IN MEMORIAM: The Passing Of An Unsung American Hero, William Gannett! 🇺🇸🇺🇸🇺🇸

As we all know, July 4 is the date of death for a number of noted American patriots, including, of course, founding fathers, Presidents, and long-time “frenemies” Thomas Jefferson and John Adams.

But, July 4, 2017 saw the passing of a less recognized but equally inspiring American patriot, William Gannett, the father of my Sig Ep fraternity brother at Lawrence University, Bris Gannett. William’s passing marks the “final wind- down” for the “Greatest Generation.” William was a modest man, yet a true American hero, risking his life to fly B-25 bombers in defense of our country, and indeed Western Civilization, during World War II. It’s thanks to William and others like him that folks like me have been able to spend our lives in a world dominated by the values of Western Democracies.

Although he visited Bris on a number of occasions while we were at Lawrence together, unfortunately, I do not have a clear personal recollection of William. But, fortunately, our Sig Ep brother Russ “Biff Stoney” Birkos has filled the gap:

‘Bris Gannett called me yesterday to let me know that his father had passed away on July 4th. He was 94 and had been in ill health for the past several months. Those of you who remember Mr. Gannett on his many trips to the Sig Ep house, will recall that he was a gracious, friendly, giving, and generous man who, despite the age difference, became a close and genuine friend to many of us at the house. He was also, in my opinion, an American hero. Like so many of our fathers’ generation, he served proudly and courageously as a B-25 pilot in World War Two. Shortly after Barb and I married, we were stationed in central Massachusetts, just about an hour and a half from the Boston suburb of Hopedale, where the Gannetts made their home. Mr. Gannett and his wife, who preceded him in death a few years ago, treated Barb and me as if we were a close part of the family, having us as guests for hockey games, family dinners, and other events. They remain some of the most charming people Barb and I have ever known. I hope you might take a minute to drop “Gisr” a note and add your thoughts to mine on the life of a truly great man.”

Thanks for your service, Mr. Gannett! And for literally “making the world safe for democracy” and those of us who appreciate it. It goes without saying that in Bris (“The Gisr”) you and your wife left an outstanding legacy. Rest in peace, and thanks again for your service in war and the example of human kindness and caring about others that you set in peace.

Gisr, my friend, although it’s been a while now, Cathy’s and my thoughts are with you as you reflect upon your father and his heroic and truly meaningful life. And, thanks, Biff, for passing this along.

With best wishes,

Wick

07-06-17

UPDATE:

Here’s a correction from “The Gisr” himself:

“I will have to correct one item. Dad actually flew a P-38 Lightning in WWII as part of the 34^th Photo Recon Squadron (“The Flying Monkeys”)

in the Europe theater until the end of the war. His aircraft was outfitted with cameras instead of guns. They were fast and could out fly anything

the Germans had. He was involved with much of the D-Day mapping . But like many of those who were in WWII, Dad rarely talked about

his experiences. But he was a true American hero, for sure !!”

Even more impressive and courageous!

PWS

07-08-17

KATHERINE M. REILLY NAMED ACTING DEPUTY DIRECTOR OF EOIR — Also, My “Mini-History” Of EOIR Directors

Here’s the official DOJ press release:

FOR IMMEDIATE RELEASE

Monday, July 3, 2017

Executive Office for Immigration Review Announces New Acting Deputy Director

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katherine H. Reilly as the agency’s Acting Deputy Director. Ms. Reilly has served as Chief Counsel of the Employee and Labor Relations Unit within EOIR’s Office of General Counsel since December 2013.

“Katherine’s varied and impressive legal experience makes her well-suited for assuming the position of Acting Deputy Director at EOIR, especially during this important time when we are mobilizing all of our resources to combat a growing caseload,” said Acting Director James McHenry. “The skills she has acquired as a manager and through her work in employee and labor relations are critical for the agency, both to meet its current challenges and to establish effective policies and procedures for the future.”

In her new capacity as Acting Deputy Director, Ms. Reilly will supervise EOIR’s components and will be responsible for assisting in leading the agency in formulating and administering policies and strategies which enhance EOIR’s effectiveness in fulfilling its core mission of adjudicating cases fairly, expeditiously, and uniformly

Katherine H. Reilly joined EOIR in December 2013 as Chief Counsel of the Employee and Labor Relations Unit within the Office of General Counsel. Prior to her tenure with EOIR, she was the Director of Legal Services for the U.S. Postal Service Office of Inspector General, managing that agency’s employee relations team, civil litigation section, and contracting division. Ms. Reilly also served as a Special Assistant U.S. Attorney for criminal prosecutions in the Northern District of Texas. She began her career with the Federal Trade Commission as an antitrust attorney and also worked for a law firm, advising corporate clients on antitrust and commercial litigation. Ms. Reilly received her Bachelor of Arts and Juris Doctor degrees from the University of Texas at Austin and earned a Master of Laws degree from the University of Melbourne, Australia. Ms. Reilly is a member of the District of Columbia and Virginia bars.

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Congratulations, good luck and best wishes to Acting Deputy Director Reilly.

And, here’s my “Mini-History of EOIR Directors:”

EOIR MINI-HISTORY: DIRECTORS AND DEPUTY-DIRECTORS

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired) & Adjunct Professor of Law, Georgetown Law

When EOIR was created within the DOJ in 1983, it merged the previously “stand-alone” Board of Immigration Appeals (“BIA”) with the Immigration Judges, who were previously part of the “Legacy” Immigration and Naturalization Service “INS”). David Milhollan, who was then the Chairman of the BIA also (somewhat reluctantly) became EOIR’s first Director, while retaining his position as Chair, thereby effectively merging the positions of Director and Chair.

