Paul Wickham Schmidt – Page 282 – immigrationcourtside.com

RELAX, Cabinet Members! — Supremes Say No Monetary Damages For Unconstitutional Acts! — Ziglar v. Abbasi

https://www.supremecourt.gov/opinions/16pdf/15-1358_6khn.pdf

The full opinion is at the above link. Here’s the Court’s “Detailed Syllabus,” which, of course, is NOT part of the opinion:

Syllabus

ZIGLAR v. ABBASI ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 15–1358. Argued January 18, 2017—Decided June 19, 2017*

In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, for- mer Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facili- ty’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional viola- tions under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that peti- tioners detained them in harsh pretrial conditions for a punitive pur- pose, in violation of the Fifth Amendment; that petitioners did so be- cause of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain

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*Together with No. 15–1359, Ashcroft, Former Attorney General, et al. v. Abbasi et al., and No. 15–1363, Hasty et al. v. Abbasi et al., also on certiorari to the same court.

ZIGLAR v. ABBASI Syllabus

conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit af- firmed in most respects as to the Wardens but reversed as to the Ex- ecutive Officials, reinstating respondents’ claims.

Held: The judgment is reversed in part and vacated and remanded in part.

789 F. 3d 218, reversed in part and vacated and remanded in part. JUSTICE KENNEDY delivered the opinion of the Court, except as to

Part IV–B, concluding:
1. The limited reach of the Bivens action informs the decision

whether an implied damages remedy should be recognized here. Pp. 6–14.

(a) In 42 U. S. C. §1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amend- ment gender-discrimination case, Davis v. Passman, 442 U. S. 228, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U. S. 14. These are the only cases in which the Court has approved of an implied damages remedy un- der the Constitution itself. Pp. 6–7.

(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “pro- vide such remedies as are necessary to make effective” a statute’s purpose. J. I. Case Co. v. Borak, 377 U. S. 426, 433. The Court has since adopted a far more cautious course, clarifying that, when decid- ing whether to recognize an implied cause of action, the “determina- tive” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275, 286. If a statute does not evince Congress’ intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560, 568, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well- settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U. S. 662, 675.

When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the

Cite as: 582 U. S. ____ (2017) 3

Syllabus

analysis. The question is whether Congress or the courts should de- cide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367, 380. Most often it will be Congress, for Bivens will not be extended to a new context if there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action. Pp. 8–14.

2. Considering the relevant special factors here, a Bivens-type rem- edy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. 14–23.

(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a mean- ingful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intru- sion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents’ detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. 15–17.

(b)The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.

With regard to the Executive Officials, a Bivens action is not “a proper vehicle for altering an entity’s policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676. Even an action confined to the Executive Officers’ own discrete con- duct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v.

ZIGLAR v. ABBASI Syllabus

United States Dist. Court for D. C., 542 U. S. 367, 382. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681, 701.

Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into na- tional-security issues. National-security policy, however, is the pre- rogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518, 530. Thus, Congress’ failure to provide a damages remedy might be more than mere over- sight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S. 412, 423. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “ ‘other alternative forms of judicial relief,’ ” Minneci v. Pollard, 565 U. S. 118, 124, including in- junctions and habeas petitions.

The proper balance in situations like this, between deterring con- stitutional violations and freeing high officials to make the lawful de- cisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents’ detention policy claims to proceed under Bivens. Pp. 17–23.

3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents’ prisoner abuse alle- gations against Warden Hasty state a plausible ground to find a con- stitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitu- tional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judi- cial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative reme- dies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court’s ex- pressed caution about extending the Bivens remedy, this context

Cite as: 582 U. S. ____ (2017) 5

Syllabus

must be regarded as a new one. Pp. 23–26.
4. Petitioners are entitled to qualified immunity with respect to re-

spondents’ claims under 42 U. S. C. §1985(3). Pp. 26–32.
(a) Assuming that respondents’ allegations are true and well pleaded, the question is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful con- spiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the official’s acts, Harlow v. Fitzgerald, 457 U. S. 800, 819, “assessed in light of the legal rules that were ‘clearly estab- lished’ at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635, 639. If it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confront- ed,” Saucier v. Katz, 533 U. S. 194, 202, the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is enti-

tled to qualified immunity. Pp. 27–29.
(b) Here, reasonable officials in petitioners’ positions would not

have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clear- ly established law on the issue whether agents of the same executive department are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach con- sensus on department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to “conspire” in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that rea- sonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 29–32.

KENNEDY, J., delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined, and an opinion with respect to Part IV–B, in which ROB- ERTS, C. J., and ALITO, J., joined. THOMAS, J., filed an opinion concur- ring in part and concurring in the judgment. BREYER, J., filed a dis- senting opinion, in which GINSBURG, J., joined. SOTOMAYOR, KAGAN, and GORSUCH, JJ., took no part in the consideration or decision of the cases.

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It was an odd opinion in that only six Justices participated, so the majority was 4-2. The majority opinion was Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito. But, the Chief Justice and Justices Thomas and Alito also wrote or joined in separate concurring opinions. Justice Breyer wrote a dissenting opinion in which Justice Ginsburg joined.

Justices Sotomayer, Kagan, and Gorsuch sat this one out. Justice Sotomayor previously was a Judge on the Second Circuit at the time this case was before that court. Justice Kagan worked on the case as Solicitor General. And, Justice Gorsuch arrived too late to participate in the argument and deliberations.

However, I doubt that there would be a difference in result with all nine Justices voting. Justice Gorsuch almost certainly would side with the majority opinion’s “strict construction” of liability. Even assuming that Justices Sotomayor and Kagan would side with the dissenters, there would still be a 5-4 majority for the approach set forth in Justice Kennedy’s opinion.

Reading between the lines here, I think that the whole Bivens concept is “on the rocks” before this Court. The current, more conservative, Court clearly wishes Bivens were never decided and wants to limit it essentially to its facts. With a GOP President, any future appointments are likely to turn the tide even more solidly for overruling or strictly limiting Bivens.

I must admit to having mixed feelings. As a Government Senior Executive I was subject to several (totally unfounded) Bivens suits. I was greatly relieved and totally delighted when the doctrines of absolute and implied immunity got me dismissed in my private capacity. I also took out a standard Government approved “Bivens liability insurance policy” just in case.

On the other hand, I’d have to say that the specter of being involved in Bivens litigation was something that I and almost all of the other senior government officials whom I advised and worked with, up to and including Cabinet officers, had Bivens in the back of our “collective minds” in determining actions and policies. So, there was at least some “deterrent value” in the Bivens case. Moreover, it was an effective tool for pointing out the necessity for line enforcement officers, whom I often trained or advised, to keep their actions within clearly established constitutional boundries.

The Court suggests that it would be best for Congress to address this subject. But, Bivens has been around for many years and Congress has never addressed it. So, I wouldn’t hold my breath.

Interestingly, among those high-ranking officials who were relieved of any liability in this case were former Attorney General John Ashcroft and then FBI Director Robert Mueller.

PWS

06-19-17

EOIR INVESTS ELEVEN NEW U.S. IMMIGRATION JUDGES — PRIVATE SECTOR TOTALLY SHUT OUT!

Here are the bios of the new U.S. Immigration Judges:

IJInvestiture06162017

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This brings the total number of sitting U.S. Immigration Judges to 326. Congratulations to the new Judges, and please don’t forget the due process mission of the U.S. Immigration Courts!

