Pangea Legal Services v. DHS (“Pangea II”), N.D. CA (USD Judge James Donato), 01-08-21
KEY QUOTE:
Wolf has not spent his time idly at DHS. During his relatively brief tenure, he has attempted to suspend the Deferred Action for Childhood Arrivals (DACA) program, and impose administrative fees for immigration services and eliminate fee waivers, among other actions. These efforts resulted in several lawsuits in federal courts across the United States, each of which challenged Wolf’s rulemaking authority on the same grounds presented by plaintiffs here. In all of these cases, the district courts have concluded that Wolf was not a duly authorized Acting Secretary, and that his actions were a legal nullity. See Batalla Vidal v. Wolf, No. 16-CV-4756 (NGG) (VMS), 2020 WL 6695076, at *9 (E.D.N.Y. Nov. 14, 2020); Nw. Immigrant Rights Project v. United States Citizenship & Immigration Servs., No. CV 19-3283 (RDM), 2020 WL 5995206, at *24 (D.D.C. Oct. 8, 2020); Immigrant Legal Res. Ctr. v. Wolf, No. 20-CV-05883-
United States District Court Northern District of California
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JSW, 2020 WL 5798269, at *7 (N.D. Cal. Sept. 29, 2020); Casa de Maryland, Inc. v. Chad F. Wolf, Case No. 8:20-cv-02118-PX, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020).3
This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations. If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not. The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. The government initially appealed two of these decisions, both of which it later voluntarily dismissed, and appears to have only one appeal pending. In the main, the government contents itself simply with saying the prior courts were wrong, with scant explanation. See, e.g., Pangea Dkt. No. 48 at ECF p. 11 (“the various courts that have embraced this argument are mistaken”); Immigration Equality Dkt. No. 37 at 14 (same).
This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through. To be sure, one court decision alone does not necessarily close the door to any further cases or arguments along similar lines. Our common law system contemplates that more than one judicial examination of facts and issues is often merited. But our system has no room for relitigating the same facts and law in successive district court cases ad infinitum. That is what the government is doing here. The Court took pains at oral argument to discuss this with counsel for the government, and specifically asked how their arguments here are in any way different from the ones made and rejected in the preceding cases.4 Counsel responded mainly with a disparaging comment to the effect that the other district courts had shirked from working their way through the record. That is untrue. Each of the prior decisions conducted a painstaking analysis of the facts with respect to the Acting Secretary
3 The Government Accountability Office (GAO) has also found that Wolf’s appointment was invalid under the Homeland Security Act. See Matter of Dep’t of Homeland Security, Gov’t Accountability Office (Aug. 14, 2020), https://www.gao.gov/assets/710/708830.pdf, at 2.
4 Attorney August Flentje at DOJ handled this portion of the government’s argument at the hearing.
United States District Court Northern District of California
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position at DHS, with full attention to the unprecedented efforts to validate Wolf’s claim to the job, irrespective of governing law and procedures.
A good argument might be made that, at this point in time, the government’s arguments lack a good-faith basis in law or fact. But the Court need not reach that conclusion to reject those arguments yet again. The Court’s independent review of the record indicates that Batalla Vidal, 2020 WL 6695076, which is the latest decision before this order, correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.
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Wolf’s continuing impersonation of a Cabinet Officer and Barr’s knowingly illegal, ultra vires approval of clearly unlawfully promulgated regulations that actually threaten the lives of bona fide asylum seekers should be dealt with as criminal offenses after Jan. 20, 2021. Every Government official who participated in this travesty, as well as the unethical DOJ officials and their supervisors who were involved in the frivolous and unethical “defense” of this clearly unlawful, and invidiously motivated, action should be removed from Federal Service. Clearly, prosecutions should be explored against racist mastermind “human rights criminal” Stephen Miller.
As the regime of treason and insurrection comes to an end, those who knowingly helped further its gross illegalities should be held fully accountable under the law. Criminals have no right to government lawyers to defend their scofflaw behavior in civil actions like this!
The EOIR Clown Show 🦹🏿♂️🤡 must go! But, there also must be some accountability for those who abused their government positions and violated their oaths of office to illegally inflict harm and suffering on the most vulnerable among us.
We have seen a serious breakdown of legal ethics and bar policing responsibility at all levels of the Federal Government during the regime. That breakdown extends to Federal Judges all the way up to the indolent Supremes who have consistently failed to hold U.S. Government attorneys (including, specifically, the highly unethical former Solicitor General and his staff) accountable for their unethical behavior in engaging in frivolous civil litigation, advancing “bad faith” defenses for clearly illegal actions, seeking unjustified stays, manufacturing and arguing clear “pretexts” for unconstitutionally discriminatory Executive actions, failing to do even minimal “due diligence,” putting forth factually erroneous and misleading arguments, and allowing the government to abuse, harass, and waste the time of private counsel for improper purposes.
This case also reinforces the absolute necessity of nationwide injunctive relief against Government abuses like this. The “solicitation” of cases challenging and improperly narrowing this necessary form of relief, a corrupt project of the Federalist Society and the former Solicitor General, should raise serious questions of the judicial qualifications of the two “GOP Justices” who recently engaged in this form of rancid, immoral, and legally defective political pandering in their “separate opinion.” Better Justices for a Better America!
What really held the American legal system together for the last four perilous years was the tenacity of lawyers, many of them arguing Immigration or human rights cases pro bono, and the legal scholarship and courage of some U.S. District Judges who stood tall even in the face of a spineless and complicit Supremes’ majority that all too often failed to support them and could barely move fast enough to give a patently lawless, corrupt, racist, treasonous, and clearly unqualified President and his neo-Nazi minions carte blanch to abuse humanity and “Dred Scottify” persons of color. Leadership, moral courage, and integrity count. But for Sotomayor, Kagan, Breyer, and the late RBG, the Supremes came up disastrously short of fulfilling their Constitutional rule in far, far too many cases, and innocent people suffered and died because of it. This is simply unacceptable in our highest level judges.
It’s high time for law schools to reexamine and beef up obviously inadequate ethical training, for a review of the failure of basic ethics throughout Government, and for review and reform of the scurrilous and unacceptable abdication of ethical norms and responsibilities by Federal Judges at every level of our floundering and failing Federal legal system. Criminals like Wolf and Miller and clowns like EOIR officials violate the laws and degrade humanity because they have every reason to believe they will get away with it. They must be held accountable if we want the abuses that came close to destroying our democracy this week to be stopped!
🇺🇸⚖️🗽👍🏼Due Process Forever!
PWS
01-08-21