Upon Milhollan’s retirement, in 1995 the positions were separated to increase the decisional independence of the BIA. For awhile, Jack Perkins, then Chief Administrative Hearing Officer, served as Acting Director. Attorney General Janet Reno named long-time DOJ Senior Executive Anthony C “Tony” Moscato, who had most recently served as the Director of the Executive Office for U.S. Attorneys, the second Director. I was appointed to the now separate position of BIA Chair. Moscato and I had significant roles in the 1983 creation of EOIR.

Moscato, noting the growth of EOIR’s functions, recommended the creation of the position of EOIR Deputy Director. Attorney General Janet Reno appointed Kevin D. Rooney as the first Deputy Director. Rooney had served as the Assistant Attorney General for Administration during several Administrations and was in private practice at the time of his appointment.

Eventually, Moscato sought and received appointment as a BIA Member. (Thereby going from my “immediate supervisor” to my “direct subordinate,” although these terms make little sense in the EOIR context because neither the Director nor the Chairman has authority to direct the decision-making of Board Members). Rooney succeeded Moscato as the third Director. Then EOIR General Counsel Peg Philbin became the Deputy Director.

Philbin served as Acting Director while Rooney was the Acting Commissioner of the INS for a few months during the Bush Administration (uh, talk about conflicts and perceptions, but that really wasn’t a strong point for the Bush II Administration either), but she eventually left EOIR to become a Senior Executive at the State Department. Then Board Member Kevin Ohlson replaced her as Deputy Director. Upon Rooney’s retirement, Deputy Director Ohlson succeeded him as the fourth Director. Ohlson had also held a number of Senior Executive positions within the DOJ prior to his brief stint as a Board Member.

When Eric Holder became Attorney General, Ohlson left EOIR to become his Chief of Staff. After some time, during which Judge Thomas Snow served as Acting Director, Juan P. Osuna, then a Deputy Assistant Attorney General in the Civil Division, became the fifth Director. Osuna had also been BIA Chair, BIA Vice Chair, and a Board Member. Ana M. Kocur, then a BIA staff supervisor, was selected to be Osuna’s Deputy.

Upon the departure of Osuna and Kocur in May 2017, both the top executive positions in EOIR became vacant. Interestingly, while two former BIA Chairs, Milhollan and Osuna, became Directors, EOIR has never had a Director who had served as a U.S. Immigration Judge at the trial level of the system, although the Immigration Judge program is by far the largest “adjudicating component” of EOIR.

Also, no former Immigration Judge has ever held the Deputy Director position. However, as noted above, one current Immigration Judge, Judge Thomas Snow, held the position of Acting Director during the interim between Ohlson’s departure and Osuna’s appointment. Snow, a former top executive in the DOJ’s Criminal Division before his appointment to the bench, was well regarded and well liked by the sitting Immigration Judges. Reportedly, he was offered the position on a permanent basis, but turned it down to return to the Arlington Immigration Court bench where he remains (thus having “outlasted” Osuna).

The Director is an unusual position in that as a non-judicial official, he or she is specifically excluded from having any substantive role in EOIR’s sole function: quasi-judicial adjudication. In a future, better-functioning, independent U.S. Immigration Court system, the Chief Appellate Judge (now BIA Chair) would resume the formal role as administrative head of the judicial system, along the lines of the relationship between the Chief Justice and the rest of the Article III Judiciary. The “Director” position would become the “Executive Director of the Administrative Office” subordinate to the Chief Appellate Judge.

With the elimination of the inherently political role of the DOJ in the U.S. Immigration Court system, there no longer would be a need to for the largely fictional perception that the “Director” serves as a “buffer” between the “adjudicating components” and the political and litigation officials at the DOJ. The current problems of the U.S. Immigration Court well illustrate the insurmountable difficulties of attempting to run one of the nation’s largest and most important court systems as an “agency” of a political department. Even if the DOJ had the will to allow the Immigration Courts to function independently, it lacks the competence and expertise in court administration to successfully support such a system.

The only real question is when will Congress finally face reality and create a truly independent and properly functioning U.S. Immigration court system?

PWS

07-06-17

9th Circuit Upholds Judge Gee’s Order Requiring Bond Hearings For Children! — Flores v. Sessions!

http://www.latimes.com/local/lanow/la-me-ln-minor-immigrants-9th-circuit-20170705-story.html

Maura Dolan reports in the LA Times

“Minors who enter the U.S. without permission must be given a court hearing to determine whether they can be released, a federal appeals court panel decided unanimously Wednesday.

A three-judge panel of the U.S. 9th Circuit Court of Appeals said immigration authorities continue to be bound by a 1997 lawsuit settlement that guaranteed court hearings for minor immigrants, set standards for their detention and established a policy in favor of their release.

Following that settlement, Congress passed two laws dealing with unaccompanied minor immigrants. The federal government argued those laws replaced the settlement and revoked the right to bond hearings.

The 9th Circuit disagreed.

“In the absence of such hearings, these children are held in bureaucratic limbo, left to rely upon the [government’s] alleged benevolence and opaque decision making,” Judge Stephen Reinhardt, a Carter appointee, wrote for the court.

The settlement of Flores vs. Janet Reno required that juveniles detained near the border or elsewhere without a parent must be given bond hearings.

The hearings gave minors the right to a lawyer, an opportunity to learn and challenge government evidence against them and the right to contest being locked up, the panel said.

