Prosecutorial Discretion (“PD”) – Page 3

COURTSIDE HAS BEEN SAYING IT FOR YEARS: For Survival As A Nation, We Need To Keep All The Law Abiding (95+%) Legal & Undocumented Immigrants Already Here, PLUS Enact A Robust Increase In Legal Immigration In All Categories & Allow Many More Legally Admitted Refugees & Asylees — Unless & Until Congress Works Up The Courage (E.G., “Balls”) To Do This, Even Over The Objection Of The White Nationalist Racist Restrictionists, Large Scale “Civil” Immigration Enforcement Is A Beyond Stupid, Highly Unprofessional, Cruel Hoax — An Abuse Of Authority, & A Grotesque Waste Of Taxpayer Resources That Makes America Infinitely Worse As A Nation — FINALLY, THE SO-CALLED “MAINSTREAM MEDIA” IS STARTING TO “GET IT!

https://www.washingtonpost.com/opinions/ice-sweeps-are-cruel-without-immigration-reform-theyre-pointless-too/2019/08/11/88d212b8-bad4-11e9-bad6-609f75bfd97f_story.html

From the WashPost Editorial Board:

By Editorial Board

August 11

THE DEPORTATION sweep Wednesday by hundreds of U.S. Immigration and Customs Enforcement agents at several food processing plants in Mississippi left a trail of tears, business jitters and widespread anxiety in places where undocumented immigrants are so tightly woven into communities that the towns would struggle to exist without them. The raids inflicted predictable suffering — especially among children whose parents were suddenly carted off — to such a degree that just 24 hours afterward, ICE had released some 300 of the 680 migrants it had arrested, including those who had no criminal records.

President Trump, whose own family business has for many years employed migrants who entered the country illegally , pronounced the Mississippi action a “very good deterrent ” to unauthorized immigration. The evidence for that assertion is nil. Still, the sweep provided some useful reminders, not least that the United States cannot deport its way out of a dysfunctional immigration system.

First, the raids underline American agriculture’s deep dependency on undocumented workers, who in 2014 accounted for 17 percent of employees in the sector — and considerably more than that on farms and in many food processing plants. Little wonder that plant managers and local residents in towns targeted by ICE last week worried that the raids would sap their businesses and vitality.

The fact is that relatively few Americans want dirty, dangerous jobs that pay $12 per hour, while requiring some employees to report to work at 3 a.m. One study commissioned by the dairy industry suggested 3,500 dairy farms would close if half the country’s foreign-born workers were deported; another survey, from North Carolina, showed that in 2011, a minuscule number of the state’s nearly half-million jobless workers applied for 6,500 available farm jobs, and most of those who were hired couldn’t hack the work; most of the jobs were then filled by Mexicans.

Second, any large-scale enforcement action will inevitably result in families being broken apart — including those whose children are U.S. citizens. In 2017, two-thirds of unauthorized adult migrants had lived in the United States for more than a decade, according to the Pew Research Center; their median duration of residence was 15 years. Officials may not like the optics of crying toddlers and preteens whose parents have been taken away, but they shouldn’t be surprised.

Third, businesses like the ones in Mississippi that employ undocumented workers are subject to federal prosecution. But it was Republican leaders in the House of Representatives last year, on Mr. Trump’s watch, who blocked legislation that would have required private employers to use E-Verify, a data system used to check whether employees are legally present in the country. Farm groups, including those who represent major employers in Republican districts in California and elsewhere, are dead set against requiring E-Verify, knowing it would produce severe labor shortages.

ICE officials and federal prosecutors are right that deportation sweeps are within their purview as lawful enforcement actions. The problem is that the law is so blatantly misaligned with economic, social and political realities that it is magical thinking to believe that enforcement alone, in the absence of sweeping reform of existing laws, can make a dent in the nation’s population of 10.5 million undocumented immigrants.

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Best Point: Immigrants at the “lower levels” of our economic ladder make just as much, probably more, contribution to the national prosperity, continued existence, and welfare as those at the top. And, certainly they do more for the good of the nation than Trump and the useless civil enforcement authorities at DHS.

While I’m not going to turn away a “rocket scientist” who wants to immigrate, we certainly need more qualified agricultural, home health care, and construction workers than “rocket scientists.” And, yes, logical choices to enforce and administer the law in a rational manner, including declining to enforce useless and counterproductive provisions, and to resist political pandering stemming from racist motives are well within the lawful discretion of all law enforcement agencies.

Quibble: Just because enforcement is technically “lawful” does not mean that it’s prudent or appropriate. Most of today’s civil immigration enforcement is immoral, wasteful, and corruptly intended to support racism and White Nationalism.

I suspect that the majority of the criminal statutes and ordinances now on the books in the U.S. are largely unenforced or only sporadically enforced. That’s good policing, good public policy, and poor legislating.

What if your local police devoted 100% of their resources to “busting” anyone who drove 1 mile over the speed limit while failing to investigate and prosecute homicide, rape, robbery, and other violent felonies? That’s technically “legal,” but both inane and fundamentally corrupt. Those responsible would likely be quickly removed from office.

And, let’s be clear: While DHS resources are being concentrated on White Nationalist nonsense like the “Mississippi Raids,” REAL CRIMES, such as fraud, wage and hour violations, abuse of migrants, hate crimes directed at migrants, human trafficking, drug trafficking, domestic violence, rape, bribery, soliciting of sexual favors by DHS agents, extortion, perjury, tax evasion, and other felonies are NOT being aggressively investigated or prosecuted by Trump’s White Nationalist regime.

That’s basically the way the immigration laws are being (mal)enforced in Trump’s name by folks like McAleenan, Albence, Morgan, Provost, and others. Don’t fall for their nonsensical apologist “we’re only enforcing the law” BS. (Also, what about the laws protecting refugees, asylum seekers, and encouraging legal immigration that these complicit clowns are unlawfully perverting or failing to enforce?)

Instead, vote to insure they and everyone associated with Trump are removed from office, required to make an honest living in the future, and replaced with competent, humane, and ethical folks who will resist and when necessary “out” racism and White Nationalism in all of its toxic forms. Just because enforcement of obsolete, unworkable, and discriminatory laws might be technically “legal” doesn’t make it right, sensible, or moral. And, in the case of the Trump Administration, it’s downright immoral, dishonest, and counterproductive.

PWS

08-12-19

BIA SAYS IT’S FINE FOR IMMIGRATION JUDGES TO HELP OUT ICE ENFORCEMENT – Read Hon. Jeffrey S. Chase On Latest One-Sided Decision In Matters of Andrade Jaso and Carbajal Ayala.

https://www.jeffreyschase.com/blog/2019/6/7/the-bia-and-selective-dismissal

Jun 7 The BIA and Selective Dismissal

On May 31, the BIA published a precedent decision in Matters of Andrade Jaso and Carbajal Ayala. In that decision, Board Member Garry Malphrus (writing for a panel that included Hugh Mullane and Ellen Liebowitz) held that immigration judges have the authority to dismiss removal proceedings upon a finding that it is an abuse of the asylum process to file a meritless asylum application with USCIS for the sole purpose of seeking cancellation of removal in proceedings before the immigration court.

As always, some context is required. Cancellation of removal is a relief available to those who have been in the U.S. for at least 10 years, have led a generally clean life here, and have a child, spouse, or parent who is a U.S. citizen or green card holder who would suffer a very high degree of hardship if their noncitizen relative were to be deported. The hardship might be to elderly parents for whom the noncitizen is a necessary caregiver, or to a spouse with a serious medical or psychological condition, or children with special needs. But unlike most other forms of relief, which usually involve the mailing of an application to USCIS, cancellation of removal may only be requested from an immigration judge after the applicant is placed in removal proceedings in immigration court.

Once, an attorney who felt his client had a strong enough claim would arrange with the ICE investigations unit to process the client and place her or him into removal proceedings. A number of years ago, under the Obama Administration, ICE discontinued this practice. According to a former ICE official, the reason given by the investigations office for the change was that it is not their job to help people obtain benefits.

With this decades-old avenue suddenly closed, attorneys asked the ICE office of general counsel for guidance. ICE’s own response: apply for asylum with USCIS. Any asylum applicant not granted is referred to an immigration judge, where the applicant can then apply for any relief, including cancellation of removal. This answer was confirmed at a high level in ICE headquarters, which assured that there was nothing wrong with filing for asylum for the sole purpose of applying for cancellation of removal before an immigration judge.

It is worth noting that ICE’s present solution places a very unfair burden on the USCIS Asylum Offices, which are already overwhelmed with the backlog of asylum claims and credible and reasonable fear interviews. The workload of individual asylum officers is untenable at present. The simple and obvious solution would be to have ICE return to processing those wishing to be placed into proceedings, but that’s a matter for DHS to work out internally. In the meantime, applying for asylum remains the only avenue for cancellation of removal candidates.

