Paul Wickham Schmidt – Page 283 – immigrationcourtside.com

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

Immigrants Bridge The Gap With Local Communities — “The Haters Are Always Wrong, And The Haters Will Eventually Lose.”

https://www.washingtonpost.com/opinions/working-to-build-bridges-between-immigrants-and-their-new-communities/2017/06/23/03c1bb1a-4d2a-11e7-a186-60c031eab644_story.html?utm_term=.2bcde1762b2f

Steven V. Roberts writes in a WashPost op-ed:

“These are all good examples that will, hopefully, ease the “cultural anxiety” Noorani writes about. But he shies away from discussing a key dimension of Trump’s appeal: racism. “A significant portion of the American electorate felt their country had been taken away,” he writes, but he doesn’t complete the thought. Taken away by whom? Let’s be honest. Many of those voters believe that their country has been overrun by dark-skinned, foreign-language-speaking aliens.

While it is wildly unfair to call all Trump supporters racists, it is equally inaccurate to ignore that the president deliberately inflamed racist impulses to win the election.

Moreover, Noorani lacks a larger perspective. Trump is a very American figure. Anti-immigrant fears didn’t start with globalization and weren’t “triggered” by the election of Barack Obama. Throughout our history, spasms of nativist hostility have erupted against each new group arriving on our shores: Germans and Jews, Irish and Italians, Japanese and Chinese.

Hispanics and Muslims are now the objects of this animosity, and the language directed against them is the same that’s been used to demonize newcomers for more than two centuries: This group will degrade our culture and alter our identity. But today’s targets can take comfort from the clear lessons of history.

Immigrants do change our culture — for the better. They reenergize and revitalize our civic spirit. The haters are always wrong, and the haters will eventually lose. Tiwana and Noorani himself prove that truth.

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Read the entire op-ed at the link.

Trump and his supporters might be on the right side of the political equation at this point in time, but they are squarely on the wrong side of history. Before joining up with the Trump Team, folks ought to think about being remembered by their grandchildren and great grandchildren in the same way that we think about such notorious racists as Alabama Governor George Wallace, Georgia Governor Lester “Pickax” Maddox, and Arkansas Governor Orvil Faubis, or those who engineered and championed such abominations as the Chinese Exclusion Act.

Even iconic American historical figures like President Woodrow Wilson and Gen. Robert E. Lee have recently had their racism and support for racist causes eventually catch up with them and tarnish their reputations. In the long run, the cause of intolerance, fear, and bias promoted by Trump, Pence, and today’s GOP will look pretty bad. Yeah, we’ll all be gone by then. But, our descendants and history will remember where we stood.

PWS

06-25-17

What Are The Five Most Cruel Provisions Of The Senate GOP’s “Trumpcare” Bill? — The GOP Tried To Bury Them, But The LA Times Exposed Them For You!

http://www.latimes.com/business/hiltzik/la-fi-hiltzik-senate-hidden-20170623-story.html

Michael Hiltzik reports for the LA Times:

“The Affordable Care Act repeal bill unveiled Thursday by Senate Republicanshas aptly drawn universal scorn from healthcare experts, hospital and physician groups and advocates for patients and the needy. That’s because the bill is a poorly-disguised massive tax cut for the wealthy, paid for by cutting Medicaid — which serves the middle class and the poor — to the bone.

Yet some of the measure’s most egregious, harshest provisions are well-disguised. They’re hidden deep in its underbrush or in the maze of legislative verbiage. We’ve ferreted out some of them and present them here in all their malevolent glory. In this effort we’ve built on ace detective work by Adrianna McIntyre, Nicholas Bagley of the University of Michigan, David Anderson of Duke University and balloon-juice.com, Andy Slavitt, the former head of Medicare and Medicaid in the Obama administration, and

Some of these provisions match those in the House Republicans’ repeal bill passed May 4, and some are even harsher — more “mean,” to use a term President Trump himself applied to the House bill. That bill, according to the Congressional Budget Office, would cost some 23 million Americans their health coverage by 2026. The Senate bill wouldn’t do much better, and might do worse.”

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Wow, how can members of the “national community” support doing in not only themselves (in many cases) but millions of their fellow citizens? I admit to “not getting it.”

