"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
WASHINGTON — The Supreme Court on Monday refused to hear the Trump administration’s challenge to a California “sanctuary” law, leaving intact rules that prohibit law enforcement officials from aiding federal agents in taking custody of immigrants as they are released from jail.
Only Justices Clarence Thomas and Samuel A. Alito Jr. voted to hear the administration’s appeal.
The court’s action is a major victory for California in its long-running battle with President Trump.
At issue was a clash between federal power and states’ rights.
. . . .
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Ryan Grenoble National Reporter HuffPost
SESSIONS-HATCHED ATTACK ON CIVIL RIGHTS & HUMANITY OF AMERICA’S LGBTQ COMMUNITY GOES DOWN IN FLAMES
The Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ employees from being discriminated against on the basis of sexual orientation or gender identity.
The court on Monday issued opinions on two major decisions with far-reaching implications for the civil rights of transgender and LGBTQ individuals.
It was a 6-3 ruling, with Chief Justice John Roberts and Justice Neil Gorsuch joining the four liberal justices in the majority.
Writing for the majority, Gorsuch argued that discrimination on the basis of sexual orientation or gender identity is fundamentally no different than discrimination based on sex.
“An individual’s homosexuality or transgender status is not relevant to employment decisions,” Gorsuch wrote. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
“We agree that homosexuality and transgender status are distinct concepts from sex,” he added later. “But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
The rulings rest on a pair of arguments the court heard in October in which justices considered whether Title VII of the Civil Rights Act of 1964, the federal law that prohibits workplace discrimination, applies to LGBTQ and transgender workers.
. . . .
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Read the rest of both articles at their respective links. So, at least for a day, justice rules in America, despite the efforts of the Trump regime kakistocracy to promote bigotry and intolerance.
In simple terms, this regime and its corrupt officials have consistently promoted acts of invidious discrimination, bias, and hate toward various American communities. It’s hardly any wonder that our nation is dealing with the traumatic effects of such government malfeasance on so many fronts. When you put a kakistocracy in charge, malicious incompetence, abuses, and unrest are naturally going to follow.
It’s beyond disgusting that homophobic, anti-Latino bigots like Trump, Sessions, Whitaker, Barr, Miller, and Francisco have wasted the public’s money, what little credibility to DOJ had left, and the Federal Courts’ time launching baseless legal attacks intended to spread the hate and dehumanization directed against some of America’s must vulnerable communities. Actually, these are communities that the Department of Justice should be working to protect, not persecute. But, don’t expect much real improvement until this scofflaw regime is removed from power.
This November, vote like your life depends on it! Because it does!
IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?
By Paul Wickham Schmidt
Special to Courtside
June 14, 2020
Imagine yourself in a foreign land. You don’t speak the language, and you don’t know the rules. You’re arrested for a minor crime. You think you have a plausible defense. But, it could result in capital punishment. You are detained in squalid conditions. You’re hauled before a court. The bond is ludicrously high, set by the prosecutor and judge under rules they make up as they go along. You don’t have a lawyer because you can’t afford one. The “judge” is appointed by the chief prosecutor. The judge herself is a former prosecutor. The prosecutor makes the rules.
If you win, the prosecutor can appeal to a body stacked in his or her favor. If you lose, you can appeal to a tribunal hand-selected by the chief prosecutor because of their harshness and votes to convict more than 90% of the time. If, against those odds, you still win acquittal, the chief prosecutor can take over the case, rewrite the rules, and change the verdict to guilty. In the meantime, you’ll remain imprisoned in the “Gulag.”
Doesn’t sound like much fun does it? Am I describing something out of a third-world dictatorship or a Kafka novel?Absolutely not! This system operates right here in our United States of America, right now.
It’s chewing up and spitting out the lives of men, women, and even children who are supposed to receive due process and fundamental fairness and instead get the exact opposite. It’s enabled by Supreme Court Justices, Federal Judges, legislators, and public officials who won’t stand up for the legal and Constitutional rights of migrants and asylum seekers in the face of grotesque Executive abuses.
It’s called the U.S. Immigration Court. It exists in a “Constitution & humanity-free zone.” It’s run by Chief Prosecutor Billy Barr and his subordinates at the U.S. Department of Justice (“DOJ”). It’s not really a “court” at all, by any rational definition.
No, it’s a national disgrace and an intentional perversion of the constitutional right to due process, fundamental fairness, and human dignity. It’s also an unmitigated management disaster where DOJ-promoted“Aimless Docket Reshuffling” (“ADR”) has built an astounding 1.4 million case backlog with cases stretching out beyond the next Administration, even after doubling the number of “judges.” More judges means more backlog in this wacko system.
In the words of my friend and fellow panelist, Ira Kurzban, “this is not normal.” Yet complicit public officials, legislators, and life-tenured Federal Judges continue to “normalize” “America’s Star Chambers” and their biased, race-driven nativist attack on our Constitution and our humanity!
It needs to change. But, all three branches of our government currently lack the courage, leadership, and integrity to make “equal justice under law” a reality rather than just a slogan.
The three things I would do right up front are:
First, remove the Immigration Courts from the DOJ and create an independent, Article I U.S. Immigration Court as recommended by ABA President Judy Perry Martinez, the FBA, the NAIJ, AILA and almost all other true experts in the field.
Second, return the Immigration Courts to their previous noble mission of “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” End the disgraceful, unlawful, unconstitutional use of the Immigration Courts as a tool of DHS Enforcement, a deterrent, and a weaponized enforcer of a nativist, anti-human-rights agenda.
Third, replace the current highly-biased, one-sided judicial hiring system with a merit-based hiring process that properly weighs and credits demonstrated fairness, scholarship in immigration and human rights, experience representing asylum seekers and other migrants, and involves meaningful public input in judicial selections. Since 2000, the current skewed system has favored prosecutors and other “government insiders” by a ratio of more than 9-1, and has totally excluded private sector candidates from appellate judgeships at the Board of Immigration Appeals (“BIA”).
Our Constitution requires “equal justice for all.” To achieve it, we need public officials, legislators, Supreme Court Justices, and other Federal Judges who actually believe in it. That means real change in all three branches of our failing (and worse) Federal Government. Due Process Forever; Corrupt Officials, Feckless Legislators, and Complicit Courts, Never!
This is derived from my virtual panel presentation before the ABA Section on International Law on June 8, 2020.
“Patricia Xiomara Martinez De Artiga challenges the denial of her 26 application for asylum, withholding of removal, and protection under the 27 Convention Against Torture (CAT). Martinez listed her son as a derivative 28 beneficiary on her application. The Immigration Judge (IJ) found that Martinez 29 testified credibly regarding serious, individualized threats against her and her 30 children by the infamous Mara Salvatrucha (MS-13) gang. Nevertheless, the IJ 31 denied Martinez’s claims for asylum and withholding, concluding that the 32 gang targeted Martinez because she had frustrated the gang’s recruitment 33 efforts and not on account of membership in her son’s family. On the issue of 34 CAT protection, the IJ determined that Martinez failed to meet her burden for 35 relief because she fled El Salvador promptly after MS-13 threatened her. We 36 hold that the IJ erred as a matter of law when it penalized Martinez for her prompt flight, and we cannot confidently predict that a remand would be 2 futile. We therefore DENY the government’s motion for summary denial, 3 GRANT Martinez’s petition for review, and REMAND the case.”
Let’s see. Woman credibly threatened with torture by group known to have capability, often aided and/or abetted by a corrupt and often complicit government, and renowned for leaving a trail of headless corpses behind. She does what any reasonable human might do in the same position: flees immediately for her life. It’s an “open and shut” case for CAT protection — should have been granted by stipulation between the parties.