The question obviously arises as to how an immigration judge can find the following of DHS’s own recommendation to be an abuse of the asylum process, or how such argument can be raised by attorneys employed by the exact ICE office that came up with the suggestion in the first place.

Such a position might have been justifiable under the Obama Administration, which in response to the growing case backlog created a system of prioritization, which included the closing out of cases not considered urgent. However, as we all know, the Trump Administration did away with such priority system, on the apparent belief that everyone should be deported immediately. Those cases closed as non-priority under Obama are being forced back into an already overloaded system. The press is filled with stories of a pizza delivery man, or a father dropping his child at school being arrested, detained, and placed into removal proceedings. Of course, we have all read the reports of children being torn from their parents and detained separately (undoubtedly causing permanent psychological damage), and, if lucky enough to be released, sped through the system because this administration believes everyone deserves to be deported.

Some immigration judges used their authority to administrative close, delay, dismiss, or terminate proceedings where appropriate in the hopes of affording justice to those caught in proceedings. Former attorney general Jeff Sessions reacted quickly, issuing binding decisions prohibiting such efforts. In Matter of Castro-Tum, Sessions stripped IJs of their long-standing ability to administratively close cases. In Matter of L-A-B-R-, Sessions made it prohibitively more difficult for IJs to even grant continuances for legitimate reasons. And in Matter of S-O-G- & F-D-B-, Sessions held that immigration judges have no inherent authority to dismiss or terminate proceedings, a move consistent with his overall goal of downgrading independent judges to the role of assembly line workers. Sessions also stated that an IJ may dismiss proceedings only under the limited circumstances set out in the regulations.

The applicable regulation, 8 C.F.R. § 239.2(a), lists seven circumstances under which DHS (but not the private bar) may seek dismissal of proceedings. The first four, where the respondent turns out to in fact be a national of the U.S., to not be deportable from or inadmissible to the U.S., to be deceased, or to not be in the U.S., are pretty obvious reasons to dismiss proceedings, as all involve situations in which, due to either error or intervening events, there is no living respondent in the U.S. who is removable under the law, and thus no case to pursue in court. Reason 5 involves a very specific situation where one granted conditional residence as the spouse of a U.S. citizen or permanent resident was placed into proceedings because she or he did not timely file the petition to remove the condition on their residence within the required time frame, but it turned out they filed late for a legitimate reason permitted by the law. Reason 6 is where the NTA was improvidently issued. An example of that is where after issuing an NTA, DHS realizes that the respondent was already issued an NTA at an earlier time, and therefore seeks to dismiss the second NTA and reopen the first proceeding.

Reason 7 is where circumstances have changed since the NTA was issued to such an extent that continuation of the proceedings is no longer in the best interest of the government. This is obviously meant to be a broadly-defined category. However, it clearly doesn’t cover the situation arising in Andrade Jaso. DHS advised those wishing to apply for cancellation of removal but lacking a path to be placed into proceedings to file an asylum application for the sole purpose of being referred to the immigration court. The DHS asylum offices are so cognizant of the situation that a pilot project was briefly instituted to allow asylum applicants with over 10 years of residence to waive their asylum interview. So what is the drastically changed circumstance? Furthermore, all of the first 6 examples involve situations where the person in proceedings is not removable, because they are dead, outside of the U.S., actually in lawful status, etc., or may be removable, but there is some technical defect with the issuance of this specific NTA. All focus on whether there is a respondent who is properly removable; none allow for termination of the proceedings of a removable respondent based on what they might be seeking as a relief. But Andrade Jaso was properly in removal proceedings, and is properly removable from the U.S. as charged in the NTA. In all similar cases, the respondents admit removability, because otherwise, they would not be able to apply for cancellation of removal.

So in summary, Andrade Jaso is inconsistent with all of the AG’s precedent decisions under this administration, and with binding regulations. And yet, a three Board Member panel had no reservations (there wasn’t any dissent) in issuing this decision. Why? Because it prevents the only group of people who actually want to be in proceedings from having the chance to apply for legal status.

The good news is that the decision states that an immigration judge “may” terminate proceedings, not that they must. Hopefully, judges will exercise good judgment in refusing to terminate worthy cases. However, the decision might offer an equitable resolution where one who lacks the requirements for cancellation of removal, which requires an exceptional degree of hardship to the qualifying relative, was wrongly steered into removal proceedings and would otherwise have faced certain removal.

In closing, it is wondered how the AG or BIA might respond to a situation in which an IJ dismisses proceedings upon the motion of a DHS attorney that the separation of a child from its parent with no plan as to how to reunite the family, the permanent psychological damage such separation causes to child and parent, and the subsequent need to rush the family through the system before they can adequately obtain counsel or prepare their applications, constitutes such an abuse of the asylum system as to warrant dismissal under the same regulation. Are any DHS attorneys willing to make such motion?

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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Why are the Immigration Court dockets out of control? Many, perhaps the majority, of the cases that DHS has put on the Immigration Court docket, shouldn’t be there. That’s because:

They involve individuals who have relief pending at USCIS; or
They involve long-term, law abiding undocumented residents, many with U.S. citizen or LPR family members, that in any rational system, particularly one straining to adjudicate cases of arriving asylum seekers in a timely manner, would be considered “low priority” — where removal actually is likely to be a “net negative” to the U.S. rather than serving any reasonable purpose; or
They are older asylum cases that should have been granted by the Asylum Office or should be “stip-granted” by DHS under a properly generous interpretation of asylum laws (disregarding lawless decisions like Matter of A-B-); or
They are potential “Non-Lawful-Permanent-Resident Cancellation Cases,” subject to an unrealistic numerical limit, that under a properly working system, could initially be vetted by Asylum Officers or other USCIS Adjudicators and only referred to the Immigration Court, in small manageable batches, if they could not potentially be granted by DHS.

With proper docket management, professional discipline, professional management, and the use of liberal amounts of “prosecutorial discretion” by the DHS, like every other prosecutorial office in he U.S save the “Trump DHS,” the Immigration Courts’ overwhelming backlog could be cut to manageable levels in relatively short order.

That, in turn, would allow the Immigration Courts to handle incoming asylum cases in a fair and timely manner without degrading Due Process or otherwise stepping on anyone’s rights. In other words, the idea that DHS should be empowered to force the Immigration Courts “to proceed to a final decision in every case filed” is killing the Immigration Courts and ultimately will tank the Article III Federal Courts if allowed to proceed without some “adult supervision.”

Additionally, the Immigration Courts need more 8ibetter qualified judges (with proven immigration expertise, not almost exclusively from the DHS side), much better training, improved staffing including a Judicial Law Clerk for each Immigration Judge, decisional and docket management independence, emphasis on written rather than oral decisions in most appealed cases, and, most of all, freedom from the pernicious political meddling from the DOJ and the White House that has brought this system into disrepute within the larger legal community and to the brink of collapse.

The “rule” established by the DOJ now appears to be that:

If a private party requests a continuance, closing, termination, or other reasonable postponement of removal proceedings, that request ordinarily should be denied in favor of proceeding to a final order whether it makes any sense or not; but
If “EOIR’s Partner” DHS requests that a case be taken off the docket for any reason, that should be viewed sympathetically even if it deprives a respondent in proceedings of substantial rights.

As long as so-called “courts” are told to consider themselves “in partnership with Government prosecutors,” to the derogation of private parties and individual rights, both statutory rights and Constitutional rights of individuals will be largely meaningless in the immigration context. And, if we let them become meaningless in immigration, soon they will be meaningless almost everywhere the Government chooses to overstep its legal and Constitutional authority. That’s the difference between an authoritarian state and a functioning democratic republic. Make no mistake about it, thanks to a great degree to what is happening in U.S. Immigration “Courts,” that difference is diminishing, for all of us, every day.

PWS

06-10-19

US DISTRICT JUDGE BRINKEMA CRITICIZES INCREASE IN LOW-LEVEL IMMIGRATION PROSECUTIONS: “I think this is not the best use of judicial or Justice Department resources to keep seeing these types of cases.”

https://www.washingtonpost.com/local/public-safety/federal-judge-criticizes-prosecutors-over-increase-in-illegal-immigration-cases/2019/01/10/98d4692e-103c-11e9-84fc-d58c33d6c8c7_story.html

Rachel Weiner and John D. Harden report for WashPost:

Federal judge criticizes prosecutors over increase in immigration cases

By Rachel Weiner and

John D. Harden

January 10 at 12:47 PM

A federal judge has spoken out against a sharp increase in Northern Virginia in the prosecution of immigrants who reenter the country after deportation.

“I hope this is not the start of a pattern for this year,” Judge Leonie M. Brinkema said in Alexandria federal court last week, noting that there were six such cases scheduled for the first Friday in January. “I think this is not the best use of judicial or Justice Department resources to keep seeing these types of cases.”

She added that she would like that message to be relayed to U.S. Attorney for the Eastern District of Virginia G. Zachary Terwilliger.

