Stephen Yale-Loehr – immigrationcourtside.com

DOJ’s Travel Ban Litigating Strategy Discussed — The Rush Appears To Be “Off!”

https://www.washingtonpost.com/news/post-nation/wp/2017/03/23/trump-said-dangerous-people-might-be-pouring-in-without-his-travel-ban-but-hes-not-rushing-to-restore-it/?utm_term=.91d750428250

Matt Zapotosky reports in the Washington Post:

“Legal analysts and opponents say the Justice Department is likely pursuing a more methodical, strategic approach in hopes of a long-term victory — although in the process, the administration is hurting its case that the order is needed for urgent national security.

“If they don’t try to move the case as quickly as possible,” said Leon Fresco, deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department, “it does undermine the security rationale.”

Trump’s new travel order — which suspended the U.S. refugee program for 120 days and blocked the issuance of new visas to citizens of Iran, Sudan, Somalia, Libya, Somalia and Syria for 90 days — was supposed to take effect March 16, but U.S. District Judge Derrick K. Watson in Hawaii blocked the administration from enforcing the critical sections of it. Early the next day, a federal judge in Maryland issued a similar ruling — leaving the administration with two different cases, in two different appellate circuits, that they would need to get overturned before they could begin carrying out the president’s directive. All roads seemed to lead to the Supreme Court.
But now it seems all but certain that the president’s revised entry ban will stay suspended at least into April, and possibly longer.

Lawyers for the Justice Department filed a notice of appeal in the Maryland case a day after the judge there ruled, but — unlike last time — they did not ask the higher court to immediately set aside the freeze on the new ban. They said they will do so Friday, but those challenging the ban will have a week to respond, and the Justice Department will then be allowed to file more written arguments by April 5.

The Trump administration has been content to let the court battle play out even more slowly in Hawaii, not elevating the dispute beyond a lower-court judge. The Justice Department has not filed a notice of its intent to appeal the ruling, and the next hearing in that case is set for March 29. Justice Department lawyers wrote Thursday that they would appeal to a higher court if that hearing doesn’t resolve in their favor. The courts will ultimately have to decide important questions, including how much authority they have to weigh in on the president’s national security determinations, whether Trump’s order was meant to discriminate against Muslims, and whether and how the president’s and his advisers’ own comments can be used against them.

There could be strategic reasons for pumping the brakes. Stephen W. Yale-Loehr, a professor of immigration law at Cornell Law School, said the Justice Department might be hoping for a favorable ruling from the U.S. Court of Appeals for the 4th Circuit, of which Maryland is a part, before they bring a case before the 9th Circuit, of which Hawaii is a part. A three-judge panel in the 9th Circuit unanimously rejected the administration’s bid to restore Trump’s first entry ban after it was frozen. The 4th Circuit on Thursday scheduled oral argument in its case for May 8.

And the Justice Department could be playing an even longer game, hoping that by the time the case makes its way to the Supreme Court, Neil Gorsuch will have joined the justices and brought to an end what many see as a 4-to-4 split along ideological lines, said Jonathan E. Meyer, a former deputy general counsel in the Department of Homeland Security under Obama who now works in private practice at Sheppard Mullin.”

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Even assuming that the Supremes eventually take the case, by no means a “gimme,” it probably would not be heard by the Court until some time in 2018 with a decision perhaps months after the argument. During that time, it is highly likely that the Travel Ban will remain enjoined.

From a government standpoint, it’s always prudent to 1) think carefully before taking on issues that can be litigated in U.S. District Courts which have authority to issue nationwide injunctions which require only a preliminary showing and are very difficult to “undo” (by contrast, “Removal Cases” usually can only be litigated in Circuit Courts of Appeal, which, although higher on the “judicial totem pole” than USDCs, lack authority to issue nationwide injunctions in connection with such individual case judicial review); and 2) always have “Plan B.” Here, “Plan B” might be the more stringent requirements for screening and issuing visas from countries where terrorist activity has taken place set forth in Secretary of State Tillerson’s recent instructions discussed in my previous blog:

http://wp.me/p8eeJm-xN

PWS

03/23/17

My Message To Cornell Law — “Fight For Due Process” — Join The “New Due Process Army” — Due Process In Peril At The U.S. Immigration Court!

I spoke to an audience of approximately 120 members of the Cornell University community in Ithaca on Wednesday, March 8, 2017, as part of the Berger International Programs Lecture Series at Cornell Law. Many thanks to Professor Stephen Yale-Loehr for inviting me.

Read my entire speech

“EXISTENTIALISM AND THE MEANING OF LIFE AT THE U.S. IMMIGRATION COURT – CORNELL LAW VERSION”

here:

EXISTENTIALISM — Cornell — AND THE MEANING OF LIFE AT THE U

Here are a few “Highlights:”

“Sadly, the Immigration Court System is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now exceeding an astounding one half million cases and no clear plan for resolving them in the foreseeable future.”

“Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life or death issues at stake, unlike criminal court there is no right to an appointed lawyer.”

“First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history.”

“This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases. Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.”

“Over the past 16 years, the BIA’s inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need a BIA which functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than an unfulfilled promise.”

“So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former student, and those who have practiced before the Arlington Immigration Court.”

“They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

“Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.”

“Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!”

PWS

03/10/17

Like It Or Not, Trio Of Cases Now Before The Supremes Will Affect Trump Administration’s Enforcement Program — Issues Involve Long-Term Detention & Liability Of Government Officials

http://www.huffingtonpost.com/entry/scotus-trump-immigrants_us_58a70e9be4b037d17d271444?tdoe77ccqm362bj4i

Lawrence Hurley reports in HuffPost:

“The U.S. Supreme Court will decide three cases in coming months that could help or hinder President Donald Trump’s efforts to ramp up border security and accelerate deportations of those in the country illegally.