Instead, in the warped, twisted, irrational, misogynist, and racially biased world of EOIR, a Latino women’s rational actions become a judge’s reason to deny her clearly warranted protection. According to this judge, she had to be dumb or unfortunate enough to wait to be tortured or killed to get protection. Of course it’s absurd! But, what’s even more absurd is that a corrupt, unconstitutional system that daily metes out this type of deadly utter nonsense to vulnerable humans seeking legal protection is allowed to continue to operate in our nation at all.
Can it really get any worse! It raises the obvious question of why the “appellate immigration judges” who approved this ludicrous abomination of illegality and “counter logic” are still on the bench rather than in remedial training or looking for other jobs.
It’s no surprise that a fundamentally unjust and unconstitutional system that wastes time looking for ways to deny cases that should easily be granted is running an uncontrolled backlog of at least 1.4 million cases. It’s obvious that under Sessions, Whitaker, and Barr, the already stressed, reeling, and mismanaged Immigration “Courts” have become hotbeds of misogyny, anti-immigrant bias, anti-asylum bias, anti-Latino bias, pro-DHS favoritism, unprofessionalism, grotesque mismanagement and waste of taxpayer funds, and just all around horrible judging. They are America’s Star Chambers, pure and simple.
Remanding individual cases is not going to fix these systemic problems that are bringing down our Constitution and de-legitimizing our entire justice system. But, shutting down the system and requiring that it be administered by an independent judicially-appointed monitor to return some semblance of due process and fundamental fairness is not only within the Article III Courts’ power, but is actually constitutionally required to halt this Administration’s systemic abuses of justice. Or, send the cases that actually need to be tried at this point in time to U.S. Magistrate Judges for real due process hearings.
The Courts of Appeals constantly expose the elementary mistakes, illegality, outright irrationality, the widespread, intentional denials of due process, fundamental fairness, and the gross failures of basic judicial expertise by the “EOIR Subdivision” of DHS Enforcement. But, you can be sure that this is just the “tip of the iceberg.”
Some Court of Appeals panels use the same “rubber stamp” techniques as the BIA, hiding their own deficiencies behind a shield of “undue deference” to a failed and unconstitutionally biased agency. And, even more individuals with potentially valid claims are unfairly turned down because they can’t find competent lawyers or don’t have the wherewithal to get to the Court of Appeals at all.
Then there are those who can’t stand the pain and torture inflicted by the “New American Gulag” so give up viable claims without full litigation. Or they are sent to rot and die in Mexico waiting for a purposely unfair hearing system stacked against.
Now, tens of thousands, many with potentially valid claims for protection, are simply being turned back at the border in clear violation of our statutes, our Constitution, and international obligations, not to mention our obligations to our fellow humans. They are denied access to the system. The Administration fabricates numerous lies and false myths to justify its actions, most rooted deeply in the anti-Hispanic racism and misogyny of Trump, Miller, and their accomplices.
The reasons given by the regime for this racist misconduct are phony as a three dollar bill. Yet, some equally dishonest authorities, including judges who should know better, will accept them without critical examination of their fraudulent nature.
Complicity comes in many forms and can often be hidden in the present. But, the the massive, intentional, human rights violations, fueled by the inherent racism of the Trump Administration and its toadies, will someday come out. The full extent of the entirely unnecessary human carnage inflicted on humanity by our nation and the invidious reasons behind it will be documented.
Then, future generations will ask: Where were the Federal Courts while this was happening? Why didn’tprivileged and supposedly independent life-tenured judges stop the “slaughter of innocents?” Why did they allow baby jails, kids in cages, family separation, torture in the New American Gulag, Star Chambers, andNazi-style abuses by corrupt U.S. border guards to continue, unabated? Why were they complicit in the dehumanization of people of color by an overtly racist and scofflaw regime? What is it about Trump’s and Miller’s racist agenda that they were too dim or intellectually dishonest to understand?
Justice will be too late for the dead, tortured, maimed, dehumanized, and destroyed. But, the reputations of these “Modern Day Confederates, Jim Crows, and their enablers” eventually will come tumbling down just like the statutes of their morally and intellectually bankrupt predecessors who also fought for or advanced the cause of racism and man’s inhumanity to men, women, and particularly, children. They had their own flimsy excuses, fabrications, myths, and B.S. justifications which have crumbled over time leaving just the nakedness and ugly truth of their racism and/or complicity for others to see.
This is not a “normal Administration” and falsely treating it as such by approving or failing to stand up to their attacks on our Constitution, human rights, and human dignity is not “normal behavior” for Federal Judges, legislators, and other public officials who allow this grotesque system to continue to destroy lives. “Deferring” to patently racist schemes and overtly biased officials isn’t legal, even when the “cover” of some other legal pretext is offered.
Those who are witness to the many abuses must insure that those who operate and allow this thoroughly corrupt system to persist don’t escape with the “Nuremberg Defense” of “just following orders” or “just following the law.”
Actually, equal justice for all isn’t just a slogan. Our Constitution clearly requires it, and it’s the job of Federal Judges to insure that it happens. Judges who won’t do that, don’t belong on the bench. Certainly, when there is regime change, no future Federal Judge or Justice should be appointed or confirmed unless he or she has demonstrated a commitment to equal justice for all supported by a record of opposing the systemic racial injustice and other invidious discrimination inflicted by the Trump regime through its program of “Dred Scottification” of the other.
There is no national emergency more important right now than the failure of our justice system to provide and enforce equal justice for all. The many who are enabling this regime’s toxic agenda by insuring that justice is unequal and that the system discriminates against and demeans immigrants, asylum applicants, and others of color are themselves operating outside the law, not to mention humanity. There will be a reckoning! Count on it!
Due Process Forever. Complicity in Racist Abuses, Never!
TWO NEW ITEMS FROM IMMIGRATIONPROF BLOG SHOW A MALICIOUSLY INCOMPETENT AND CORRUPT TRUMP REGIME IMMIGRATION BUREAUCRACY THAT BELIEVES AND FUNCTIONS LIKE IT IS ABOVE THE LAW, ACCOUNTABILITY, & HUMAN MORALITY!
McCord Pagan for Law360 reports that U.S. Customs and Border Protection (CBP) violated the law by taking funds designated by Congress for consumables and medical care for migrants and instead used some of the money for its canine program, dirt bikes and upgrades to its computer system, according to the U.S. Government Accountability Office (GAO).
While CBP spent some of the designated funds on baby products, food, defibrillators, and masks, CBP violated the law by spending certain funds meant for such migrant care on canines, boats, dirt bikes, ATVs, a vaccine program for its employees, and upgrades to its computer network, sewer system, as well as janitorial services, according to the GAO report.
The 2019 law providing supplemental funds to CBP to help address a surge of migrants crossing the U.S.-Mexico border designated about $112 million to CBP for “consumables and medical care.”
“We conclude that CBP violated the purpose statute when it obligated amounts expressly appropriated for consumables and medical care and establishing and operating migrant care and processing facilities for other purposes,” according to the GAO opinion. The Congressional watchdog is conducting an audit of CBP and the U.S. Department of Homeland Security on the care of the adults and children in its custody, it said.
In response to GAO’s findings, a CBP spokesperson sent Law360 a statement calling the violations “technical in nature” and said it will take prompt remedial action.
CNN reports the latest skirmish between the state courts and federal immigration enforcement.
