Third, there is no Circuit split that needs to be resolved.

On the other hand, it is an interesting constitutional/separation of powers issue, and the Court is now back to “full strength.”

Trump and Sessions would be well advised at this point to heed the advice of the “Supreme Court pros” in the Solicitor General’s Office. But, based on performance to date, that’s unlikely to happen.

PWS

05-25-17

BREAKING: 4th Circuit Slams Travel Ban — Losses Continue To Pile Up For Trump — Majority Finds Trump Acted In Bad Faith!

Here’s a key excerpt from the majority opinion by Chief Judge Gregory:

“As we previously determined, the Government’s asserted national security interest in enforcing Section 2(c) appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country. We remain unconvinced that Section 2(c) has more to do with national security than it does with effectuating the President’s promised Muslim ban. We do not discount that EO-2 may have some national security purpose, nor do we disclaim that the injunction may have some impact on the Government. But our inquiry, whether for determining Section 2(c)’s primary purpose or for weighing the harm to the parties, is one of balance, and on balance, we cannot say that the Government’s asserted national security interest outweighs the competing harm to Plaintiffs of the likely Establishment Clause violation.

For similar reasons, we find that the public interest counsels in favor of upholding the preliminary injunction. As this and other courts have recognized, upholding the Constitution undeniably promotes the public interest. Giovani Carandola, 303 F.3d at 521 (“[U]pholding constitutional rights surely serves the public interest.”); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” (quoting Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002))); Dayton Area Visually Impaired Pers., Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (“[T]he public as a whole has a significant interest in ensuring…protection of First Amendment liberties.”). These cases recognize that when we protect the constitutional rights of the few, it inures to the benefit of all. And even more so here, where the constitutional violation injures Plaintiffs and in the process permeates and ripples across entire religious groups, communities, and society at large.

When the government chooses sides on religious issues, the “inevitable result” is “hatred, disrespect and even contempt” towards those who fall on the wrong side of the line. Engel v. Vitale, 370 U.S. 421, 431 (1962). Improper government involvement with religion “tends to destroy government and to degrade religion,” id., encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group. “The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J. concurring). We therefore conclude that enjoining Section 2(c) promotes the public interest of the highest order. And because Plaintiffs have satisfied all the requirements for securing a preliminary injunction, we find that the district court did not abuse its discretion in enjoining Section 2(c) of EO-2.”

Here’s the Court’s entire 205-page opinion including separate opinions:http://www.ca4.uscourts.gov/Opinions/Published/171351.P.pdf

Judges Agee, Niemeyer, and Shedd dissented.

PWS

05-25-17

Sessions Omitted Russian Contacts On Security Forms — Claims He Was Advised Not To List Them!

https://www.washingtonpost.com/world/national-security/sessions-didnt-disclose-meetings-with-russian-officials-on-security-clearance-form/2017/05/24/731b7054-40d3-11e7-8c25-44d09ff5a4a8_story.html?utm_term=.ad6409b2b669&wpisrc=nl_daily202&wpmm=1

Sari Horwitz reports in the Washington Post:

“Attorney General Jeff Sessions did not reveal meetings with Russian officials when he applied for his security clearance to serve as the nation’s highest-ranking law enforcement official.

Sessions came under fire earlier this year for not disclosing to the Senate Judiciary Committee during his confirmation hearing that, as the senator from Alabama, he met twice with Russian Ambassador Sergey Kislyak during the presidential election when he was also serving as an adviser to the president. In March, Sessions recused himself from investigations related to the 2016 presidential campaign after The Washington Post reported the two meetings.

That same information was omitted from Sessions’s security clearance form, which is known as an SF-86, as first reported Wednesday night by CNN.

“As a United States senator, the attorney general met hundreds — if not thousands — of foreign dignitaries and their staff,” said Justice Department spokesman Ian Prior. “In filling out the SF-86 form, the Attorney General’s staff consulted with those familiar with the process, as well as the FBI investigator handling the background check, and was instructed not to list meetings with foreign dignitaries and their staff connected with his Senate activities.”