I think it’s likely to pass. Why? Because if you forget the Dem & media “spin,” N/W/S “historic unpopularity,” Trump is still the most popular “active” politician in the US today. The Dems have failed to make any inroads whatsoever into the “Trump base.” And, the GOP is scared that failure to line up behind the Trump agenda will lead to their being punished by “the base.” So, in simple terms, the 60% of Americans who question or oppose the Trump Agenda are being “led around by the nose” by the 35-40% who love him (why is a total mystery). Trump is benefitting from the “leadership void” in American politics, particularly on the Democrats’ side.

PWS

06-23-17

2D CIR Raps BIA, USIJ For Applying Wrong Tests For Agfel —- NY 5th Degree Sale Of A Controlled Substance Not A “Drug Trafficking Crime” — Respondent Eligible For Cancellation — KENNARD GARVIN HARBIN v. JEFFERSON SESSIONS III

http://caselaw.findlaw.com/us-2nd-circuit/1865217.html

“We hold that NYPL § 220.31 defines a single crime and is therefore an “indivisible” statute. Accordingly, the agency should have applied the so-called “categorical approach,” which looks to the statutory definition of the offense of conviction, rather than the particulars of an individual’s behavior, to determine whether a prior conviction constitutes an aggravated felony. See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Now applying the categorical approach, we conclude that Harbin’s conviction under the NYPL § 220.31 did not constitute a commission of an aggravated felony. Harbin’s § 220.31 conviction therefore did not bar him from seeking cancellation of removal and asylum.”

PANEL: Circuit Judges CABRANES, POOLER, and PARKER.

OPINION BY: Judge Pooler.

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When will they ever learn, when will they ever learn? Attempts by U.S. Immigration Judges and the BIA to “blow by” proper application of “divisibility analysis” and the “categorical approach” in an effort to maximize removals under the “aggravated felony” provisions of the INA continue to draw criticism from higher court judges. However, they probably are “less career threatening” with respect to the BIA’s relationship to their political bosses at the DOJ. Whoever heard of a due process court system being owned and operated by the chief prosecutor? And, nobody can doubt that Attorney General Jeff Sessions sees himself as the Chief Prosecutor of migrants in the United States. But, to be fair, the last Attorney General to actually attempt to let the BIA function as an an independent quasi-judicial body was the late Janet Reno. And, that was 17 years ago.

PWS

06-23-17

A HUMAN LIFE IS A TERRIBLE THING TO WASTE! — BUT, THAT’S EXACTLY WHAT OUR CURRENT PROGRAM OF DEPORTATIONS TO GUATEMALA IS DOING!

https://www.nytimes.com/2017/06/22/opinion/guatemala-immigrants.html?em_pos=large&emc=edit_ty_20170622&nl=opinion-today&nlid=79213886&ref=headline&te=1

Anita Isaacs writes in this NY Times op-ed:

“On a recent Wednesday, 75 Guatemalans disembarked from one of three charter flights, all full of deportees from the United States, scheduled that day. The group was led into a hangar, where authorities gave them a perfunctory welcome: a hello, a snack and bus fare to wherever they were headed.

The Guatemalan government’s relationship to the deportees ended there. Considering them a burden, even an embarrassment, the Guatemalan state and society are unable and unwilling to assist the thousands of migrants being sent back home.

Reintegrating them is no doubt a challenge. But so is doing nothing. And Guatemala and the United States have far more to gain by harnessing the economic, social and political capital these migrants bring back with them.

One reason Guatemala doesn’t do much with deportees is the widespread belief that they won’t stay for long.

On a recent visit to the country, I heard businessmen, public officials and community activists insist that Donald Trump and his wall would not intimidate aspiring migrants. But migrants aren’t wasting time, either. As a community leader told me, “Everyone is saying that they better rush now before Mr. Trump finishes his wall.”

In fact, many Guatemalans want the migrants to go back. Their return spells an end to remittances that constitute about 10 percent of the country’s gross domestic product. And returning migrants are flooding an already depressed job sector, where three-quarters of the labor force works off the books.