U.S. District Judge Jed S. Rakoffissued an order yesterday blocking ICE from making arrests in New York courts, finding that the practice is illegal. The introductory paragraph of his ruling reads as follows:
“Recent events confirm the need for freely and fully functioning state courts, not least in the State of New York. But it is one thing for the state courts to try to deal with the impediments brought on by a pandemic, and quite another for them to have to grapple with disruptions and intimidations artificially imposed by an agency of the federal government in violation of long-standing privileges and fundamental principles of federalism and of separation of powers.”
State and local officials argue that when ICE officers apprehends immigrants at courthouses — where they are making appearances as defendants, witnesses or victims — it endangers public safety by making it harder to prosecute crimes.
Baby jails, stealing from kids, interfering with the administration of justice. Just another day in the Disunited Kakistocracy of Trump.
These situations result in part from a feckless Congress led by Mitch and a failed Supremes led by Roberts who won’t stand up for our Constitutional rights and restrain an obviously corrupt and lawless Executive with a racist agenda.
It’s no surprise that much of Trump’s wrongdoing is exposed by the Government’s own ”watchdogs.” Unlike GAO, which works for Congress, those in the Executive Branch often are then unethically fired by Trump as Congress and the Supremes fail to stand up for honesty in Government. Worse yet, they fail to protect public employees who courageously expose corruption.
And, the high ranking legislators and judges who have watched and enabled Trump’s scurrilous attacks on our Constitution and human values ultimately bear much of the responsibility! As my friend Ira Kurzban would say, “this is not normal.” “Normalizing” and “enabling” illegal, unethical, and racist-driven behavior is obscene. If “watchdogs” and U.S. District Court Judges can speak out against lawless actions and corruption, how is it that Mitch, Roberts, and the rest of the GOP have “swallowed the whistle?”
The immigration agency admonishing immigrants to pull themselves up by their bootstraps seems to have destroyed its own boots.
For three years, U.S. Citizenship and Immigration Services — the federal agency that processes visas, work permits and naturalizations — has lectured immigrants about how they should become more self-sufficient. It has alleged, without evidence, that too many immigrants are on the dole. (Actually, immigrants pay more in taxes than they receive in federal benefits, and the foreign-born use fewer federal benefits than do their native-born counterparts.)
The agency implemented a broad, and likely illegal, rule allegedly designed to weed out immigrants who might ever be tempted to become a “public charge” and try to benefit from taxpayer largesse.
Well, now USCIS is broke — and is trying to become a “public charge” itself, by begging Congress for a bailout.
The agency is funded almost entirely by user fees, rather than congressional appropriations. But under President Trump’s leadership, it has mismanaged its finances so badly that it has sought an emergency $1.2 billion infusion from taxpayers.
Unless it get a bailout, the agency will furlough three-quarters of its workforce next month, Government Executive reported Thursday.
The agency claims it’s a novel coronavirus victim. No doubt, the covid-19 pandemic has disrupted operations. But USCIS was in financial trouble long before the virus’s outbreak.
[[Full coverage of the coronavirus pandemic]]
It acknowledged as much in public documents last fall, when it proposed a massive increase in user fees because of large projected budget deficits.
It didn’t have to be this way. When Trump took office, USCIS inherited a budget surplus. Last year, the agency saw record highs in both revenue and revenue per user.
So what went wrong?
The administration has frittered away funds on phantom cases of immigration fraud — which, like the president’s allegations of voter fraud, it has struggled to prove is an actual widespread problem that’s been going undetected.
USCIS has siphoned resources to create a denaturalization task force, which strips citizenship from immigrants found to have lied or otherwise cheated on applications. Last year, the agency revealed intentions to double the size of its fraud detection unit.
The bigger drain on resources, though, is its deliberate creation of more busy work for immigrants and their lawyers — as well as thousands of USCIS employees. These changes are designed to make it harder for people to apply for, receive or retain lawful immigration status.
For instance, the agency has demanded more unnecessary documentation (“requests for evidence”) and more duplicative, mandatory in-person interviews. Previously, staffers had more discretion to determine whether these interviews were necessary.
Staffers have been directed to comb through applications looking for minor (frivolous) reasons to reject otherwise eligible applicants.
. . . .
The American Immigration Lawyers Association and the American Immigration Council offer a few obvious suggestions, including eliminating some of the stupid processing requirements that raise costs for both applicants and USCIS without actually adding value. Other ways to reduce costs include holding virtual naturalization oath ceremonies and allowing electronic payments for everything.
Congress could also demand the agency raise more money on its own, without gouging, say, poor asylum seekers. For instance, it could expand the cash cow known as “premium processing” (faster processing, for a fee) to more types of its applications.
Finally, get rid of the “public charge” rule. It’s a perfect example of everything that got USCIS into this mess: an expensive-to-administer — and, again, likely illegal — solution in search of a problem, whose only purpose is to punish immigrants just trying to follow the law.
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Read the rest of Catherine’s article at the link.
Wow, what a terrific analysis! The “problems” were self-created by a regime with an irrational, White Nationalist, racist agenda. The solutions are actually quite obvious and readily available, as Catherine points out. But, they won’t happen until Trump is removed from office.
Catherine also raises a larger problem in America’s abject failure to insist on constitutionally-required social justice for everyone, regardless of color, status, or ethnicity. Stephen Miller’s racist changes in the public charge regulations never should have happened. It’s not rocket science. It’s Con Law 101, Administrative Law 101, with a dose of common sense and human decency thrown in.
The current racial crisis, failure to achieve Constitutionally-required equal justice for all, and perhaps worst of all pandering to obviously fabricated pretexts for the Trump regime’s racist agenda, particularly as it has targeted asylum seekers and migrants of color, can be laid to no small degree at the feet of five GOP-appointed Supreme Court Justices disgracefully led by our failed Chief Justice.
They have failed to achieve and enforce equal justice for all because they don’t believe in what our Constitution requires. Millions of individuals who are neither lawyers nor judges know exactly what our Constitution requires and what morality and simple human decency mandates. It’s the exact opposite of what Trump stands for.
But, a Supremes’ majority that neither believes in Constitutional due process and equal justice for all nor possesses the guts and human decency to stand up to an overtly racist President and his toadies will continue to be part of the problem, rather than the solution to the blatant injustices that currently plague our society.
I’m certainly not the only former judge to recognize the intellectual dishonesty and moral corruption at the heart of today’s failed Supremes!
America needs and deserves better Justices who believe in and stand up for equal justice. Our Supremes’ institutional failure isn’t an exercise in legal academics or legitimate intellectual differences of opinion, like the majority often pretends.
No, bad judging injures, maims, and kills people every day. It undermines the health and safety of America every day. It allows baby jails and star chambers to flourish in our midst. It allows the illegal return of refugees to the dangerous countries they fled without any process at all, let alone “due” process. In enables corrupt Government officials to propose an outrageously unlawful, malicious, bogus, misogynist, and evil “administrative repeal” of asylum accompanied by a battery of racist-inspired lies because they know there is no legal accountability for their reprehensible conduct so long as the J.R. Five is there to protect their misdeeds. It allows police officers to act believing they won’t be held accountable for killing George Floyd.
It’s no wonder that democracy is crumbling before our eyes when the majority of Justices charged with protecting it place loyalty to a political party and its immoral, unqualified leader, perhaps the greatest threat to our democracy and the rule of law in our history, above the common good.
Due Process Forever. Complicit, Racism-Enabling Courts, Never!
PANEL:WOOD, Chief Judge, and ROVNER and BARRETT, Circuit Judges
OPINION BY:CHIEF JUDGE DIANE WOOD
KEY QUOTE:
WOOD, Chief Judge. Like most people, immigrants to the United States would like greater prosperity for themselves and their families. Nonetheless, it can take time to achieve the American Dream, and the path is not always smooth. Recognizing this, Congress has chosen to make immigrants eligible for various public benefits; state and local governments have done the same. Those benefits include subsidized health insurance, supplemental nutrition benefits, and housing assistance. Historically, with limited exceptions, temporary receipt of these supplemental benefits did not jeopardize an immigrant’s chances of one day adjusting his status to that of a legal permanent resident or a citizen.