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The Post reported elsewhere that other national security experts familiar with the security clearance process believe the contacts should have been listed.

PWS

05-25-17

AMERICA’S WORST PUBLIC SERVANT: Read Patrick S. Tomlinson’s NYT Op-Ed: “I’m From Milwaukee And I Oughtta Know, Sheriff David Clarke Has Gotta Go” (Screw Up DHS Like He Did Milwaukee County)!

https://www.nytimes.com/2017/05/23/opinion/take-it-from-milwaukee-beware-of-sheriff-david-clarke.html?em_pos=small&emc=edit_ty_20170524&nl=opinion-today&nl_art=8&nlid=79213886&ref=headline&te=1&_r=0

Tomlinson writes:

“MILWAUKEE — When David A. Clarke Jr., the sheriff of Milwaukee County, announced last week that he’d been appointed to a senior position at the Homeland Security Department, Milwaukee residents like me felt two things: relief that we might finally rid ourselves of his disastrous leadership, and deep concern about what his reported new role will mean for the rest of the country.

Sheriff Clarke (whose appointment the Trump administration has not confirmed) has attracted national attention on several occasions over the past year. In July, he drew scrutiny when, writing for The Hill, he suggested there was a “civil war” between law enforcement officers and members of the Black Lives Matter movement. Last week, CNN reported that he had plagiarized portions of his 2013 master’s thesis from several sources, including the American Civil Liberties Union and President George W. Bush’s book, “Decision Points.” (Sheriff Clarke has denied this accusation, and called the CNN journalist who wrote the report a “sleaze bag.”) And with his image accompanying articles that have circulated online, Sheriff Clarke’s penchant for festooning his uniform with an abundance of pins and ribbons has drawn the ire of veterans and inspired comparisons to the over-adorned uniforms beloved by military dictators.

Locals have been aghast at his conduct for years, and our criticism goes far deeper than his outrageous statements, his bizarre fashion choices and even his academic dishonesty. Residents of this county have witnessed a series of embarrassing incidents and, much worse, human tragedy on Sheriff Clarke’s watch.

Many have seen the 2015 tweet in which he went as far as to say that the Black Lives Matter movement would “join forces with ISIS.” Less well known is the fact that a police union, on behalf of two deputies, successfully sued him in 2007 for religious proselytizing. A district court in Milwaukee found his actions unconstitutional, which a federal appeals panel upheld in 2009. Apparently, Sheriff Clarke thought it was appropriate to force his deputy sheriffs to listen to a Christian-themed presentation, without regard for the separation of church and state.

There’s more. Sheriff Clarke has exhibited petty vindictiveness in response to those who give him even the mildest rebuke. He’s been accused of harassment by Dan Black, a Riverwest resident who said he was detained and questioned by deputies after an interaction with the sheriff on an airplane in January. Mr. Black’s offense? Shaking his head as he walked by Sheriff Clarke, in his first-class seat, wearing Dallas Cowboys gear on the day the team faced Wisconsin’s Green Bay Packers in the playoffs.

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More familiar to the national audience and more disturbing, especially to residents of Milwaukee, one of the most racially segregated cities in the country, is the story of Terrill Thomas, a 38-year-old inmate with bipolar disorder who died in 2016 while awaiting trial in solitary confinement in a jail Sheriff Clarke oversees. Mr. Thomas had gone seven days without water.

But what most Americans outside the Milwaukee metro area may not know is that Mr. Thomas’s death hasn’t been the only suspicious death during Sheriff Clarke’s tenure. Several people have died at a county jail since Sheriff Clarke took office in 2002, including a newborn baby who perished after her mother, Melissa Hall, gave birth on her cell floor. According to a federal lawsuit, Ms. Hall was shackled as she gave birth.