Not surprisingly, returning migrants aren’t particularly liked. Guatemalans figure they were sent home for breaking the law; those with tattoos are ostracized, assumed to belong to a violent street gang. Employers won’t hire them, and passers-by glance away.

Of course, such treatment becomes a self-fulfilling prophecy. Denying migrants the assistance to reintegrate economically and socially will just make the country’s problems worse.

Marginalized individuals often join street gangs in a search to belong, and drug gangs and human traffickers recruit returning migrants. They know how to get across the border; many have lived in communities where gangs and organized crime fester; and they are the Guatemalans most familiar with the United States.

While it’s true that some migrants will head back north, many have no interest. One man I know, whose remittances were used to set up a T-shirt factory that employs his 10 children in his village, is heading home for good. Older returnees, especially those who have squirreled away enough money to survive, no longer feel pulled toward the United States.

Categorizing all deportees as criminals is equally misleading. Whereas a minority are felons, many more committed misdemeanors, and the majority are guilty only of crossing the border illegally and working without a permit.

Indeed, many migrants represent an untapped resource. Most left their countries as unskilled peasants, yet through resourcefulness and hard work in the United States they acquired a diverse set of professional skills and rose through the ranks.

During my visit, I encountered bricklayers and carpenters who undertook sophisticated home renovation projects, professional landscapers who worked on golf courses, a leather craftsman who oversaw a briefcase-making business and a young sushi chef who spoke fluent English and even rudimentary Japanese. They are eager to put their skills to work in Guatemala, either by opening their own businesses or by finding a private-sector partner.

For starters, the government should provide credit and, for those in the construction and tourism industries, ease cumbersome certification requirements so that they can ply their trade immediately. It could also develop a returnee-specific “linked in” program, where returning migrants would advertise their skills, connected to an effort to match them with businesses committed to diversifying and modernizing the Guatemalan economy.

Inasmuch as the migrants could help stabilize the Central American region, the United States could also benefit from the skills of deportees. The Alliance for Prosperity, which the American government has provided funds for, aims to curb migration by alleviating poverty, lawlessness and violence. Among other things, it fosters international, public and private investments in education, health care and vocational training — goals that skilled returning migrants can help achieve.”

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Our short-sighted policies, unwillingness to invest wisely in the futures of foreign countries (beyond military and law enforcement aid), and apparent inability to look for different approaches (beyond just arrest, detain, and deport, arrest, detain, and deport) virtually guarantees a continuation of the cycle of illegal entries, reentries, and expensive, resource intensive immigration enforcement. Walls, fences, more detention centers, more DHS agents, and, yes, even more U.S. Immigration Judges are not going to solve this problem.

PWS

06-22-17

TRUMP THRILLS IOWA BACKERS BY PROMISING TO ENACT “NEW LEGISLATION” TARGETING LEGAL IMMIGRANTS THAT HAS BEEN IN THE LAW FOR MORE THAN TWO DECADES!

http://www.huffingtonpost.com/entry/donald-trump-welfare-law_us_594b5630e4b0a3a837bcef3d

Ed Mazza reports in HuffPost:

“President Donald Trump wants Congress to pass a law denying welfare benefits to immigrants for five years.

“I believe the time has come for new immigration rules which say that those seeking admission into our country must be able to support themselves financially and should not use welfare for a period of at least five years,” Trump said on Wednesday night at a rally in Cedar Rapids, Iowa.

The crowd cheered wildly at this latest example of Trump’s tough-on-immigrants rhetoric, and the president soaked in the applause.

However, such a law already exists.

As The Hill noted, the Personal Responsibility and Work Opportunity Reconciliation Act, which was signed into law by President Bill Clinton in 1996, prohibits immigrants from receiving federal benefits.

One section of the law is even titled “Restricting Welfare and Public Benefits For Aliens,” and specifically sets a five-year threshold for “federal means-tested public benefit.” The section carves out some exceptions for refugees and those granted asylum as well as veterans and active-duty military, their spouses and dependents.

Although it’s not clear how Trump’s proposed law would be different, he still vowed to enact his legislation “very shortly.”

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What can you say? I suppose you could say that you were going to “crack down on foreigners by counting to ten backwards” and Trump backers would go wild with glee. Life in the parallel universe.