Recently, however, the Department of Homeland Security (DHS) issued a new rule designed to prevent immigrants whom the Executive Branch deems likely to receive public assistance in any amount, at any point in the future, from entering the country or adjusting their immigration status. The Rule purports to implement the “public-charge” provision in the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4). States, cities, and nonprofit groups across the country have filed suits seeking to overturn the Rule.
Cook County, Illinois, and the Illinois Coalition for Immi- grant and Refugee Rights, Inc. (ICIRR) brought one of those cases in the Northern District of Illinois. They immediately sought a preliminary injunction against the Rule pending the outcome of the litigation. Finding that the criteria for interim relief were satisfied, the district court granted their motion. We conclude that at least Cook County adequately established its right to bring its claim and that the district court did not abuse its discretion by granting preliminary injunctive relief. We therefore affirm.
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The performance of the “J.R. Five” in granting a totally unwarranted, unjustified stay of the preliminary injunction in this case tells you all you need to know about why racial injustice and dehumanization of “the other” in America are continuing problems.
Trump Refugee PolicyDana Milbank Opinion Columnist Washington Post
Dana Milbank in the Washington Post:
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Here is Trump’s speech on race — word for word, alas
By
Dana Milbank
Columnist
June 10, 2020 at 7:15 p.m. EDT
President Trump’s planned address to the nation on race, American Urban Radio’s April Ryan reports, is being written by none other than Stephen Miller, a Trump aide and aficionado of white nationalism.
This is bound to raise a fuhrer. What next? Paul Manafort drafting a presidential address on business ethics?
But Miller can stand down. Trump has already given his remarks on race — many times, in fact. Here they are, entirely in Trump’s own words, excerpted:
I have a great relationship with the blacks. I’ve always had a great relationship with the blacks. Oh, look at my African American over here. Look at him.
Nobody has ever done for the black community what President Trump has done. My Admin has done more for the Black Community than any President since Abraham Lincoln. George [Floyd] is looking down right now and saying this is a great thing that is happening for our country. A great day for him.
Diamond and Silk, you’re so, so great. Thank you, Kanye, thank you. Frederick Douglass is an example of somebody who’s done an amazing job and is getting recognized more and more, I notice.
Think of this: Blacks for Trump, Black Voices for Trump, African Americans for Trump. Call it whatever the hell you want. I have a group of African American guys and gals, by the way, that follow me around, and they think I pay them and I don’t.
A well-educated black has a tremendous advantage over a well-educated white in terms of the job market. If I were starting off today, I would love to be a well-educated black, because I believe they do have an actual advantage. Sadly, because President Obama has done such a poor job as president, you won’t see another black president for generations!
To the African American community, I say what the hell do you have to lose? You’re living in poverty. Your schools are no good. You have no jobs. Fifty-eight percent of your youth is unemployed. Last in crime, last in this, last in homeownership, last in the economy, lowest wages. Our inner cities are a disaster. You get shot walking to the store. They have no education, they have no jobs.
Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, “Get that son of a bitch off the field right now”?
Why is so much money sent to the Elijah Cummings district when it is considered the worst run and most dangerous anywhere in the United States? No human being would want to live there. A disgusting, rat and rodent infested mess. Congressman John Lewis should spend more time on fixing and helping his district, which is in horrible shape and falling apart (not to mention crime infested).
So interesting to see ‘Progressive’ Democrat Congresswomen, who originally came from countries whose governments are a complete and total catastrophe. Why don’t they go back and help fix the totally broken and crime infested places from which they came?
Why do we need more Haitians? Why are we having people from all these shithole countries come here? We should have more people from places like Norway.
An ‘extremely credible source’ has called my office and told me that @BarackObama’s birth certificate is a fraud. His grandmother in Kenya said, “Oh, no, he was born in Kenya.” A lot of people do not think it was an authentic certificate.
You ever see Maxine Waters? A low-IQ individual. LeBron James was just interviewed by the dumbest man on television, Don Lemon. He made LeBron look smart, which isn’t easy to do.
What has happened to the respect for authority, the fear of retribution by the courts, society and the police? Let our politicians give back our police department’s power to keep us safe. Unshackle them from the constant chant of “police brutality.” BRING BACK THE DEATH PENALTY AND BRING BACK OUR POLICE!
You also had people that were very fine people on both sides. You had people in that group that were there to protest the taking down of, to them, a very, very important statue and the renaming of a park, from Robert E. Lee to another name. Robert E. Lee was a great general. They’re trying to take away our culture. A Great American Heritage.
I know nothing about David Duke. I know nothing about white supremacists. All Republicans must remember what they are witnessing here — a lynching. I am the least racist person that you’ve ever encountered. I don’t have a Racist bone in my body!
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So, you think a speech on race written by neo-Nazi racist Stephen Miller is going to bring the nation together and solve the problem of racial injustice? The very idea is so totally absurd that it shows why we won’t have anything approaching racial justice in America until Trump and the GOP are removed from power.
It can’t happen. The regime won’t allow it. And, we have a Supremes’ majority unwilling to stand up for justice in America. Heck, Trump could claim that an end of laws promoting racial justice is necessary because of COVID-19 and the “JR Five” would say “right on.” In case you haven’t noticed, Trump is a total legislative failure; he merely rules by Executive Decree. And the JR Five doesn’t bat an eye as democracy goes down the drain.
Miller, of course, is the architect of Trump’s White Nationalist racist attack program on the asylum system and other parts of our immigration laws and constitutional due process for persons of color. It’s called “Dred Scottification” or “dehumanization of the other.”
George Floyd was a tragic example, but by no means the only one. Ask separated families, caged kids, asylum applicants returned to constant danger and squalid conditions in Mexico, women and children “orbited” back to face torture and death in the Northern Triangle without hearings, Muslim refugees stuck in horrible camps and separated from families forever, non-criminals suffering in inhumane conditions in the “New American Gulag” primarily because of the color of their skin, Latinos too scared to seek the health care they need and are entitled to because of the “public charge” travesty, “Dreamers” left to twist in the wind so that they can be “bargaining chips”for politicos, or Blacks and Latinos intentionally disenfranchised from having their vote count by the GOP, to name just a few.
Of course, Miller’s real targets are all (non-GOP) people of color — Latino asylum seekers and migrants are just “first in line” because higher Federal Courts seem largely unwilling to recognize and stand up for their legal and Constitutional rights as well as their right to be treated with respect and human dignity. But, you can bet they won’t be the last of “the others” targeted by the Trump/Miller/Barr/Wolf/Cotton White Nationalist agenda.
The bigger problem is that the Trump/Miller racial agenda has “admirers in high places:” None other than John Roberts and four of his GOP-appointed colleagues on the Supremes. When lower Federal Courts have quickly and emphatically quashed the various outrageous White Nationalist assaults on our Constitution, laws, and human decency, the “JR Five” has been right there to intervene. There is no obvious pretext, legally disingenuous argument, or xenophobic racist myth that Trump Toady Solicitor General Noel Francisco can utter that wouldn’t find favor with “The Five.”
They even bend the rules so that Francisco and his ethics-free team of White Nationalist apologists won’t have to go through the trauma of defending their bogus, unethical, and morally repugnant positions in lower Federal Courts, like other “peons” in “The Five’s” twisted, distorted, and privileged legal world are forced to do.