Unfortunately, however, this continues the trend of creating a one-sided U.S. Immigration Court which basically has excluded from the 21st Century Immigration Judiciary those who gained all or most of their experience representing respondents, teaching, or writing in the public sector. It’s not particularly surprising that Attorney General Jeff Sessions, who has expressed a strong enforcement bias, would prefer to “go to the Government well” for all or most of his selections.

However, the real problem here is with the DOJ during the Obama Administration. With a chance to fill perhaps a record number of U.S. Immigration Judge positions over eight years, and to create an evenly balanced, diverse Immigration Judiciary in the process, they not only turned the hiring process in to a ridiculous two-year average cycle, but also selected 88% of the candidates from Government backgrounds.

Why would someone take two years for a selection process that selects from a limited inside pool anyway? And, why would you lead outside applicants to take the time to apply, believing they had a fair chance of competing, when the process obviously was “fixed” in favor of insiders? Sort of reminds me of the discussion of the labor certification recruitment process that we recently had in my Immigration Law & Policy Class at Georgetown Law!

Just more ways in which the “Due Process Vision” of the U.S. Immigration Courts has basically been trashed by the last three Administrations!

PWS

06-19-17

THE HILL: Professor Andy Schoenholtz Of Georgetown Law On Why Americans Should Be Grateful To The 9th Circuit For Upholding The Rule Of Law Against Executive Overreach!

http://thehill.com/blogs/pundits-blog/civil-rights/337955-9th-circuit-on-travel-ban-president-must-respect-congress

Professor Schoenholtz concludes:

“In fact, had the president focused on asking America’s civil servants to build on the progress achieved since 9/11 and try to find new ways of identifying security threats among those who seek visas, that work would have been accomplished by now, according to the schedule set by both the first and second EO’s.

If the Supreme Court decides at some point to hear a case regarding the EO, they will now be asked to consider not only whether the President has violated the Establishment Clause but also whether he has exceeded his statutory authority. As determined by the Supreme Court in the late nineteenth century, Congress has the constitutional authority to establish the immigration laws.

It has done just that by statute. The president has broad authority to implement that statutory system, but does the president have the power to stop admitting immigrants from six countries? From sixty? From all countries? Where does this end, and where would that leave Congress and the equilibrium established by the Constitution? We should thank the Ninth Circuit for raising that issue clearly and thoughtfully.

Andrew I. Schoenholtz is a Professor from Practice at Georgetown Law and the author, with Professors Jaya Ramji-Nogales and Philip G. Schrag, of “Lives in the Balance: Asylum Adjudication by the Department of Homeland Security.”

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Read Andy’s entire analysis at the link.

I’m still somewhat skeptical that the Supremes will take this case given the problems caused by the President’s out of court statements and tweets. Future Chief Executives likely will be more “Presidential” and act with more prudence and thoughtfulness. So, why take a case that hopefully will turn out to be more or less “sui generus?” If I were the Supremes, I would let the lower courts sort through this mess and make a complete record before approaching the legal questions. But, we’ll see. Very soon!

PWS

06-19-17

POLITICO: HOW DEEP IN THE DOJ BULLPEN WOULD TRUMP HAVE TO GO TO FIRE MUELLER? — Sessions, Rosenstein, Brand Likely “Toast,” But Others Down the Line Might Also Balk At Carrying Out Order! — NEWSWEEK SAYS FIRING MUELLER WOULD MEAN “PRESIDENT PENCE!”

http://www.politico.com/story/2017/06/16/donald-trump-justice-department-succession-plan-239652?cid=apn

Annie Karni writes in Politico:

“An abstract, in-case-of-emergency-break-glass executive order drafted by the Trump administration in March may become real-world applicable as the president, raging publicly at his Justice Department, mulls firing special counsel Robert Mueller.

Since taking office, the Trump administration has twice rewritten an executive order that outlines the order of succession at the Justice Department — once after President Donald Trump fired acting Attorney General Sally Yates for refusing to defend his travel ban, and then again two months later. The executive order outlines a list of who would be elevated to the position of acting attorney general if the person up the food chain recuses himself, resigns, gets fired or is no longer in a position to serve.

In the past, former Justice Department officials and legal experts said, the order of succession is no more than an academic exercise — a chain of command applicable only in the event of an attack or crisis when government officials are killed and it is not clear who should be in charge.

But Trump and the Russia investigation that is tightening around him have changed the game.

Attorney General Jeff Sessions has already recused himself from overseeing the investigation into possible collusion between Trump campaign aides and Russian operatives, after it was revealed that he failed to disclose meetings with the Russian ambassador during the campaign. And Trump started his morning on Friday by appearing to take a public shot at his deputy attorney general, Rod Rosenstein, who has increasingly become the target of his impulsive anger.

“I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt,” the president tweeted.

The Justice Department said in a statement on Friday that there are no current plans for a recusal, but Rosenstein has said in the past that he would back away from overseeing Mueller’s investigation if his role in the ouster of former FBI Director James Comey becomes a conflict.

That has legal experts closely examining the dry executive order to figure out who might be next up to bat, or, as Democratic lawyers and consultants view it, who might serve as Trump’s next sacrificial lamb.

“We know Rachel Brand is the next victim,” said Benjamin Wittes, a senior fellow at the Brookings Institution and the editor-in-chief of Lawfare, referring to the former George W. Bush official who was recently confirmed as associate attorney general, the third-highest position in the Justice Department.

“For those of us who have high confidence in Rachel — the more confidence you have in someone in this role, the less long you think they’ll last,” said Wittes, who said he considers Brand a friend. “That does put a very high premium on the question of who is next.”

That question, however, has become more complicated because the Trump administration has been slow to fill government positions and get those officials confirmed. Typically, the solicitor general would be next in line after the associate attorney general, followed by the list of five assistant U.S. attorneys, the order of which would be determined by the attorney general. But none of those individuals have been confirmed by the Senate, and they would be unable to serve as acting attorney general without Senate confirmation.

Because of that, the executive order comes into play — one that puts next in line after Brand the U.S. attorney for the Eastern District of Virginia, Dana Boente. Boente, a career federal prosecutor and an appointee of former President Barack Obama, was tapped last April to serve as the interim head of the Justice Department’s national security division, which oversees the FBI’s Russia investigation.

Boente, who was briefly thrust into the no. 2 spot at the Justice Department after Yates was fired, was also tasked with phoning Preet Bharara, then U.S. Attorney for the Southern District of New York, to deliver the unexpected news that he was fired. At the time, Boente also vowed to defend Trump’s travel ban in the future.

Boente is followed, on the succession list, by the U.S. attorney for the Eastern District of North Carolina, John Stuart Bruce; and the U.S. attorney for the Northern District of Texas, John Parker. Both are career prosecutors who are serving in their posts on an interim basis, until a presidential appointment is made. But they would not need to be Senate confirmed to take over.”

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Read Karni’s full article at the link. Meanwhile, over at Newsweek, Graham Lanktree speculates that Trump’s outside legal team is building a case against Mueller. But, that case appears to be totally bogus, a rather blatant attempt to obstruct and pervert justice, in the best (or worst) traditions of Richard Nixon. Many believe that the firing of Mueller would lead to the fall of Trump (either by impeachment or forced resignation) and the ushering in of President Mike Pence.