But, behind all Trump’s ignorance and silliness, there is a dark motive. By making such irresponsible statements, Trump gives his backers the false impression that legal immigrants are “all on welfare” and aren’t “paying their way.” And many Trump backers will now take it as gospel that legal immigrants come into the United States and go on welfare right away, repeating it to anyone who will listen. A lie repeated often enough gains traction as having a basis in truth. So, it’s just another way of encouraging xenophobia and drumming up unjustified resentment of legal immigrants.

PWS

06-22-17

DREAM ON: Cornell Duo Says America Needs More Refugees To Be Really Great — They’re Right, Of Course, But Truth Is Irrelevant In The “Parallel Universe” of Trump’s America!

http://www.lawschool.cornell.edu/spotlights/Make-America-Great-Again-Admit-More-Refugees-to-the-US.cfm

Professor Stephen Yale-Loehr and Aaron El Sabrout write in honor of World Refugee Day (June 20):

“Today is World Refugee Day, a day to commemorate the strength, perseverance, and courage of displaced people around the world. Over 65 million people worldwide are forcibly displaced from their homes, the highest number since World War II. Turkey alone has accepted nearly 3 millionrefugees from Syria.

In our current political climate, some consider refugees a security threat and a drain on national resources. But America benefits economically, socially, and morally by accepting more refugees.

A new study by the National Bureau of Economic Research shows that after six years in the United States, refugees work at higher rates than citizens. A similar 2016 study by the Tent Foundationfound that refugees fill gaps in the labor market, work harder to learn skills and languages than economic migrants, and have a “dynamic” impact on growth.

The myth that refugees drain a nation’s economic resources is false. Yes, refugees initially require a substantial resettlement cost (approximately $15,000), and often initially need welfare services. However, after eight years in the United States, refugees receive welfare at the same rate as U.S. citizens with similar education and language skills. Over a 20-year period, refugees in the U.S. pay an average of $21,000 more in taxes than the initial cost of resettling them. In fact, a study by Texas A&M professor Kalena Cortes shows that over time, refugees tend to out-earn other immigrants and add more value to the economy than the initial cost of resettling them. For example, Vietnamese-Americans, many of whom arrived as refugees, tend to be more financially stable and more employed than the average American, and therefore less likely to need welfare benefits.

Refugees play a key role in creating new jobs and raising overall wages. This is in part because they are more likely than other groups to open small businesses, creating new jobs rather than taking old ones. For example, refugees were a major factor in stabilizing the economy of Utica, NY, because they filled important gaps in the labor force and created greater economic demand for goods.Even when refugees do low-skilled work, they do not displace American workers. A study by scientists at the University of California, Davis and the University of Copenhagen found that an influx of low-wage immigrant labor tends to raise wages for everyone.

Refugees also contribute tremendously to innovation and growth. Examples of famous refugees or children of refugees who have advanced U.S. culture and knowledge include Marc Chagall, Gloria Estefan, Madeleine Albright, Henry Kissinger, Enrico Fermi, Steve Jobs, and Albert Einstein.

That history is in jeopardy. President Trump issued an executive order in March slashing refugee admissions from 110,000 to 50,000 this year and temporarily suspends all refugee admissions. That order, which federal courts have temporarily blocked, insults our history and our legacy. We have a precedent of being welcoming and gracious. That precedent is not just rooted in altruism; accepting refugees is good for America. It’s time to step up and embrace our history of welcoming people fleeing persecution around the world. As a country, we have an economic and moral imperative to be what we once promised we would be: a refuge for the world’s huddled masses, yearning to breathe free.”

______

Stephen Yale-Loehr is Professor of Immigration Law Practice at Cornell Law School, where he co-directs an asylum clinic. Aaron El Sabrout is a law student at Cornell Law School.

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Sorry, Steve & Aaron. Truth, values, morality, and simple human decency play no role in this debate. Refugees are foreigners, many with different religions, other cultures, other languages, and non-white skins (we wouldn’t seriously be having this debate if all refugees were white, English speaking, Christians from, say, Australia, Canada, the UK, and New Zealand). So in the world of Trump, his Xenophobic (and sometimes also racist) followers, and their GOP “fellow travelers” that’s all you need to know.