The defendant before her that morning, Ramon Adrian Ochoa Paz, ended up in federal court after serving time in Prince William County for aggravated sexual battery of a child, a felony. But in federal court, his only alleged crime was coming back into the country after being deported in 2000. And he is something of an outlier; in the majority of the 224 felony reentry after deportation cases filed in the Eastern District last year, the initial arrest involved misdemeanor offenses, most commonly drunken driving. Arrests for misdemeanor assault and public intoxication are also common.

Former attorney general Jeff Sessions made immigration cases a national priority, and the U.S. attorney’s office in Alexandria is one of many that responded to the call. U.S. Chief Justice John G. Roberts Jr. noted in his 2018 reviewthat there was a 40 percent increase nationally in defendants charged with illegal reentry last year. After drug crimes, immigration offenses are the most common federal charge, and most are illegal re-entries.

The vast majority of these cases are prosecuted at the border, where immigrants are caught crossing illegally. The Eastern District of Virginia ranked sixth among non-border districts in illegal reentry prosecutions last fiscal year.

The federal courthouse in Alexandria, Va. (Mark Wilson/Getty Images)

The Eastern District of Virginia, a large and high-profile office led by a prosecutor who worked under Sessions, has seen a particularly sharp rise in such cases, from 78 filed in 2017 to nearly three times that number the following year.

The numbers were as high or higher under President Barack Obama through the end of 2014, when the White House took unilateral action to change national deportation priorities. After that move they dropped sharply in Alexandria, along with several other districts across the country.

Terwilliger declined to comment, but in recent months he has begun highlighting cases in which defendants have repeatedly come into the country illegally and committed other crimes while here. They included a Salvadoran man arrested for his fifth drunken driving offense who already had a felony reentry conviction and a Mexican man with a sexual assault and drug record who had previously been deported.

“We are committed to criminal immigration enforcement and will continue to prioritize these cases,” the U.S. attorney wrote in one such news release.

Terwilliger has simultaneously emphasized his support for legal immigration, regularly taking part in the Alexandria courthouse’s monthly naturalization ceremonies. In his first-ever tweet, he wrote, “These individuals exemplify that we are both a nation of immigrants and a nation of laws.”

U.S. Attorney for the Eastern District of Virginia G. Zachary Terwilliger. (Department of Justice)

Most illegal immigrants convicted of coming back into the country after deportation do not have previous felony or extensive misdemeanor records and are usually not sentenced to any incarceration beyond time already served awaiting judgment before they are handed over to U.S. Immigration and Customs Enforcement, according to federal court records. The average sentence in fiscal 2018 for those who did get prison time was five months, according to data from Syracuse University’s Transactional Records Access Clearinghouse — on the low end nationally and a decline from previous years.

In many cases the initial charges are dropped or left hanging because the defendant is already in ICE custody. When the initial crime is more serious, a defendant is more likely to be prosecuted on federal charges after completing a local sentence.

Although the Salvadoran gang MS-13 is a serious problem in Northern Virginia and many of the illegal immigrants are from that country, only four of the 224 defendants prosecuted last year on a reentry charge have been alleged in public court filings to have ties to the gang.

Only a few of those prosecuted were not arrested for any reason other than returning to the country after deportation — for example, a contractor hired to work on a house where FBI agents were serving a search warrant.

Often, defense attorneys in these cases ask to skip as much of the standard court process as possible, hoping to move a case quickly to sentencing. Illegal immigrants rarely have the funds to hire attorneys; most of these cases are handled by taxpayer-funded public defenders.

“The court, prosecutors, and defense lawyers spend considerable time and resources, particularly to hire interpreters, on illegal reentry cases. Yet these defendants almost all face, in addition to prosecution, detention in ICE custody and deportation,” Geremy Kamens, lead public defender for the Eastern District said in a statement. “Particularly for defendants who have little or no criminal record, ICE detention and removal already amount to a significant punishment.”

Brinkema has challenged the Trump administration’s immigration policies before. She issued a preliminary injunction against the White House’s travel ban on seven majority-Muslim countries in 2017, saying there was “unrebutted evidence” that the order was motivated by “religious prejudice.”

But in immigration cases involving a pattern of bad conduct, she has not shied away from imposing relatively long sentences.

Giving one man with a history of domestic violence and drunken driving a 14-month sentence for recrossing the border illegally, she told him, “You’re a menace when you’re in this country.”

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Under Trump, Sessions, and now Whitaker, the DOJ is no stranger to promoting prosecutorial abuses. Just think of the unconscionable clogging of US District Courts along the border with minor offenders as part of Sessions’s ill-fated “zero tolerance” policy; the Government’s frivolous anti-sanctuary litigation which they have lost everywhere; the abusive “re-calendaring” of previously properly closed “low priority” removal cases on already overwhelmed Immigration Court dockets; and the illegal and unethical use of “AG certification” to rewrite portions of immigration law that weren’t broken in the first place.

On the flip side, the individual actually involved in this particular case sounds (from the facts presented here) like a “bad actor” who would be an enforcement priority in any Administration. I also appreciate U.S. Attorney’s Terwilliger’s public support of naturalization and legal immigration, something which puts him at odds with some other Administration officials and Trump himself who keeps parroting the nativist “we need cuts to legal immigration” party line.

At least Judge Brinkema gets to speak her mind. By contrast,”captive” U.S. Immigration Judges controlled by the DOJ are “muzzled” when it comes to commenting on the politicized mess that this Administration is causing in the Immigration Courts through “Aimless Docket Reshuffling,” political meddling with the law by biased Attorneys General, and a total lack of discipline or discernible priorities at DHS Enforcement.

Assuming that the Immigration Courts eventually reopen their doors for non-detained cases (the vast, vast majority of the docket), the additional mess and chaos created in an already dysfunctional and mismanaged system though Trump’s mindless and unnecessary shutdown is likely to be irreparable.

PWS

01-10-19

NEWLY DISCLOSED ICE MEMO RESTRICTS PROSECUTORS’ ABILITY TO OFFER PROSECUTORIAL DISCRETION (“PD”) – Also Requires Review Of Previously Administratively Closed Cases With Eye Toward Re-Docketing (Thereby Increasing The Court Backlog)

https://www.buzzfeednews.com/article/hamedaleaziz/trump-ice-attorneys-foia-memo-discretion

Hamed Aleaziz reports for BuzzFeed News:

An ICE Memo Lays Out The Differences Between Trump And Obama On Immigration Enforcement

Among the instructions: Attorneys were told they no longer had to check the inbox where immigration lawyers emailed requests for deportation relief.

Hamed Aleaziz

BuzzFeed News Reporter

Posted on October 8, 2018, at 3:09 p.m. ET

John Moore / Getty Images

Attorneys for Immigration and Customs Enforcement were restricted from granting reprieves for certain immigrants facing deportation, ordered to review and potentially reopen previously closed cases, and told that nearly all undocumented immigrants were priorities for deportation, according to a previously unreleased memo obtained by BuzzFeed News.

The memo, which was issued Aug. 15, 2017, and obtained through a Freedom of Information Act request, provided a roadmap for how ICE attorneys were to prosecute cases under the Trump administration. It was written by Tracy Short, ICE’s principal legal adviser and head of the attorneys who handle deportation cases in court.

While immigration lawyers had long reported anecdotally that such changes had taken place in the courtroom, the memo is the first detailed explanation of how government attorneys were told to handle deportation cases and how to implement Trump’s executive order on immigration enforcement issued Jan. 25, 2017.

“Prosecutorial discretion is an act of administrative leniency, it is not an entitlement,” Short wrote.

Under the Obama administration, ICE attorneys were encouraged to request the dismissal or indefinite suspension of deportation cases of immigrants who were not serious criminals or national security threats. To do so, the administration directed ICE attorneys to look for qualifying cases and encouraged immigration attorneys to email ICE with requests for “prosecutorial discretion.”

Obama administration officials believed their approach would focus ICE’s limited resources on those unauthorized immigrants with the worst criminal records, as opposed to those who were largely contributing members of society.

Short’s memo told attorneys they were no longer required to check the email inbox used to receive requests for leniency from immigration attorneys. Short also wrote that ICE attorneys could consider prosecutorial discretion for immigrants in certain circumstances, such as a relative of a military member, has an obvious claim to status, has an “extraordinary humanitarian factor,” or is an asset to state or federal law enforcement. Even then, ICE attorneys must receive written approval from senior leadership in Washington for such a request.

Still, attorneys across the country have rarely seen immigrants granted reprieves, regardless of their circumstances, said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.

“The revelation of the memo is important because it shows how the ICE trial attorneys were instructed to stop exercising prosecutorial discretion in all but the most extreme circumstances,” said David Leopold, an immigration attorney at Ulmer and Berne in Cleveland. “The memo changed prosecutorial discretion by all but forbidding ICE prosecutors from using their common sense or showing any compassion.”

Sarah Pierce, a senior policy analyst at the Migration Policy Institute, said the “memo is in line with the broader interior enforcement goal of the administration: Enforce immigration laws against everyone.”