The 9th Circuit cited evidence that the government has been holding minors for months or even years without hearings, even when parents are nearby and can care for them.

Among them was a boy identified only as Hector, who was detained in California at the age of 15 for 480 days, mostly in a locked facility in Yolo County. The ruling did not say why Hector was picked up.

In a declaration, Hector described the Yolo County facility as a prison, where minors were locked in cells at night to sleep on cement benches with mattresses.

During 16 months there, Hector was not given a lawyer or an explanation about why he was being held even though his mother in Los Angeles was seeking his release, the 9th Circuit said.

Without any explanation, the federal government released Hector in December “into the custody of the person who had been advocating for his freedom all along — his mother,” Reinhardt wrote.

The court cited evidence that some juveniles have agreed to deportation rather than face continued incarceration without their families.

“Unaccompanied minors today face an impossible choice between what is, in effect, indefinite detention in prison, and agreeing to their own removal and possible persecution” in their native countries, Reinhardt wrote.

The ruling upheld a decision by Los Angeles-based U.S. Dist. Judge Dolly M. Gee, an Obama appointee.

The government may appeal the panel’s decision to a larger 9th Circuit panel or to the U.S. Supreme Court.

Lawyers in the case could not be reached for comment.”

Here’s a link to the 9th Circuit’s full 40-page opinion:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/17-55208.pdf

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If you want to skip the legal gobbledygook (although the fact situations described are interesting and meaningful), the bottom lines are: 1) the last four Administrations have been to varying degrees tone-deaf to the needs of unaccompanied minors subject to immigration proceedings; 2) bond hearing before U.S. Immigration Judges play a critical role in protecting the rights of children and insuring due process.

PWS

07-05-17

CHIEF JUSTICE JOHN ROBERTS OFFERS SAGE ADVICE TO THE NEXT GENERATION! — Who Knew The Chief Is A Bob Dylan Fan?

https://www.washingtonpost.com/politics/courts_law/the-best-thing-chief-justice-roberts-wrote-this-term-wasnt-a-supreme-court-opinion/2017/07/02/b80a5afa-5e6e-11e7-9fc6-c7ef4bc58d13_story.html?hpid=hp_regional-hp-cards_rhp-card-politics:homepage/card&utm_term=.e2bd08831f97

Robert Barnes reports in the Washington Post:

“It was the ninth-grade commencement address for the Cardigan Mountain School, an elite boarding school for boys grades six through nine. Sitting up front under a large white tent as John Glover Roberts Jr. took the stage was graduating student John Glover Roberts III.

. . . .

Roberts’s commencement address was not publicized in advance, but it was recorded by the school, uploaded to YouTube and is slowly gaining attention. Several readers emailed the link to me. One person wrote, “I’m a Democrat and I can’t stand the guy’s views, but I was in tears.”

There is nothing about the Supreme Court or the law in the short speech, although each graduating Cougar received an autographed, pocket-size Constitution along with his certificate.

Instead, the address was personal, understated and popular probably because it touched on universal themes, such as a parent’s worry about whether he or she is making the right decisions for their child.

Driving through the gates after leaving a student at Cardigan, Roberts said, parents travel a “trail of tears” to an “emptier and lonelier house.”

Roberts is considered one of the Supreme Court’s better writers, and his public addresses show a quick wit and professional timing. He first asked the Cardigan students to turn and applaud their parents and others who had guided them.

He joked that he would later be able to report that his speech was “interrupted by applause.”

Success, he reminded them, comes to those who are unafraid to fail. “And if you did fail, you got up and tried again. And if you failed again, you got up and tried again. And if you failed again — it might be time to think about doing something else.”

Roberts said commencement addresses customarily wish graduates success. He thought it better for them to experience challenges.

“From time to time in the years to come, I hope you will be treated unfairly,” Roberts said, “so that you will come to learn the value of justice.”

Betrayal “will teach you the importance of loyalty.” Loneliness will instruct people not to “take friends for granted.” Pain will cause someone “to learn compassion.”

“I wish you bad luck — again, from time to time — so that you will be conscious of the role of chance in life,” Roberts said. “And understand that your success is not completely deserved, and that the failure of others is not completely deserved, either.”

A commencement speech is supposed to offer “grand advice,” Roberts said, so his first was to recognize the exalted perch from which they started — a school with a 4-to-1 student-teacher ratio, where students dine in jackets and ties, and tuition and board cost about $55,000.

Through his son, Roberts had come to know many of the students, he said, and “I know you are good guys.”

“But you are also privileged young men, and if you weren’t privileged when you came here, you’re privileged now because you have been here,” Roberts said. “My advice is: Don’t act like it.”

He urged them, at their next school, to introduce themselves to the people “raking the leaves, shoveling the snow or emptying the trash.” Learn their names, smile and call them by name. “The worst thing that will happen is you will become known as the young man who smiles and says hello,” he said.

Another thing:

“You’ve been at a school with just boys. Most of you will be going to a school with girls,” Roberts said.

Long pause.

“I have no advice for you.”

In his speech, Roberts quoted Socrates and, not surprisingly, he ended it with the words of “the great American philosopher, Bob Dylan.”

Roberts has quoted Dylan in judicial opinions, and he’s not alone. The New York Times a few years ago noted a study that found Dylan the most-quoted songwriter in judicial opinions, and said Roberts had “opened the floodgates” by quoting the Bard of Minnesota in a 2008 dissent.