In a show of extreme bias, toadyness, and complete tone-deafness, several Justices have even publicly bemoaned the fact that Trump and Francisco have to deal with the indignity of nationwide injunctions against the regime’s assaults on the rule of law. Why not make unrepresented migrants of color and those with pro bono lawyers have to win before all 600 some Federal District Judges to stop the abuse?
Why would folks with such feeble understanding of due process, asylum law, human rights, what really goes on in Immigration Court, what it’s like to be a lawyer defending migrants in a systemically biased, patently unfair system, and the real human lives and futures being ground into mush by the likes of Miller, Sessions, and Barr even be on the Supreme Court in the first place!
Actually knowing how the law works on human lives, experiencing the practical effects of bad judging, and having represented the most vulnerable trying to make their way through our “intentionally user unfriendly” system is 10x more important for a qualified Justice than an Ivy League law degree and fancy political connections. If we really want “equal justice for all” in America, rather than just another snappy buzz-phrase, we’ve been looking at the wrong candidates for our highest Federal Courts!
Does anyone really think that America would still have “Baby Jails” and “Immigration Star Chambers” if the Justices on our highest Court had actually experienced Professor Phil Schrag’s Baby Jails: The Fight to End The Incarceration of Refugee Children in America?” Of course not! But, “Baby Jails” are alive and well in America today, while the Supremes dither over how else to advance Trump’s agenda. Moral leadership and the courage to “just say no” to tyranny and racism counts! But, you wouldn’t know it by today’s Supremes’ majority.
How do we expect to achieve equal justice for all with a majority of Justices who lack the knowledge and experience to make the Constitution function in the real world? They also lack the human empathy, flexibility, ambition, and philosophical inclination to learn from others and make amends for their past mistakes. By, their often wooden, tone-deaf, and sometimes intentionally incomprehensible jurisprudence they show that they fully intend to retain their blind spots and continue making the same mistakes that promote inequality and injustice until someone stops them.
Of course there is institutionalized racism in America! How can it be otherwise when we have allowed a political party led by an overt racist like Trump to be in charge of our institutions?
Dr. Martin Luther King said “Injustice anywhere is a threat to justice everywhere.” That’s why the murder of George Floyd affects us all.
I understand Dr. King’s message; you understand it. But a majority of the Supremes neither understand it nor are willing to honor it. Until we get a Court where the majority of the Justices actually believe in and stand up for equal justice under law, we won’t achieve it as a nation.
America needs and deserves a better Supreme Court. November is perhaps our last chance to start the process of change that we will need to move our nation forward to a future with equal justice for all. We can’t get there as long as we have a majority of Justices who share, enable, and support Trump’s and Miller’s belief that black, brown, and immigrant lives don’t matter and act accordingly.
Due Process Forever! Complicit Courts That Enable Injustice, Never!
WASHINGTON — The retired judge appointed to act as a friend of the court in the Michael Flynn case strongly urged the court Wednesday not to let the Justice Department abandon the prosecution.
In a scorching 83-page submission, John Gleeson said the government’s move to drop the case was “riddled with inexplicable and elementary errors of law and fact,” which were contradicted by the positions it has taken in other false statement cases and by its own previous court filings about Flynn’s conduct as well as his decisions to plead guilty twice.
“Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible,” the retired judge wrote. “Indeed, they are preposterous. For starters — and most unusually — they are directly and decisively disproven by the Government’s own briefs filed just months ago in this very proceeding.”
Gleeson said judges must ordinarily defer to the wishes of the Justice Department about whether to pursue a prosecution, but not when the motives of the government are suspect. In Flynn’s case, the government’s move to dismiss the case “is based solely on the fact that Flynn is an ally of President Trump.”
Federal District Court Judge Emmet Sullivan of Washington appointed Gleeson to submit arguments about why the government should not be allowed to drop the case, so that Sullivan could consider both sides.
The appointment came after the Justice Department last month asked the judge to dismiss the case, having determined that even if Flynn lied to FBI agents in early 2017 about his phone calls with Russia’s ambassador to the U.S., his lies were not “material” to any investigation and did not, therefore, violate the false statement law at the heart of his case.
Flynn told the FBI that he did talk to Ambassador Sergey Kislyak during the Trump transition but denied that they talked about Russia’s response to the latest Obama sanctions or about a forthcoming UN vote. He later admitted that both those statements were untrue.
Those statements, Gleeson said, were clearly important to the FBI’s investigation into potential connections between the Trump campaign and the Russian government.
“It is hard to conceive of a more material false statement than this one,” Gleeson said.
Gleeson said without any firm legal basis for wanting to drop the case, the only other reason must be Flynn’s relationship with Trump. Wednesday’s brief noted that the president tweeted or re-tweeted about Flynn at least 100 times since March 2017.
Clearly the president is personally invested in ensuring that Flynn’s prosecution ends, Gleeson said, adding, “Everything about this irregular.”
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Read the rest of Pete’s article at the link.
Add this to the absolute legal, ethical, constitutional, and management disaster going in in the U.S. Immigration Courts under Barr’s “maliciously incompetent” management, and the case for removing him from office is overwhelming. Won’t happen. But, it should!
Actually, filing a “preposterous motion” backed by clearly untrue assertions is a clear violation of an attorney’s role as an “officer of the court” owing “candor to the tribunal.” If Barr were a private practitioner, it would likely earn him a referral to his state bar authorities for possible discipline or license revocation.
But, in Federal Courts these days the “undue deference” and unfairly favorable treatment of DOJ attorneys continues. It has actually been institutionalized, and even unjustly rewarded, by the Supremes. Talk about encouraging worst practices and highlighting “negative role models!”
The whole ethical debacle of the Trump Administration DOJ and the overall feckless performance of our Federal Courts, particularly the Supremes and certain Circuit Courts of Appeals, at halting clear Executive abuses and requiring honesty and professionalism (including rejecting racist or religiously bigoted agendas) from the Federal Government before tribunals cries out for a serious re-examination of: 1) who should be sitting on the Federal Bench; 2) what ethical standards they should be held to; and 3) the undue favoritism and leniency traditionally shown by Federal Courts to Government lawyers engaging in misrepresentations, sloppy work, promoting pretexts for overtly racist agendas, and constantly using dilatory litigation tactics intended to punish individual litigants for asserting their legal rights.
The last three years have shown that better Federal Judges and much more courageous, effective judicial leadership committed to guaranteeing due process and fairness for all is absolutely necessary for our nation to achieve “equal justice under law.” The current sorry state of the Article III Judiciary shows that police departments are not the only part of our broken justice system that needs reform and some “different faces” to achieve equal justice under law. As a nation, we can’t achieve social and racial justice with the gang that promoted, enabled, and in some cases even encouraged injustice in charge. And, that goes for all three failed branches of our Federal Government.
George Floyd’s death should never have happened; nor should families be separated, kids put in cages, legal asylum applicants told to rot in Mexico, and Billy Barr be allowed to operate unconstitutional “Star Chambers” masquerading as “courts” (when they are nothing of the sort). The problems in our justice system go much deeper than the Minneapolis Police Department!
Yes, they can be solved! But, not without some new faces, new approaches, and some progressive thinking and input from all of society, particularly our younger generations! You have to believe in equal justice to achieve equal justice! We can’t get there with the current gang of “non-believers” in charge and promoting their failed, and all too often overtly or covertly racially biased, agendas.
Due Process Forever!
This November, vote like your life depends on it! Because it does!