Here’s the link to the Newsweek article:

http://www.newsweek.com/pence-will-soon-be-president-if-trump-fires-mueller-says-bush-lawyer-626987?spMailingID=1969868&spUserID=MzQ4OTU2OTQxNTES1&spJobID=810837063&spReportId=ODEwODM3MDYzS0

And, here’s an excerpt from Lanktree’s report:

“Vice President Mike Pence will soon lead the U.S. if President Donald Trump fires Russia investigation special counsel Robert Mueller, a Bush administration ethics lawyer said Saturday.

Trump’s legal team and surrogates are “building a case for firing Mueller,” wrote Richard Painter in a tweet after he appeared on Fox News Saturday. Painter was President George W. Bush’s chief White House ethics lawyer from 2005 to 2007.

“If that happens Mike Pence will soon become the 46th President,” Painter wrote. “Trump surrogates are making up Mueller ‘conflicts’ to justify firing him. That will be yet more obstruction of justice if it happens.”

. . . .

Friends of Trump said earlier this week that the president is considering firing Mueller. If that happens, legal scholars say, it would likely prompt the resignations of senior Department of Justice staff, reprisals from Congress, and resignation of White House staff. Painter argues that it could lead to impeachment.

“Mueller is absolutely not compromised by his professional relationship with Comey,” said Painter on Saturday. “This is just an effort to undermine the credibility of the special counsel.”

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Stay tuned. Almost everyone except Trump and his “outside advisers” believes that firing Mueller would be suicidal. But, Trump appears to be unhinged and often doesn’t let rationality or prudence enter into his decision making. He’s managed to survive many self-destructive acts that would have spelled the end of the line for any other politician. But, this one might well bring him down.

PWS

06-18-17

Welcome To Jeff Sessions’s America — In 1957 Sessions Was 10 Years Old And His White Christian Fellow Alabamans Were Busy Perverting The “Rule Of Law” To Deny Their African American Fellow Citizens Constitutional Rights, Fundamental Justice, & Human Dignity!

https://www.washingtonpost.com/opinions/a-white-cop-dies-and-a-young-black-man-spends-years-in-jail-for-a-crime-he-didnt-do/2017/06/16/d771059e-4706-11e7-a196-a1bb629f64cb_story.html?hpid=hp_regional-hp-cards_rhp-card-arts%3Ahomepage%2Fcard&utm_term=.a94b2ba61075

Colbert I. king writes in the Washington Post:

“How is it possible in a country that prides itself on having a Bill of Rights, expresses reverence for due process and touts equal protection that a 17-year-old can be arrested, put on trial and sentenced to death, and then spend 13 years being shuttled among death row cellblocks in disgusting jails and prisons with his case under appeal, all for a crime he didn’t commit?

The answer contains some simple prerequisites: He had to be black, live in the Jim Crow South and be accused of committing, as one deputy sheriff put it, a “supreme offense, on the same level of a white woman being raped by a black man” — that is, the murder of a white police officer.

Teenager Caliph Washington, a native of Bessemer, Ala., was on the receiving end of all three conditions. And as such, Washington became a sure-fire candidate to suffer the kind of tyrannical law enforcement and rotten jurisprudence that Southern justice reserved for blacks of any age.

In “He Calls Me by Lightning,” S. Jonathan Bass, a professor at Alabama’s Samford University and a son of Bessemer parents, resurrects the life of Washington, who died in 2001 finally out of prison — but with charges still hanging over his head.

Bass, however, does more than tell Washington’s tale, as Washington’s widow, Christine, had asked him to do in a phone call. Bass dives deeply into the Bessemer society of 1957 where Washington was accused of shooting white police officer James “Cowboy” Clark on an empty dead-end street near a row of run-down houses on unpaved Exeter Alley.

Bessemer-style justice cannot be known, let alone understood, however, without learning about that neo-hardscrabble town 13 miles southwest of Birmingham.

Bessemer served as home to a sizable black majority, an entrenched white power structure and an all-white police department, consisting at the time of a “ragtag crew of poorly paid, ill-trained, and hot-tempered individuals” who earned less than Bessemer’s street and sanitation workers.

Bessemer was a town with its own quaint racial customs, such as forcing black men to “walk in the middle of the downtown streets, not on the sidewalks, after dark — presumably to keep them from any close contact with white women.”

Bessemer was a town where in 1944 the police forced black prisoners to participate in an Independence Day watermelon run. White citizens reportedly cheered as firefighters blasted the inmates with high-pressure hoses to make the race more challenging. Winners, it is said, received reduced sentences and the watermelons.

It was in that town that Caliph Washington was born in 1939, the same year of my birth in Washington, D.C.

Bessemer’s racial climate was no different the year Washington was accused of killing Cowboy Clark. The town’s prevailing attitude on race was captured at the time in a pamphlet distributed by a segregationist group, the Bessemer Citizens’ Council. Black Christians, the white citizens’ council said, should remain content with being “our brothers in Christ without also wanting to become our brothers-in-law.”

If ever there was a place to not get caught “driving while black” — which is what Washington was doing on that fateful night in July 1957 — it was Bessemer. And that night’s hazard appeared in the form of Clark and his partner, Thurman Avery, who were cruising the streets in their patrol car looking for whiskey bootleggers.”

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Read the rest of King’s op-ed at the link.

So, when you hear Sessions and his White Nationalist buddies like Bannon, Miller, Kobach, and Pence extolling the virtues of a small Federal Government (except for the migrant-bashing mechanisms) state control of voting, civil rights, police conduct, gender fairness, environmental regulations, labor relations, filling the prisons with maximum sentences, a new war on drugs, etc., it’s just clever code for “let’s make sure that white-dominated state and local governments can keep blacks, hispanics, immigrants, Muslims, and other minorities from achieving power, equality, and a fair share of the pie.” After all, if you believe, as these guys do, that true democracy can be a bad thing if it means diversity and power sharing, then you’re going to abuse the legal and political systems any way you can to maintain your hold on power.

And, of course, right-wing pontificating about the “rule of law” means nothing other than selective application of some laws to the disadvantage of minorities, immigrants, and often women. You can see how selective Sessions’s commitment to the rule of law is when he withdraws DOJ participation in voting rights cases in the face of strong evidence of racial gerrymandering, withdraws support from protections for LGBT individuals, supports imprisonment in substandard prisons, targets legal marijuana, and “green lights” troubled police departments to prioritize aggressive law enforcement over the protection of minority citizens’ rights. Ethics laws, in particular, seems to be far removed from the Sessions/Trump concept of “Rule of Law.” And, sadly, this is only the beginning of the Trump Administration’s assault on our Constitution, our fundamental values, and the “real” “Rule of Law.”

PWS

06-18-17

WSJ: 47 Years Have Passed, But The Mariel Boatlift Is Still Generating Controversy!

https://www.wsj.com/article_email/the-great-mariel-boatlift-experiment-1497630468-lMyQjAxMTI3NTEyNzIxMDc0Wj/

Ben Leubsdorf writes in the WSJ:

“In the spring and summer of 1980, some 125,000 Cuban refugees sailed from the port town of Mariel on fishing boats and pleasure craft toward the U.S., many destined to settle in Miami.

Nearly four decades later, that exodus is at the center of an unresolved, sometimes bitter argument among economists, hinging on a basic question: When foreigners come to the U.S., does their presence drive down the wages of native workers? The long-running dispute has gained new relevance as the Trump administration tries to implement and enforce a stricter immigration policy.

Research published a decade after the Mariel boatlift, as well as more recent analyses, concluded that the influx of Cuban migrants didn’t significantly raise unemployment or lower wages for Miamians. Immigration advocates said the episode showed that the U.S. labor market could quickly absorb migrants at little cost to American workers.