The song he quoted at the commencement speech was “Forever Young.” Roberts is an unusual parent. Now 62, he and Jane married rather late in life. Their contemporaries are welcoming grandchildren, while they have two high-schoolers, Jack and his sister Josephine.

“May you build a ladder to the stars

And climb on every rung

May you stay forever young.”

The wishes expressed by Dylan for his son, Jesse, are “beautiful, they’re timeless, they’re universal,” Roberts said.

But the phrase that gives the song its title and refrain — forever young — is unrealistic, the chief justice said. It can’t come true.

“That wish is a parent’s lament,” he said.”

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Read the full report at the link.

I agree with some of the Chief Justice’s opinions, others not so much. Gosh, I have to wonder why all of his jurisprudence doesn’t show the same empathy, humor, understanding of the “underdog,” and acknowledgement of the role of privilege in our society (which is often mistaken for “pure merit” by the “privileged”) as demonstrated by this speech. Just look at the number of GOP politicians and even judges today who use their privileged positions to “dump on” the less fortunate rather than compassionately addressing their problems. At the same time, many of these same individuals use their their own privileged positions to further enrich the privileged and further empower the powerful at the expense of the rest of society. Go figure.

PWS

07-05-17

A BELATED HAPPY 4TH OF JULY FROM BOOTHBAY HARBOR, ME 🎆🇺🇸😎🍻

SMELLING A RAT (NAMED KOBACH), MANY STATES DECLINE TO PROVIDE VOTER INFO TO BOGUS TRUMP COMMISSION LOOKING FOR VOTER FRAUD — GOP’S WELL-KNOWN VOTER SUPPRESSION EFFORTS TURN OFF MANY!

https://www.washingtonpost.com/national/trumps-voting-commission-asked-states-to-hand-over-election-data-theyre-pushing-back/2017/06/30/cd8f812a-5dce-11e7-9b7d-14576dc0f39d_story.html?hpid=hp_hp-top-table-main_voterintegrity-625pm:homepage/story&utm_term=.5cd2f8de9d8d

The Washington Post reports:

“President Trump’s voting commission stumbled into public view this week, issuing a sweeping request for nationwide voter data that drew sharp condemnation from election experts and resistance from more than two dozen states that said they cannot or will not hand over all of the data.

The immediate backlash marked the first significant attention to the Presidential Advisory Commission on Election Integrity since Trump started it last month and followed through on a vow to pursue his own unsubstantiated claims that voter fraud is rampant and cost him the popular vote in the presidential election. The White House has said the commission will embark upon a “thorough review of registration and voting issues in federal elections,” but experts and voting rights advocates have pilloried Trump for his claims of widespread fraud, which studies and state officials alike have not found. They say that they fear the commission will be used to restrict voting.

Those worries intensified this week after the commission sent letters to 50 states and the District on Wednesday asking for a trove of information, including names, dates of birth, voting histories and, if possible, party identifications. The letters also asked for evidence of voter fraud, convictions for election-related crimes and recommendations for preventing voter intimidation — all within 16 days.

[Trump’s voter-fraud commission wants to know voting history, party ID and address of every voter in the U.S.]

While the Trump administration has said it is just requesting public information, the letters met with swift — and sometimes defiant — rejection. By Friday, 25 states were partially or entirely refusing to provide the requested information; some said state laws prohibit releasing certain details about voters, while others refused to provide any information because of the commission’s makeup and backstory.

President Trump signed an executive order on May 11, initiating an investigation into voter suppression and election fraud. Here’s what we know so far. (Patrick Martin/The Washington Post)

“This entire commission is based on the specious and false notion that there was widespread voter fraud last November,” Virginia Gov. Terry McAuliffe (D) said in a statement. “At best this commission was set up as a pretext to validate Donald Trump’s alternative election facts, and at worst is a tool to commit large-scale voter suppression.”

California, a state Trump singled out for “serious voter fraud,” also refused to participate. Alex Padilla, the California secretary of state, said providing data “would only serve to legitimize the false and already debunked claims of massive voter fraud.”

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Read the complete article at the link.

Gee whiz, why would anyone think that a Commission led by notorious white nationalist, racist, xenophobe Kris Kobach, in behalf of the GOP, which has been on the forefront of voter suppression efforts, formed because The Donald can’t face the fact that Hillary was more popular than he was, would have any ulterior motives up its sleeve! Oh yeah, and did I mention that Kobach recently was sanctioned by a Federal Judge for unethical behavior? See http://immigrationcourtside.com/2017/06/24/federal-judge-sanctions-kobach-for-misconduct-in-ks-voting-rights-case/

Just one more way the Trump Administration wastes taxpayer money while attacking American democracy.

PWS

07-02-17

N. RAPPAPORT IN HUFFPOST: ESTABLISHMENT CLAUSE SHOULDN’T BE AN ISSUE IF SUPREMES EVER REACH MERITS OF TRAVEL BAN CASE!

http://www.huffingtonpost.com/entry/5956805de4b0f078efd9894c

Nolan writes:

“May not need to state a reason at all.

In Kleindienst v. Mandel, the Court observed that, without exception, it has sustained Congress’ “plenary power to make rules for the admission of aliens.” And, “The power of Congress …. to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” (Page 408 U. S. 766).

Mandel held that when Congress has made a conditional delegation of its plenary power over the exclusion of aliens to the Executive Branch, and the Executive Branch exercises this power “on the basis of a facially legitimate and bona fide reason,” the courts will not look behind the exercise of that discretion.