Perhaps the most bizarrely unhinged moment in Sheriff Clarke’s sordid career in Milwaukee came in March when he used a Facebook post to personally attack the city’s mayor, Tom Barrett. After Mr. Barrett criticized Sheriff Clarke for neglecting his duties in favor of Fox News appearances and book promotions, Sheriff Clarke became unhinged. Using the official page of the sheriff’s office, he mocked Mr. Barrett, saying, “The last time Tom Barrett showed up at a crime scene he got his ass kicked by a drunk, tire-iron-wielding man who beat him within inches of his life.” He was referring to a 2009 incident during which Mr. Barrett stepped between a deranged, tire-iron-wielding man threatening a grandmother and a 1-year-old child. Barrett was beaten and hospitalized after the assault, but the woman and child were saved from harm and the man taken into custody.

The timing couldn’t be better for him to step down from his post here. Milwaukee residents are fed up with our homegrown sideshow act. His job approval ratings have tanked in recent months. Were he to run in next year’s sheriff election, he would face an almost insurmountable primary fight for the Democratic spot.

The day we can finally rid ourselves of his malignant, sociopathic leadership can’t come soon enough. “Yippee, giddy up, and leave was my response,” said State Senator Lena Taylor of Sheriff Clarke’s possible appointment. But it’s little comfort because Sheriff Clarke’s power will only expand with his new role, which he has said will begin next month. As Representative Gwen Moore said of the sheriff in Mic, “I can think of few men more uniquely unqualified to liaise with local law enforcement at this juncture.”

The rest of the country should not have to suffer what Milwaukee residents have. David Clarke is not fit for public office. He is incompetent, dishonest, petty, vindictive and cruel. Take it from someone who has had a front-row seat to his antics: Do whatever you can to keep him out of public service, and public life, permanently.

Patrick S. Tomlinson (@stealthygeek) is a novelist, stand-up comic, and political commentator living in Milwaukee, Wis.”

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“Incompetent, dishonest, petty, vindictive, and cruel.” Hmmm, sounds like a perfect fit for the Trump Administration! On the other hand, he was elected to the position three times by the voters of Milwaukee County. So, someone out there must like his style.

PWS

05-24-17

The “Human Rights Free” Presidency — Trump Surrenders U.S. Leadership On Humanitarian Concerns — Embraces Some Of World’s Major Human Rights Violators!

https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2017/05/24/daily-202-trump-s-praise-for-duterte-s-drug-war-underscores-his-contempt-for-human-rights/5924d3dee9b69b2fb981db83/?utm_term=.7945757980b7

James Hohmann reports in the Washington Post:

“THE BIG IDEA: It’s one thing to not “lecture” foreign governments who abuse human rights. It’s something else entirely to praise them for it. And that’s exactly what Donald Trump did last month when he called Rodrigo Duterte.

The Post’s David Nakamura and Barton Gellman yesterday obtained a transcript of his April 29th phone call with the president of the Philippines.

“I just wanted to congratulate you because I am hearing of the unbelievable job (you’re doing) on the drug problem,” Trump told Duterte at the start of their conversation, according to the document. “Many countries have the problem, we have a problem, but what a great job you are doing and I just wanted to call and tell you that.”

“Thank you Mr. President,” replied Duterte. “This is the scourge of my nation now and I have to do something to preserve the Filipino nation.”

Trump, who affectionately referred to Duterte as “Rodrigo” during their chat, then took an unsolicited dig at Barack Obama. “I … fully understand that and I think we had a previous president who did not understand that,” the U.S. president said. “You are a good man … Keep up the good work. … You are doing an amazing job.”

With Breanne Deppisch

Duterte called Obama the “son of a whore” during a press conference last September. When he promised to curse out the then-president if he brought up his death squads, the White House canceled a bilateral sit-down that had been scheduled. When Obama later raised concerns about his human rights record, Duterte replied that he could “go to hell.” (He often uses unprintable profanity.)

— The context of Trump’s comments matters: Duterte is an authoritarian thug. He has overseen a brutal extrajudicial campaign that has resulted in the killings of thousands of suspected drug dealers. His abuses are well documented, including in reports by the U.S. State Department and Human Rights Watch.