Congress has long sought to limit immigrants’ access to federal district court. This was most evident in the passage of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA), which channeled any judicial review of a final order of removal away from federal district courts and into courts of appeals through a petition for review (PFR). But IIRAIRA channeled more than just review of final orders into courts of appeals. With the addition of 8 U.S.C. § 1252(b)(9), all claims “arising from” the immigration process would likewise be consolidated into a PFR in the court of appeals. Seemingly a wide range of claims—including many urgent challenges to potentially unconstitutional government action—would be swallowed by § 1252(b)(9) and thus precluded from immediate review in federal district court. However, when the Supreme Court first construed the provision, it did so narrowly. Indeed, in circuits that adopted the Supreme Court’s interpretation of the provision, immigrants were able to evade the strictures of § 1252(b)(9) and bring immigration-related claims directly to federal district court. But not all lower courts adhered to the Court’s reading of the provision. The First Circuit—and eventually the Ninth Circuit—adopted a far broader view of § 1252(b)(9), describing it as “breathtaking in scope” and finding it to channel an extensive set of claims. Against this backdrop, the Court, nearly two decades after its first in-depth discussion of the provision, revisited § 1252(b)(9). Though the result was a fractured opinion that explicitly failed to provide a comprehensive interpretation of the provision, the decision offered several important clues on the proper scope of § 1252(b)(9). First, it undercut the expansive interpretation of the provision offered by the First Circuit and adopted by the Ninth Circuit. Second, and relatedly, it altered several of the considerations lowers courts use when determining whether § 1252(b)(9) swallows an immigrant’s claims, which has led to a substantive narrowing of the provision’s scope. As such, the lower courts that previously adopted the broad view of § 1252(b)(9) should revisit and narrow the scope of the provision in accordance with Court precedent. This will ensure that immigrants who bring urgent claims challenging government action with potentially grave consequences are not categorically barred from immediate access to federal district court.
Keywords: 1252(b)(9), Jennings, jurisdiction, immigration, INA, district court
Suggested Citation:
Garnick, Adam, Immigrants’ Access to Federal District Court: The Narrowing of § 1252(b)(9) Post-Jennings (May 15, 2020). University of Pennsylvania Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=
You can download Adam’s complete article from SSRN, with much helpful research and many helpful strategic suggestions, at the link in the above abstract.
Thanks for being such an important part of the “New Due Process Army” (NDPA), Adam!
White House prepares new immigration limits, using coronavirus as cover
7:40 PM EDT June 9, 2020 Washington
The Trump administration is preparing to roll outanother set of restrictions on legal immigration, citing the impact of the coronavirus pandemic, even as it argues for the reopening of the US economy, according to sources familiar with the deliberations.
Despite a push from President Donald Trump to move past the pandemic, the administration is continuing to usher forward immigration measures, citing the outbreak and its toll on the economy.
One of the key figures behind the push to limit immigration is Stephen Miller, Trump’s lead immigration adviser and the architect of the President’s hardline immigration agenda. In April, Trump signed an executive order barring some immigration to the US after teasing an outright ban on immigration to the country. Trump argued that the order was needed to protect American jobs.
Against the backdrop of the coronavirus pandemic, the administration has pressed forward with a series of immigration measures that, prior to coronavirus, had struggled to break through. Among those changes is the closure of the southern border to migrants, including those seeking asylum, unless certain conditions are met.
After the President’s April proclamation, Miller cast the move as a first step toward reducing the flow of immigrants coming into the United States. That proclamation set up deadlines for review, one of which is approaching this weekend, and left the possibility open for its extension or modification.
The economic argument is expected to be raised again in an anticipated expansion or new immigration executive order. While Trump has touted recent job numbers,unemployment numbers remain high — though businesses have said in a series of letters to the President that continued immigration is important for economic recovery.
Interest groups, businesses and experts are fighting any new restrictions, saying that visas allowing immigrants to temporarily work in the US are critical to the economy.
“Why would he want to cut off critical workforce that will help the economy recover?” said Greg Chen, director of government relations for the American Immigration Lawyers Association.
“It’s not a rational or reasonable approach to the stated goals of what they’re trying to achieve, which only points to the underlying purpose of effectuating the President’s campaign goals of cutting off immigration,” Chen added.
Trump pledged the previous order would “ensure that unemployed Americans of all backgrounds will be first in line for jobs as our economy reopens.”
The White House did not immediately comment for this story.
CNN previously reported that Trump’s political advisers view the immigration steps as motivating for his base supporters at a moment when the President’s key election message — a strong economy — is badly weakened by the pandemic.
Legal immigration, which has already taken a hit during the outbreak, is again in focus in deliberations about an anticipated immigration executive order.
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Read the rest of Priscilla’s article at the link.
Emboldened by the lack of judicial pushback and absence of legal and moral leadership from the Supremes on racial injustice, the regime is planning an all-out assault on non-white immigration with coronavirus as a cover. Blacks and Latinos have already been disproportionately affected by the Cornoavirus, which has been of little concern to Trump except as it relates to his reelection schemes. Now, sensing lack of support for racial justice from a Federal Judiciary already stacked with far rightists raced by Mitch through the Senate, Trump, Miller, Barr, Wolf, and their cronies see a chance to further their dehumanization and “Dred Scottification” of the other.
Sure, it’s despicable! But, when those whose responsibility it is to promote racial justice and resist Executive abuses go AWOL, that’s what tyrants do! Even incompetent tyrants can sense institutional weaknesses and lack of moral leadership in others.
Police in Buffalo shove a 75-year-old man to the ground and blood pours from his ear. Police in Brooklyn knock down a young woman and call her a “bitch” because she asked why she had to leave the street. Federal authorities in Washington fire tear gas at peaceful demonstrators, then lie about it.
Get the feeling law enforcement in this country is being run by a middle-school bully?
If so, you are not wrong.
Childhood bullies have a predisposition to become adult bullies, research shows, and, sure enough, it seems Attorney General William Barr was a teenage bully more than 50 years ago.
Back in 1991, during Barr’s confirmation to be George H.W. Bush’s attorney general, lawyer Jimmy Lohman, who overlapped with Barr at New York’s Horace Mann School and later Columbia University, wrote a piece for the little-known Florida Flambeau newspaper about Barr being “my very own high-school tormentor” — a “classic bully” and “power abuser” in the 1960s who “put the crunch on me every chance [he] got.”
Nobody noticed the Flambeau piece at the time, but Lohman posted it on Facebook when President Trump nominated Barr in 2018, and it took on “a life of its own,” Lohman told me Tuesday from Austin, where Post researcher Alice Crites tracked him down. The article resurfaces in social media each time Barr does something unconscionable — which is often.
The 1991 description of 1963 Barr’s harassment sounds eerily like the 2020 Barr. He “lived to make me miserable,” with a “vicious fixation on my little Jewish ‘commie’ ass,” Lohman alleged, because he wore peace and racial-equality pins. He said the four Barr brothers picketed the school’s “Junior Carnival” because proceeds went to the NAACP, and he alleged that Billy Barr, the “most fanatic rightist” of the four, later “teamed with the New York City riot police to attack anti-war protesters and ‘long hairs.’ ”
The 1991 article says Barr, a “sadistic kid,” has “come a long way from terrorizing seventh graders just because they wore racial equality buttons.” The Justice Department didn’t respond to my request for comment.
Lohman’s account is consistent with Marie Brenner’s reporting for Vanity Fair: “A few who knew the Barr boys came to call them ‘the bully Barrs’; the siblings, these former classmates claimed, could be intimidating.” A petition from Horace Mann alumni asks the school to “rethink” an award for Barr, who “violated our school’s Core Values of Mutual Respect and Mature Behavior.”