The next sentence in Mandel indicates that it may not be necessary to state the reason. “What First Amendment or other grounds may be available for attacking [an] exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.” (Page 408 U. S. 769-70).

No basis for finding religious discrimination in the language of the order.

But the travel ban order does state a reason, and the District Court for the District of Hawaii found no basis in the stated reason or elsewhere in the language of the order for suspecting that the real purpose of the ban was religious discrimination:

It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation (page 30).
Does it matter if other explanations for the travel ban are possible?

The district court nevertheless went on to find that religious discrimination was the real reason for the ban. In other words, the court finds two reasons, the stated one, which does not reflect religious discrimination, and the real reason, which was found in Trump’s calls for a Muslim ban when he was still campaigning.

Other areas of immigration law do require a weighing of conflicting reasons. An alien is not eligible for an immigration benefit on the basis of a sham marriage, which is defined as a marriage that was entered into for the primary purpose of circumventing the immigration laws. But if the primary reason was that the couple was in love and wanted to spend their lives together, the fact that they got married so the alien spouse could stay in America does not make the marriage a sham.

In the present case, however, the Court will not be weighing reasons to determine which one is primary. It will be interpreting an unambiguous statutory provision that does not require the stated reason to be the primary one. It doesn’t even require the president to say why he made the finding. Section 212(f) has no requirements at all. The president just has to proclaim that he has found that that “the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.”

If opponents of the travel ban find this unacceptable, their only recourse is to lobby Congress to revise section 212(f).

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.”

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Man, Nolan is prolific, appearing not only in The Hill on an almost weekly basis, but in HuffPost and other publications as well! And, it’s all “original stuff.” I have a hard time just keeping up with posting his articles!

Nolan might be right, if Trump can keep from shooting off his mouth and undermining his own case, as he has done in the past. But, that’s a big “if!” And to date, I’ve seen nothing to indicate that 1) Trump possesses the quality of self control, or 2) that anyone else can impose it on him. So, I wouldn’t underestimate Trump’s ability to screw this up. Perhaps, Nolan is just hoping that Trump will show some restraint.

PWS

07-01-17

TEXAS AG PAXTON, OTHER GOP RACIST POLITICOS MOUNT ATTACK ON YOUNG PEOPLE OF COLOR!

http://www.cnn.com/2017/06/30/politics/trump-daca-bind/index.html

Tal Kopan reports for CNN:

“Washington (CNN)President Donald Trump has let a controversial Obama-era immigration policy continue — and conservative states are running out of patience.

Texas Attorney General Ken Paxton was joined by his counterparts in nine other states in a letter Thursday warning Attorney General Jeff Sessions that if the Trump administration does not move to end Deferred Action for Childhood Arrivals, they will file a court challenge to the program.
At the heart of the threat is ongoing litigation over a related program — giving the attorneys general an opening to squeeze the administration on DACA.
Despite explicitly pledging during the campaign to “immediately” rescind DACA, a program that gives undocumented immigrants brought to the US as children protection from deportation and the ability to work and study in the US, the Trump administration has continued to honor the program and issue new permits under it.
With its efforts, the administration appears to want to have it both ways, continuing the program and pledging to protect its participants while saying the situation isn’t necessarily permanent and arresting those who officials say have lost their DACA status. But that position has angered activists on both sides of the issue, who in a rare moment of agreement have expressed similar frustrations that the administration won’t clearly articulate its long-term plans for DACA.
At issue is pending litigation in Texas that has challenged an Obama administration program that’s similar to DACA but geared toward parents of childhood arrivals as well as an extension of the childhood arrivals program, both of which were never allowed to go into effect by the courts.
The Trump administration formally abandoned the Deferred Action for Parents of Americans and Lawful Permanent Residents program, known as DAPA, earlier this month to avoid having to defend it in court. But it left DACA on the books despite similar criticism of that program — namely that both programs were an overreach of executive authority.
Asked by CNN about that decision, Homeland Security Secretary John Kelly at the time called it “house cleaning,” saying the program for parents was blocked by the courts while the one for those who came to the US was children wasn’t.
But Paxton wrote that if the administration doesn’t end DACA by September 5, Texas will amend its complaint in the case to include that program — which would force the administration to defend the program in litigation or abandon it.
“We respectfully request that the Secretary of Homeland Security phase out the DACA program,” Paxton wrote in the ultimatum. “Otherwise, the complaint in that case will be amended to challenge both the DACA program and the remaining Expanded DACA permits.”
The Department of Justice and DHS did not respond to a request for comment on the letter. Sessions was asked about it on “Fox and Friends” on Friday and seemingly praised the states.
“The DAPA law has already been withdrawn,” Sessions said when asked what changes could be coming. “That was a big victory, and we’ll be looking at that. But I’ve got to tell you, I like it that our states and localities are holding the federal government to account, expecting us to do what is our responsibility to the state and locals, and that’s to enforce the law.”

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Trying to throw 800,000 American young people — basically America’s future — out of the country and sow fear in local ethnic communities has nothing whatsoever to do with law enforcement. But, it has lots to do with racism and white nationalism. The real target here is Hispanic Americans and other ethnic Americans from immigrant roots.

Paxton, Texas Governor Greg Abbott, Kansas Secretary State Kris Kobach and their followers are the George Wallaces, Lester Maddoxes, and Orval Faubuses of our time. Yeah, white racists might be giving it one more go. But, like the Trump victory, it is the last gasp. Eventually, the screw will turn as it did for prior generations of racist politicians.