But Harvard University’s George Borjas, a Cuban-born specialist in immigration economics, reached very different conclusions. Looking at data for Miami after the boatlift, he concluded that the arrival of the Marielitos led to a large decline in wages for low-skilled local workers.

“This is his moment,” said David Card, the author of the early research on the boatlift that Dr. Borjas is seeking to upend. (The Justice Department declined to comment, and the White House didn’t respond to requests for comment.)

Dr. Borjas has sparred for years with Dr. Card, an economist at the University of California, Berkeley, as well as with Giovanni Peri of the University of California, Davis. In 2015, Dr. Borjas and Dr. Peri released papers three months apart that arrived at wildly different conclusions about Mariel.

The argument among the academics—all immigrants themselves—has escalated into charges of bias and bad faith. Dr. Peri and a co-author dismissed Dr. Borjas’s study as having “serious limitations.” Dr. Borjas fired back that “sloppiness” in their own paper “helps obfuscate what your eyes can clearly see and leads to a claim that nothing at all happened in post-Mariel Miami.”

Dr. Card and Dr. Peri, reviewing a textbook by Dr. Borjas several months later, said that he only “presents half the story about the economics of immigration.” Last fall, in another book, Dr. Borjas compared Dr. Peri to Marxist-Leninist teachers in his native Cuba: “They believed. All that was left was to compel everyone else to believe as well.”

The real-world stakes in the dispute are considerable. More than 43 million U.S. residents were born somewhere else, and most of the rest are descended from immigrants. Still, for more than two centuries, waves of migration have provoked backlashes from Americans worried about the nation’s economy, culture and social makeup.

Among economists today, there is little controversy about the benefits of immigration for the economy as a whole. A roughly 500-page assessment last year by the National Academies of Sciences, Engineering, and Medicine, which reviewed decades of research, concluded that immigrants are “integral to the nation’s economic growth” and have little or no effect on overall employment and earnings for workers already in the U.S.

A Cuban refugee rests on his cot in Miami’s ‘tent city,’ Aug. 18, 1980. At the time, five out of every six working-age Cuban refugees in Florida’s Dade County were without a job.PHOTO: ASSOCIATED PRESS

The report said that experiences aren’t the same for everyone and noted that some studies have found “sizable negative short run wage impacts” for U.S.-born high-school dropouts, the group most likely to compete for work with low-skilled immigrants.

“There’s no free lunch. There’s going to be some effect of immigration” on wages, said Pia Orrenius, a senior economist at the Federal Reserve Bank of Dallas and a member of the panel that wrote the 2016 report. But, she added, the flexible U.S. economy adapts and should render any hit to the wages of native workers “a short-run phenomenon.”

Those most exposed to competition from new arrivals have long been a focus for Dr. Borjas. “Immigration is not like manna from heaven,” he said. “It can be great on average, but it doesn’t mean that every single person benefits.”

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Read the entire article at the link.

First, I find it interesting that Dr. Borjas, who came here as an immigrant, seems so highly motivated to prove that those who came after him weren’t as “worthy.” Sort of a “I’m OK, but you guys not so much” approach.

Second, none of these studies seem to go into the human element of immigration. What were to forces that drove the Marielitos to come? What have they accomplished in the long run? Did Americans in low wage jobs in Miami really sink into poverty and go on welfare, or did they just move on to other types of work that perhaps paid more?

Third, why don’t economists spend less time on analyzing the past and more time on figuring out how to minimize or avoid any adverse effects of immigration, even if those effects are only short-term and unequally distributed across the working population.

Fourth, I was at the “Legacy INS” during the boatlift and was involved in an intense effort to stop it. We used arrests, mass detention, vessel seizures, fines, criminal prosecutions, deterrents, warnings and public service announcements, and exclusion proceedings. But, frankly, nothing really worked until Castro closed the port of Mariel again. The Cuban Adjustment Act, which is still in effect, also made it difficult or impossible to return Cubans who had no prior criminal records.

Eventually, the Reagan Administration came up with controversial policy of high seas interdiction, which has been used in the Caribbean to some extent by every succeeding Administration. Although interdiction survived Supreme Court review, it has criticized by many and is inconsistent with at least the spirit, if not the letter, of the UN Convention and Protocol, to which we are a party. I doubt, however, that interdiction could have stopped the Cuban boat lift, given the large number of boats and American citizens of Cuban descent who participated in going to Mariel to transport relatives, friends, or former neighbors or co-workers who wanted to leave Cuba.

Fifth, and finally, I find the Mariel Boatlift to be one of the “major events” of modern U.S. refugee history. It has left a legacy of four enforcement strategies that are still with us today:

* The use of long-term mass civil immigration detention as a deterrent;

* High seas interdiction;

* Overall negative vibes and case law on asylum applicants who are part of a so-callled “mass migration situation” (“Scarface Syndrome,” a reference to the Al Pacino movie about a Cuban drug kingpin who used the boatlift to get a foothold in the U.S.);

* A belief that the case-by-case adjudication procedures established by the Refugee Act of 1980 are inadequate to handle mass migrations (probably one of the origins of “expedited removal” procedures).

PWS

06-18-17

WSJ: Dean Of Tuck Business School @ Dartmouth Says Multinationals Good For U.S. Jobs — Another Trump Myth Debunked!

https://www.wsj.com/article_email/the-exporting-jobs-canard-1497482039-lMyQjAxMTE3NzEyNTMxMzU3Wj/

Matthew J. Slaughter writes:

“President Trump has voiced a widely shared—but incorrect—belief that the global economy is a zero-sum game. “One by one,” Mr. Trump said in his inaugural address, “the factories shuttered and left our shores, with not even a thought about the millions and millions of American workers that were left behind.” In his first White House meeting only a few days later, Mr. Trump warned a roomful of CEOs that companies sending factories overseas would face a new border tax.

Mr. Trump assumes that when U.S. multinationals expand abroad, it necessarily reduces the number of people they employ in the U.S. But this assumption is wrong, and tariffs would hurt American workers, not help them.

Academic research has repeatedly found that when U.S. multinationals hire more people at their overseas affiliates, it does not come at the expense of American jobs. How can this be? Large firms need workers of many different skills and occupations, and the jobs done by employees abroad are often complements to, not substitutes for, those done by workers at home. Manufacturing abroad, for example, can allow workers in the U.S. to focus on higher value-added tasks such as research and development, marketing, and general management. Additionally, expanding overseas to serve foreign customers or save costs often helps the overall company grow, resulting in more U.S. hiring.

The ultimate proof is in the numbers. Between 2004 and 2014, the most recent year for which U.S. government data are available, total employment at foreign affiliates of U.S. multinationals rose from nine million to 13.8 million. Yet the number of jobs at U.S. parent companies rose nearly as much, from 22.4 million to 26.6 million.

Over the same period, the value-added and capital investment grew faster among U.S. parent companies than in their foreign affiliates. In fact, on these two measures the American parent companies outperformed the overall U.S. private sector. This suggests that having overseas affiliates gives companies a competitive advantage that allows them to invest more at home. More than ever, jobs in America are connected to the world.