It’s not really about making America Great or keeping us safe; it’s about building political power by stoking xenophobia and unjustified resentment. And, the target is by no means just refugees and other migrants. No, it’s also about ginning up resentment against American citizens of Hispanic, Black, Arabic, and to some extent Asian American descent. Not coincidentally, these ethnic groups often are thought to vote more for Democrats than the GOP.

Happy Refugee Day!

PWS

06-22-17

BREAKING: SUPREMES BODY SLAM DOJ IN NATZ CASE — MISREPRESENTATION MUST BE “MATERIAL” — Maslenjak v. United States — Total Justices Voting For DOJ Position = 0 (ZERO)!

Here’s the Court’s Syllabus (NOT part of the decision);

SUPREME COURT OF THE UNITED STATES

Syllabus

MASLENJAK v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 16–309. Argued April 26, 2017—Decided June 22, 2017

Petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia during the 1990’s, when a civil war divided the new country. In 1998, she and her family sought refugee status in the United States. In- terviewed under oath, Maslenjak explained that the family feared persecution from both sides of the national rift: Muslims would mis- treat them because of their ethnicity, and Serbs would abuse them because Maslenjak’s husband had evaded service in the Bosnian Serb Army by absconding to Serbia. Persuaded of the Maslenjaks’ plight, American officials granted them refugee status. Years later, Maslenjak applied for U. S. citizenship. In the application process, she swore that she had never given false information to a government of- ficial while applying for an immigration benefit or lied to an official to gain entry into the United States. She was naturalized as a U. S. cit- izen. But it soon emerged that her professions of honesty were false: Maslenjak had known all along that her husband spent the war years not secreted in Serbia, but serving as an officer in the Bosnian Serb Army.

The Government charged Maslenjak with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U. S. C. §1425(a). According to the Government’s theory, Maslenjak violated §1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The District Court instructed the jury that, to secure a conviction un- der §1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. The Sixth Circuit affirmed the convic- tion, holding that if Maslenjak made false statements violating

2 MASLENJAK v. UNITED STATES Syllabus

§1015(a) and procured naturalization, then she also violated §1425(a).

Held:
1. The text of §1425(a) makes clear that, to secure a conviction, the

Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” speci- fies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtain- ing of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.

The Government’s contrary view—that §1425(a) requires only a vi- olation in the course of procuring naturalization—falters on the way language naturally works. Suppose that an applicant for citizenship fills out the paperwork in a government office with a knife tucked away in her handbag. She has violated the law against possessing a weapon in a federal building, and she has done so in the course of procuring citizenship, but nobody would say she has “procure[d]” her citizenship “contrary to law.” That is because the violation of law and the acquisition of citizenship in that example are merely coincidental: The one has no causal relation to the other. Although the Govern- ment attempts to define such examples out of the statute, that effort falls short for multiple reasons. Most important, the Government’s attempted carve-out does nothing to alter the linguistic understand- ing that gives force to the examples the Government would exclude. Under ordinary rules of language usage, §1425(a) demands a causal or means-end connection between a legal violation and naturaliza- tion.

The broader statutory context reinforces the point, because the Government’s reading would create a profound mismatch between the requirements for naturalization and those for denaturalization: Some legal violations that do not justify denying citizenship would nonetheless justify revoking it later. For example, lies told out of “embarrassment, fear, or a desire for privacy” (rather than “for the purpose of obtaining [immigration] benefits”) are not generally dis- qualifying under the statutory requirement of “good moral charac- ter.” Kungys v. United States, 485 U. S. 759, 780; 8 U. S. C. §1101(f)(6). But under the Government’s reading of §1425(a), any lie told in the naturalization process would provide a basis for rescinding citizenship. The Government could thus take away on one day what

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

Syllabus

it was required to give the day before. And by so unmooring the rev- ocation of citizenship from its award, the Government opens the door to a world of disquieting consequences—which this Court would need far stronger textual support to believe Congress intended. The stat- ute Congress passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturaliza- tion process, but only when that act played some role in her naturalization. Pp. 4–9.