The three cases, which reached the court before Democratic President Barack Obama left office, all deal broadly with the degree to which non-citizens can assert rights under the U.S. Constitution. They come at a time when the court is one justice short and divided along ideological lines, with four conservatives and four liberals.

The justices will issue rulings before the end of June against the backdrop of high-profile litigation challenging the lawfulness of Trump’s controversial travel ban on people traveling from seven predominantly Muslim countries.

The most pertinent of the three cases in terms of Republican Trump administration priorities involves whether immigrants in custody for deportation proceedings have the right to a hearing to request their release when their cases are not promptly adjudicated.

The long-running class action litigation, brought by the American Civil Liberties Union (ACLU) on behalf of thousands of immigrants detained for more than six months, includes both immigrants apprehended at the border when seeking illegal entry into the United States and legal permanent residents in deportation proceedings because they were convicted of crimes. The case also could affect long-term U.S. residents who entered the country illegally and have subsequently been detained.

The Trump administration has said it wants to end the release of immigrants facing deportation and speed up the process for ejecting them from the country. A decision in the case requiring additional court hearings could have very direct implications for the administration’s plans, said ACLU lawyer Ahilan Arulananthan, especially since immigration courts currently have a backlog of more than 500,000cases.

The ACLU estimates that up to 8,000 immigrants nationwide at any given time have been held for at least six months. A U.S. Immigration and Customs Enforcement official was unable to immediately confirm data on length of detention but said that in fiscal year 2016, the average daily count of detainees was just under 35,000.

“If Trump wants to put more people in deportation but does not increase the number of immigration judges, then people are going to have to wait longer and longer to get a hearing,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

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I would think that nominating a Solicitor General to be in charge of all Federal litigation, particularly at the Supreme Court level, would be a very high priority for President Trump.

PWS

02-17-17

“Brief Of The Two Steves” — Read The Yale-Loehr/Legomsky Amicus Brief Explaining Immigration Detention Filed With The Supremes in Jennings v. Rodriguez!

Jennings final amicus brief

TABLE OF CONTENTS

Interest of amici curiae………………………………………………. 1 Introduction and summary ………………………………………… 2 Argument…………………………………………………………………… 5

Aliens arriving in the United States at a port
of entry…………………………………………………………….6
1. Arriving asylum seekers are detained
  under color of Section 1225(b)(1)(B)(ii),
  even after an asylum officer has found a credible fear of persecution………………………… 6
  1. Asylum seekers detained under Section 1225(b)(1)(B)(ii) have limited oppor- tunity for review of detention or re-
    lease ……………………………………………………… 7
  2. Aliens seeking asylum may be detained for lengthy periods ……………………………….. 9
2. Arriving aliens who are not subject to expedited removal, but are not “clearly
  and beyond a doubt entitled to be
  admitted,” are detained under color of Section 1225(b)(2)(A)………………………………… 11
Aliens apprehended in the United States………. 13
1. Aliens apprehended in the United States
  but not convicted of a qualifying crime may be detained and are only sometimes permitted a bond hearing pending a
  removal decision ………………………………………. 13
2. Aliens apprehended in the United States
  who are convicted of a qualifying crime are subject to mandatory detention and are
  not provided opportunities for conditional release except in limited circumstances……. 16(I)

Table of Contents—Continued:

Aliens convicted of qualifying crimes are detained under Section 1226(c)…………… 16
Aliens detained under Section 1226(c) are released from detention in only narrow circumstances…………………………………….. 17
Aliens held under Section 1226(c) general- ly are detained for longer periods of time than are other aliens ………………………….. 19

C. Aliens ordered removed are generally detained until the removal order is
executed ………………………………………………….. 21

III. The bond hearing process provides limited procedural rights, which vary across the circuits………………………………………………………….. 22

Aliens detained under Section 1226(a) are entitled to bond hearings in certain circumstances………………………………………….. 22
Federal courts have held that aliens
detained under Sections 1225(b), 1226(a),
and 1226(c) are entitled to bond hearings when detention becomes prolonged………….. 28
1. The Ninth and Second Circuits provide for bond hearings for aliens detained
  over six months…………………………………… 30
2. The First, Third, Sixth and Eleventh Cir- cuits provide for bond hearings on a case- by-case basis………………………………………. 31
3. Bond hearings based on prolonged deten- tion are procedurally similar to Section 1226(a) bond hearings ………………………… 32

III

Table of Contents—Continued:

Conclusion…………………………………………………………………33 Appendix…………………………………………………………………..1a

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This is an absolutely fantastic resource for anyone litigating, writing, speaking, or reporting on immigration detention written by two of the “best in the business.”

Rodriguez could be a problem for the Administration and the Immigration Courts. President Trump’s Executive Orders ramp up border enforcement, interior enforcement, immigration detention, and will further clog the already overwhelmed U.S. Immigration Courts.

If the Supreme Court places time limits on the Government’s ability to detain individuals without individual bond hearings pending the completion of Removal Hearings on the merits in Immigration Court, it could lead to an increase in the number of bond hearings conducted by U.S. Immigration Judges. Combined with pressure from the Administration to complete Removal Hearings before bond hearings are required, it likely will lead the Administration to “torque up” the pressure on Immigration Judges to cut corners and expedite hearings without regard to the requirements of due process. This is likely to force the issue of due process in Immigration Court into the Article III Federal Courts for resolution .

PWS

02/14/17

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