Duterte has publicly compared his campaign to crack down on drugs to the Holocaust, saying he would like to “slaughter” millions of drug addicts just like Adolf Hitler “massacred” millions of Jewish people. “Hitler massacred three million Jews. Now, there are 3 million drug addicts. … I’d be happy to slaughter them,” he told reporters last September. While Hitler (who actually killed closer to six million Jews) spoke of a “final solution,” Duterte says his campaign of mass killings is the only way to “finish the problem.”
He has said he would kill his own children if they ever took drugs.

One victim of Duterte’s crackdown was a 5-year-old girl, who was shot in the head last summer when armed men came to her house in search of her grandfather.

Eleven days before Trump phoned him, Duterte told a group of Filipino workers in the Middle East that if they lose their jobs because of the falling price of oil they can always come home to work for him. “If you lose your job, I’ll give you one: Kill all the drug addicts,” he said, according to the Philippine Star. “Help me kill addicts … Let’s kill addicts every day.”

The New York Times won a Pulitzer Prize this year for a series of powerful photographs “showing the callous disregard for human life in the Philippines brought about” by Duterte’s policies.

A witness has testified that before Duterte became president, when he was a mayor of Davao City, he paid a squad of hit men to carry out summary executions that involved feeding a body to a crocodile, chopping up corpses and dumping slashed bodies into the sea.

Duterte has boasted to a group of Manila businessmen, on camera, about killing criminals in cold blood when he was mayor: “In Davao I used to do it personally, just to show the (cops) that if I can do it, why can’t you?”

He joked last year that the victim of a gang rape was “so beautiful” that he wishes he had “been first.”

Yesterday he declared martial law on the southern island of Mindanao, as his security forces battled heavily armed militants linked to the Islamic State.
— Trump caught his own aides off guard during his phone call to Duterte by extending an open invitation for him to come visit the White House at any time, with no preconditions. “I will love to have you in the Oval Office,” Trump said, per the transcript. “Seriously, if you want to come over, just let us know.”

— A senior administration official, who confirmed that the quotes in the transcript produced by the Philippines government are accurate, said that the president was not condoning Duterte’s “individual tactics.” Rather, the official said, this was Trump’s “way of expressing solidarity over a common scourge.” But that’s not at all clear from the transcript, and it’s certainly not the impression any reasonable person on the other end of the line would have been left with.
— Trying to advance our national interest, previous presidents of both parties have certainly looked the other way instead of confronting human rights abuses. But they felt they had no choice, especially during the Cold War, and none seemed to relish this dark side of realpolitik.

— As part of his so-called “America First” agenda, Trump seems not just content but determined to have America abdicate its moral leadership in the world. It’s hard to claim American Exceptionalism when Trump praises Duterte this way. It’s hard to say we’re a shining city upon a hill when the American president consistently treats despotic strongmen with greater respect than democratically-elected allies.

— The president’s sometimes over-the-top praise for totalitarian leaders has been covered extensively, from Russia’s Vladimir Putin to Chinese President Xi Jinping, Egyptian President Abdel Fatah al-Sissi, Turkish President Recep Tayyip Erdogan and Thailand Prime Minister Prayuth Chan-ocha.
— Coincidentally, Duterte was meeting with Putin at the Kremlin yesterday around the time that the Post’s story about the transcript broke. He’s referred to the Russian president as his “favorite hero.” This is from the write-up by RT, the government-financed propaganda network: “Duterte, who called Russia a ‘reliable partner,’ also emphasized that Manila is ready to develop relations with Moscow and is looking forward to purchase Russian arms.” Putin also lavished him with praise.