2. When the underlying illegality alleged in a §1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship. Because the entire naturalization process is set up to provide little room for subjective pref- erences or personal whims, that inquiry is properly framed in objec- tive terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.

If the facts the defendant misrepresented are themselves legally disqualifying for citizenship, the jury can make quick work of that inquiry. In such a case, the defendant’s lie must have played a role in her naturalization. But that is not the only time a jury can find that a defendant’s lies had the requisite bearing on a naturalization decision, because lies can also throw investigators off a trail leading to disqualifying facts. When relying on such an investigation-based theory, the Government must make a two-part showing. Initially, the Government must prove that the misrepresented fact was suffi- ciently relevant to a naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation. Kungys, 485 U. S., at 774, n. 9. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. The Government need not show definitively that its investiga- tion would have unearthed a disqualifying fact. It need only estab- lish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774. If that is so, the defendant’s mis- representation contributed to the citizenship award in the way §1425(a) requires. This demanding but still practicable causal standard reflects the real-world attributes of cases premised on what an unhindered investigation would have found.

When the Government can make its two-part showing, the defend- ant may overcome it by establishing that she was qualified for citizenship (even though she misrepresented facts that suggested the opposite). Thus, whatever the Government shows with respect to a

MASLENJAK v. UNITED STATES Syllabus

thwarted investigation, qualification for citizenship is a complete defense to a prosecution under §1425(a). Pp. 10–15.

3. Measured against this analysis, the jury instructions in this case were in error. The jury needed to find more than an unlawful false statement. However, it was not asked to—and so did not—make any of the necessary determinations. The Government’s assertion that any instructional error was harmless is left for resolution on remand. Pp. 15–16.

821 F. 3d 675, vacated and remanded.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in the judgment.

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

Interestingly, Justice Gorsuch, in his first immigration-related decision, wrote a separate concurring opinion agreeing with the majority that a misrepresentation must be “material” but indicating that he would not have gone on to attempt to articulate a test for “materiality.”

Doubt that the Government’s max-enforcement effort in the Federal Courts is out of touch with reality and the law? Try this: With a supposedly conservative majority Supreme Court, the Gov has lost two recent cases this one and Esquivel-Quintana v. Sessions(http://immigrationcourtside.com/2017/05/31/led-by-justice-thomas-unanimous-supremes-reject-usgs-attempt-to-deport-mexican-man-for-consensual-sex-with-a-minor-strict-interpretation-carries-the-day/) by a total vote of 17-0. Yes, that’s right, 17-0! Not one Justice has sided with any of the nonsense that the Solicitor General has advanced on behalf of Government overreach on immigration enforcement. Justice Thomas even wrote the unanimous opinion in Esquivel (Justice Gorsuch sat that one out).

And, remember that these were positions developed and defended by the DOJ under the Obama Administration.

PWS

06-22-17

THE NEW YORKER: Bureaucratic Delays Impede Due Process In U.S. Immigration Court!

http://www.newyorker.com/news/news-desk/what-will-trump-do-with-half-a-million-backlogged-immigration-cases

Jonathan Blitzer writes in The New Yorker:

“In April, Attorney General Jeff Sessions travelled to Nogales, Arizona, to make an announcement. “This is the Trump era,” he said. “The lawlessness, the abdication of the duty to enforce our immigrations laws, and the catch-and-release practices of old are over.” While his tone was harsh, and many of the proposals he outlined were hostile to immigrants, he detailed one idea that even some of his critics support: the hiring of more immigration judges.

U.S. immigration courts are facing a backlog of over half a million cases—and each one, on average, takes almost two years to close. These delays mean that everyone from asylum seekers to green-card holders faces extended stays in detention while awaiting rulings. Speaking about the problem, one immigration judge recently told the Times, “The courts as a whole lose credibility.”

Much of the backlog can be traced back to the Obama Administration, when spending on immigration enforcement went up, while Congress dramatically limited funds for hiring more judges. The number of pending cases grew from a hundred and sixty-seven thousand, in 2008, to five hundred and sixty thousand, in 2017, according to the Transactional Records Access Clearinghouse. The broader trend, though, goes back farther. Since the creation of the Department of Homeland Security, in 2002, the increase in resources allocated for border security and immigration policing has always significantly outpaced funding for the courts. (Immigration courts are part of the Department of Justice.) As more and more people have been arrested, detained, and ordered deported, the courts have remained understaffed and underfunded. “We’ve always been an afterthought,” Dana Leigh Marks, the president of the National Association of Immigration Judges, told me.

