Padilla v. ICE – immigrationcourtside.com

DUE PROCESS WINS IN THE WEST: Split 9th Cir. Slams DOJ’s Vile/Unethical “No Due Process Due” Argument — Orders Bond Hearings For Asylum Applicants Who Passed Credible Fear — Padilla v. ICE — Round Table Amicus Brief Helps Save Due Process!

Padilla v. ICE, 9th Cir., 03-27-20, published

SUMMARY BY COURT STAFF:

SUMMARY* Immigration

Affirming in part, and vacating and remanding in part, the district court’s preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained and found to have a credible fear of persecution, the panel affirmed the injunction insofar as it concluded that plaintiffs have a due process right to bond hearings, but remanded for further findings and reconsideration with respect to the particular process due to plaintiffs.

The district court certified a nationwide class of all detained asylum seekers who were subject to expedited removal proceedings, were found to have a credible fear of persecution, but were not provided a bond hearing with a record of hearing within seven days of requesting a hearing. Part A of the district court’s modified preliminary injunction provided: 1) bond hearings must take place within seven days of a class member’s request, or the member must be released; 2) the burden of proof is on the government to show why the

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

4 PADILLA V. ICE

member should not be released; and 3) the government must produce recordings or verbatim transcripts of the hearings, as well as written decisions. Part B concluded that the class is constitutionally entitled to bond hearings. A motions panel of this court previously denied the government’s request to stay Part B, but granted the stay as to Part A.

The panel concluded that the district court did not abuse its discretion in concluding that plaintiffs were likely to prevail on their due process claim, explaining that immigration detention violates the Due Process Clause unless a special justification outweighs the constitutionally protected interest in avoiding physical restraint. The panel also concluded that the district court did not abuse its discretion in finding that other processes—seeking parole from detention or filing habeas petitions—were insufficient to satisfy due process. The panel further rejected the government’s suggestion that noncitizens lack any rights under the Due Process Clause, observing the general rule that once a person is standing on U.S. soil—regardless of the legality of entry—he or she is entitled to due process.

The panel next concluded that the district court did not abuse its discretion in its irreparable harm analysis, noting substandard physical conditions and medical care in detention, lack of access to attorneys and evidence, separation from family, and re-traumatization. The panel also concluded that the district court did not abuse its discretion in finding that the balance of the equities and public interest favors plaintiffs, explaining that the district court weighed: 1) plaintiffs’ deprivation of a fundamental constitutional right and its attendant harms; 2) the fact that it is always in the public interest to prevent constitutional violations; and 3) the

PADILLA V. ICE 5

government’s interest in the efficient administration of immigration law.

As to Part A of the injunction, the panel concluded that the record was insufficient to support the requirement of hearings within seven days, and that the district court made insufficient findings as to the burdens that Part A may impose on immigration courts. The panel also noted that the number of individuals in expedited removal proceedings may have dramatically increased since the entry of the injunction. Thus, the panel remanded to the district court for further factual development of the preliminary injunction factors as to Part A.

The panel also rejected the government’s argument that the district court lacked authority to grant injunction relief under 8 U.S.C. § 1252(f)(1), which provides: “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Examining the relevant precedent, statutory scheme, and legislative history, the panel concluded that here, where the class is composed of individual noncitizens, each of whom is in removal proceedings and facing an immediate violation of their rights, and where the district court has jurisdiction over each individual member of that class, classwide injunctive relief is consistent with congressional intent.

Finally, the panel concluded that the district court did not abuse its discretion in granting the injunction as to the nationwide class. However, the panel directed that, on

6 PADILLA V. ICE

remand, the district court must also revisit the nationwide scope.

Dissenting, Judge Bade wrote that 8 U.S.C. § 1252(f)(1) barred injunctive relief in this case, concluding that the majority’s opinion does not square with the plain text of § 1252(f)(1), is inconsistent with multiple Supreme Court cases, and needlessly creates a circuit split with the Sixth Circuit. Judge Bade further wrote that, even if the district court had jurisdiction to issue injunctive relief, the preliminary injunction is overbroad and exceeds what the constitution demands. Judge Bade would vacate the preliminary injunction and remand for further proceedings with instructions to dismiss the claims for classwide injunctive relief.

PANEL: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and Bridget S. Bade, Circuit Judges.