— Words matter: Autocrats have heard Trump loud and clear, and they’re emboldened. Abby Phillip and David Nakamura note that almost no attention was paid to the concerns that have made Saudi Arabia rank among the most repressive nations on Earth during the president’s visit this weekend. “Political protests in Saudi Arabia can be punishable by a death sentence and freedom of expression is severely limited. But Monday, Commerce Secretary Wilbur Ross highlighted the absence of dissenters as a sign of the ‘genuinely good mood’ during Trump’s visit. … And Sunday, a lone event on Trump’s schedule aimed at bolstering civil society in Saudi Arabia was scrapped.”
“We are not here to lecture,” Trump said during his Sunday speech in Riyadh, speaking to about 50 political leaders of Muslim nations, many of which are led by strongmen. “We are not here to tell other people how to live, what to do, who to be or how to worship. Instead, we are here to offer partnership, based on shared interests and values.”

— The foreign policy establishment was collectively horrified by the transcript of the Trump-Duterte call.

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

Read the complete story at the link.

Let’s see, dissing US civil servants, promoting xenophobia and racism, shafting the poor and vulnerable, abandoning the sick and chronically ill, enriching his family and cronies, and emboldening anti-democratic autocrats throughout the world. Trump is the antithesis of almost all of the values many of us thought America stood for. Yet, he was elected to lead us. Go figure!

PWS

05-24-17

DHS Reports 740,000 Visa Overstays! — Oh, Those Canadian Businessmen & Tourists, Threatening Our National Existence By Hanging Around & Spending Their Dollars Here — Will A Wall Along The Northern Border Be Next?

https://www.washingtonpost.com/national/us-nearly-740000-foreigners-overstayed-visas-last-year/2017/05/22/f70bea2e-3f16-11e7-b29f-f40ffced2ddb_story.html?tid=hybrid_content_2_na&utm_term=.db2c42f1f0db

The AP reports in the Washington Post:

“SAN DIEGO — Nearly 740,000 foreigners who were supposed to leave the United States during a recent 12-month period overstayed their visas, the Homeland Security Department said Monday, detailing a crucial but often overlooked contributor to the number of people in the country illegally.

President Donald Trump has proposed spending billions of dollars to erect a wall on the U.S. border with Mexico and hire more border agents, but those measures would not address people who arrive legally and stay after their visas expire. An estimated 40 percent of the roughly 11 million people in the country illegally stayed past their visas.

There were 739,478 overstays from October 2015 through September 2016 among visitors who arrive by plane or ship — more than the population of Alaska.

The total number of overstays is much larger but has not been quantified because the statistic doesn’t include how many people leave by land.

The cost and technological hurdles to develop a checkout system at congested land crossings are enormous because the sites are so busy. Last year, Homeland Security tested facial scans at a San Diego border crossing but has npt said if the technology works or will be expanded.

Homeland Security last year published the number of overstays for the first time in at least two decades, saying 527,127 people who came by air or ship stayed past their visas from October 2014 to September 2015.

This year’s report added student and foreign exchange visitors and many visa categories for temporary workers, while last year’s only counted business travelers and tourists. Homeland Security said it will make additional improvements in future reports, including more data on people who cross by land.

Overstays accounted for 1.5 percent of the 50.4 million visitors who arrived by plane or ship in the latest period, Homeland Security said. Canada occupied the top slot for overstays among business travelers and tourists, followed by Mexico, Brazil, Venezuela and the United Kingdom. Germany, Colombia, China, India and Italy rounded out the top 10.”

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Read the complete,article at the link.

Immigration is a much more complex and nuanced subject than this Administration will acknowledge. But, I’m not sure that these raw numbers, without more analysis, are anything we should be losing sleep over.

PWS

05-24-17

POLITICS: TRUMP BUDGET: Help The Rich, Stone The Poor!

The NY Times reports:
“WASHINGTON — President Trump plans to unveil on Tuesday a $4.1 trillion budget for 2018 that would cut deeply into programs for the poor, from health care and food stamps to student loans and disability payments, laying out an austere vision for reordering the nation’s priorities.

The document, grandly titled “A New Foundation for American Greatness,” encapsulates much of the “America first” message that powered Mr. Trump’s campaign. It calls for an increase in military spending of 10 percent and spending more than $2.6 billion for border security — including $1.6 billion to begin work on a wall on the border with Mexico — as well as huge tax reductions and an improbable promise of 3 percent economic growth.