The memo also directed ICE attorneys to review previously closed cases, instructing them to look for cases that don’t fit the administration’s new immigration enforcement priorities, which include practically all undocumented immigrants, and to prioritize reopening cases in which individuals had a criminal history or evidence of fraud. At the same time, attorneys were told that practically all undocumented immigrants were now priorities for deportation in the court.

As of August 2018, the government had requested the reactivation of nearly 8,000 deportation cases that had been administratively closed. The previous fiscal year, which included nearly four months of the Obama administration, there were nearly 8,400 such requests. The pace of such requests is nearly double that of the last two years of the Obama administration, when there were 3,551 and 4,847 such requests, respectively. Attorney General Jeff Sessions limited the ability for immigration judges to indefinitely suspend deportation cases in June.

“This is an unrelenting, unremitting deportation push. From that point of view, it is eye-opening in its scope, trying to make sure that no stone is unturned,” said a government official familiar with the memo who was not authorized to speak about it. “It systematically took any possibility where some independent judgment could be exercised by a government attorney and made it very clear they know what their marching orders are.”

Sessions Urged Immigration Judges To Show Less Sympathy, Setting Off A Firestorm Of Complaints

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A copy of the memorandum in question accompanies the full article at the above link.

So, ICE Assistant Chief Counsel will be “going to the mat” — thereby requiring “full” hearings — in almost every one of the 760,000 cases currently on the docket, plus perhaps hundreds of thousands of previously administratively closed cases.

At the same time, U.S. Immigration Judges are improperly being pressured by Sessions to set three or four merits cases per day, when most experienced judges would have difficulty completing two such cases in a fully professional manner consistent with Due Process.

Something has to give here. That something is likely to be Due Process for the respondents — the only real purpose of the system in the first place.

How long will this mockery of justice and parody of a “court system” be allowed to go on? Will Article III Judges be satisfied to be “rubber stamps” on a process that violates the Constitution? Or, will they step in and insist that the Immigration Courts comply with the Constitution — something that scofflaws like Jeff Sessions, Kirstjen Nielsen, and the other Trumpists have no intention of doing?

Only time will tell! But, history will record and remember what they did!

PWS

10-08-18

HEAR ME ON THE “REDIRECT” PODCAST WITH MATTHEW ARCHAMBEAULT, ESQ. (PHILADELPHIA) & STEPHEN ROBBINS, ESQ. (YAKIMA, WA) — TOPIC: Matter of Castro Tum & The Deconstruction Of The U.S. Immigration Courts & Asylum System

This Week:

REDIRECT: Due Process

This week Matthew and I are joined by former Immigration Judge Paul Schmidt to discuss the dwindling due process in our Immigration Courts. Matthew discusses his experience with Castro Tum, a case hand picked by the Attorney General to make life worse for literally everyone. Is the AG intentionally trying to overwhelm the Immigration Courts…

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Play in New Window|Download

REDIRECT: The War on Legal Immigration

This week we’re joined by Charles Kuck, former president of AILA and the host of some other immigration podcast (….The Immigration Hour) to discuss the important issues of today, including the Pee Tape (PT), whether Charles is still a republican, and the ongoing assault on legal immigration. Yes, that’s right: LEGAL immigration. There is an … Show Notes

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REDIRECT: Open Borders

This week we’re joined by David Bennion, an immigration attorney in Philadelphia, Pennsylvania, to talk open borders. He recounts his harrowing encounter with border patrol as he crossed from Idaho into Utah. You can find David’s information here: http://davidbennion.com Our Patreon page is www.patreon.com/redirect. Leave a tip. Like us on … Show Notes

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REDIRECT: Denaturalized

This week I’m joined by Matthew Hoppock (fake Matthew), an incredible immigration attorney out of Kansas City, to discuss Trump’s new denaturalization task force. Are people really being stripped of their citizenship? Who are they going after, and why? Also, the Army is quietly discharging immigrant recruits who have been promised citizenship. We … Show Notes

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You can find the show at the following places:

http://www.redirectpodcast.com/redirect-due-process/

We’re on Facebook:

https://www.facebook.com/c2cimmigration?ref=hl

The podcast is available on iTunes:

https://itunes.apple.com/us/podcast/redirect-immigration-law-and-perspectives/id911898006?mt=2

And also on Stitcher:

https://www.stitcher.com/podcast/stephen-robbins/coast-to-coast-immigration-law-and-perspetives

We also have a Patreon page:

www.patreon.com/redirect

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Thanks for having me on your show, Matthew and Stephen, and for all you do. I also recommend appearing on future editions of this podcast to any of our “Gang of Retirees” who might be willing to participate. It was both engaging and worthwhile.

PWS

08-03-18

WNYC’S BETH FERTIG FERRETS OUT FOOLISHNESS BEHIND THE SESSIONS/DHS ATTACK ON ADMINISTRATIVE CLOSING AND PROSECUTORIAL DISCRETION – I’m Quoted and Pictured!

https://www.wnyc.org/story/trump-administration-reviewing-thousands-deportation-cases-once-put-pause

Beth reports:

“Last year, a young mother who came to the U.S. illegally from Mexico as a child thought she’d essentially won her fight against deportation.

Twenty-four year old Jenny isn’t eligible for DACA, or Deferred Action for Childhood Arrivals. She was in the midst of immigration court proceedings when she told her attorney that she was a victim of domestic violence, which is why WNYC agreed not to use her real name.

In May, Jenny reported her boyfriend to police for allegedly beating and trying to choke her. That action suddenly changed the course of her immigration case.

Jenny was able to apply for what’s called a U visa that would allow her to stay in the U.S. It’s for immigrant victims of crime who cooperate with law enforecement.

The waiting list for a U visa is about three years. But because Jenny met the criteria, and got the Brooklyn District Attorney’s office to sign off on her documents, the immigration judge agreed to put her cause on hold. The legal term for this is administrative closure. The government would no longer seek to deport her while she waited for her special visa.

But a month later, Immigration and Customs Enforcement (ICE) asked the same judge to recalender Jenny’s case and put it back on the docket — meaning she’d have to fight against deportation all over again.

The reason? ICE wrote that Jenny’s U visa was “speculative” and “not available within a reasonable period of time.” The agency said three years was too long to wait — even though they’re controlled by another governmental agency, U.S. Citizenship and Immigration Services (both are within the Department of Homeland Security). ICE said she could wait for her U visa while in Mexico.

The agency also noted that Jenny had been convicted of petit larceny when she was 18. Though it’s not considered a crime that could lead to an immigrant’s removal, it brought her to ICE’s attention a few years ago, and her unlawful presence in the U.S. triggered the deportation proceedings.

For Jenny, the about face was extremely upsetting after suffering domestic abuse and moving into a women’s shelter. “I seek help and I’m still kind of being, you know, bullied,” she said.

Her attorney, Kendal Nystedt of the immigrant rights group Make the Road New York, said ICE seemed to mischaracterize immigration law and said its arguments “were also insulting given the humanity of my client.”

The judge apparently agreed. Late last year, in a one page memo, he denied the government’s request and let Jenny remain in the U.S. But data obtained by WNYC shows that Jenny wasn’t the only immigrant who thought they could stay, only to have the government give their case a second look.

In Fiscal Year 2017, ICE asked to recalendar almost 9400 cases that were administratively closed, or put on pause. That’s an increase of almost 74 percent from the year before President Trump took office. In response, it appears immigration judges may be applying more scrutiny to the government’s requests. They granted 85 percent of those motions to put the cases back on their dockets in 2017, compared to 96 percent in 2016.

When asked why the government is revisiting more cases, ICE spokewoman Jennifer Elzea said the agency generally reviews cases that were administratively closed “to see if the basis for prosecutorial discretion is still appropriate.”

But it’s clear this legal strategy also lets the Trump administration try to deport more immigrants. Former immigration judge Andrew Arthur said there’s a good reason. “Under the Obama Administration, administrative closure was treated as a form of amnesty,” he explained.

Arthur is a fellow with the Center for Immigration Studies, a think tank that supports more restrictive immigration policies. Without commenting on Jenny’s situation he said some cases that were administratively closed involved immigrants who may never qualify for whatever benefit they thought they were likely to receive. But he said the previous administration didn’t act because there were “not deemed a priority for removal.”

In other words, he Obama administration had made criminals the top priority for removal, letting too many others remain.

Retired immigration judge Paul Wickham Schmidt

Beth Fertig/WNYC

Another former immigration judge said that Obama era policy made sense, however. Paul Wickham Schmidt granted administrative closures when he worked in the Arlington, Virginia court.

“An example of a type of case that gets closed quite a bit are cases of individuals who have relatives petitioning for them. And there’s a big backlog of petitions,” Schmidt explained. “So rather than continuing the case time after time, sometimes for years, judges were saying ‘look I’m going to take this case off the docket.'”