OPNION BY: Chief Judge Sydney R. Thomas

DISSENTING OPINION: Judge Bridget S. Bade

KEY QUOTE FROM MAJORITY OPINION:

The government also suggests that non-citizens lack any rights under the Due Process Clause. As we have discussed, this position is precluded by Zadvydas and its progeny. The government relies on inapposite cases that address the peculiar constitutional status of noncitizens apprehended at a port-of-entry, but permitted to temporarily enter the United States under specific conditions. See, e.g., Shaughnessy v. United States ex rel. Mezei (“Mezei”), 345 U.S. 206, 208–09, 213–15 (1953) (noncitizen excluded while still aboard his ship, but then detained at Ellis Island pending final exclusion proceedings gained no additional procedural rights with respect to removal by virtue of his “temporary transfer from ship to shore” pursuant to a statute that “meticulously specified that such shelter ashore ‘shall not be considered a landing’”); Leng May Ma v. Barber, 357 U.S. 185 (1958) (noncitizen paroled into the United States while waiting for a determination of her admissibility was not “within the United States” “by virtue of her physical presence as a parolee”); Kaplan v. Tod, 267 U.S. 228 (1925) (noncitizen excluded at Ellis Island but detained instead of being deported immediately due to suspension of deportations during World War I “was to be regarded as stopped at the boundary line”).

Indeed, these cases, by carving out exceptions not applicable here, confirm the general rule that once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled to due process. See, e.g., Mezei, 345 U.S. at 212 (“[A]liens who have once passed

PADILLA V. ICE 25

through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”); Leng May Ma, 357 U.S. at 187 (explaining that “immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality,” and recognizing, “[i]n the latter instance . . . additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry’” (quoting Mezei, 345 U.S. at 212)); Kwai Fun Wong v. United States, 373 F.3d 952, 973 (9th Cir. 2004) (explaining that “the entry fiction is best seen . . .as a fairly narrow doctrine that primarily determines the procedures that the executive branch must follow before turning an immigrant away” because “[o]therwise, the doctrine would allow any number of abuses to be deemed constitutionally permissible merely by labelling certain ‘persons’ as non-persons”). We thus conclude that the district court did not err in holding that plaintiffs are “persons” protected by the Due Process Clause.

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

First, and foremost, let’s give a big vote of appreciation to the All-Star Team at Wilmer Cutler who represented our Round Table on this:

Alan Schoenfeld and Lori A. Martin, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Rebecca Arriaga Herche, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Jamil Aslam, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Amici Curiae Retired Immigration Judges and Board of Immigration Appeals Members.

Knjightess — Knightess of the Round Table

This team is it’s own “Special Forces Brigade” of the New Due Process Army (“NDPA”)!

WOW! Persons are “persons” under the Constitution even when they have brown skins and are asylum seekers! How “rad” can you get! What a blow to “business as usual” for the regime and their “Dred Scottification” program of dehumanizing and making non-persons out of migrants and other vulnerable minorities!

Too bad that the Supremes and other Circuit Courts have too often advanced “Dred Scottification,” hiding behind transparently bogus and contrived “national emergencies” and the doctrine of judicial dereliction of duty otherwise known as “Chevron deference.” I guess that’s why the regime has the contempt for both the law and the Article III Courts to press such legally, morally, and Constitutionally “bankrupt” arguments as they did in this case. Never know when you’ll get a “thumbs up” from those who sometimes don’t view oaths of office and their obligations to their fellow humans with enough seriousness!

Significantly, the panel found that “plaintiffs were likely to succeed on their claim that they are constitutionally entitled to individualized bond hearings before a “neutral decisionmaker.” However, in doing so they “papered over” the obvious fact that the constitutional requirement of a “neutral decisionmaker” cannot be fulfilled as long as Billy Barr or other politicos control the Immigration Courts!

Indeed, the panel decision was a strong rebuke of Barr’s atrocious, unethical, scofflaw decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) purporting to unilaterally change the rules to eliminate bond for those who had passed “credible fear.” Fact is that no individual appearing in today’s Immigration Courts has access to the constitutionally-required “neutral decisionmaker” because Barr retains the ability to simply unilaterally change any result that doesn’t match his White Nationalist nativist agenda and can hire and fire the so-called “judges” at will.

Indeed, under Barr’s totally illegal and professionally insulting “production quotas,” I’m not sure that the “judges” on the “deportation assembly line” even get “production credit” for bond decisions because they aren’t “final orders of removal.” However, denial of bond is actually an important “whistle stop” on the “deportation express.” Those kept in the “New American Gulag” have difficulty finding attorneys and the systematic mistreatment they receive in detention helps to demoralize them and coerce them into giving up claims or waiving appeals.