One can always find anecdotes of a company closing an American facility and moving the work it does overseas. But these anecdotes are not representative of the overall synergies between parent companies and their affiliates. Consider Caterpillar Inc., the American manufacturer of heavy machinery whose main facility for research and development is in Peoria, Ill. In recent years the company has established several research-and-development facilities outside the country. Yet Caterpillar’s engines lab in Peoria still runs two shifts a day. Before closing up for the night, the Illinois engineers send data to their colleagues in Chennai, India, who process it overnight. When the Peoria workers come back the next morning, the refined data is waiting for them.”

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Read the full op-ed at the link.

Like it or not, we’re competing in a global economy. Trump’s “turn back the hands of time” rhetoric is no more realistic than the Sessions-Bannon-Miller group’s heartfelt desire to re-create the white-Christian-dominated U.S. society of the 1950s. But, that doesn’t mean that these guys aren’t going to do lots of damage to our country and our society by trying to do the impossible and undesirable. And, sadly, when it comes to the Trump Administration, there aren’t many adults in the room.

PWS

06-15-17

CAL Moves To Thwart Additional Immigration Detention!

https://www.buzzfeed.com/adolfoflores/california-deals-blow-to-trumps-plan-to-expand-immigrant?utm_term=.wu6ag8mx2#.ph7jvNV2r

Adolfo Flores reports in BuzzFeed:

“California lawmakers on Thursday dealt a blow to the Trump administration’s plans to expand capacity for detaining undocumented immigrants in the state.

The provision, which is part of California’s $125-billion budget, stops local jurisdictions from signing new contracts or expanding existing contracts with US Immigration and Customs Enforcement (ICE) for detaining immigrants. It also requires the state attorney general to conduct reviews of all detention facilities holding immigrants. The budget plan now goes to the desk of Gov. Jerry Brown, who is expected to sign it.

California’s move comes as ICE is seeking a $1.2-billion increase in funding for the next fiscal year. The agency’s budget calls for nearly $4.9 billion to expand detention capacity to 51,379, with the ability to hold about 49,000 adults and 2,500 families.

At the same time, the Trump administration has expanded the pool of deportation priorities to include nearly all 11 million undocumented immigrants.

California state Sen. Nancy Skinner, who introduced the language into the bill, cited that expanded pool of possible deportees as a major reason for the new rule.

“That’s just an absurd expansion, which California overall rejects,” Skinner told BuzzFeed News. “We don’t support the president’s broad executive orders and we feel that any detainee should be treated humanely.”

A razor wire fence surrounds the Adelanto immigration detention center, which is run by the Geo Group Inc.

The Golden State is home to nine immigration detention facilities, and all but Otay Mesa Detention Center in San Diego contract with local jurisdictions to hold immigrants. A recent report from Human Rights Watch estimates that 65,000 immigrants are detained in California every year, second only to Texas.

Grace Meng, senior researcher at Human Rights Watch, said it’s an unprecedented move by a state with so many immigrant detainees.

“People think of California as a liberal state that’s anti-Trump and pro-immigrant, but after Texas, it holds more immigrants than any other state,” Meng told BuzzFeed News. “This certainly can’t stop Trump’s detention plan singlehandedly, but it’s an important step for a state to take.”

However, Virginia Kice, spokeswoman for ICE, said placing limitations on the agency’s detention options in California won’t hinder their efforts.

“It will simply mean ICE will have to transfer individuals encountered in California to detention facilities outside the state, at a greater distance from their family, friends, and legal representatives,” Kice said in a statement to BuzzFeed News.”

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Read the complete article at the link.

Yeah, as if keeping folks near “family, friends, and legal representatives” was ever a factor in DHS detention decisions. What a complete crock!

No, it’s largely about money, using detention as a deterrent/demoralizer, and, occasionally, forum shopping by the DHS to gets folks into Circuits where the law is less favorable to their claims for relief. In the latter respect, DHS could actually benefit from detaining more folks outside the jurisdiction of the 9th Circuit. It also appears that lining the pockets of certain private detention contractors and state jurisdictions might be a factor in jacking up needless detention. Added to the steady stream of deaths in immigration detention, it has become a pretty unwholesome business.

It starts with a “detention-happy” Congress and goes down the line from there. To date, those who have promoted and enabled overuse of immigration detention have escaped political, legal, and moral accountability. But, history is infinitely long and has a funny way of eventually catching up with those who seek to evade its judgments, even after death.

PWS

06-15-17

Why Is The U.S. Immigration Court So Totally Screwed Up? — Sure, Bad Laws & Inadequate Resources Are Endemic Problems — But, Trying To Run A Due Process Court System As An Agency Of A Political Department Which Is Clueless About Effective Judicial Administration Is The Overriding Reason This System Is “Built To Fail!”

http://immigrationimpact.com/2017/06/08/immigration-courts-backlog/

Tory Johnson writes in Immigration Impact:

“Anyone familiar with the immigration system knows that the immigration courts have an enormous backlog which has persisted—and grown—for more than a decade. As of April 2017, the immigration court backlog topped 585,930 cases, more than double the pending cases in fiscal year (FY) 2006 (212,000).

The immigration court backlog means that many people wait years to have their cases resolved. According to a June 2017 report from the Government Accountability Office (GAO), the average time a case remains pending with the Executive Office for Immigration Review (EOIR)—the office within the Department of Justice that adjudicates immigration cases—has increased. In FY 2006, cases took an average of 198 days to complete; now the average is 650 days.

For years government officials, external stakeholders, and others have attributed the growing backlog to staffing shortages, lack of resources, and changing priorities. GAO’s recent analysis affirms some of these problems, but found that average case completion times increased—from 43 days in FY 2006 to 286 days in FY 2015—even though the number of immigration judges increased by 17 percent in the last decade.

So what’s making cases take longer in immigration court, and contributing to the backlog?

In part, judges are taking more time to complete cases, especially as new hires get up to speed. Respondents to GAO’s investigation most commonly cited a lack of adequate staff as a cause of the backlog, but “immigration judges from five of the six courts [GAO] contacted also stated that they do not have sufficient time to conduct administrative tasks, such as case-related legal research or staying updated on changes to immigration law.”

Indeed, over the 10-year period, judges issued 54 percent more case continuances, or a temporary postponement of case proceedings, on their own volition—due to unplanned leave or insufficient time to complete a hearing, for example. Immigration judges may also grant a continuance to allow respondents time to obtain legal representation— since immigrants do not receive government-provided counsel— which demonstrably shortens the length of a case.

There is concern that the backlog may only worsen under the current administration. In order to carry out President Trump’s directives to ramp up immigration enforcement and deportations, the Justice Department has started relocating immigration judges. But transferring judges—many of whom have been reassigned to detention centers—for the purpose of speeding up immigration cases has alarmed immigration experts, who fear case delays will increase in immigration judges’ usual courts, adding to the backlog.

While the directives were not analyzed in GAO’s review, the report’s focus on systemic issues exacerbating the backlog makes the plans to shuffle judges to new courts all the more concerning.

GAO made 11 recommendations in the following areas that would “better position EOIR to address its case backlog and help improve the agency’s overall effectiveness and efficiency in carrying out its important mission.” The recommendations included implementing better workplace planning and hiring practices; building an electronic filing system with oversight and management mechanisms; video-teleconferencing (VTC) assessments to ensure neutral outcomes; and creating efficient management practices and comprehensive performance measures for all cases.

While some of these issues are being addressed—such as implementing a plan to streamline hiring—GAO found that the efforts EOIR cited do not fully address the concerns outlined in the report. In particular, EOIR is lacking comprehensive technological capabilities, data on VTC hearings, performance assessments, and short- and long-term plans for staffing needs created by the 39 percent of retirement-eligible immigration judges.