The wildly optimistic projections balance Mr. Trump’s budget, at least on paper, even though the proposal makes no changes to Social Security’s retirement program or Medicare, the two largest drivers of the nation’s debt.

To compensate, the package contains deep cuts in entitlement programs that would hit hardest many of the economically strained voters who propelled the president into office. Over the next decade, it calls for slashing more than $800 billion from Medicaid, the federal health program for the poor, while slicing $192 billion from nutritional assistance and $272 billion over all from welfare programs. And domestic programs outside of military and homeland security whose budgets are determined annually by Congress would also take a hit, their funding falling by $57 billion, or 10.6 percent.

The plan would cut by more than $72 billion the disability benefits upon which millions of Americans rely. It would eliminate loan programs that subsidize college education for the poor and those who take jobs in government or nonprofit organizations.

Mr. Trump’s advisers portrayed the steep reductions as necessary to balance the nation’s budget while sparing taxpayers from shouldering the burden of programs that do not work well.

“This is, I think, the first time in a long time that an administration has written a budget through the eyes of the people who are actually paying the taxes,” said Mick Mulvaney, Mr. Trump’s budget director.
Document: Read Trump’s 2018 Budget
“We’re not going to measure our success by how much money we spend, but by how many people we actually help,” Mr. Mulvaney said as he outlined the proposal at the White House on Monday before its formal presentation on Tuesday to Congress.

Among its innovations: Mr. Trump proposes saving $40 billion over a decade by barring undocumented immigrants from collecting the child and dependent care tax credit. He has also requested $19 billion over 10 years for a new program, spearheaded by his daughter and senior adviser Ivanka Trump, to provide six weeks of paid leave to new parents. The budget also includes a broad prohibition against money for entities that provide abortions, including Planned Parenthood, blocking them from receiving any federal health funding.”

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PWS

05-23-17

POLITICS — STONEWALL: Flynn Takes The 5th!

https://www.washingtonpost.com/powerpost/flynn-takes-the-5th-and-declines-to-comply-with-senate-intelligence-committee-subpoena/2017/05/22/e4fa0524-3f15-11e7-8c25-44d09ff5a4a8_story.html?hpid=hp_hp-top-table-main_flynn-pp-210pmx%3Ahomepage%2Fstory&utm_term=.365d5fbc2d14

The Washington Post reports:

“Retired Lt. Gen Michael Flynn, the former national security adviser under President Trump, refused to comply with a Senate Intelligence Committee subpoena as a top House Democrat disclosed portions of new documents suggesting Flynn lied about his Russia ties to federal investigators.

Members of the Senate Intelligence Committee must now meet to vote and decide whether to hold Flynn in contempt or accept his attempt to invoke his Fifth Amendment right against self-incrimination.

The committee has demanded that Flynn provide it with a list of any contacts he had with Russian officials between June 16, 2015, and Jan. 20, 2017.

In a statement late Monday, the committee chairman and vice chairman, Sens. Richard Burr (R-N.C.) and Mark R. Warner (D-Va.), said they were “disappointed” by Flynn’s decision and would “vigorously pursue General Flynn’s testimony and his production of any and all pertinent materials pursuant to the Committee’s authorities.”

Flynn’s refusal comes as Rep. Elijah E. Cummings (D-Md.), the top Democrat on the House Oversight Committee, cited a previously undisclosed document alleging that Flynn had “lied” to security-clearance investigators about payments he received “directly” from Russia for appearing at a December 2015 gala hosted by Russian state-owned media company RT.”

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This baby isn’t going away any time soon!

PWS

05-23-17

N. Rappaport On GOP’s “Extreme Enforcement” Initiatives!

http://thehill.com/blogs/pundits-blog/immigration/334554-republicans-are-preparing-extreme-immigration-measures

Nolan writes in The Hill:

“Highlights from Labrador’s summary of the Davis-Oliver Act.