When are the Article IIIs finally going to stop “beating around the bush” and hold this whole mess to be unconstitutional, as it most clearly is?

In some ways, the panel’s decision reminds me of one of my own long-ago concurring/dissenting opinion in Matter of Joseph, 22 I&N Dec. 799, 810 (BIA 1999) (en banc) (“Joseph II”):

However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in custody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to pre-vail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.

Concern for Due Process and fundamental fairness have intentionally been eradicated in the Immigration “Courts” by Sessions, Whitaker, and Barr. It’s past time for this constitutional mockery to be put out of its misery (and the unending misery it causes for the humans coming before it) once and for all!

As my late BIA colleague Judge Fred W. Vacca once said, albeit in a different context, “It’s time to put an end to this pathetic imitation of an adjudication.” Fred and I didn’t always agree. In fact, we disagreed much of the time. But, he did know when it was finally time to “stop the nonsense,” even when some of our colleagues just kept the system churning long past the point of reason and sanity.

And, folks, that was back in the days when the BIA actually functioned more or less like an “independent appellate court” until the Ashcroft purge of ’03 forever ended that noble vision. Like the rest of the system and those who enable it to keep churning lives as if they were mere water under the bridge, the BIA and the rest of the Immigration “Courts” have now become a national disgrace — a blot on our national conscience. Human beings seeking justice are neither “numbers” to be achieved for “satisfactory ratings,” nor “enforcement problems” to be exterminated without Due Process.

Dehumanization of the “other”and stripping them of legal and human rights is a key part of fascism. It’s what allowed German judges and most of German society to “look the other way” or actively aid in the holocaust. It has no place in our justice system — now or ever!

Due Process Forever! Judicial Complicity in Weaponized Captive “Courts,” That Aren’t Courts At All, Never!

PWS

03-28-20

TWO MORE FROM HON. JEFFREY CHASE EXPOSING TRUMP ADMINISTRATION’S CRIMES AGAINST HUMANITY & HOW THE COMPLICIT FEDERAL COURTS FURTHER THESE ABUSES! — “How innocent women and children resigning themselves to being severely beaten, raped, and killed in their home countries constitutes all problems being solved is beyond comprehension.”

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

https://www.jeffreyschase.com/blog/2019/9/16/the-cost-of-outsourcing-refugees

The Cost of Outsourcing Refugees

It seems perversely appropriate that it was on 9/11 that the Supreme Court removed the legal barrier to the Trump Administration’s most recent deadly attack on the right to asylum in this country. I continue to believe that eventually, justice will prevail through the courts or, more likely, through a change in administration. But in the meantime, what we are witnessing is an all-out assault by the Trump Administration on the law of asylum. The tactics include gaming the system through regulations and binding decisions making it more difficult for asylum seekers to prevail on their claims. But far uglier is the tactic of degrading those fleeing persecution and seeking safety here. Such refugees, many of whom are women and children, are repeatedly and falsely portrayed by this administration and its enablers as criminals and terrorists. Upon arrival, mothers are separated from their spouses and children from their parents; all are detained under dehumanizing, soul-crushing conditions certain to inflict permanent psychological damage on its victims. In response to those protesting such policies, Trump tweeted on July 3: “If illegal immigrants are unhappy with the conditions in the quickly built or refitted detention centers, just tell them not to come. All problems solved!”

How innocent women and children resigning themselves to being severely beaten, raped, and killed in their home countries constitutes all problems being solved is beyond comprehension.

Those in Trump’s administration who have given more thought to the matter don’t seek to solve the problem, but rather to make it someone else’s problem to solve. By disqualifying from asylum refugees who passed through any other country on their way to our southern border or who entered the country without inspection; by forcing thousands to remain exposed to abuse in Mexico while their asylum claims are adjudicated, and by falsely designating countries with serious gang and domestic violence problems as “safe third countries” to which asylum seekers can be sent, this administration is simply outsourcing refugee processing to countries that are not fit for the job in any measurable way. Based on my thirty-plus years of experience in this field, I submit that contrary to Trump’s claim, such policies create very large, long-term problems.