The shortcomings further demonstrate the GAO’s conclusion that EOIR is lacking critical management, accountability, and performance evaluation systems. These mechanisms are essential for EOIR and oversight bodies, such as Congress, to accurately assess the immigration courts and ensure that EOIR is achieving its mission, which includes timely adjudication of all cases.

EOIR should take the GAO’s recommendations seriously and work to implement solutions—the fates of hundreds of thousands of people literally depend on it.”

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Sadly, the necessary changes are way beyond the capability of EOIR and the DOJ, particularly in light of current political leadership in the DOJ which seems determined to run the courts into the ground with ill-advised maximum enforcement initiatives and “aimless docket reshuffling.” EOIR has been an agency within the DOJ since 1983. It actually performs measurably worse today than it did in 2000. Expecting a “turnaround” within the DOJ is like expecting the Tooth Fairy to solve this problem.

You can check out my previous blog on the GAO report here:

http://immigrationcourtside.com/2017/06/02/gao-report-recommends-improvements-in-u-s-immigration-court-hiring-technology-data-analysis-oversight/

Note that the GAO discusses independent structures for the U.S. Immigration Court, but does not include a particular recommendation on that point.

But, I have one! We need an independent United States Immigration Court now! Otherwise the Immigration Court’s “due process meltdown” is eventually going to paralyze a large segment of the U.S. justice system. Yes, folks, it’s that bad! Maybe even worse, since DOJ and EOIR are “circling the wagons” to avoid public scrutiny and accountability. Tell your legislative representatives that we need an independent court now!

PWS

06-14-17

THE ASYLUMIST: The Importance Of Courtesy, Professionalism, Respect & Collegiality In Immigration Court

http://www.asylumist.com/2017/06/08/us-versus-them-in-immigration-court/#comments

Jason Dzubow writes in The Asylumist:

“Unlike perhaps some areas of law, immigration law has a strong ideological component. Many of the attorneys who represent immigrants do so because they believe in human rights and they want to keep families together. For such attorneys—and I include myself among them—our work represents an expression of our moral and/or religious values. In other words, it’s more than just a job; it’s a mission.

Does this make it harder for us to work cooperatively with opposing counsel (DHS)? Is it more urgent that we do so? For me, the answer to both these questions is yes. When our clients’ lives and futures are on the line, it can be very difficult to maintain a cordial relationship with a government attorney who is fighting to have that client deported. But even in the hardest-fought case, there is value in maintaining lines of communication. For example, even where the DHS attorney will not compromise and is fighting all-out for removal, there still exists the possibility of stipulating to evidence and witnesses, and of a post-order stay of removal. Severing the connection does not serve the client (though it may satisfy the ego), and certainly won’t help future clients, and so to me, there is little value in burning bridges, even when I believe DHS’s position is unjust.

All that said, there is no doubt that we will often disagree with our opposing counsel, and that we will fight as hard as we can for our clients. This is also a duty under the Rules of Professional Conduct (zealous advocacy), and for many of us, it is an expression of our deeply held belief in Justice.

With the ascension of the Trump Administration, and its more aggressive approach towards non-citizens, I believe it is more important than ever for us lawyers to keep good relationships with our DHS counterparts. While some government attorneys are glad to be “unleashed” and to step-up deportation efforts, many others are uncomfortable with the Administration’s scorched-Earth strategy. These DHS attorneys (and I suspect they are the majority) take seriously their obligation to do justice; not simply to remove everyone that ICE can get their hands on.

While the environment has become more difficult, I plan to continue my Old School approach. It works for me, it has worked for my clients, and I think it is particularly crucial in the current atmosphere. We lawyers–the immigration bar and DHS–should continue to lead by example, and continue to maintain the high ethical standards that our profession sets for us. In this way, we can help serve as a counter-balance to our country’s leaders, whose divisive, ends-justify-the-means approach has no use for the basic principles of morality or comity that have long served our profession and our democracy.”

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Read Jason’s complete blog at the link.

This is terrific advice for lawyers and judges, particularly those just starting out.

Fairness, scholarship, timeliness, respect and teamwork are the things I have tried to promote throughout my career. I found all of them at the Arlington Immigration Court. “No way” I would have lasted 13 years on the trial bench without lots of help and cooperation from the whole “court team.”

PWS

06-14-17

NO MERCY, NO JUDGEMENT, NO SANITY — “Deport ‘Em All — Create Universal Fear” (Paraphrased) Says Acting ICE Chief Homan!

http://www.washingtontimes.com/news/2017/jun/13/thomas-homan-ice-chief-says-illegal-immigrants-sho/

Stephen Dinan reports in the Washington Times:

“Illegal immigrants should be living in fear of being deported, the chief of U.S. Immigration and Customs Enforcement said Tuesday, pushing back against a growing sentiment among Democrats on Capitol Hill and activists across the country who have complained about agents enforcing the laws on the books.
Thomas D. Homan, acting director at ICE, said anyone in the country without authorization can be arrested and those who have been ordered deported by judges must be removed if laws are to have meaning.
His comments marked a major shift for an agency that President Obama forbade from enforcing the law when it came to more than 9 million of the country’s estimated 11 million illegal immigrants. Unshackled from Mr. Obama’s strictures, agents have dramatically increased the number of arrests.
Advocacy groups are enraged and demand leniency for “traumatized” immigrants.
Mr. Homan makes no apologies.
“If you’re in this country illegally and you committed a crime by being in this country, you should be uncomfortable, you should look over your shoulder. You need to be worried,” Mr. Homan testified to the House Appropriations Committee. “No population is off the table.”

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Homan’s definition of “criminal” (the “Trump definition”) is remarkable. It includes folks who have never been convicted of a crime, but might have committed one. So, by this definition, anyone who has ever driven a car while over the legal limit, left assets off of a Federal or State tax return, or tried marijuana in high school or college when it was against the law is a “criminal.” That probably would include the majority of the U.S. population, and even lots of folks who work for Homan. Fortunately for them, they aren’t subject to Homan’s arbitrary removal policies.
Homan’s over-broad use of “criminal” nevertheless excludes a large portion of the undocumented population who entered the U.S. legally on visas or visa waivers and then overstayed. Recent studies estimate that the visa overstays surpassed illegal entrants as a source of undocumented arrivals in 2008 and might amount to as much as 60% of the “new” undocumented population in recent years. Overstaying is not, in and of itself, a “crime.”
Some of the individuals under “final orders” of removal were ordered removed in absentia. Many of these individuals have a right to file a motion to reopen which automatically stays removal and requires immediate attention by an Immigration Judge. In my experience, because of the “haste makes waste” priorities followed by the last few Administrations, many “Notices To Appear” (NTA’s) had incorrect addresses or were otherwise were defectively served. (Keep in mind that the overwhelming majority of NTAs and Notices of Hearing Date are served by regular U.S. Mail, rather than actual personal service.) Consequently, many of these supposed “scofflaws” might not actually have had their day in court and will be entitled to a reopened individual hearing in the future.
Make no mistake about it, what Homan really is advocating is arbitrary enforcement. We can’t remove millions of individuals, but by arbitrarily removing a limited number, even if they are actually benefitting the US, we can spread fear among millions. And, by sowing fear, we can make these individuals afraid to report crime or cooperate with authorities in solving crime.
It’s not really Homan’s fault. His pride in his largely arbitrary use of the enforcement resources at his disposal is just the logical outcome of years of intentional neglect of needed immigration reforms by Congress and successive Administrations. Arbitrary enforcement is what the Trump Administration asked for, and Homan is giving it to them. Big time! Eventually, it’s likely to crash the entire system. And, that will finally force Congress to do what it hates most: legislate.
It also would be wrong to think of Acting Director Homan as a creation of the Trump Administration. He is a career civil servant who is exceptionally good at doing what he is told to do. So good, in fact, that he received a Presidential Rank SES Award from the Obama Administration for “jacking up” removals. Don’t forget that until Trump and his bombast arrived on the scene, President Obama was known as the “Deporter-in-Chief.” Obama made mistakes, but he did temper some of his counterproductive enforcement efforts with at least some amount of mercy, common sense, and the very beginnings of a rational system of enforcement along the lines of almost every other law enforcement agency in America. With Trump, the age of “full gonzo enforcement” has returned.