Roughly three hundred judges nationwide are responsible for the entire immigration caseload, and hiring is slow—filling a vacancy typically tak

es about two years, according to the Government Accountability Office. In Nogales, Sessions said that he would try to streamline the hiring process. But until that happens the Administration has been relocating judges to areas where they’re deemed most necessary. “We have already surged twenty-five immigration judges to detention centers along the border,” Sessions said, as if talking about military troop levels.”

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

To state the obvious, a court should be run as an independent court system, not a bureaucratic agency within a highly politicized Executive Department like the DOJ. (If you ever wondered whether the DOJ was politicized, recent events should make it clear that it is.)

And, Jeff, these are judges, not troops; and the individuals are not an “invading army,” just mostly ordinary folks seeking refuge, due process, and fair treatment under our laws and the Constitution. Remember, it’s not an immigration crisis; it’s a crisis involving the steady degradation of due process within the U.S. Immigration Court system.

PWS

06-21-17

SURPRISE: PLATO LIVES! — Philosophers Often Turn Out To Be Kings (& Queens) Of Business & Professions!

https://www.washingtonpost.com/local/education/for-philosophy-majors-the-question-after-graduation-is-what-next/2017/06/20/aa7fae2a-46f0-11e7-98cd-af64b4fe2dfc_story.html?utm_term=.db0db771aaec&wpisrc=nl_buzz&wpmm=1

From the Washington Post:

“Philosophy majors spend their college years pondering deep questions, such as: What is the meaning of life? Do we have free will? And what job am I going to get with this degree after graduation?

It turns out the last question isn’t hard to answer: Just about anything.

The idea that philosophy majors aren’t prepared for professional careers “is a little bit of a myth, to be honest,” said Thomas Holden, chair of the philosophy department at the University of California at Santa Barbara. “Philosophy is not about sages sitting on mountaintops speculating about the cosmos.”

Graduates in philosophy inhabit Wall Street corner offices, roam the oak-paneled halls of the Supreme Court and reign over boardrooms in Silicon Valley.

Interest in the major has risen steadily in the past three decades. Although totals have dipped slightly in recent years, federal education data shows the number of students who received bachelor’s degrees in philosophy has doubled since 1987, peaking at 7,926 graduates in 2013.”

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

Gee whiz! Who would ever have thought that teaching sound reasoning, critical analysis, effective argument, skillful defense of ideas, and creative problem solving skills could be useful in the “real” world? Certainly not the many politicos and supposed educational and business wonks who trash the liberal arts and glorify “trade school” education for everyone.

The world is a rapidly changing place. And, folks who learn how to think, solve problems, and maintain a big picture perspective usually have the flexibility to “reinvent” themselves as necessary, even as their technical knowledge and skills become outdated or obsolete. And, intellectual curiosity and engagement are things that help outside the workplace or when things at work get rough. Critical thinking and creative problem solving are just as important for good mechanics, carpenters, plumbers, and brick masons as they are for chief execs, scientists, doctors, and lawyers.

Yesterday, I dropped by to see my good friend and colleague (and contributor to immigrationcourtside.com, http://immigrationcourtside.com/2017/06/19/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/) at Georgetown Law, Professor Andy Schoenholtz. I caught him “red-handed” perusing a tome of Immanuel Kant. He tried to cover up by claiming that he was just “cleaning out his bookcase.” But, of course, we know the truth (to the extent, of course, that absolute truth can ever be “known’).

No wonder Schoenholtz has accomplished so much in the real world as well as the academic world!

PWS

06-21-17

POLITICS: According To The Polls & Mainstream Media, Trump Is Historically Unpopular & The GOP Can’t Govern — But, That’s News To Actual Voters Who Continue To Prefer The GOP To Dems!