He said this management strategy was necessary. The immigration courts have a backlog of 670,000 thousand pending cases. “You’re not even going to complete 670,000 cases probably within my lifetime. You’ve got to decide which cases really belong at the front of the line and which cases you’re not going to prioritize,” he said. “Wasting time in immigration court just doesn’t make sense.”

Despite concerns about further burdening an immigration court system that’s already bursting at the seems, Attorney General Jeff Sessions is considering a much more dramatic step than simply seeking to recalendar the 9400 cases that were reviewed last year. He’s looking into recalendaring all cases that were administratively closed – and there are estimates there could 350,000 of them.”

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Go to the link to hear the audio from WNYC!

Putting cases like “Jenny’s” back on the already overcrowded dockets is cruel, counterproductive, and wasteful of judicial time. She’s established the qualifications for a U visa, for Pete’s sake. There really isn’t any “uncertainty” — if she stays out of trouble with the law, she’ll get a U visa when her number comes up. No reason on earth for her to “occupy space” on the Immigration Court’s docket.

If she were unwise enough to get into legal trouble before then (seldom happens, in my experience), then that would be the time to 1) revoke her U visa approval, and 2) put her back on the docket. With dockets stretching out for years, why would an Immigration Judge do anything other than keep putting a case like Jenny’s at the end of the docket until her “U number” is reached?

Just because somebody is “removable” doesn’t mean that it makes any sense to put them on already overcrowded Immigration Court dockets. That’s particularly true of an individual who meets the requirements for a legal status (albeit one that because of the arcane structure of the Federal Regulations, an Immigration Judge can’t actually grant).

It’s analogous to the local prosecutor jamming a judge’s docket with jaywalking, littering, and unleashed dog cases so that there isn’t time to hear felony rape and robbery cases! No other law enforcement agency in America that I’m aware of operates without any real prosecution priorities the way Sessions and the DHS are trying to do in this Administration.

And, of course, one large class of “Administratively Closed” cases involves those who had their DACA applications approved by USCIS after Removal Proceedings had been initiated. What would be the point of putting such cases “back on the docket” if DACA were actually terminated?

Even the DHS claims that “Dreamer” cases would not be an “enforcement priority.” (Although, during the Trump Administration such claims by DHS have often proved to be “not credible.”) Therefore, it would literally be years before they could be heard. And many of them have strong cases for other forms of immigration relief such as Cancellation of Removal. I want to believe that the fate of the Dreamers will be resolved long before then.

PWS

03-07-18

“GANG OF 14” FORMER IMMIGRATION JUDGES AND BIA APPELLATE IMMIGRATION JUDGES (INCLUDING ME) FILE AMICUS BRIEF IN SUPPORT OF ADMINISTRATIVE CLOSING! – Matter of Castro-Tum

HERE’S “OUR HERO” STEVEN H. SCHULMAN OF AKIN GUMP’S DC OFFICE WHO DID ALL THE “HEAVY LIFTING” OF DRAFTING THE BRIEF:

HERE’S THE “CAST OF CHARACTERS” (A/K/A “GANG OF 14”):

Amici curiae are retired Immigration Judges and former members of the Board of Immigration Appeals, who seek to address the Attorney General’s certified questions regarding administrative closure. Amici were appointed to serve at immigration courts around the United States and with the Board, and at senior positions with the Executive Office of Immigration Review. From their many combined years of service, amici have intimate knowledge of the operation of the immigration courts, including the importance of various procedural mechanisms to maintain efficient dockets. As explained in detail, administrative closure, when used judiciously, is a critical tool for immigration judges in managing their dockets. Without tools like administrative closure, immigration judges would be hampered, unable to set aside those matters that do not yet require court intervention and thus prevented from focusing on the removal cases that demand immediate attention.

In particular, the Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and Page 2 of 32 is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Page 3 of 32 Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War. Page 4 of 32

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Edward Kandler was appointed as an Immigration Judge in October 1998. Prior to his appointment to the Immigration Court in Seattle in June 2004, he served as an Immigration Judge at the Immigration Court in San Francisco from August 2000 to June 2004 and at the Immigration Court in New York City from October 1998 to August 2000. Judge Kandler received a Bachelor of Arts degree in 1971 from California State University at San Francisco, a Master of Arts degree in 1974 from California State University at Hayward, and a Juris Doctorate in 1981 from the University of California at Davis. Judge Kandler served as an assistant U.S. trustee for the Western District of Washington from 1988 to 1998. He worked as an attorney for the law firm of Chinello, Chinello, Shelton & Auchard in Fresno, California, in 1988. From 1983 to 1988, Judge Kandler served as an assistant U.S. attorney in the Eastern District of California. He was also with the San Francisco law firm of Breon, Galgani, Godino from 1981 to 1983. Judge Kandler is a member of the California Bar.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Page 5 of 32 Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Prop Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association. Page 6 of 32

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. She has also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School. Page 7 of 32

The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review until he retired in 2011, helping manage FOIA, Privacy and Security as EOIR Records Manager. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket 1990-95. Mr. Villageliu was a member of the Iowa, Florida and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, Iowa he joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT………………………………………………………………………………………………………………… 7

I. Immigration Judges and the Board have inherent and delegated authority to order administrative closure in a case ……………………………………………………………………………… 7

A. Federal courts have recognized that judges possess an inherent authority to order administrative closure………………………………………………………………………… 8

B. Regulations establishing and governing Immigration Judges ratify their inherent authority to order administrative closure. …………………………………………. 9

II. The Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure……………………………………………………………………….. 13

A. The legal standard set forth in Avetisyan and W-Y-U- gives the Immigration Judge the correct degree of independence in deciding motions for administrative closure. ……………………………………………………………………………… 13

B. The facts and disposition of the case at bar show that the legal standard under Avetisyan and W-Y-U- is working correctly. ………………………………………………… 16

III. Fundamental principles of administrative law hold that the Attorney General cannot change the regulations that grant this authority without proper notice and comment rulemaking. ……………………………………………………………………………………………………….. 18

A. Practical docket management considerations weigh in favor of retaining administrative closure. ……………………………………………………………………………… 19

B. Due process considerations also weigh in favor of retaining administrative closure. …………………………………………………………………………………………………… 21

IV. Options such as continuances, dismissal without prejudice, and termination without prejudice, are suboptimal as compared to administrative closure. …………………………….. 22

V. There is no reason to attach legal consequences to administrative closure. ………………… 25

FINALLY, HERE’S THE COMPLETE BRIEF FOR YOUR INFORMATION AND READING PLEASURE:

Former IJs and Retired BIA Members – FINAL Castro-Tum Brief

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Thanks again to all retired my colleagues. What a great opportunity to “reunite online” in support of a critically important cause affecting the American Justice System!
Special thanks to Judge Jeffrey Chase for spearheading the effort and getting all of us together!
“Super Special Thanks” to the amazing Steven H. Schulman, Partner at Akin Gump DC and to Akin Gump for donating your valuable time and expertise and making this happen!

PWS

02-17-18

CRISTIAN FARIAS @ NEW YORK MAGGIE – THE HISTORY OF PROSECUTORIAL DISCRETION IN IMMIGRATION GOING ALL THE WAY BACK TO THE “BERNSEN MEMO” – WHY, CONTRARY TO SESSIONS & THE RESTRICTIONISTS, IT IS A SOUND LEGAL CONCEPT – AND WHY THE SUPREMES SHOULD STAY OUT OF THE DACA ISSUE IN THE LOWER COURTS! – PLUS BONUS TRIVIA! – “Who REALLY wrote that four decades old memo?

http://nymag.com/daily/intelligencer/2018/02/scotus-would-be-crazy-to-jump-into-the-daca-dispute.html

Cristian writes:

“The earliest, highest-profile critic of granting an executive reprieve to Dreamers was none other than Justice Antonin Scalia. The plight of young immigrants brought to the United States as children was not something the Supreme Court was concerned with in 2012, but the late justice somehow felt the need to protest, in open court, President Obama’s then weeks-old decision to not deport them for humanitarian reasons. “The president has said that the new program is, quote, the right thing to do, close quote, in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws,” he said as he read from a summary of his partial dissent in Arizona v. United States. That case and decision had nothing to do with Dreamers.

Maybe Scalia’s real qualm was with the sitting president and not the recipients of the Deferred Action for Childhood Arrivals program, better known as DACA. But his broader point, which a Supreme Court majority rejected, was that states should have leeway in enforcing federal immigration laws, since they — and not undocumented immigrants — face the “human realities” of a broken immigration system. The citizens of border states like Arizona “feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy,” Scalia complained. Somewhere, a future President Trump may have been taking notes.

More than five years since that screed, the Supreme Court could soon get a chance to judge the propriety, if not the legality, of Trump’s decision last September to pull the plug on DACA. A federal judge in California in January ordered the reinstatement of the program, reasoning that its rescission rested on a “flawed legal premise” — namely, Jeff Sessions’s paper-thin conclusion that DACA was illegal the moment it was conceived. The judge also rejected as “spin” and “post-hoc rationalization” the Trump administration’s contention that DACA was vulnerable to a legal challenge by Texas and other states, which had threatened Sessions with a lawsuit if he didn’t kill the initiative outright. “The agency action was not in accordance with law because it was based on the flawed legal premise that the agency lacked authority to implement DACA,” wrote the judge, William Alsup, in a ruling that effectively brought DACA back from the dead. Days later, the administration began accepting renewal applications as if the rollback had never happened.