PWS

06-14-17

FAILED DUE PROCESS VISION: BIA Blows Off IJ’s Due Process Violations — Third Circuit Blows Whistle On BIA! — Serrano-Alberto v. Attorney General — READ MY “CONTINUING CRITIQUE” OF THE BIA’S FAILURE TO PROTECT THE RIGHTS OF ASYLUM SEEKERS!

http://www2.ca3.uscourts.gov/opinarch/153146p.pdf

PANEL: Circuit Judges VANASKIE, KRAUSE, and NYGAARD

OPINION BY: Judge Nygaard

“While in the vast majority of cases, IJs diligently comport with their constitutional and statutory obligations, and while it is only on rare occasion that we have held an IJ’s conduct crosses the line, the record here compels us to conclude this is one of those rare cases. Because we reach this conclusion against the backdrop of the three main cases to date in which we have distinguished between permissible and impermissible IJ conduct under the Due Process Clause, we will review each of those cases before addressing Serrano- Alberto’s claims for relief.

. . . .

What these cases teach us is that, where a petitioner claims to have been deprived of the opportunity to “make arguments on his or her own behalf,” Dia, 353 F.3d at 239, there is a spectrum of troubling conduct that is fact-specific and must be evaluated on a case-by-case basis to determine if (1) the petitioner “was prevented from reasonably presenting his case[,] and (2) . . . substantial prejudice resulted,” Fadiga, 488 F.3d at 155 (internal quotation marks omitted). At one end of the spectrum, the “lack of courtesy,” “interject[ions]” to clarify and develop the record, and “annoyance and dissatisfaction with . . . testimony” in Abdulrahman, 330 F.3d at 597, were not sufficient to establish a due process claim. At the other end, the “contemptuous tone,” focus on “issues irrelevant to” the petitioner’s claims, and findings unsupported by the record in Wang, 423 F.3d at 270, and the “wholesale nitpicking,” “continual[] abuse[]” and “belligerence,” and “interrupt[ions] . . . preventing important

parts of [the petitioner’s] story from becoming a part of the record,” in Cham, 445 F.3d at 691, 694, were flagrant enough to violate due process. Where these component parts of an IJ’s conduct are sufficiently egregious, at least in combination, a petitioner’s procedural due process rights are violated.

In Serrano-Alberto’s case, we conclude the IJ’s conduct falls on the impermissible end of the spectrum. Indeed, the IJ’s conduct here shares many of the attributes of the conduct we found unconstitutional in Wang and Cham, including a hostile and demeaning tone, a focus on issues irrelevant to the merits, brow beating, and continual interruptions. See supra Sec. III.B. And in contrast to Abdulrahman where the interruptions assisted the petitioner in answering questions and appropriately refocused the hearing, 330 F.3d at 596-98, the IJ’s interruptions here repeatedly shut down productive questioning and focused instead on irrelevant details, see supra Sec. III.B.”

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On the “plus side,” the Third Circuit went out of its way to point out that this case is the exception rather than the rule with respect to Immigration Judges’ respect for due process during the hearing process.

But, on the negative side, why should a supposedly “expert” Board whose mission is to protect due process be letting clearly unfair adjudications like this, which violate due process, get by? Not everybody can afford to go to the Court of Appeals. So, the Board’s failure to carry out its due process functions can actually cost lives, or at least ruin them. How can such a critically important function as appellate immigration judging be treated so dismissively, inappropriately, incompetently, and lackadaisically by successive Administrations while largely escaping critical public examination of its often highly questionable jurisprudence?

In my view, as I’ve observed before, part of the problem lies with the BIA’s overall negative approach to asylum seekers, particularly those from Central America with claims based on “particular social groups.” With a “closed, inbred judiciary” drawn almost exclusively from Government, a highly politicized Department of Justice which is unqualified to run a court system, and the fear of another “Ashcroft purge” hanging over them for judging independently and protecting the rights of asylum seekers, the BIA has basically “tanked” on its duty to guarantee fairness, due process, and protection to asylum seekers. So, if the BIA is unwilling to speak up for the due process and substantive rights of respondents, what’s its purpose? To provide a “veneer of deliberation and due process” to dissuade the Article III courts and the public from digging into the details to find out the real problems?

It’s also interesting that the Third Circuit “calls out” the BIA for a standard practice of using (often bogus) “nexus” denials to deny protection to asylum applicants who fit within a protected ground and can clearly demonstrate a likelihood of harm upon return. Check out FN 5 in the Third Circuit’s opinion:

“5 In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus. See, e.g., Bol- Velasquez v. Att’y Gen., No. 15-3098 (3d Cir. filed Aug. 28, 2015) (ECF Agency Case Docketed); Bell v. Att’y Gen., No. 14-4781 (3d Cir. filed Dec. 18, 2014) (same); Santos v. Att’y Gen., No. 14-1050 (3d Cir. filed Jan. 8, 2014) (same); Ulloa- Santos v. Att’y Gen., No. 12-2781 (3d Cir. filed June 25, 2012) (same); Orellana-Garcia v. Att’y Gen., No. 12-2099 (3d Cir. filed Apr. 20, 2012) (same). This practice, however, can have troubling consequences. First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what? See, e.g., Bol-Velasquez, No. 15-3098. Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.” Matter of A-T-, 24 I. & N. Dec. 617, 623 n.7 (U.S. Att’y Gen. 2008). Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale. Just as the Supreme Court has observed in the qualified immunity context, adjudication at every step is generally “necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation” because “[t]he law might be deprived of this explanation were a court simply to skip ahead,” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (holding the two-step protocol announced in Saucier v. Katz, 533 U.S. 194 (2001) is no longer mandatory “but often beneficial”), so here, the BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, see SEC v. Chenery Corp., 332 U.S. 194 (1947), and ultimately generating additional needless litigation because of the uncertainty in this area, see Valdiviezo-Galdamez, 663 F.3d at 594-609; Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230 (BIA 2014). This is a case in point, where the IJ articulated the relevant PSG as “individuals perceived as wealthy who refuse to pay gang taxes,” App. 17, although other definitions were reasonable, and the BIA, despite being presented with alternative formulations, declined to rule on the question altogether. In sum, for both of the reasons stated, we strongly encourage IJs and the BIA to define the PSG in question and to adjudicate the existence and cognizability of that PSG.”

Let’s get down to the real point. Largely because of intervention from Article III Courts, more and more “particular social groups” are becoming “cognizable.” This is particularly true in the area of family-based social groups.