I began my career in immigration law in the late 1980s representing asylum seekers from Afghanistan, many of whom were detained by our government upon their arrival. In the late 1980s and early 1990s, Afghans constituted the largest group of refugees in the world. At one point, there were more than 6 million refugees from Afghanistan alone, most of whom were living in camps in Pakistan. Afghan children there received education focused on fundamentalist religious indoctrination that was vehemently anti-western. The Taliban (which literally means “students”) emerged from these schools. The Taliban, of course, brought a reign of terror to Afghanistan, and further provided a haven for Al-Qaeda to launch the 9/11 terrorist attacks. The outsourcing of Afghan refugees to Pakistan was the exact opposite of “all problems solved,” with the Taliban continuing to thwart peace in Afghanistan up to the present.

Contrast this experience with the following: shortly before I left the government, I went to dinner with a lawyer who had mentioned my name to a colleague of his earlier that day. The colleague had been an Afghan refugee in Pakistan who managed to reach this country as a teen in the early 1990s, and was placed into deportation proceedings by the U.S. government. By chance, I had been his lawyer, and had succeeded in obtaining a grant of asylum for him. Although I hadn’t heard from him in some 25 years, I learned from his friend that evening that I had apparently influenced my young client when I emphasized to him all those years ago the importance of pursuing higher education in this country, as he credited me with his becoming a lawyer. Between the experiences of my former client and that which led to the formation to the Taliban, there is no question as to which achieved the better outcome, and it wasn’t the one in which refugees remained abroad.

In 1938, at a conference held in Evian, France, 31 countries, including the U.S. and Canada, stated their refusal to accept Jewish refugees trapped in Nazi Germany. The conference sent the message to the Nazis on the eve of the Holocaust that no country of concern cared at all about the fate of Germany’s Jewish population. The Trump administration is sending the same message today to MS-13 and other brutal crime syndicates in Central America. Our government is closing the escape route to thousands of youths (some as young as 7 years old) being targeted for recruitment, extortion, and rape by groups such as MS-13, while simultaneously stoking anti-American hatred among those same youths through its shockingly cruel treatment of arriving refugees. This is a dangerous combination, and this time, it is occurring much closer to home than Pakistan. Based on historic examples, it seems virtually assured that no one will look back on Trump’s refugee policies as having solved any problems; to the contrary, we will likely be paying the price for his cruel and short-sighted actions for decades to come.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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

https://www.jeffreyschase.com/blog/2019/9/14/former-ijs-file-amicus-brief-in-padilla-v-ice

Former IJs File Amicus Brief in Padilla v. ICE

The late Maury Roberts, a legendary immigration lawyer and former BIA Chair, wrote in 1991: “It has always seemed significant to me that, among all the members of the animal kingdom, man is the only one who captures and imprisons his fellows. In all the rest of creation, freedom is the natural order.”1 Roberts expressed his strong belief in the importance of liberty, which caused him consternation at “governmental attempts to imprison persons who are not criminals or dangerous to society, on the grounds that their detention serves some other societal purpose,” including noncitizens “innocent of any wrongdoing other than being in the United States without documents.”2

The wrongness of indefinitely detaining non-criminals greatly increases when those being detained are asylum-seekers fleeing serious harm in their home countries, often after undertaking dangerous journeys to lawfully seek protection in this country. The detention of those seeking asylum is at odds with our obligations under the 1951 Refugee Convention, which at Article 31 forbids states from penalizing refugees from neighboring states on account of their illegal entry or presence, or from restricting the movements of refugees except where necessary; and the International Covenant on Civil and Political Rights, which guarantees at Article 9, para. 4 the right of detainees to have a court “without delay” determine the lawfulness of the detention order release if it is not.

In 1996, in response to an increase in asylum seekers at ports of entry, Congress enacted a policy known as expedited removal, which allows border patrol officers to enter deportation orders against those noncitizens arriving at airports or the border whom are not deemed admissible. A noncitizen expressing a fear of returning to their country is detained and referred for a credible fear interview. Only those whom a DHS asylum officer determines to have a “significant possibility” of being granted asylum pass such interview and are allowed a hearing before an immigration judge to pursue their asylum claim.

In 2005, the Board of Immigration Appeals issued a precedent decision stating that detained asylum seekers who have passed such credible fear interview are entitled to a bond hearing. It should be noted that the author of this decision, Ed Grant, is a former Republican congressional staffer and supporter of a draconian immigration enforcement bill enacted in 1996, who has been one of the more conservative members of the BIA. He was joined on the panel issuing such decision by fellow conservative Roger Pauley. The panel decision was further approved by the majority of the full BIA two years after it had been purged of its liberal members by then-Attorney General John Ashcroft. In other words, the right to bond hearings was the legal conclusion of a tribunal of conservatives who, although they did not hold pro-immigrant beliefs, found that the law dictated the result it reached.