Historian Paul Cronin, in Politico this week, says Barr was part of the “Majority Coalition” at Columbia that fought antiwar demonstrators. Barr had told the New York Times Magazine he was part of a “fistfight” in which “over a dozen people went to the hospital.” Cronin noted: “There appears to be no record of any trip to the hospital.”
Now Barr exaggerates violence on a grand scale. After he directed the forceful eviction of peaceful demonstrators from Lafayette Square, he claimed to Fox News on Monday that the image of peaceful demonstrators was “miscreated” to ignore “all the violence that was happening preceding that.” He alleged that there were two “bottles thrown at me” when he surveyed the scene; footage showed him at a safe distance. He charged that previously “things were so bad that the Secret Service recommended that the president go down to the bunker”; Trump claimed it was merely a bunker “inspection.”
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Read the rest of Dana’s article at the link.
Sadistic kid grows up to be racist bully, becomes Attorney General, institutes thugocracy, perverts justice, enabled by courts who look the other way. Wow! What a “great American success story.”
What’s the purpose of an independent life-tenured judiciary that lacks the courage, integrity, and commitment to our Constitution to hold Barr accountable for his attacks on truth, the rule of law, and human decency?
The road from Buffalo, Minneapolis, and Lafayette Park leads directly to the Supremes’ failure of legal and moral leadership. “Equal justice for all” will never become a reality until we get a Supremes’ majority that actually believes in it and has the guts to make it happen! When judges will neither admit nor engage the problem, they are the problem!
Better judges for a better, fairer, more equal America!
WASHINGTON — The Trump administration grossly miscalculated budget projections before it cited funding problems to replace many immigration court interpreters in San Francisco and elsewhere with recorded videos, according to a new watchdog report.
The Justice Department began requiring immigration judges to use videos last year to explain the court system at immigrants’ initial appearances instead of in-person interpreters, a move first reported by The Chronicle. The department said the move was necessary to save money.
But an analysis by the department’s inspector general released Tuesday found that Justice Department officials were working off faulty numbers, part of an inaccurate portrayal of the agency’s larger budget situation.
The department “erroneously estimated its yearly interpreter costs by extrapolating a single, unusually high monthly interpreter expense, which was not supported by invoices or other contemporaneous evidence,” the watchdog wrote. “This erroneous estimate adversely affected (the agency’s) leadership’s communication of accurate budget needs to department and congressional decision makers.”
Career members at the Board of Immigration Appeals appointed prior to the Trump administration have been “reassigned” to new roles after they rejected recent buyout offers by the Justice Department.
The step appears to be the latest administrative move that critics say dilutes the independence of an important appeals body by filling it with new hires more willing to carry out the Trump administration’s restrictive immigration policies.
The change was announced in an internal email viewed by CQ Roll Call.
“This is to inform you that effective June 8, 2020, you will be reassigned from your current position as Board Member (Senior Level) to the Appellate Immigration Judge position,” said an email that went out last week to nine career members.
The Board of Immigration Appeals, or BIA, is a 23-member body under the Executive Office of Immigration Review, the Justice Department agency overseeing the immigration court system. Three-member BIA panels review immigration court decisions and issue precedent-setting rulings that shape national immigration law.
The difference between “board member” and “appellate immigration judge” roles goes beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests, critics say. Sources familiar with the agency’s personnel matters, who declined to be identified for fear of retaliation, confirmed that all nine career members selected prior to the Trump administration received the email.
CQ Roll Call first reached out to EOIR for confirmation of the reassignments. Agency spokeswoman Kathryn Mattingly said via email that “board member roles and responsibilities are established by regulation and have not changed.”
Asked for additional comment this week once CQ Roll Call viewed the email, Mattingly said: “Adjudicator authorities are established by law and have not changed.”
The reassignment comes after DOJ offered, in an April 17 memo, “voluntary separation incentive payments” to the nine career board members, “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets.”
That memo, authored by EOIR Director James McHenry, noted the window for requesting these incentives closed on May 15. None of the nine career members accepted the offer, according to the sources at EOIR.
Under the Trump administration, the BIA has expanded from 17 members to 23. In addition, a flurry of career members have departed the agency, prompting EOIR to launch successive hiring sprees to fill new openings and vacant positions.
The nine most recent hires to the board include several immigration judges who denied over 90 percent of the asylum requests before them. Some also have a history of formal complaints of bias. The new hires have come on not as “board members” but as “appellate immigration judges.”
Ashley Tabaddor, who heads the immigration judges’ union, the National Association of Immigration Judges, said the “appellate immigration judge position” appeared to be a conflation of the BIA and the immigration judge roles. Adding more appellate immigration judges — who might review trial- and appellate-level cases at the same time — dilutes labor protections and undermines the independence of the immigration court system as a whole, she said.
“Over and over again, they’re just trying to conflate everything into one: ‘They’re all the same and no one should get protection from the union,'” Tabaddor said in an interview. “It’s so transparent that everything that they’re doing is to dismantle any semblance of a traditional court model.”
EOIR has repeatedly denied that accusation.
“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” the Justice Department said in a May 27 statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”
Government officials also have said the agency has been trying to streamline a lengthy, inefficient hiring process. Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said in its May statement.
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A link to a complete copy of the IG Report is embedded in Tal’s report above.
Eyore’s Continuing Clown Show 🤡 rolls on, grinding up ☠️ and spitting out 🤮ruined human lives and mocking due process every day! When, oh when, will Congress and/or the Article IIIs do their jobs and put this grotesque spectacle of injustice out of its misery and end the unnecessary and clearly unconstitutional human pain and suffering that it inflicts? Is there no human decency and integrity left anywhere in our failing institutions beyond the regime’s direct control?
After dealing with the Trump Kakistocracy, Eyore probably never figured he’d be followed and exposed by tenacious folks like Tal & Tanvi who actually know more about what’s really happening at America’sStar Chambers than he does! Why don’t our legislators and judges have the same awareness, courage, and integrity as journalists like Tal and Tanvi? Why have those whose primary job it is to protect the Constitution and the general welfare by holding an overtly corrupt and maliciously incompetent Executive accountable gone “belly up?”
As usual, Judge Tabaddor is “right on.” Any resemblance between EOIR and a “court system” is purely coincidental. But, this mess is all too real for its victims — asylum seekers and other migrants asking for justice. The real question: How do the legislators and life-tenured Article III Judges who ignore and enable these deadly abuses get away with it? How do they sleep at night knowing that Eyore will trample more rights and destroy more lives ofvulnerable fellow humans tomorrow, on “their watch!”
Due Process Forever! Institutional Complicity Never!
This morning the Supreme Court issued orders from the justices’ private conference last week. The court added one new case to its merits docket for the term that begins in October. The justices once again did not act on two groups of high-profile petitions – one involving gun rights and the other involving qualified immunity – that they considered last week.
With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. Congress passed the “stop-time rule” to keep noncitizens from taking advantage of lengthy delays in deportation proceedings to continue to accrue time. Under the rule, a noncitizen’s time in the United States, for purposes of relief from deportation, ends when the government sends him a “notice to appear” containing specific information about a scheduled removal proceeding. The question that the justices agreed to decide today is whether all the necessary information must be provided in a single document in order to trigger the stop-time rule, as Agusto Niz-Chavez, who came to the United States from Guatemala in 2005, contends, or whether the government can trigger the rule by providing the information in multiple documents.
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Our Round Table has filed amicus briefs on this issue in a number of similar cases, although not in this particular case, which originated in the 6th Circuit.
At issue here is the BIA’s precedent in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019). There, in a now-rare en banc decision, the BIA majority basically “flicked off” the Supremes’ decision in Pereira v. INS, 138 S. Ct. 2105 (2018) and allowed the DHS to remedy a defective statutory Notice to Appear (“NTA”) with a later-issued EOIR notice of hearing providing the missing information to “fill in the blanks” from the original defective notice.