To point out the obvious, with 600,000 pending cases in U.S. Immigration Court, the Trump Administration could not actually remove another 800,000 individuals any time in the foreseeable future. So, it’s all about meanness, fear, racism, white nationalism, and trying to prevent these young people from fully participating in our society. In other words, to make them a permanent underclass. Sound familiar?

The Dream Act to protect these young people should have become law years ago. But, then Senator Jeff Sessions and other GOP right wingers blocked its passage, even though it had the support of the majority of Senators. So, although legislation would be the logical solution, I wouldn’t count on it under today’s polarized conditions.

And, today’s GOP has become the home of racists and white supremicists. Something that anyone who runs on the GOP ticket or pulls the lever for a GOP candidate should consider.

PWS

07-01-17

KERWIN & WARREN: AMERICA’S CURRENT OUTDATED & ENFORCEMENT CENTERED IMMIGRATION SYSTEM HAS FAILED, & IT’S GETTING WORSE — WHY NOT DEVELOP A NEW SYSTEM THAT REFLECTS THE VALUE OF ALL TYPES OF IMMIGRANTS & BETTER REFLECTS OUR BEST NATIONAL VALUES?

http://immigrationimpact.com/2017/06/27/immigration-system-in-line-values/

Guillermo Cantor writes in Immigration Impact:

Over the past two decades, much of the immigration policy debate has focused on issues related to immigration enforcement. In fact, many argue that “enforcement first”—the notion that we must adequately enforce the laws on the books before considering broader immigration reforms—has de facto become the nation’s singular immigration policy. This preoccupation with enforcement has come at the expense of consideration of other key components of a robust immigration system. Specifically, policymakers have failed to directly and adequately address some of the most fundamental questions, including what the legal immigration system should look like, what principles should guide admissions moving forward, and how to intentionally and strategically tie immigration policy to other domestic policies.

In an effort to refocus the debate, a recent article by Donald Kerwin and Robert Warren offers a range of ideas that address some structural issues concerning the legal immigration system. Arguing that the U.S. immigration system does not reflect the values and interests that it is supposed to serve, the authors propose a series of recommendations to reform the system and deliver on its promises.

After examining nearly a century’s worth of presidential signing statements of seminal immigration legislation, the authors identify a list of basic principles that, at least in theory, guide the U.S. immigration and refugee system. These include, but are not limited to, the belief that: families should be preserved; admission policies should not be based on national origin, race, or privilege; fairness and due process are essential in admission and removal decisions; individuals fleeing persecution and violence should be provided with a safe haven; immigrants embody the U.S. value of self-sufficiency, hard work, and drive to succeed; fair, orderly, and secure migration sustains the rule of law; and criminals and security threats defy U.S. ideals and, therefore, should not be admitted or allowed to remain.

If we accept as fact the premise that these principles should guide our immigration and refugee laws and policies, it becomes evident that such laws and policies—and their implementation—often fall short of serving the aforementioned objectives. In recent years, for example, mass deportations have led to large-scale family separation; backlogs in the family-based immigration system have kept numerous families apart for years; the routine detention and expedited removal of asylum seekers have been used to deter other asylum seekers from coming to the border; highly skilled immigrants often cannot work in their fields due to credentialing barriers; and the widespread use of summary removal procedures in the deportation of noncitizens has signaled a dramatic departure from fundamental principles of fairness and due process. And these are just a few examples.”

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Read the entire very worthwhile article at the link.

OK, let’s say we have around 11 million undocumented individuals here today. At least 10 million of them are basically law abiding working folks who are contributing to our economy and our society. Most have at least some US citizen children or other relatives. Many pay taxes, and all of them would if they were in legal status and we made it easy for them to do so. It’s reasonable to assume that nearly all of them entered over the past 40 years. Folks who came prior to that are likely to have legalized, gone home, or died.

So, we could easily have admitted at least 250,000 additional individuals each year under our legal immigration system and we’d be right where we are today. Except, we wouldn’t have spent as much money on immigration enforcement, detention, removal, and divisive legal battles in the courts.

PWS

06-29-17

DHS MISTREATS KIDS: U.S. District Judge Dolly Gee Finds That DHS Has Blown Off Her Prior Orders & Continues To Mistreat Children In Detention!

http://immigrationimpact.com/2017/06/28/government-continues-ignore-rights-children-detention-court-finds/

Karolina Walters writes in Immigration Impact:

“Despite being among some of the most vulnerable, children seeking asylum in the United States often fare the worst. Upon entering the United States, children are often detained for extended periods in violation of a long-standing agreement known as the Flores settlement.

The Flores agreement essentially acts as a contract between the government and children held in immigration custody. On Tuesday, a federal district court judge ruled once again that the government is failing to meet its obligations to children held in immigration custody.

The court found a number of violations, including holding children too long in detention, in substandard conditions, and in non-licensed facilities. In addition, the court ruled that the government is required to look at each child’s case individually to determine whether release from custody is appropriate—the government may not rely on any blanket standard to avoid the responsibility of assessing each case individually.

The Flores agreement is a nationwide settlement reached in 1997. In this settlement, the government agreed that children taken into immigration custody would be placed in the “least restrictive setting appropriate to [their] age and special needs” and would be released “without unnecessary delay,” preferably to a parent. The settlement also requires that if a child is not released to a parent, adult relative, or an appropriate guardian, children must be placed in non-secure facilities licensed for the care of dependent children within five days of apprehension.