14 years later, the present administration issued a precedent decision in the name of Attorney General Barr vacating the BIA’s decision as “wrongly decided,” and revoking the right to such bond hearings. The decision was immediately challenged in the courts by the ACLU, the Seattle-based Northwest Immigrant Rights Project, and the American Immigration Council. Finding Barr’s prohibition on bond hearings unconstitutional, U.S. District Judge Marsha Pechman issued a preliminary injunction blocking the decision from taking effect, and requiring bond hearings for class members within 7 days of their detention. The injunction additionally places the burden on the government to demonstrate why the asylum-seeker should not be released on bond, parole, or other condition; requires the government to provide a recording or verbatim transcript of the bond hearing on appeal; and further requires the government to produce a written decision with particularized determinations of individualized findings at the end of the bond hearing.

The Administration has appealed from that decision to the U.S. Court of Appeals for the Ninth Circuit. On September 4, an amicus brief on behalf of 29 former immigration judges (including myself) and appellate judges of the BIA was filed in support of the plaintiffs. Our brief notes the necessity of bond hearings to due process in a heavily overburdened court system dealing with highly complex legal issues. Our group advised that detained asylum seekers are less likely to retain counsel. Based on our collective experience on the bench, this is important, as it is counsel who guides an asylum seeker through the complexities of the immigration court system. Furthermore, the arguments of unrepresented applicants are likely to be less concise and organized both before the immigration judge and on appeal than if such arguments had been prepared by counsel. Where an applicant is unrepresented, their ongoing detention hampers their ability to gather evidence in support of their claim, while those lucky enough to retain counsel are hampered in their ability to communicate and cooperate with their attorney.

These problems are compounded by two other recent Attorney General decisions, Matter of A-B- and Matter of L-E-A-, which impact a large number of asylum claimants covered by the lawsuit who are fleeing domestic or gang violence. Subsequent to those decisions, stating the facts giving rise to the applicant’s fear can be less important than how those facts are then framed by counsel. Immigration Judges who are still navigating these decisions often request legal memoranda explaining the continued viability of such claims. And such arguments often require both a legal knowledge of the nuances of applicable case law and support from experts in detailed reports beyond the capability of most detained, unrepresented, newly-arrived asylum seekers to obtain.

Our brief also argues that the injunction’s placement of the burden of proof on DHS “prevents noncitizens from being detained simply because they cannot articulate why they should be released, and takes into account the government’s institutional advantages.” This is extremely important when one realizes that, under international law, an individual becomes a refugee upon fulfilling the criteria contained in the definition of that term (i.e. upon leaving their country and being unable or unwilling to return on account of a protected ground). Therefore, one does not become a refugee due to being recognized as one by a grant of asylum. Rather, a grant of asylum provides legal recognition of the existing fact that one is a refugee. 3 Class members have, after a lengthy screening interview, been found by a trained DHS official to have a significant possibility of already being a refugee. To deny bond to a member of such a class because, unlike the ICE attorney opposing their release, they are unaware of the cases to cite or arguments to state greatly increases the chance that genuine refugees deserving of this country’s protection will be deported to face persecution

The former Immigration Judges and BIA Members signing onto the amicus brief are: Steven Abrams, Sarah Burr, Teofilo Chapa, Jeffrey S, Chase, George Chew, Cecelia Espenoza, Noel Ferris, James Fujimoto, Jennie Giambiastini, John Gossart, Paul Grussendorf, Miriam Hayward, Rebecca Jamil, Carol King, Elizabeth Lamb, Margaret McManus, Charles Pazar, George Proctor, Laura Ramirez, John Richardson, Lory D. Rosenberg, Susan Roy, Paul W. Schmidt, Ilyce Shugall, Denise Slavin, Andrea Hawkins Sloan, Gustavo Villageliu, Polly Webber, and Robert D. Weisel.

We are greatly indebted to and thankful for the outstanding efforts of partners Alan Schoenfeld and Lori A. Martin of the New York office of Wilmer Hale, and senior associates Rebecca Arriaga Herche and Jamil Aslam with the firm’s Washington and Los Angeles offices in the drafting of the brief.