In an even more unusual and potentially career-shortening move, six of the BIA’s then 15 Appellate Immigration Judges filed a strongly-worded dissent accusing their majority colleagues of ignoring both the words of the statute and the Court’s Pereira decision. Perhaps not surprisingly, three of the dissenting judges have since retired from the BIA and a fourth, the Vice Chair, was passed over for Acting Chair in a highly unusual personnel move by the DOJ, which controls the BIA. (One of the primary reasons for having a designated “Vice Chair” is to be the “Acting Chair” in the absence of the Chairman.) In their places, Barr has appointed some of the most notorious hard-line asylum denying Immigration Judges in the nation.
The Supremes have thus far tiptoed around the glaring unconstitutionality of a so-called “appellate tribunal” that is appointed, wholly controlled by, and answers to the chief prosecutor, the Attorney General. Not surprisingly, upon discovering the Constitution-nullifying power of a “captive court system,” that is not a court at all under any common understanding of the term, the Administration has leveraged it to the max as a tool for their White Nationalist anti-immigrant agenda. Indeed, all the recent BIA and Attorney General precedents have ruled in favor of the DHS position, even where statutory language, Article III court rulings, prior precedents, and common sense strongly supported the opposite results.
And, many Courts of Appeals have continued to fictionalize that the highly politicized and “weaponized” BIA is an “expert tribunal” entitled to “Chevron deference.” Any true immigration law expert would say that proposition is absurd. Yet, it conveniently furthers the causes ofboth “judicial task avoidance” and the White Nationalist agenda of the Administration.
Because the BIA now occupies itself not with fair and impartial, expert decision-making, but mostly with keeping the “deportation express” running and insuring that DHS prevails over the legal claims of migrants and asylum seekers to fair and humane treatment under the law, the Supremes are finding themselves in the middle of the “statutory and regulatory nitty gritty” of immigration law that was supposed to be the province of a competent and impartial BIA.
While that has occasionally, as in Pereira, worked to the advantage of individuals seeking justice, for the most part, the Supremes have been willing enforcers of the Administration’s abrogation of immigration laws without Congressional participation and “Dred Scottification” of “the other” in violation of our Constitution, and indeed, in violation of both international conventions and fundamental human decency.
Think of how much better and more efficiently the immigration system could run with a constitutionally-required independent Immigration Court utilizing fair and impartial judges selected on the basis of expertise and reputation for fairness and scholarship rather than commitment to DHS enforcement goals.Think of how much better off our society would be if the Supremes stood up for equal justice for all, rather than enabling a far-right would-be authoritarian scofflaw regime following aracially-biased agenda of dehumanization, degradation, and deportation.
The Supreme Court made the indisputably right call last week when it refused to block California from limiting attendance at religious services in an effort to control the spread of Covid-19.
A Southern California church, represented by a Chicago-based organization, the Thomas More Society, which most often defends anti-abortion activists, had sought the justices’ intervention with the argument that by limiting worshipers to the lesser of 25 percent of building capacity or 100 people, while setting a 50 percent occupancy cap on retail stores, California was discriminating against religion in violation of the Constitution’s Free Exercise Clause.
Given the obvious difference between walking through a store and sitting among fellow worshipers for an hour or more, as well as the documented spread of the virus through church attendance in such places as Sacramento (71 cases), Seattle (32 cases) and South Korea (over 5,000 cases traced to one person at a religious service), California’s limits are both sensitive and sensible, hardly the basis for constitutional outrage or judicial second-guessing.
So why did the court’s order, issued as midnight approached on Friday night, fill me with dread rather than relief?
It was because in a ruling that should have been unanimous, the vote was 5 to 4. And it was because of who the four dissenters were: the four most conservative justices, two of them appointed by the president who a couple of months ago was demanding that churches be allowed to open by Easter and who, even before the murder of George Floyd in Minneapolis, was openly encouraging protests in the capitals of states not reopening as quickly as he would like.
As an astonished country witnessed on Monday night, as he held a Bible in front of a church near the White House after demonstrators were violently cleared from his path, Donald Trump is using religion as a cultural wedge to deflect attention from the consequences of his own ineptitude. The recognition that four Supreme Court justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — would have invoked the court’s power to undermine fact-based public policy in the name of a misbegotten claim of religious discrimination was beyond depressing. It was terrifying.
Does that sound like an overstatement? Take a look at Justice Kavanaugh’s dissenting opinion. “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses,” he wrote. “Such discrimination violates the First Amendment.”
It’s interesting that while Justices Gorsuch and Thomas signed Justice Kavanaugh’s opinion, Justice Alito did not. Perhaps he’s just too good a lawyer to subscribe to the flimsy analysis underlying this opinion. Fair enough, but he evidently couldn’t be bothered to explain his own dissenting vote. And no less than his fellow dissenters, he obviously inhaled the unfounded claim of religious discrimination that the president has injected into an atmosphere already saturated with polarizing rhetoric.
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Read the rest of Linda’s op-ed at the above link.
This is just a symptom of an ongoing cancer at the Court. Cases like Hawaii v. Trump (“greenlighting” arbitrary and capricious punishment of refugees, Muslims, certain immigrants based on clearly pretextual “security grounds”), Wolf v. Innovation Law Lab (“Let ‘Em Die in Mexico!” Particularly when they are “only” Central American asylum seekers), and Wolf v. Cook County (final greenlighting of Stephen Miller’s racist scheme to deny health care and spread deadly fears in American Hispanic communities) should all have been 9-0 in favor of those opposing Trump’s racially-biased, illegal, unconstitutional policies.
Additionally, Trump Toady Solicitor General Noel Francisco should have been strongly cautioned against continuing to bend the ethical codes with largely fabricated “emergencies” intended to interfere with the normal functioning of the Federal Courts.
Instead, the Supremes’ majority gave the regime totally undeserved, immoral victories in all three cases. As a result, many innocent individuals were denied rights, forced into life-threatening conditions, and some even died. TheSupremes’ inflicted damage on society at large. They assisted in trampling social justice and human rights. They grotesquely perverted and “turned on its head” the concept of “irreparable harm.” They indelibly and irreparably damaged their reputation and our system of justice.
In the meantime, the message to Francisco and the rest of his human rights denying scofflaw crowd over at the DOJ is clear: Justice is dead, courage has fled, you’re in charge.
Unhappily, by most accounts, the tone-deaf and disconnected Supremes’ majority might be on the cusp of throwing more gasoline on the fires of social justice, at the worst possible time for our nation. If, as expected, they endorse the regime’s intentionally cruel, illegal, dishonest, and racially charged scheme to,”shaft” Dreamers — some of our finest young people, many of whom are “essential workers” — it’s likely to spark more justified outrage and further protests!
So certain are the regime’s White Nationalists that they have the “J.R. Five” in their pocket that they reportedly already are planning to use these American youths as “hostages” to demand even further immigration restrictions as “ransom” from House Dems. The Dems are unlikely to bite, so Dreamers will be left to “twist in the wind” pending the results of the election.
The Supreme Court majority has been hand selected by the GOP to insure that a minority, anti-democratic ideology, often willfully devoid of humanity and historical awareness, will continue to exercise disproportionate influence over the U.S. legal system for years, perhaps decades, to come.
We can’t change the past. But, a better “appointing authority” will be a start of long overdue change and “pushback” from the forces and institutions of democracy, humanity, and racial justice to restore integrity to our highest Court that, in actuality, now functions more like the lowest denominator and an instigator of racial and institutional injustice in our hurting nation.