Two years ago, the Center for Human Rights and Constitutional Law (CHRCL), on behalf of immigrant children, brought suit to enforce the Flores settlement. In July and August of 2015, U.S. District Court Judge Dolly M. Gee said the government must apply the settlement to all minors, including those detained with family members. Tuesday’s order from Judge Gee outlines the particular ways in which the government is in breach of the Flores settlement and how the court seeks to ensure compliance going forward.”

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Read the complete article at the link.

While AG Jeff Sessions is out whipping up xenophobic frenzy and promoting the need for an “American Gulag” to support his “Gonzo Apocalypto” immigration enforcement agenda, he ignores his real legal and constitutional duties: Get General Kelly and the rest of the folks over at DHS to obey the law and stop mistreating kids!

That someone like Sessions with such totally warped values and lack of any sense of justice or decency should be in charge of our supposedly due process providing U.S. Immigration Court system is a continuing travesty of justice.

PWS

06-29-17

TAKE 5 MINUTES TO LOOK INSIDE THE “AMERICAN GULAG” OF CIVIL IMMIGRATION DETENTION BEING PROMOTED BY TRUMP, SESSIONS, KELLY & THE HOUSE GOP!

https://www.youtube.com/watch?v=3HeV1QSrEdo#action=share

Published on Jun 26, 2017

Learn about the history, laws, and unjust realities of the U.S. immigration detention system in this short 5-minute film. Narrated by Kristina Shull. Graphics and editing by Stephanie Busing. Script by Terry Ding and Rachel Levenson at NYU’s Immigrant Rights Clinic in collaboration with CIVIC. Learn more and at www.endisolation.org.

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Talk about fraud, waste, abuse, and corruption. And, amazingly, House Republicans are pushing for yet more mandatory detention, this time for those convicted of DUIs who have already completed punishment and are now subject to case-by-case determinations by U.S. Immigration Judges as to whether or not bond should be granted.

As an Immigration Judge, I denied bond in lots of cases with multiple DUIs, probably a substantial majority. But, each case was different, and there were some where the violations were well in the past, the individual had documented freedom from alcohol or substance abuse, and had strong U.S. equities, where bond was appropriate.

And since all cases depend on facts and proof, it’s important for the Judge to listen and be empowered to make the best decision for society and the individual under all the circumstances. “One size fits all” mandatory detention is an abuse of legislative authority and a waste of taxpayer money.

While to date it has not been found unconstitutional, I daresay that’s because the Supreme Court Justices who decide such matters have never had to experience the extreme dysfunction and inherent unfairness of the current immigration detention system on a daily basis like those of us who have served as trial judges. For that matter, they don’t completely understand the total dysfunction of our current Immigration Courts, and the systemic inability to deliver due process on a consistent basis throughout the nation. 600,000 pending cases! That dwarfs the rest of the Federal Judicial system.

Perhaps what it will take to change the system is for some of the Justices to have their son-in-law, daughter-in-law, or law clerk’s spouse more or less arbitrarily tossed into the world of immigration detention. Yes, folks, it’s not just recent border crossers, dishwashers, waitresses, and gardeners who end up in the “American Gulag” that so delights Jeff Sessions. “Professionals,” kids, pregnant women, and human beings from all walks of life, many with only minor violations or no criminal record at all, can end up there too.

PWS

06-28-17

THE ASYLUMIST: Jason Dzubow Wins Key “Firm Resettlement” Case — Wonders Why BIA Won’t Publish When Failing System Cries Out For More Consistency!

http://www.asylumist.com/2017/06/22/the-bia-on-firm-resettlement-2/

“Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.”

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I agree, Jason. As you know from our Asylumist interviews last summer, there was a time when the BIA published more cases. It was during the era of the “Schmidt Board.”

Many of the precedents involved controversial issues of first impression under IIRIRA. There was open dialogue with some separate opinions. Sometimes, the dissent better predicted the future development of the law than the majority opinion. Most were en banc, so every Board Appellate Judge had to take a public vote. And, some of them actually granted relief to the respondent.

But those days are long gone. Today’s Board exists 1) to push cases through the system to final orders of removal on more or less of an assembly line, 2) not to rock the boat, 3) to provide OIL with ways to defend the Government’s “party line” under Chevron, and 4) to preserve the institution and the jobs of the Appellate Judges.

You’ll notice that I didn’t mention anything about due process, fairness, best practices, consistency, law development, informative dialogue, justice, or even practicality. And, Jason, let’s face it. Who would want to publish a decision favorable to a respondent with Jeff “Gonzo Apocalypto” Sessions — a guy who basically never has a kind, humane, or generous word to say about any migrant, legal or not — as your boss?

In a functioning system, an appellate court that stood for fairness, due process, and best practices could be part of the solution. But, our current U.S. Immigration Court system is dysfunctional. And, mostly, the Board is just another part of the problem. Basically, if you don’t stand up for anything or anybody, you stand for nothing.

PWS

06-28-17

BREAKING: SUPREMES GRANT CERT., ALLOW TRUMP’S TRAVEL BAN TO GO INTO EFFECT — WITH IMPORTANT EXCEPTIONS — CASE DOCKETED FOR OCT. — MIGHT BE “MOOT” BY THEN!

Here’s the Court’s complete “per curiam” (unsigned) opinion with separate concurring and dissenting opinion by Justices Thomas, Gorsuch, & Alito:

SCTravelBan16-1436_l6hc

The Supreme Court handed the Trump Administration at least a partial victory on the controversial “Travel Ban 2.0” which had been enjoined by the Ninth and Fourth U.S. Circuit Courts of Appeals. The Court: 1) granted the petitions for certiorari filed by the Solicitor General in behalf of the Trump Administration and scheduled the case for Oral Argument at the beginning of the October 2017 Term; and 2) granted in part the Solicitor General’s request to stay the lower courts’ injunctions pending review.