Alternatively, the DHS and the BIA have tried to deny claims on the grounds that the foreign government is “not unable or unwilling to protect.” But, given the documented conditions in the Northern Triangle of Central America, such findings often don’t pass the “straight face test” and have had difficulty on judicial review. So the best way to deny protection to Central American asylum seekers is by developing metaphysical, largely bogus, findings of lack of “nexus.”

The answer to the Third Circuit’s question “nexus to what” is simple. It doesn’t matter. No matter what the protected group is in Central American cases, the BIA will do its best to find that no nexus exists, and encourage Immigration Judges to do likewise.

A vivid example of that was the BIA’s recent precedent inMatter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), discussed in earlier blogs. There, without dissent or meaningful discussion, the BIA “deconstructed” a clearly established case for nexus (which actually had been found by the Immigration Judge) and buried it under layers of impenetrable legal gobbledygook. Maybe it will get deference from the Article IIIs, maybe it won’t. There isn’t much consistency there either.

Asylum applicants lives are at stake in removal proceedings. They deserve a process where fairness, due process, and deep understanding of the life-preserving functions of protection law are paramount. Today’s system, which all too often runs on the principles of expediency, institutional preservation, job security, pleasing the boss, and sending law enforcement “messages” is failing those most in need. One way or another, our country and future generations will pay the price for this dereliction of duty.

PWS

06-13-17

NICHOLAS KULISH IN THE NYT: TORTURED IN VENEZUELA, HANDCUFFED BY ICE @ THE MIAMI ASYLUM OFFICE! — DHS Continues To Abuse Legal Authority, Clog Backlogged U.S. Immigration Courts! My Quote: “Why clog an already clogged court docket with a case that looks like a slam dunk?”

https://www.nytimes.com/2017/06/13/us/asylum-torture-venezuela.html

Nicholas reports:

“Marco Coello, then a skinny 18-year-old high school student, was grabbed by plainclothes agents of the Venezuelan security services as he joined a 2014 demonstration against the government in Caracas.

They put a gun to his head. They attacked him with their feet, a golf club, a fire extinguisher. They tortured him with electric shocks. Then Mr. Coello was jailed for several months, and shortly after his release, he fled to the United States.

Human Rights Watch extensively documented his case in a report that year. The State Department included him in its own human rights report on Venezuela in 2015. With such an extensive paper trail of mistreatment in his home country, his lawyer, Elizabeth Blandon, expected a straightforward asylum interview when Mr. Coello appeared at an immigration office this April in Miami.

“I had this very naïve idea that we were going to walk in there and the officer was going to say, ‘It’s an honor to meet you,’” said Ms. Blandon, an immigration law expert in Weston, Fla.

Instead, he was arrested and taken to a detention facility on the edge of the Everglades. He was now a candidate for deportation. “Every time they would move me around, I would fear that they were going to take me to deport me,” said Mr. Coello, now 22.

Mr. Coello’s case drew extensive media coverage in both Miami and Caracas and, eventually, the intervention of Senator Marco Rubio of Florida. The senator helped secure Mr. Coello’s release, though he could still be deported.

The case may have been a sign of just how far the government is willing to go to carry out President Trump’s crackdown on illegal immigration.

“It’s very unusual — almost unprecedented — that ICE would arrest an asylum applicant who is at a U.S.C.I.S. office waiting for their asylum interview,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

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

Just because arresting individuals believed to be in the U.S. without authorization is legal doesn’t mean that it’s not stupid or wasteful in many cases. Cases like this belong in the Asylum Office.

In a well-functioning system, Mr. Coello likely would have been granted asylum following his interview. Instead, he’s on an already overcrowded U.S. Immigration Court docket with a merits hearing scheduled for approximately one year from now.

What does the U.S. gain from these types of wasteful enforcement actions? What message are we sending to Mr. Coello and others who will eventually become full members of our society? What kind of messages are we sending to Venezuela and those attempting to escape from some of the world’s most brutal governments?

Read Nicholas’s complete report, which contains more quotations from me and others, at the above link.

PWS

06-13-17

US Immigration Judge Frees Immigrant Activist — Incredulous At DHS’s Position!

http://abcnews.go.com/International/wireStory/immigration-judge-orders-release-los-angeles-woman-47945745

The AP reports:

“A Mexican woman was released from custody Friday while the U.S. government seeks to deport her after a judge rejected arguments she should wear a monitoring device because she was arrested twice while demonstrating in support of people in the country illegally.

Claudia Rueda, 22, plans to apply for Deferred Action for Childhood Arrivals, a program started in 2012 under President Barack Obama that shields immigrants who came to the U.S. as young children from being deported. Her case has drawn attention because she has no criminal record and is an immigration activist.

The immigration judge, Annie S. Garcy, said holding Rueda without bond was “unduly severe” and allowed her to be released on her own recognizance. She noted Ruedas’ academic and other achievements and was incredulous when a government attorney asked that Rueda be required to wear a monitoring device.

“Wow, an ankle bracelet? Really?” said Garcy, who is on temporary assignment from Newark, New Jersey, under an administration effort to give higher priority to cases along the U.S. border with Mexico.

The government attorney, Matthew Hanson, responded that Rueda was arrested twice, once for trespassing and once for disorderly conduct.

Her attorney, Monika Langarica, said those arrests occurred during peaceful demonstrations to support people in the country illegally. She was charged in only one case and it was dismissed.

Rueda, a student at California State University, Los Angeles, was arrested on immigration charges May 18 outside a relative’s Los Angeles home in connection with what the U.S. Border Patrol said was a drug smuggling investigation.

Her mother, Teresa Vidal-Jaime, was arrested on immigration violations in April in connection with the same investigation and later released from custody. Neither Rueda nor her mother was arrested on drug charges.

U.S. Immigration and Customs Enforcement said it would comply with the order to release Rueda and will consider any additional requests by her attorney.”

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

Read the complete report at the link.

Under a rational policy, this respondent should have been released by DHS on recognizance and given time to apply for DACA. No wonder the U.S. Immigration Courts are near collapse when DHS wastes precious judicial time on cases that don’t belong in court in the first place.

I don’t blame the Assistant Chief Counsel, Mr Hanson. He’s probably just following instructions. The most knowledgeable folks in the DHS, their court lawyers, have been stripped of the authority to exercise sensible prosecutorial discretion. Instead, Gen. Kelly has turned line agents loose to do as they please.

In other words, he is presiding over a random enforcement system that wastes taxpayer money, abuses the courts, and harms individuals whose cases shouldn’t be in the enforcement system at all.

REALITY CHECK: According to TRAC, as of April 30, 2017, the Newark Immigration Court, where Judge Garcy normally sits, was setting “merits” cases for September 1, 2020, three plus years from now. Why on earth, then, was Judge Garcy sent to California to hear non-merits (i.e., bond) cases that didn’t even belong in court in the first place? Through a disastrous combination of “gonzo” enforcement policies and stunning incompetence the Trump Administration is destroying a key component of the US justice system. When and where will it end?

PWS

06-11-17

Personalized Immigration History, Anyone? Four Of Us “Old Timers” — Hon. Gus Villageliu, Hon. M. Christopher Grant, Hon. Jeffrey Chase, & I — Have Put Together Some Of Our Recollections Of The Earlier Days Of The Immigration Court Under The “Comments” To My Recent “York Speech!”

Click this link, and go to the “Comments” tab at the bottom. http://wp.me/p8eeJm-WJ

Additional thoughts and comments welcome!

PWS

06-11-17

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