Upset, schmupset, the four consecutive House races that Dems have lost in the “Trump” era are exactly the types of elections they are going to have to consistently win to retake power. Yes, it’s an improvement for our system when there are more competitive races, and it’s good for Dems that they are actually taking races in “GOP Territory” seriously.

But, in Georgia, the Democratic Candidate John Ossoff actually ran behind Hillary Clinton who narrowly lost the District to Trump. There was no GOP incumbent, and now-Rep. Karen Handel actually beat Ossoff by a very comfortable margin of almost 4 points.

I keep saying it. The strategy of counting on Trump to self-destruct, the inability of the GOP to govern, and criticism of the GOP’s “help the rich, stiff everyone else” agenda isn’t working any better in the post-election era than it did for Hillary. The Dems are leaderless, programless, and all too often clueless. Until that changes, the reign of Trump and one-party government in America is likely to continue, notwithstanding the polls and the media.

And, speaking of polls and the media, remember their performance in predicting the mood of America and the results of the 2016 election. Not much has changed.

PWS

06-21-17

JOINING THE CLUB: Sessions “Lawyers Up!”

https://www.washingtonpost.com/world/national-security/attorney-general-sessions-retains-a-personal-attorney/2017/06/20/698d9828-55f0-11e7-ba90-f5875b7d1876_story.html?hpid=hp_rhp-top-table-main_sessionslawyer-941pm%3Ahomepage%2Fstory&utm_term=.7a3bb2306c43

Sari Horwitz reports in the Washington Post:

“Attorney General Jeff Sessions, who has been under fire in recent months for his contacts with Russian officials during the 2016 presidential race, has retained the services of Washington lawyer Charles J. Cooper, a longtime friend.

Cooper was seen sitting behind Sessions when he testified last week before the Senate Intelligence Committee about President Trump and Russia.

“I do represent the Attorney General, but, as with all clients, do not comment on confidential client matters,” Cooper wrote in an email to The Washington Post.

Cooper, a partner with his own firm, Cooper & Kirk, would not say when he was retained by Sessions or whether he is representing Sessions in the special counsel’s investigation into Trump and Russia. Sessions, who was the first senator to endorse Trump on the campaign trail, was a top adviser to Trump during his race for president.

Cooper also assisted Sessions with his January confirmation hearing before the Senate Judiciary Committee, discussing those preparations in an interview with The Post at the time.

Sarah Isgur Flores, a Justice Department spokeswoman, described Cooper as “the attorney general’s longtime friend and counsel.”

The National Law Journal first reported that Cooper is now Sessions’s personal attorney.

Cooper, who clerked for Justice William H. Rehnquist on the Supreme Court, served in the Justice Department’s civil rights division and was appointed by President Ronald Reagan as the assistant attorney general for the Office of Legal Counsel. He was also a partner at McGuireWoods and at Shaw, Pittman, Potts & Trowbridge.

Cooper was also under consideration to serve as the Justice Department’s solicitor general. He withdrew his name in February, citing his concern after watching Sessions go through the confirmation process to become attorney general.

“After witnessing the treatment that my friend Jeff Sessions, a decent and honorable man who bears only good will and good cheer to everyone he meets, had to endure at the hands of a partisan opposition that will say anything and do anything to advance their political interests, I am unwilling to subject myself, my family and my friends to such a process,” Cooper said in a statement at the time.”

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Read the complete article at the above link.

I think Cooper confuses “geniality” with “goodwill.” That Sessions is a bearer of “goodwill” would be news to most blacks, hispanics, immigrants, migrants, and LGBT individuals in the U.S. Yes, we’ve all noted that he is “genial.” But the South has been famous for producing polite, charming, genial white politicians who spent careers making sure that African Americans were denied their legal and constitutional rights, their human dignity, and their rights to fully participate in American society. Actions speak louder than words. And, since assuming the office of Attorney General, Sessions’s actions have been geared specifically at implementing a nationalist agenda inconsistent with the interests of many Americans, particularly minorities, immigrants, and the LGBT community.

As I have said numerous times over the past five months, the Trump Administration has been a “lawyer’s dream.” Prosecutors, defense counsel, judges, and legal reporters have all been very busy, and that’s not likely to change.

PWS

06-20-17

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