However, in partially lifting the injunctions, the Court left in effect a significant part of those injunctions: the Travel Ban may not be applied to a) “foreign nationals who have a [pre-existing] credible claim of a bona fide relationship with a person or entity in the United States,” and b) “an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.”

The dissent would have stayed all parts of the lower courts’ injunctions. Justice Thomas, joined by Justices Alito and Gorsuch, criticized the majority for having cerated a non-statutory category of individuals who can “credibly claim a bona fide relationship with a person or entity in the United States.” He fears that the meaning of these exceptions will itself become a fertile ground of additional litigation before the Court can resolve the merits of these cases.

Additionally, the Court noted that since the bar on internal review of procedures relating to visa issuance was lifted on June 14, 2017, and the Government has represented that the review will be completed within 90 days, the case with respect to visa issuance to non-refugees might well be moot before the Court can get to the merits. The court instructs the parties to brief that issue.

“Quickie Analysis”

The Trump Administration can legitimately view this as a much-needed (from their standpoint) victory. All nine Justices appear to be prepared to rule that the Executive has virtually unbridled authority to bar the admission, at least temporarily, of foreign nationals with no connections to the United States.

It also appears that Justices Thomas, Gorsuch, and Alito would find that the Executive’s essentially unreviewable authority extends even to individuals who have a connection with the United States.

However, those challenging the Travel Ban have some reason to hope because at least six Justices seem to remain open to the possibility of engaging in some type of meaningful judicial review of Executive decisions regarding foreign nationals abroad who have established some connections to the U.S.

There may also be mootness issues with respect to some or all of the injunction with respect to refugee admissions. The new fiscal year for refugee admissions begins on October 1, 2017, before the Court will have heard argument in these cases. Before the beginning of the fiscal year, the Trump Administration must under the Refugee Act of 1980 “consult” with Congress on the number and allocation of refugee admissions for fiscal year 2018. “Statutory consultation” was one of the things that the Trump Administration neglected to do before purporting to suspend refugee admissions and dramatically slash the number of fiscal year 2017 refugee admissions established by the Obama Administration after undertaking the required statutory consultation.

The lack of any reasonable rationale by the Trump Administration for reversing the prior statutory determination made by the the Obama Administration after consultation with Congress was cited by the Ninth Circuit in upholding the original injunction. But, that issue should also be moot before the Court decides theses cases on the merits.

PWS

06-26-17

CAT REOPENING: 9th Cir. Finds “the BIA abused its discretion by disregarding or discrediting the undisputed new evidence submitted by Agonafer regarding increased violence toward homosexuals in Ethiopia!” — AGONAFER v. SESSIONS!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/23/13-73122.pdf

“We conclude that the BIA abused its discretion because it clearly disregarded or failed to give credit to the post-2007 evidence submitted by Agonafer, which demonstrates that the country conditions regarding the treatment of homosexuals in Ethiopia are qualitatively different from the country conditions presented to the IJ in 2007. Whereas before, we noted that there was “no evidence in the record of any violence directed against homosexuals in Ethiopia,” Agonafer, 467 F. App’x at 754, at least two of the reports submitted with Agonafer’s motion to reopen provide reports of violence directed against homosexuals in Ethiopia since 2007, including violence in connection with imprisonment. Additionally, we reject the government’s contention that Agonafer must present categorically different evidence of “individual relevancy” from what he presented in his earlier proceedings. It is undisputed that Agonafer is a homosexual male. Given Agonafer’s sexual orientation and the evidence of the treatment of homosexuals in Ethiopia, there is sufficient evidence that, if proved, would establish his prima facie eligibility for deferral of removal under the CAT. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence of country conditions alone.”).”

Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Paul C. Huck,* District Judge. Opinion by Judge Huck * United States District Judge for the U.S. District Court for the Southern District of Florida, sitting by designation.

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Yes, it’s only one case out of tens of thousands that the BIA reviews each year. But, mistakes like this from what is supposed to be an “expert judiciary” committed to using “best practices” to “guarantee fairness and due process for all” actually can cost lives!

And mindlessly ramming more cases into an overwhelmed system won’t help the situation.

PWS

06-26-17

Justice Anthony Kennedy Likely To Retire, Perhaps As Soon As Today — It Might Touch Off Rhetorical Battle, But No Bork Repeat

Reports have been circulating that Justice Anthony Kennedy will retire at the end of the Supreme Court’s current term, perhaps as soon as today. Since Justice Kennedy is considered the “swing” vote among the Court’s four conservative and four liberal Justices, President Trump’s appointment of a replacement will swing control decidedly in favor of the conservatives.

While some have predicted a “Bork like” confirmation battle, that’s not going to happen. As the minority party, the Democrats will certainly have a chance to put their objections to the candidate on the record and in the media. But, the GOP has the votes necessary for confirmation. As in most things in Washington these days, the Democrats have neither influence nor power. That’s what happens when you lose elections, particularly for control of the Senate.

As we’ve seen during the Cabinet confirmation process, President Trump could nominate a ham sandwich for the Supreme Court vacancy and the GOP would vote to confirm. By the time this is over, the Democrats could be wishing for another Justice Neil Gorsuch. The next pick is likely to make Gorsuch look like a liberal. A sobering thought for those counting on the Court to keep Trump in check.

PWS

06-26-17

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