It provides states with congressional authorization to enact and enforce their own immigration laws to end the executive branch’s ability to unilaterally shut down immigration enforcement.
It withholds certain federal grants from jurisdictions that refuse to honor immigration detainers or prohibit their law enforcement officers from giving immigration-related information to U.S. Immigration and Customs Enforcement (ICE).
Jurisdictions that refuse to honor detainer requests and release criminal aliens may be sued by the victims of crimes the aliens commit after they are released.
It makes membership in a criminal gang grounds for deportation.
It requires background checks to be completed before immigration benefits can be granted.
Criminalization of undocumented aliens.

Section 314 makes crimes out of illegal entry and unlawful presence. If an offender does not have three misdemeanor convictions or a felony conviction, a first offense can result in imprisonment for up to six months. Subsequent offenses can result in imprisonment for up to two years.

If the alien has three misdemeanor convictions or a felony conviction, however, the term of imprisonment can be up to 20 years. This is not as harsh as some of the criminal provisions which are in the Immigration and Nationality Act (INA) already. Smuggling an alien into the country or helping one to remain here unlawfully (harboring) may “be punished by death or imprisoned for any term of years or for life” if it results in the death of any person.

Home free magnet.

President Obama created what I call the “home free magnet”, when he focused enforcement on undocumented aliens who had been convicted of serious crimes or had been caught near the border after making an illegal entry. Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country.

This attracted undocumented aliens and became a powerful incentive for them to do whatever was necessary to enter the United States. President Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expands Obama’s enforcement priorities.

. . . .

Perhaps the Democrats should consider supporting a modified version of the Davis-Oliver Act in return for Republican consideration of a modified legalization program and other measures that are important to the Democrats.

A similar agreement was the basis for the Immigration Reform and Control Act of 1986 (IRCA), which made legalization available to millions of undocumented aliens in return for interior enforcement measures and border security.

The Republicans can deport most of the undocumented aliens in the country if they choose to do so, but it would take a long time and would be very expensive politically as well as financially.

They might be willing to consider a legalization program that is based on American needs, such as preventing citizen and lawful permanent resident families from being broken up and providing needed foreign workers for American employers.”

It could be limited to temporary lawful status while background investigations are being conducted. Greg Siskind and I suggested a way to do this in, “Pre-Registration: A Proposal to Kick-Start CIR.”

To be truly comprehensive, immigration reform has to include effective enforcement measures and time for putting together such a bill is running out.

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Read Nolan’s complete article over on The Hill at the above link.

Having served during the Obama Administration (as well as others from both parties) I disagree with Nolan’s characterization of Obama as having a “home free” policy. At least since the summer of 2014, no characterization could be further from the truth!

Beginning in the summer of 2014, the Obama Administrations, quite unwisely in my view, “prioritized” the cases of recent arrivals at the Southern Border. By taking these cases out of sequence, and totally out of proportion to any “threat” they posed, the Obama Administration’s policy of Aimless Docket Reshuffling (“ADR”) helped create an Immigration Court backlog that now approaches 600,000 cases, notwithstanding relatively “flat” receipts and actual increases in the number of sitting judges.

While eliminating the “recent arrivals priority,” the Trump Administration’s essentially “random” enforcement policy, lacking in any type of restraint or rationality, has actually made things much worse. As backlogs mushroom, the “home free” problem is actually more significant, although with a pronounced degree of randomness and irrationally. In other words, total docket chaos in Immigration Court.

While the threat of more “expedited removals,” which evade the Immigration Courts, does hang over the system, the procedures have not actually been implemented. Moreover, contrary to Nolan’s suggestion, there is no chance that the GOP will be able to remove more than a small fraction of the approximately 11 million undocumented aliens in the U.S. Yes, arbitrary enforcement does produce some “terrorism” effect by making everyone feel unsafe. Perhaps a relatively small number of undocumented residents will give up and leave (or try to enter Canada). Nevertheless, there is no practical way that 11 million individuals actually could be removed.