Notes:

Maurice Roberts, “Some Thoughts on the Wanton Detention of Aliens,”Festschrift: In Celebration of the Works of Maurice Roberts, 5 Geo. Immigr. L.J. 225 (1991).

Id. at 226.

UNHCR,Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees at Para. 28.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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

Thanks, Jeffrey, my friend, for courageously highlighting these issues. What a contrast with the cowardly performance of the Trump Administration, Congress, and the ARTICLE IIIs!

I’m proud to be identified with you and the rest of the members of our Roundtable of Former Judges who haven’t forgotten what Due Process, fundamental fairness, refugee rights, and human rights are all about.

Also appreciate the quotation from the late great Maurice A. “Maury” Roberts, former BIA chair and Editor of Interpreter Releases who was one of my mentors. I‘m sure that Maury is rolling over in his grave with the gutless trashing of the BIA and Due Process by Billy Barr and his sycophants.

PWS

09-24-19

9TH CIR. DEALS TRUMP & BARR ANOTHER SETBACK ON UNCONSTITUTIONAL POLICY OF HOLDING ASYLUM APPLICANTS WITHOUT BOND – But, Court Vacated District Judge’s “7 Day Rule” For Bond Hearings For Asylum Seekers!

https://thehill.com/regulation/court-battles/454208-appeals-court-rules-against-trump-administration-on-indefinite

Jacqueline Thomsen reports for The Hill:

The 9th Circuit Court of Appeals on Monday ruled against the Trump administration’s policy allowing for the indefinite detention of certain asylum-seekers, saying a lower court ruling temporarily blocking it can remain in place.

In the ruling, the judges said the Department of Justice did not make a “persuasive showing that it will suffer irreparable harm if it is required to provide bond hearings pending the outcome of this appeal in the same way it had done for several years.”

However, the appeals court did not allow a district judge’s order requiring the government to release some asylum-seekers within a certain amount of time after immigration proceedings begin, saying it “would impose short-term hardship for the government and its immigration system.”

Barr first issued the order earlier this year, determining that asylum-seekers who pass a “credible fear” test and go on to full deportation proceedings aren’t entitled to bond hearings.

But Judge Marsh Pechman, a Clinton appointee in federal court in Seattle, ruled earlier this month that policy is unconstitutional and blocked it from being enforced.

The three-judge panel on the 9th Circuit — Carter appointees Judges Mary Schroeder and William Canby as well as Judge Morgan Christen, an Obama appointee — declined to place a stay on Pechman’s ruling.

“The government failed to show a likelihood of success on the merits of its underlying argument that the government may indefinitely detain the plaintiffs without affording bond hearings at all,” Monday’s order reads.

Pechman had also ruled earlier this year that the Trump administration must take several steps in regard to asylum-seekers who are detained during immigration proceedings, including that certain migrants should be released if they are not granted a hearing within seven days of those proceedings beginning.

But the judges said that lawyers for the Trump administration showed that those requirements would be “too burdensome,” and temporarily halted the order as the full appeal of Pechman’s ruling plays out.

The appeals court is set to rule on the policies further, and Monday’s order asked that arguments be scheduled in the case for October of this year.

The Trump administration was critical of Pechman’s ruling against Barr’s asylum policy, with White House press secretary Stephanie Grisham saying in a statement that the order is “at war with the rule of law.”

On Monday officials said they were pleased the panel partially granted the government’s request.

“Unfortunately, in the same decision, the Ninth Circuit also allowed a radical decision from a district judge to go into effect during the pendency of the government’s appeal, which had held unconstitutional a section of the Immigration and Nationality Act,” said Deputy Press Secretary Steven Groves in a statement. “Based on the unprecedented theory that illegal aliens who recently entered the country have a constitutional right to be released on bond into the United States, the district court struck down a statute passed by bipartisan majorities in Congress during the Clinton administration specifically requiring certain aliens to be detained pending their asylum proceedings.”

He said the administration expected to ultimately prevail in the appeal.

The 9th Circuit’s ruling comes as the Trump administration seeks to implement tighter restrictions on asylum.

Trump officials announced last week that they would not accept asylum claims from migrants who pass through another country while traveling to the U.S.’s southern border, with limited exceptions. That rule is currently being challenged in a pair of federal courts.