Legal scholars weren’t impressed with the ruling. And Sessions, not one to give up on Trump’s anti-immigrant crusade, then took the “rare step” of appealing Alsup’s decision directly to the Supreme Court — and why not? The Ninth Circuit, Trump’s least favorite appeals court, is unruly, liberal, and anti-Trump, anyway; leapfrogging it seemed the smart thing to do. What’s more, Sessions wanted the justices to act expeditiously — his solicitor general filed an additional request to decide the case before the end of June. Not doing so, he suggested, would be the same as blessing “indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens.” So much for Trump’s wish to treat Dreamers “with heart.” There was only one problem: The Supreme Court rarely, if ever, lets anyone skip over the regular appeals process. And if Sessions is in such a hurry, why didn’t the administration seek to block Alsup’s ruling rather than comply with it? Last Friday, a coalition that includes the University of California, several states, a local chapter of the SEIU, and a number of Dreamers told the Supreme Court to reject the Trump administration’s request to hear the case. The DACA mess, this alliance broadly contended, is Trump’s and Congress’s to own, and the justices shouldn’t be the ones fixing it, at least not with the urgency Sessions is demanding.

. . . .

The principle of prosecutorial discretion, which is what holds DACA together, was never once discussed by Sessions when he announced the wind-down of DACA. He didn’t even try. Prosecutorial discretion wasn’t some novelty that Napolitano came up with at the time, let alone a quirk of immigration law. In a path-breaking memorandum written some 40 years ago, Sam Bernsen, the general counsel of the now-defunct Immigration and Naturalization Service, advised the agency’s commissioner that the “ultimate source for the exercise of prosecutorial discretion” lies with the inherent powers of the presidency. “Under Article II, Section 1 of the Constitution, the executive power is vested in the President,” Bernsen wrote in what is believed to be the first in a long string of government memos justifying prosecutorial discretion in the immigration realm. “Article II, Section 3, states that the President ‘shall take care that the laws be faithfully executed.’” Ironically, conservatives would later seize on this “take care” language to argue breathlessly that Obama’s immigration actions were an affront to the constitutional text, but no judge took that argument seriously.

Far and wide, executive officers enjoy similar discretion to enforce the law. From the president down to a lowly street cop, every law enforcer, state or federal, exercises some form of prosecutorial discretion over the laws they’re entrusted to oversee. It’s the reason you don’t always get ticketed for jaywalking or pulled over for doing 65 on a 55, even in instances where you happen to do those things in full view of the police: The government has ample discretion to not go after you if it feels you’re a low-priority lawbreaker. Maybe the 75-miles-per-hour driver is the bigger fish. Whichever the case, the decision is, by and large, unchallengeable. “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” wrote Justice Anthony Kennedy in the same immigration ruling that Scalia assailed in 2012. “Discretion in the enforcement of immigration law embraces immediate human concerns,” he added.

Kirstjen Nielsen, the new DHS secretary, and Trump himself have all but conceded the point in recent weeks. In an interview with CBS’s John Dickerson, Nielsen said that it’s “not the policy of DHS” to go after Dreamers who are DACA recipients, even if the current legislative talks fail and the program isn’t renewed. “It’s not going to be a priority of the Immigration and Customs Enforcement to prioritize their removal,” Nielsen clarified, directly contradicting the Department of Justice’s position on DACA before the Supreme Court. (Dreamers and immigration advocates know better than to trust Nielsen’s assurances.) Asked last month if he might extend the arbitrary March 5 end date of the DACA rollback process — which is no longer the end date as a result of Judge Alsup’s ruling — Trump spoke as if he never truly believed, like Sessions did, that deferred action was unlawful: “I certainly have the right to do that if I want.”

In this climate, and with Trump still fielding immigration offers as Congress faces yet another deadline to fund the government, the Supreme Court would be crazy to jump into the DACA controversy. “I think for the Supreme Court to reach down to a district court decision and not allow the normal appellate process to proceed would necessarily, under the circumstances, involve or indicate that the Supreme Court is signaling its involvement in a deeply political matter,” Napolitano told me. Scalia may have felt comfortable criticizing policy choices from the bench, but that doesn’t mean Chief Justice John Roberts and his colleagues have to take the bait. For their own peace of mind and that of Dreamers, the Court is better off staying as far away as possible, and letting Trump take care of the laws that give him broad authority to spare young undocumented immigrants if he really wants to.”

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Read the rest of Cristian’s analysis, including his detailed interview with former DHS Secretary Janet Napolitano, now President of the University of California System and a plaintiff in the District Court case, over at New York at the above link.

SPECIAL BONUS:

From the “archives” here’s a copy of the famous “Bernsen Memo” of July 15, 1976:

Bernsen Memo service-exercise-pd

YOUR TOSSUP IMMIGRATION TRIVIA QUESTION OF THE DAY:

Who actually wrote the “Bernsen Memo?”

(Hint: Look at the bottom of the last page.)

FOURTH CIRCUIT JOINS 9TH, 2d, & 6TH IN REVERSING BIA’S OVERLY RESTRICTIVE READING OF ASYLUM ELIGIBILITY – ADDITIONAL EVIDENCE OF A PRE-EXISTING CLAIM CAN BE A “CHANGED CIRCUMSTANCE” JUSTIFYING “LATE” ASYLUM FILING! — ZAMBRANO V. SESSIONS (PUBLISHED)!

4th Cir on changed circumstances-1yr

Zambrano v. Sessions, 4th Cir., 12-05-17 (published)

PANEL: KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION BY: Judge Gibney

KEY QUOTE:

“This Court agrees with the logic of the Ninth, Second, and Sixth circuits. New facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past. The Court remands to the BIA and leaves the determination of whether the facts on record constitute changed circumstances which materially affect the petitioner’s eligibility for asylum to the BIA’s sound discretion.

III.
The BIA erred when it categorically held that additional proof of an existing claim

does not establish changed circumstances. Accordingly, we grant the petition for review, vacate the BIA’s order, and remand the case to the BIA for further consideration in light of this opinion.”

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This is a very important decision for asylum applicants in the Fourth Circuit, as this situation arises frequently in Immigration Court.

With three well-reasoned Circuit decisions already in the books, why is the BIA holding out for a discredited rationale? How many individuals who weren’t fortunate enough to have Ben Winograd or an equally talented lawyer argue for them in the Court of Appeals have already been wrongfully removed under the BIA’s discredited rationale? Where’s the BIA precedent adopting this rationale and making it binding on IJ’s nationwide before more individuals are wrongfully removed? How is this “through teamwork and innovation being the world’s best administrative tribunal guaranteeing fairness and due process for all?”

The answer to the latter question is sadly obvious. While the BIA’s problems predated his tenure, the attitude of Attorney General Jeff Sessions, as demonstrated in his recent pronouncement on so-called “Immigration Court efficiency” elevates “false efficiency,” speed, and cranking out removals above fundamental fairness and Due Process. Why have an elaborate administrative court system that doesn’t put Due Process first and foremost as “real” (non-captive) courts generally do? Why not just send all removal cases to U.S. District Judges and Magistrate Judges who make Due Process and fairness “job one” and aren’t preoccupied with “jacking up” removal statistics to please political bosses?

And, I’d like to see how far the DHS/Sessions’s (they are pretty much the same these days) boneheaded, arrogant, unrealistic, and wasteful “no PD” policy would get in a “real” court system where widespread, reasonable, and prudent use of PD by prosecutors is understood and accepted as an essential part of fairness, efficiency, and responsible use of publicly-funded judicial resources. Indeed, in some of my past “off the record” conversations with Article III Judges, they were absolutely flabbergasted to discover the unwillingness of DHS to meaningfully exercise “PD” in the pre-Obama era and to learn that at DHS the “cops,” rather than the prosecutors were responsible for setting PD policies!

PWS

12-08-17

NPR: THE TOTAL IDIOCY (AND WASTE OF RESOURCES) OF THE TRUMP-SESSIONS “GONZO ENFORCEMENT PROGRAM!”

John Burnett reports for NPR Radio. Listen here:

http://www.npr.org/2017/09/20/552339976/border-patrol-arrests-parents-while-infant-awaits-serious-operation

Here’s the written version:

When 2-month-old Isaac Enrique Sanchez was diagnosed with pyloric stenosis, a condition that causes vomiting, dehydration and weight loss in infants, his parents were told that their son’s condition was curable. The problem was that no hospital in the Rio Grande Valley of Texas had a pediatric surgery team capable of performing the operation on his stomach.

To make Isaac well, Oscar and Irma Sanchez would need to take their infant son to Driscoll Children’s Hospital, in Corpus Christi, Texas. It was just a couple of hours up the highway, but for them it was a world away.

The Sanchezes, who are undocumented, would need to pass a Border Patrol checkpoint.

“The nurse told us we had to go there,” Oscar says in Spanish. “We said we couldn’t go.”

While they pondered their predicament in a Harlingen, Texas, hospital, a Border Patrol agent showed up in the waiting room — Oscar Sanchez suspects a nurse turned them in — and said he could arrange for officers to escort the parents through the checkpoint to Corpus. But the agent said when they arrived, they would be arrested and put into deportation proceedings. The couple agreed.

The events that followed at the Corpus Christi hospital are the latest developments in a national controversy over so-called sensitive locations. Under President Barack Obama, the Department of Homeland Security adopted a policy that immigration agents should avoid enforcement actions at hospitals, schools, churches and public demonstrations unless there are special circumstances.

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ICE Agents’ Tactics Raise Concerns About Migrants’ Access To The Justice System

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The Sanchezes’ 48-hour odyssey with federal agents shows the lengths to which the Trump administration will go to round up people in the country illegally, whether they have a criminal record or not.

The Border Patrol followed the ambulance, the night of May 24, as it raced to Corpus through desolate ranchland, carrying Oscar, Irma and tiny Isaac — with an IV in his arm and a tube in his stomach. Once they arrived at Driscoll Children’s Hospital, the green-uniformed agents never left the undocumented couple’s side. Officers followed the father to the bathroom and the cafeteria and asked the mother to leave the door open when she breast-fed Isaac.

“Everywhere we went in the hospital,” Oscar says, “they followed us.”

Customs and Border Protection says it is required to monitor subjects in custody “at all times” and tried to do so at the hospital “in the least restrictive manner possible.”

The next morning, agents took Oscar and Irma Sanchez, separately, from the hospital to the Corpus Christi Border Patrol station to be fingerprinted and booked. They were permitted to return. Oscar asked the surgeon if she could delay the operation until both parents could be in the waiting room. She agreed.

The parents said because Isaac is a U.S. citizen, the operation was covered by Medicaid.

“You feel vulnerable,” Oscar says. “We didn’t know if they were going to let us stay with our son or not.”

The Border Patrol, in an email to NPR, says it made sure to leave one parent with the baby at all times and that agents played no role in the decision to postpone the operation.

Driscoll Children’s Hospital, citing patient privacy, declined to discuss the case.

On a recent Tuesday 3 1/2 months after the operation, Isaac sat on his mama’s lap — all pudgy cheeks and wide eyes, wearing a top covered with little race cars. The family lives in a tidy, weathered frame house in North Brownsville, Texas.

“Thank the Lord, everything went well,” Irma says. “He still throws up a little milk, but thank God he’s fine.”

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Advocates are puzzled why the Border Patrol chose to put the Sanchezes under such intense supervision, which one would expect for higher-value targets like drug traffickers or MS-13 gang members. The couple has no criminal records. They overstayed visitors visas that were issued 12 years ago. He works construction and landscaping; she stays home with their four children, all of whom are citizens.

“I can’t pretend to understand any reasoning that would have led anyone up the chain of command to think that Irma and Oscar were flight risks or dangers to the community or in any other way people who needed to be followed into a hospital in order to be placed in deportation proceedings,” says Lisa Koop, a lawyer with the National Immigrant Justice Center. She will be asking an immigration judge in December to let the Sanchezes remain with their children in the U.S.

“That’s how you treat criminals that are harmful, and that’s understandable for our own protection,” says Ana Hinojosa, an immigrant advocate with the Mennonite Central Committee in Brownsville, who is also working on the case. “But they’re a family that’s just here trying to make a living, provide an education and a future for their children.”

Advocates are concerned that immigration enforcers are chipping away at places formerly considered safe zones. Three examples: Immigration agents detained six men after they left a church homeless shelter in Virginia; they removed a woman with a brain tumor from a Texas hospital and put her back in detention; and they arrested a father after he dropped off his daughter at school in Los Angeles.

As with the Corpus hospital, the agency maintains none of the arrests were actually made inside a sensitive location. But several members of Congress, all Democrats, are troubled just the same. They have proposed the “Protecting Sensitive Locations Act,” which would codify protected places in federal law. And it would expand them to include courthouses and bus stops.

“They’re pushing the envelope to the point where they’re trying to find out how far they can go,” says Bronx Rep. Jose Serrano, one of the bill’s authors. He is outraged by what happened to the Sanchez family in South Texas. “It violates human decency,” he says. “You don’t interrupt medical procedures.”

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

Obviously, Congress should not give DHS any additional enforcement resources, given that they have so little to do and such little internal discipline that they waste time and manpower needlessly on cases like this.

Under any sane Administration, these folks would have been granted “PD” or “prosecutorial discretion.” Even assyuming that the agency wished to go forward they could merely have mailed a Notice To Appear (“NTA”) to the couple at their home address or served them at home at a later date. The case isn’t going to be heard for months (or more) anyway.

This total lack of discipline and common sense started under and was enabled by Gen. John Kelly, at the urging of “Gonzo Apocalypto” Sessions, during the time when he was Secretary of DHS.

PWS

09-21-17

CNN: American Families Are The Human Wreckage Of Trump’s Deportation Policies!

http://www.cnn.com/2017/07/27/politics/connecticut-family-deportations/index.html

Mallory Simon and Alex Marquardt report on CNN:

“New Fairfield, Connecticut (CNN)Six-year-old Preston Colindres runs up the driveway and front steps and jumps into his father’s arms.

“Hey buddy! How are you? Oh, I love you!” Joel Colindres says as he kisses his son’s cheek. He picks up his 2-year-old daughter, Lila, hugs her and tells her he loves her.

Colindres’ children don’t know their father’s heart is breaking.

Colindres, 33, fled from Guatemala more than a decade ago. He and his American wife, Samantha, can’t quite figure out how to tell their young children that in less than a month he may no longer greet them on the steps of their New Fairfield home.

How do you explain to a 6-year-old why their father is going to be deported? The couple is unsure — especially when they can’t figure it out themselves.

“I can’t seem to summon the courage to look them in the face and say all that,” Samantha Colindres said. “How can you say it before bed, how’s he going to sleep? How do you say it in the morning before school and ruin his day? When’s the right time?”

Read Samantha Colindres’ Facebook plea for help

Colindres must produce an airline ticket to Guatemala on Thursday as proof that on August 17 he intends to comply with a deportation order.

Stopping illegal immigration and kicking out “bad hombres” was a central theme of Donald Trump’s presidential campaign. In the days after his inauguration, he vowed to rid the country of violent criminals who enter the country illegally.

Trump administration widens net on deportation 01:53

Since he came into office, the number of undocumented immigrant arrests has risen by roughly one-third, according to Immigrations and Customs Enforcement statistics. That was largely driven by an increase in the number of non-criminals arrested.

But the Colindres family never thought Joel would be a target for deportation. They, along with family, friends, and their lawyer Larry Delgado, maintain his case is typical of a change in the face of those targeted for deportation.

“This is one of the most compelling cases that we have ever seen in terms of the positives versus the negatives,” Delgado said.

Delgado counts off the positives rapidly: Colindres is married to a US citizen; has two children who are citizens; pays his taxes; owns his own home and is a skilled worker who has been with the same company for 12 years. Most importantly, Delgado said, Colindres has no criminal record.

Delgado believed Colindres’ case would be a “slam dunk” to at least get a stay of deportation. But a growing number of undocumented immigrants have found themselves expecting one outcome and getting another, Democratic Connecticut Sen. Richard Blumenthal said.

“These individuals relied on the good word and promise of the American government. They were permitted to stay here, they reported periodically, they made no effort to hide, they violated no laws, they raised children here, US citizens, and contributed and worked hard,” Blumenthal said.

Unfairness should ‘strike the hearts of Americans’

Nury Chavarria, also a Guatemala native, sought sanctuary from deportation inside a church.

The Colindres family is not alone.

“There are hundreds and maybe thousands in Connecticut and many, many more around the country that find themselves in this trauma and tragedy,” Blumenthal said.

Similar cases include that of single mother Nury Chavarria, also a Guatemala native, who had taken sanctuary with her four children inside a New Haven, Connecticut, church last week to avoid deportation. Her eldest son, who is 21 years old, has cerebral palsy. Chavarria was granted a stay of deportation in her case on Wednesday night, according to her lawyer.

Sen. Blumenthal believes immigration laws should be enforced, but with discretion.

“We should be deporting people who are dangerous and who pose a threat to society, not people like Nury and Joel and others who have lived here, worked, paid taxes, raised families, and have people depending on them at work and in their homes,” Blumenthal said.

“That is a betrayal of American values, it’s also against our interest because our economy depends on the talents and energy of these people, and we should be providing some pathway to earned citizenship for them.”

But the Trump administration has made clear anyone here illegally can be subject to deportation.

“The fact that you are not a priority does not exempt you from potential enforcement,” a Department of Homeland Security official said. People with crimes like DUIs and status violations, or noncriminal histories but a final order of removal could be subject to deportation, the official added.

Blumenthal believes those like Colindres and Chavarria should get a chance to further present their cases to remain in America.

“The fundamental unfairness of it ought to strike the hearts of Americans,” he said.”

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

Read the complete story at the link.

“Gonzo” enforcement in action. Diminishing America one arbitrary enforcement action at a time. Why do we deport them? “Because we can!”

PWS

07-31-17

LEGISLATION: SENATORS GRAHAM & DURBIN TAKE ANOTHER SHOT AT A BIPARTISAN DREAM ACT! — “When they write the history of these times, I’m going to be with these kids.”

https://www.theguardian.com/us-news/2017/jul/20/trump-undocumented-immigrants-dream-act-congress

Sabrina Siddiqui reports for The Guardian:

“A top Republican senator has challenged Donald Trump to make “a moral decision” on the fate of hundreds of thousands of undocumented immigrants brought to the US as children, part of a revamped bipartisan push to grant permanent residency to so-called Dreamers.

“The moment of reckoning is coming,” South Carolina senator Lindsey Graham warned the president and his Republican colleagues at a press conference Thursday to unveil a new iteration of legislation known as the Dream Act.

Graham was joined by Illinois senator Dick Durbin, the Democratic cosponsor of the bill who first introduced legislation of the same name 16 years ago. Their proposal, which mirrors previous legislation that failed to pass Congress multiple times, would grant legal status and a path to citizenship to Dreamers if they were longtime residents of the US.

In a sign of tough odds facing the bill, the White House swiftly rejected the notion that the president would support such a measure.

“The administration has opposed the Dream Act and we are likely to be consistent in that,” said Marc Short, the White House legislative affairs director, in an off-camera briefing with reporters on Wednesday.

Graham acknowledged the president’s candidacy was rooted in a hardline approach to immigration but cast the debate as an existential question for the party that now controls the White House and both chambers of Congress.

“President Trump, you’re going to have to make a decision,” Graham said. “The campaign is over.”

“The question for the Republican party is, what do we tell people? How do we treat them?” he added. “Here’s my answer: we treat them fairly. We do not pull the rug out from under them.”

. . . .

An emotional Graham said he first became engaged on the issue of immigration at the request of his close friend John McCain, the Arizona senator who made public on Wednesday his diagnosis with brain cancer.

Graham said he spoke with McCain three times by phone on Thursday morning, in which his closest ally’s message amounted to: “No more ‘woe is me’.”

“He is yelling at me to buck up,” Graham said. “So I’m going to buck up.”

“I’ve stopped letting 30% of the people who are mad about immigration to determine how I behave … When they write the history of these times, I’m going to be with these kids.”

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

Read the complete article at the link.

Senator Graham makes an excellent point. When the history of these times is written, long after we’re all gone, folks like Donald Trump, Mike Pence, Jeff Sessions, Steve Bannon, Steve Miller, Kris Kobach and many others, primarily from the GOP, are going to look every bit as bad as they actually are. And their supporters aren’t going to look good to future generations either. Being on the wrong side of history is always a bad idea.

PWS

07-20-17

Virginia Mother Of 2 Deported N/W/S Governor’s Pardon!

https://www.washingtonpost.com/local/social-issues/liliana-cruz-mendez-falls-church-mother-of-two-deported-to-el-salvador/2017/06/20/23c317ea-5600-11e7-b38e-35fd8e0c288f_story.html?hpid=hp_local-news_fairfaxdeport-7pm%3Ahomepage%2Fstory&utm_term=.09aea91718af

Maria Sacchetti reports in the Washington Post:

“Federal immigration officials have deported a mother of two from Falls Church back to her native El Salvador despite eleventh-hour efforts by Virginia Gov. Terry McAuliffe and others to help her stay in the United States.

Liliana Cruz Mendez was deported Wednesday, according to CASA, the nonprofit group that represented her after she was detained in May at a routine check-in with U.S. Immigration and Customs Enforcement. ICE confirmed the deportation.

After she was taken into custody, McAuliffe (D) pardoned Cruz Mendez’s 2014 conviction for a minor driving offense in hopes that it would spare her from having to leave the country.

The governor said she did not pose a public-safety threat. But federal immigration officials said she would be deported, noting that she had been in the United States illegally since 2006.

Cruz Mendez’s husband, Rene Bermudez, said the family was shattered by the deportation. He sobbed as he recounted how their children, aged 10 and 4, wept when they heard Cruz Mendez was gone.

“How can they take away their mother?” he said.

Bermudez said he cannot join his wife in El Salvador because he is in the process of obtaining a green card and must stay in the United States. He said he and his wife have been together for 15 years and have always paid taxes and gone to church.

He and his son and daughter last saw Cruz Mendez through a window at the immigration detention center.

“People don’t understand because they haven’t lived it. But believe me,” he said, his voice faltering, “I wouldn’t wish it on anyone.”

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

Read the entire story at the link.

Intentional cruelty and arbitrary enforcement usually come back to haunt those who smugly carry them out. Exercising power for power’s sake is abusive.

PWS

06-20-17

DHS Wants To Assure Dreamers That They Should NOT Be Reassured — DACA Revocation Still Possible!

http://www.politico.com/story/2017/06/16/trump-daca-immigration-deportation-relief-program-239654?cid=apn

Ted Hesson writes in Politico:

“The future of an Obama-era deportation relief program remains undecided, the Department of Homeland Security said Friday.

The announcement was meant to clarify the department’s position on the Deferred Action for Childhood Arrivals program, which allows nearly 788,000 undocumented immigrants to apply for work permits and live in the U.S. without fear of deportation.

“The future of the DACA program continues to be under review with the administration,” a DHS spokesperson said in a written statement. “The president has remarked on the need to handle the issue with compassion and with heart.”

DHS felt compelled to issue a statement on the program’s fate after POLITICO and other outlets reportedThursday on guidance posted to the DHS website that suggested DACA would remain on firm footing under the Trump administration.

The guidance came as the administration terminated a separate deportation relief program for parents of U.S. citizens and lawful permanent residents that had been blocked by federal courts since early 2015.

On its website, DHS assured that DACA would not be affected by the move. “No work permits will be terminated prior to their current expiration dates,” the guidance read.

The department said today that it intended only to clarify that DACA would not be immediately canceled. The guidance, DHS said, “should not be interpreted as bearing any relevance on the long-term future of that program.”

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

Even when faced with an opportunity to do something nice for folks, that would also help DHS out in practical terms, the Trumpsters just can’t resist an opportunity to sow fear and uncertainty.

PWS

PRECEDENT: BIA Gives Guidance On Admin Closing & Avetisyan — PD Should Not Be A Factor Unless Parties Agree — Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

https://www.justice.gov/eoir/page/file/958526/download

BIA Headnotes:

“(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.”

Panel: Appellate Immigration Judges Malphrus, Mullane, & Creppy

Opinion by Judge Malphrus.

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

While at first blush it might appear that the unrepresented respondent “won” this appeal, the victory is likely to be phyrric at best.

There was a time (now apparently gone) when the DHS gave individual Assistant Chief Counsel broader authority to offer prosecutorial discretion (“PD”) in cases that were not enforcement priorities.

In Arlington, where I was an Immigration Judge, the Assistant Chief Counsel were very reasonable and fair, and usually agreed to “short docket” hearings on well-documented asylum cases that fell squarely within the BIA precedents. Consequently, when they offered “PD” in an asylum case it usually was a “signal” that they saw the equities in the case, but also had difficulties with the asylum application that would require them to fully litigate the case and probably appeal a grant. Since the Assistant Chief Counsel in Arlington did not normally contest asylum cases unless there were significant proof or legal issues involved, their views had great credibility with both the private bar and with me.

Generally, in such situations I “suggested” that counsel accept the proffer of PD and continue to work with the Assistant Chief Counsel on overcoming her or his problem with the asylum case. If the parties eventually were able to reach agreement that the case could be heard on the “short docket” (30 minutes or less), I would be happy to restore the case to the docket upon joint motion. Usually, counsel got my “message.”

The few cases that went forward after “PD” had been turned down by counsel usually proved to be “losers” for the respondent, either before me or before the BIA. In a couple of cases, where I could see the respondent’s case “going south in a hurry,” I simply stopped the hearing and granted the DHS motion for Administrative Closing for PD over the respondent’s objection. I don’t think anyone ever appealed. But, under Matter of W-Y-U-, I probably could not have done that.

I suspect that when this unrepresented respondent eventually gets his wish and has a merits asylum hearing, he will lose. At that point, the DHS, even prior to the Trump Administration, would be unlikely to exercise PD, even if there were outstanding equities.

Sometimes in litigation you get what you ask for, and later wish you hadn’t asked.

PWS

04-19-17

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