The GOP would do much better to sign on to immigration reforms that would give some type of legal status (not necessarily green cards) to most of those already here, while expanding legal immigration opportunities across the board. The resulting system would actually reduce pressure on the border while making interior enfircement more of a practical possibility than it has been at any time during the last for decades. But, that would take a thoughtful, practical, non-xenophobic, approach — something that has eluded the GOP in the years since the Reagan Administration.

Look for folks like Labrador & Goodlatte to work with the Adminstration to create a complete “train wreck” in the immigration enforcement system.

PWS

05-22-17

ROGUE! — Will Push To Hire More DHS Agents Weaken National Security With More “Bad Apples?” — “Haste Makes Waste” Governing Has Real Life Consequences!

https://www.nytimes.com/2017/05/20/us/politics/border-patrol-immigration-trump.html?hpw&rref=politics&action=click&pgtype=Homepage&module=well-region®ion=bottom-well&WT.nav=bottom-well

Ron Nixon reports in the NYT:
“BROWNSVILLE, Tex. — Joel Luna was just the kind of job candidate the Border Patrol covets. He grew up on both sides of the border, in Mexico and South Texas. He participated in the Reserve Officers Training Corps in high school and later served in the Army, seeing combat in Iraq.

Mr. Luna joined the agency as part of a hiring surge that began under the George W. Bush administration, patrolling a rural area about 100 miles north of Mexico. But six years later, his decorated career came to a shocking end: He was arrested and charged with helping to send illegal weapons to Mexico and ship drugs into the United States. He was convicted in January and sentenced to 20 years in prison.

Now, as President Trump plans a similar hiring surge at the Border Patrol, Mr. Luna’s case is casting a large shadow. The president wants to make 5,000 new hires, under a streamlined process that critics fear could open a door to other rogue agents like Mr. Luna.

Agency officials, some members of Congress and the Border Patrol union say the current process has made it too hard to hire agents. It typically takes more than a year to vet candidates and get them on the job.

At the center of this notoriously slow and stringent process — which Customs and Border Protection, the patrol’s parent agency, put in place after a number of corruption cases — is a mandatory polygraph test. Officials are considering changing the test, and in some cases the agency would simply waive it.

“C.B.P. has a big problem in not being able to hire agents because of the polygraph test,” said Senator Jeff Flake, Republican of Arizona, who has sponsored the legislation to make hiring agents easier and faster. “I’m not saying that we should get rid of the polygraph, but we want to make sure the process isn’t an overall detriment to good candidates.”

Three weeks ago, the agency began using a different lie detector test that takes less time than the current one and asks fewer questions. And legislation moving through Congress would grant the agency the authority to waive the polygraph for some former law enforcement officers and military veterans.
Top officials said the changes would allow the agency, which is losing agents faster than it can replace them, to compete for qualified candidates with other law enforcement agencies more effectively without sacrificing standards. Applicants would still undergo a background check in addition to the shorter polygraph test, officials said.

“No one wants corrupt agents inside the Border Patrol,” said Jayson Ahern, a former acting commissioner of Customs and Border Protection. “What C.B.P. is proposing is a sensible way to weed out corruption but speed up the hiring.”

But some current and former Department of Homeland Security officials said the proposed changes could expose the agency to corrupt individuals who could use their position to help drug cartels or human smugglers. Border Patrol agents work largely by themselves in isolated areas and are routinely targeted by criminal organizations.”

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How many times have we seen this pattern: scandal, followed by reform? Time goes by, and we forget the scandal. But, “best practices” can be burdensome. So someone proposes a “streamlined” process which recreates the conditions for scandal. And the cycle begins again.

Ironically, the risk to American security from corrupt DHS agents probably exceeds the risk from the undocumented entries that additional hastily hired agents are supposed to be preventing. The border today is probably under better control than at any other point in my lifetime. But, corrupt border agents can be co-opted by terrorists, narco traffickers, and human smugglers, all of whom “pay” much better than the USG. So, taking time to make sure the folks we’re hiring for these key jobs have the “right stuff” makes sense to me. Also, how about raising their pay to reflect their important, challenging (and dangerous) mission and to reduce turnover?

PWS

05-21-17

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