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

Notwithstanding the blather from new White House mouthpiece Grisham, this ruling was very predictable given the 9^thCircuit’s prior decisions and the clear arbitrariness under the Due Process clause of indefinite, potentially life threatening, detention of those legally seeking asylum under our laws without reference to the facts or a chance or any type of independent review. Barr’s decision in Matter of M-S-, at issue here, was widely criticized on Constitutional, practical, and ethical grounds even before Judge Pechman enjoined it.

PWS

07-23-19

CONSTITUTIONAL SCOFFLAW BARR “OUTED” AGAIN: U.S. District Judge Marsha Pechman (WD WA) Rips AG’s Unconstitutional Denial Of Bonds To Asylum Seekers – Finds Matter of M-S- Unlawful!

https://apple.news/AVi9zCrsgS2y4pg6ZqHWJ6A

Vanessa Romo reports for NPR:

A Seattle federal judge ruled Tuesday that asylum-seeking migrants detained for being in the U.S. illegally have the right to a bond hearing in immigration court rather than being held until their cases are complete.

U.S. District Judge Marsha Pechman said it is unconstitutional to indefinitely detain migrants who fled to the U.S. seeking asylum protections.

The decision reverses an April directivefrom Attorney General William Barr ordering immigration judges not to release migrants on bail after an applicant successfully establishes “a credible fear of persecution or torture” in the home country — a policy that has been in place since 2005.

“The court finds that plaintiffs have established a constitutionally-protected interest in their liberty, a right to due process, which includes a hearing before a neutral decision maker to assess the necessity of their detention and a likelihood of success on the merits of that issue,” Pechman wrote.

In her ruling, Pechman also took issue with an aspect of Barr’s policy that left open the possibility that migrants, still awaiting a hearing, could be re-detained by ICE after being released on bond.

“The Government’s unwillingness to unconditionally assert that Plaintiffs will not be re-detained means that the specter of re-detention looms and these Plaintiffs and many members of their class face the real and imminent threat of bondless and indefinite detention …,” she said.

The ruling comes amid a widespread shortage of immigration judges that has caused massive delays in processing hearings. The most recent dataavailable from The Transactional Records Access Clearinghouse shows a total of 424 judges nationwide face a backlog of 892,517 cases on the courts’ active dockets as of the end of April.

“The three largest immigration courts were so under-resourced that hearing dates were being scheduled as far out as August 2023 in New York City, October 2022 in Los Angeles, and April 2022 in San Francisco,” TRAC reports

Pechman also modified a preliminary injunction issued earlier this year. The new injunction requires the government to ensure bond hearings are held within seven days after they are requested by eligible asylum-seekers. If the government exceeds that limit, the undocumented immigrant must be released.

Immigrant rights advocates, including the American Civil Liberties Union and the Northwest Immigrant Rights Project, sued to block the policy, which was set to take effect this month.

In a statement, Matt Adams, legal director of Northwest Immigrant Rights Project, said: “The court reaffirmed what has been settled for decades: that asylum seekers who enter this country have a right to be free from arbitrary detention.”

Michael Tan, senior staff attorney for the ACLU’s Immigrants’ Rights Project, added: “Try as it may, the administration cannot circumvent the Constitution in its effort to deter and punish asylum-seekers applying for protection.”

The Department of Justice is expected to appeal the ruling quickly.

Copyright 2019 NPR. To see more, visit NPR.

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

Go to the NPR website for a full copy of Judge Pechman’s decision in Padilla v. ICE.

So, while the 9^thCircuit is bopping along violating human rights by enabling Trump’s absurdly illegal “Kill ‘Em in Mexico Program,” as a result of a three-judge panel who tanked on their oaths of office, Judge Pechman and some others at the “retail level” of the Federal Judiciary are still on the job and upholding our Constitution against the all-out assault led by Barr on behalf of Trump.

It’s also worth remembering that the U.S. Attorney General is supposed to uphold the Constitution and protect individual rights, rather than serving as tool of racist White Nationalist extremism as Sessions and Barr have done. Already in shambles and a disgraceful ethical morass, there won’t be anything left of the “Justice” Department by the time Barr’s toxic tenure ends.

Bill Barr is a national disgrace and an affront to American justice. But, hey, it’s the Trump Adminisration, so what else is new?

PWS

07-03-19

Due Process Forever! Judicial Complicity in Weaponized Captive “Courts,” That Aren’t Courts At All, Never!

Related posts:

The Cost of Outsourcing Refugees

Former IJs File Amicus Brief in Padilla v. ICE

Related posts:

Related posts:

Related posts: