Trump Administration – Page 277 – immigrationcourtside.com

Update On Singapore Asylum Grant — Grossman Law Reports That Amos Yee Remains Detained In Wisconsin Pending Possible DHS Appeal!

MEDIA UPDATE:
ICE REFUSES TO RELEASE AMOS YEE DESPITE GRANT OF ASYLUM BY THE IMMIGRATION JUDGE
On March 27, 2017, Officers at Immigration and Customs Enforcement (ICE), Chicago Field Office informed Grossman Law, LLC that Amos Yee will remain in detention despite the Honorable Immigration Judge’s asylum grant on March 24, 2017. Yee has been detained since December 17, 2016.

When ICE officers first detained Yee, they stated he would be released on parole and that ICE had no interest in keeping Yee detained for the pendency of his proceedings. Then, after release of the new Administration’s Executive Orders, ICE informed Grossman Law that they would not release Yee. Subsequently, after Yee’s merits hearing, ICE moved him to another detention facility without informing counsel about the transfer. Now, ICE officers are basing the decision to keep Yee detained on a potential, but not yet filed, appeal by the Department of Homeland Security.

Grossman Law has learned from the Assistant Field Office Director for ICE’s Chicago Field Office that “…detained aliens who are granted relief remain in custody during the pendency of an ICE appeal, except in extraordinary circumstances.” Additionally, Amos Yee informed us via telephone that other individuals he has met at the Dodge County facility, remain in detention despite a grant of asylum. The decision to deny Yee his freedom is not limited just to him, but to many others.

ICE’s decision to continue to detain individuals granted asylum, especially when there are no security concerns, brings up serious questions about this country’s compliance with basic principles of international law regarding the treatment of asylees. There is no provision under the Immigration and Nationality Act, or under any Presidential Executive Order, that justifies the continued detention of an individual who has been granted asylum and is deemed to be a refugee. The supposed pendency of the Department’s appeal is immaterial; Yee should have been released immediately after he was granted asylum.

As the American Immigration Lawyers Association notes:

“America’s immigration detention practices undermine the fundamental principles of due process and fairness, and require immediate systemic reform. Annually, the Department of Homeland Security (DHS) unnecessarily detains more than 400,000 people, including asylum seekers and other extremely vulnerable immigrants. Many detainees are held for prolonged periods despite the fact that they have strong ties to the United States and pose no threat to public safety.

Detention is extremely expensive, costing American taxpayers $2 billion per year. Proven alternatives to detention, by contrast, cost between 17 cents and $17 per day. Detention should be a last resort, used only when other means of supervision are not feasible, and only after a truly individualized assessment of someone’s public safety and flight risk.”

Grossman Law, LLC is renewing a request to release Yee on humanitarian parole and is exploring all other viable legal options.

For further Media inquiries on this case please contact:

ICE – Chicago Field Office: 312-347-2168

Melissa Chen – Movements
Email: mchen@movements.org
Cell: 857-285-0975

The American Immigration Lawyers Association can be reached at:
George Paul Tzamaras
AILA Senior Director, Strategic Communications and Outreach
202.507.7649
GTzamaras@aila.org

Grossman Law, LLC
4922 Fairmont Avenue, Suite 200
Bethesda, Maryland 20814
Phone: (240) 403-0913
Website: www.GrossmanLawLLC.comAmos

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Sadly, notwithstanding the equities here, my recollection of the “black letter law” is that the Immigration Judge’s order is not “final” during the appeal period unless appeal is immediately waived. If either party files an appeal, the order does not become final while the appeal is pending. In other words, it is as if the case were never completed; it remains a pending case while it is before the BIA, and the rules governing detention are basically the same as they are when the case is pending before the Immigration Court.

If the respondent had “entered” the U.S., the asylum grant could be viewed as a “changed circumstance” giving the Immigration Judge a basis to redetermine custody upon his or her own motion or upon the respondent’s request. But, Mr. Yee appears to be an “arriving alien.” Therefore under the somewhat arcane rules applying to such aliens, neither the Immigration Judge nor the BIA has jurisdiction to redetermine custody. Continuing custody is within the sole jurisdiction of the DHS, unless a U.S. District Court intervenes by habeas corpus and directs either the DHS or the Immigration Judge to conduct an individualized bond hearing.

Tough system. But, I doubt the Trump Administration is going to make it any easier for respondents to get released from detention.

PWS

03/29/17

LINDY WEST IN THE GUARDIAN: The Party of “No Care!” — With Trump & The GOP, There Are No Positives, Only Negatives!

https://www.theguardian.com/us-news/commentisfree/2017/mar/28/america-party-less-caring-21-century-republicans-gop?CMP=fb_gu

“I don’t know that America has ever seen a political party so divested of care. Since Trump took office, Republicans have proposed legislation to destroy unions, the healthcare system, the education system and the Environmental Protection Agency; to defund the reproductive health charity Planned Parenthood and restrict abortion; to stifle public protest and decimate arts funding; to increase the risk of violence against trans people and roll back anti-discrimination laws; and to funnel more and more wealth from the poorest to the richest. Every executive order and piece of GOP legislation is destructive, aimed at dismantling something else, never creating anything new, never in the service of improving the care of the nation.

Contemporary American conservatism is not a political philosophy so much as the roiling negative space around Barack Obama’s legacy. Can you imagine being that insecure? Can you imagine not wanting children to have healthcare because you’re embarrassed a black guy was your boss? It would be sad if it wasn’t so dangerous.

That void at the heart of the party, that loss of any tether to humanity, is breeding anxiety on both sides of the political divide. According to the Atlantic, Florida Republican Tom Rooney recently turned on his cohort with surprising lucidity: “I’ve been in this job eight years and I’m racking my brain to think of one thing our party has done that’s been something positive, that’s been something other than stopping something else from happening. We need to start having victories as a party. And if we can’t, then it’s hard to justify why we should be back here.”

Vindictive obstructionism, it seems, is not particularly nourishing for the soul.”

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West has a pretty good point. Every day, the Administration repeals, cuts, removes, reduces, blocks, restricts, revokes, disses, insults, backs away from, abrogates, disputes, defunds, threatens, shrinks, deregulates, withdraws, withholds, threatens — only the rich and corporations “get” anything or are taken care of. Everyone else is on his or her own with neither help nor encouragement from the Government. Or in the worst case, the most vulnerable among us, migrants, Muslims, the poor, gays, children, the sick, the disabled, are actually picked on, bullied, shamed, and blamed by Trump and his minions.

PWS

03/29/17

Supremes Struggle With Immigrant’s Ineffective Assistance Case — OA Inconclusive!

https://www.washingtonpost.com/politics/courts_law/supreme-court-weighs-deportation-case-after-an-attorney-dished-out-bad-advice/2017/03/28/ef6bfae2-13f2-11e7-9e4f-09aa75d3ec57_story.html?utm_term=.49ad57f5504e

Robert Barnes writes in the Washington Post:

“Everyone agrees that Jae Lee pleaded guilty to a drug charge and now faces deportation to South Korea because of bad lawyering.

The Tennessee restaurateur, who came to the United States as a child in 1982, was told if he took the plea he’d serve a year in prison. But his lawyer Larry Fitzgerald told him there was no chance that a longtime legal permanent resident like him would be deported. Fitzgerald was wrong.

But does Fitzgerald’s mistake make any difference if the evidence against Lee was so strong that he almost certainly would have been convicted had he rejected the deal and gone to trial? As the appeals court that ruled against him noted, he would still be deportable.

The Supreme Court struggled with the issue Tuesday. Does Lee deserve a second chance, because of his lawyer’s mistake, to either seek a plea deal that would not result in his deportation or roll the dice with a jury and hope that somehow he is not convicted?

The answer could be important, as the Trump administration promises a new vigor in deporting immigrants convicted of crimes.”

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The Justices appeared to be sympathetic to Mr. Lee. But, that might not be enough to add up to a victory for him.

PWS

03/29/17

POLITICO LITIGATION: DOJ In “Stall Mode” In Hawaii Travel Ban Case — “Dire Emergency” Threatening The Republic Subsides As Curiously As It Arose, Leaving Experts To Ponder The Meaning Of The Administration’s Changed Strategy!

http://www.politico.com/blogs/under-the-radar/2017/03/donald-trump-travel-ban-ninth-circuit-appeal-236575

Josh Gerstein writes in Politico:

“When President Donald Trump’s first travel ban executive order was effectively shut down by a federal judge, the Trump administration seemed to be in a huge rush to get the policy back on track.

This time? Not so much.

It took less than a day for Justice Department lawyers to file an appeal last month after U.S. District Court Judge James Robart blocked the key parts of Trump’s directive.

A few hours later — just after midnight Eastern Time — the federal government filed an emergency motion asking the San Francisco-based 9th Circuit to allow the president to move forward with his plan to halt travel to the U.S. from seven majority-Muslim countries and to suspend refugee admissions from across the globe.

A three-judge 9th Circuit panel unanimously turned down Trump’s request, prompting the president to redraft the executive order, dropping Iraq from the roster of affected countries and exempting existing visa-holders from the directive.

But when a federal judge in Hawaii issued a broad block on the new order March 15, just hours before it was set to kick in, there was no immediate appeal. In fact, nearly two weeks later, the Justice Department is still tangling with Honolulu U.S. District Court Judge Derrick Watson and has yet to take the issue back to the 9th Circuit.

The delay has puzzled many lawyers tracking the litigation, particularly given Trump’s public warning that “many very bad and dangerous people may be pouring into our country” as a result of the courts’ interference with his first travel ban directive. A total of two months have now passed since Trump signed his first order.

“A lot of people have talked about that,” said University of Richmond law professor Carl Tobias. “It seems hard to wait on this without undercutting the argument” that the travel ban order is needed to address an urgent national security threat, he added.

Some attorneys believe the Justice Department is intentionally dragging its feet in the Hawaii case because the 9th Circuit rotates the three-judge panels assigned to motions every month, with the next swap-out due Saturday. The 9th Circuit also announces the panels publicly, although not in advance. This month’s consists of two Obama-appointed judges — Morgan Christen and John Owens — along with George W. Bush appointee Milan Smith.”

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Interesting that Gerstein reports later in his article that the 4th Circuit might “bypass” the panel stage and just send the “Maryland case” directly to the en banc court. I hadn’t picked up on that. Sounds unusual.

As I have speculated before, no matter what happens in the 4th Circuit, if this issue does get to the Supremes, it’s unlikely to be decided until some time in 2018. So, barring something pretty unusual, the Travel Ban will be “banned” for the foreseeable future.

I suspect that by then, the Administration will have discovered that it doesn’t need an Executive Order and all this hoopla to quietly and gradually “beef up” visa and refugee vetting in individual cases or groups of cases where it is warranted. They have already started that process, as I previously reported. I think the scope, method, publicity, and “in your face” tone of the two EOs are what got them into difficulty with the courts.

PWS

03/29/17

IMMIGRATION COURT REPORT: “ADR” In Full Swing Again At EOIR — Detailed U.S. Immigration Judges Twiddle Thumbs As Home Dockets Suffer!

ADR = “Aimless Docket Reshuffling,” a phenomenon that occurs when political officials at the DOJ direct EOIR to “reprioritize” existing U.S. Immigration Court dockets to meet politically-driven enforcement goals. Results in U.S. Immigration Judges being reassigned from regularly scheduled largely “ready for trial” pending cases to “priority cases” that often are NQRFPT. Therefore almost nothing gets completed, but the court staff is overburdened and the private bar and individual respondents as well as the DHS Assistant Chief Counsel see already prepared cases reassigned to new judges who don’t have time to hear them or “orbited” to spots at the end of the docket several years from now. Results in growing backlogs even with more judges employed in the system.

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As reported in LexisNexis Immigration https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2017/03/27/eoir-posts-new-hearing-location-details.aspx?Redirected=true EOIR has announced several rounds of details of U.S. Immigration Judges to “detained locations” as part of its “implementation of President Trump’s January 25th Executive Orders.” Julia Edwards Ainsley previously reported on this development in Reuters http://wp.me/p8eeJm-vF.

However, according to several sources, once at the “detail court” these judges often have precious little to do.

To paraphrase some familiar with the system, “The only ‘surge’ happening here is a surge of judges. There’s no surge of cases.” But, you can bet that there was a “surge in frustration” from those whose previously scheduled cases were rescheduled to accommodate these unneeded details.

Just another “keystone cops” episode at DOJ? Tempting analysis, but not so funny when you consider that human lives and futures are being affected. Also, transferring busy judges from already jam-packed dockets to do little or nothing at the border to keep the “political bosses” satisfied wastes the taxpayers’ money and undermines the credibility of the Immigration Court. That’s bad for everyone.

Most Immigration Judges I know are 1) busy all the time (unlike many other judges, Immigration Judges are expected to schedule cases eight hours/day, every work day of the week except for four hours/week of “administrative time” for case preparation, decision writing, and continuing education); 2) fanatic about wanting to complete the cases on their daily dockets.

Consequently, I doubt that any sitting Immigration Judge would have thought it was a good idea to cancel or reassign their regular dockets to do a minute number of cases as a detailed judge.

Moreover, because the Immigration Court is not “automated,” detailed Immigration Judges who have extra time have no access to pending motions that are piling up in their chambers during details. So, unlike the “home court” where a judge often can find “chambers work” to do during unanticipated “down time,” on detail “down time” is just that — wasted time.

Finally, there is the obvious question. What is a supposedly impartial, due process oriented court system doing mindlessly carrying out the President’s Executive Order on immigration enforcement to the derogation of its own already-pending cases? We need an independent Article I United States Immigration Court!

PWS

03/28/17

WashPost: AG Sessions Claims Bogus Link Between MD HS Rape & Proposed “Trust Act” — WashPost Editorial Begs To Differ!

https://www.washingtonpost.com/local/md-politics/ag-jeff-sessions-marylands-trust-act-would-put-residents-at-risk/2017/03/27/36527088-1319-11e7-833c-503e1f6394c9_story.html?utm_term=.eb64ae97731b&wpisrc=nl_buzz&wpmm=1

“That would be such a mistake,” he said of the bill. “I would plead with the people of Maryland to understand that this makes the state of Maryland more at risk for violence and crime, that it’s not good policy.”

Del. Kathleen M. Dumais (D-Montgomery), who is a co-sponsor of the legislation and defended it during floor debates, said the measure does not prevent corrections officers or local law enforcement from cooperating with federal agents when undocumented immigrants have committed serious crimes.

“Before criticizing proposed legislation, I suggest that Attorney General Sessions take time to actually read the bill,” she said. “The Trust Act certainly does not make Maryland more at risk for crime and violence. Anyone who commits a crime or violence in Maryland should be and is prosecuted to the full extent of the law, regardless of immigration status.”

The Trust Act is similar in many respects to uncodified policies for handling illegal immigrants in place in Montgomery County and other Maryland suburbs.”

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Sessions’s attempt to link the rape with the proposed Trust Act is totally bogus. Most obviously, the Trust Act is not in force, and might never be, so it could not have had any effect on the rape case.

But, more significantly, neither of the alleged perpetrators had any prior criminal record and neither had ever been in the custody of the State of Maryland. Needless to say, the DHS had therefore never lodged a detainer with the State, nor had the State declined to cooperate with the DHS in any way.

Moreover, even if the Trust Act were in effect, and the suspects were convicted, Maryland would honor a DHS detainer upon their release from incarceration with the filing of a Warrant of Arrest, which could easily be obtained in such a case.

Under the known circumstances, no legal action by the State of Maryland or by the DHS, for that matter, would have prevented this horrible incident. Even with the “Trump priorities” and the Administration’s expanded concept of “criminal alien” in effect, neither of the suspects, who apparently had no prior criminal involvement anywhere in the world, would have been candidates for expedited hearings. Moreover, given their family ties in Maryland and their lack of a criminal record, they probably would have been properly released on bond had the DHS tried to detain them prior to their arrest for the rape.

This situation is certainly tragic for the victim and for the school community. But, it has nothing to do with the “Maryland Trust Act.”

Ironically, prior to Sessions’s statement, the Washington Post ran an editorial pointing out that the Trust Act was actually a reasonable compromise between the needs of Federal immigration and state law enforcement authorities:

“Mr. Hogan is exercised that the bill would prohibit most localities from holding undocumented immigrants in jail for 48 hours after their scheduled release date at the request of U.S. Immigration and Customs Enforcement, so they can be transferred directly to federal custody. But nothing in the amended legislation would bar those localities from informing ICE of release dates so that federal officials could detain inmates when they walk out of jail.
Similarly, the bill requires localities to comply with any warrant to hold undocumented immigrants issued by federal courts on the basis of probable cause. Such a warrant would be easily obtainable by ICE in the case of prisoners who pose a danger to public safety or national security. Despite Mr. Hogan’s assertions, nothing in the bill blocks local officials from sharing information with federal authorities about an undocumented immigrant’s criminal record or responding to subpoenas. And jurisdictions that have decided to cooperate even more closely with the feds, including Frederick, Harford and Anne Arundel counties, could continue doing so.

The bill strikes a symbolic blow against the Trump administration by pledging the state’s refusal to help compile a Muslim registry, as Donald Trump, as a candidate, said he might do. But such a registry would face enormous legal obstacles before it ever become federal law. The bill prohibits local police from asking people on the street randomly about their immigration status, which is largely barred in the state anyway.

If adopted by the state Senate, the bill would represent that increasingly rare legislative thing: a compromise.”

PWS

03/27/17

ABA JOURNAL: Superstar Reporter Lorelei Laird Exposes The Impending Disaster In The U.S. Immigration Courts! (I Am One Of Her Quoted Sources)

http://www.abajournal.com/magazine/article/legal_logjam_immigration_court

Lorelei reports:

“In the fall of 2016, the Executive Office for Immigration Review was busy addressing these problems by hiring aggressively, spokeswoman Kathryn Mattingly said.

As of March, she said the agency had 301 seated judges and had requested authorization for a total of 399 judgeships. Those new judges are welcomed by legal and immigration groups—including the ABA, which called for more immigration judges with 2010’s Resolution 114B.

But that effort may be overwhelmed by changes under the Trump administration. Trump’s actions since taking office emphasize enforcement; his executive orders call for 10,000 more ICE agents and 5,000 more CBP officers, and they substantially reduce use of prosecutorial discretion. In his first months in office, there were several high-profile deportations of immigrants who had previously benefited from prosecutorial discretion and had little or no criminal record.

Although the DOJ eventually said immigration judges weren’t subject to the hiring freeze, it’s unclear whether immigration courts will be funded enough to handle all the additional cases. If not, Schmidt says, wait times will only worsen.

“If they really put a lot more people in proceedings, then it seems to me the backlog’s going to continue to grow,” he says. “How are they going to take on more work with the number of cases that are already there?”

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This is just a small sample. Read Lorelei’s much lengthier and complete analysis of all of the problems, including interviews with a number of other experts and a cross-reference to the ABA’s previous work predicting just such a docket disaster at the above link.

In my view, the Trump Administration is aggravating the problem, rather than seeking to improve the delivery of due process. Given the nature of the system, they might get away with it for awhile. But, eventually, one way or another, these chickens are coming home to roost. And, when they do, it won’t be pretty for the Administration, for anyone involved with the U.S. Immigration Court system, and for the American system of justice.

PWS

03/27/17

THE HILL: Nolan Rappaport Says DHS Does Inadequate Job Of Tracking Unaccompanied Children!

http://thehill.com/blogs/pundits-blog/immigration/325942-maryland-immigrant-rape-case-shows-failure-of-us-policy-on

Nolan writes:

“CBP is required by the William Wilberforce Trafficking Victims Protection Reauthorization Act to transfer the custody of unaccompanied alien children from Central America to ORR within 72 hours of determining that they are unaccompanied alien children. ORR promptly places them in the least restrictive setting that is in their best interests while they wait for an immigration hearing to be scheduled.

They normally are not held at a secure facility unless they are charged with criminal actions, pose a threat of violence, or are flight risks.

Unaccompanied alien children are not eligible for many forms of relief. Asylum is the most common. The only other possibilities I am aware of are “special immigrant juvenile status,” which requires a finding by a state juvenile court that they have been abused, neglected, or abandoned; and “T nonimmigrant status” for victims of trafficking.

Many of the children who are released from custody abscond instead of returning for their hearings. Between July 18, 2014, and June 28, 2016, removal proceedings were initiated in 69,540 cases. Only 31,091 of them were completed. Of the total completed cases, 12,977 resulted in removal orders, and 11,528 (89 percent) of the removal orders were issued in absentia because the children had absconded.

The post-Trump immigration court handles fewer unaccompanied alien children cases. This will increase the amount of time unaccompanied alien children have to wait for hearings, which is likely to increase the number of children who abscond.

Also, they will have less incentive to return for their hearings. In the more liberal Obama era, immigration judges granted asylum in up to 71 percent of their asylum cases. This is not likely to continue in the post-Trump era.

The fact that many unaccompanied alien children abscond is disturbing. We know very little about them.”

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Please read Nolan’s complete article over on The Hill at the link.

I have a few thoughts. First, although at the end of my career I was not assigned to the juvenile docket, I handled many juvenile cases over my 13 year career at the Arlington Immigration Court.

Even when I was not responsible for the juvenile docket, “mis-assigned” juvenile cases appeared on my docket on a regular basis, probably a consequence of the “haste makes waste” prioritization of juveniles by the Obama Administration. I never had a significant problem with juveniles “absconding.”

Not surprisingly, this is borne out by the facts. Studies show that represented juveniles appear for their hearings about 95% of the time. That suggests that the real effort should be on working with the pro bono bar to ensure that juvenile cases are scheduled in a manner that promotes maximum representation at the first hearing. Presto, the largely imaginary problem with “absconding” juveniles disappears.

See this link to an American Immigration Council analysis:

Taking Attendance: New Data Finds Majority of Children Appear in Immigration Court | American Immigr

Second, in the small number of cases where juveniles did not appear, the problem was almost always with the Government system, not the juveniles. Indeed, the suggestion that children, some infants, other toddlers, “abscond” is prima facie absurd.

There are a number of reasons why juveniles might not appear: 1) in their haste to move these cases through the system, DHS often incorrectly transmits the U.S. address to the Immigration Court; 2) under pressure to fill “priority” dockets required by the Obama Administration, the Immigration Court, which still operates with a manual data entry system, sometimes sent the notice to a wrong address; and 3) almost all juveniles have to rely on adult “sponsors” to get them to court. Depending on the degree of understanding and responsibility on the part of the sponsor, this might or might not happen.

When the court appearance requirements are properly communicated and understood by the sponsor, and where the juvenile has realistic access to legal representation, there simply are not many “no show” issues. In Immigration Courts that put due process first, most no-shows are eventually reopened when the juvenile and the sponsor discover the problem and explain the failure to appear. Therefore, large numbers of “in absentia” juvenile cases suggests to me a problem with the system, and, perhaps, with particular Immigration Judges, rather than the juveniles.

Here’s a link to a L.A. Times article on in absentia orders for unaccompanied children.

http://www.latimes.com/local/california/la-me-children-deported-20150306-story.html

Third, Nolan’s reference to the “liberal” Obama administration seems gratuitous. The Obama Administration did little of substance to help juveniles and, to my knowledge, most of the precedents issued by the BIA made it more difficult, rather than easier, for juveniles from the Northern Triangle to get relief.

Nevertheless, juveniles were able to succeed at a fairly high rate where they obtained competent representation, Immigration Judges fairly applied the generous standards for asylum, and also gave the children adequate time to pursue other forms of relief such as those mentioned by Nolan.

The nationwide asylum grant rate in the most recent year was approximately 47%, not 71%. The latter was just one of the courts with a higher rate. But, there were also courts like Atlanta, with a 2% rate who were not doing a fair job of asylum adjudication.

In any event, there is every reason to believe that most of the juveniles in the system had at least a “respectable” chance of success in remaining.

It’s possible that the Trump Administration will attempt to “game” to system to depress grant rates. Such conduct appears on its face to be both illegal and contrary to the generous standard for asylum established by the U.S. Supreme Court in INS v. Cardoza-Fonseca.

To date, I am aware of no such overt attempt by the Administration to interfere with the fair adjudication of asylum claims. However, I do acknowledge that the general tone of the Executive Orders is xenophobic and disparaging to refugees and immigrants. At some point, the Article III Courts will decide whether or not the Administration is complying with the requirements of U.S. law and various international protection agreements.

Finally, I think that Nolan’s suggestion that unaccompanied children be sent to third countries for U.N. processing would be a violation of both the INA and the Wilberforce Act. While there is a provision in the INA for sending individuals who arrived in “safe third countries” back to those countries for asylum adjudication, to date it only applies to Canada and is limited in a way that would make it inapplicable to the Southern Border Central American cases.

The U.S. would do far better to acknowledge the legitimate fears that cause women and children to flee countries in the Northern Triangle. Dealing with the problems at their source, which is likely to be a long-term prospect, while providing at least some type of screening and temporary refuge short of asylum, would, in my view, be a much better and more humane solution to this chronic issue than the enforcement initiatives proposed by the Trump Administration.

PWS

03/27/17

James Hohmann In WashPost: How Trump Is Winning The War Even While Losing Some Key Battles — “Deconstruction Of The Administrative State” Moving At Full Throttle With No End In Sight! PLUS EXTRA BONUS: My Mini-Essay “On Gorsuch, Deference, & The Administrative State!”

https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2017/03/27/daily-202-how-trump-s-presidency-is-succeeding/58d88409e9b69b72b2551039/?utm_term=.dbeab923d833

Hohmann writes:

“– Liberals mock Trump as ineffective at their own peril. Yes, it’s easy to joke about how Trump said during the campaign that he’d win so much people would get tired of winning. Both of his travel bans have been blocked – for now. An active FBI investigation into his associates is a big gray cloud over the White House. The president himself falsely accused his predecessor of wiretapping him. His first national security adviser registered as a foreign agent after being fired for not being honest about his contacts with the Russian ambassador. His attorney general, at best, misled Congress under oath.
— Despite the chaos and the growing credibility gap, Trump is systematically succeeding in his quest to “deconstruct the administrative state,” as his chief strategist Stephen K. Bannon puts it. He’s pursued the most aggressive regulatory rollback since Ronald Reagan, especially on environmental issues, with a series of bills and executive orders. He’s placed devoted ideologues into perches from which they can stop aggressively enforcing laws that conservatives don’t like. By not filling certain posts, he’s ensuring that certain government functions will simply not be performed. His budget proposal spotlighted his desire to make as much of the federal bureaucracy as possible wither on the vine.

— Trump has been using executive orders to tie the hands of rule makers. He put in place a regulatory freeze during his first hours, mandated that two regulations be repealed for every new one that goes on the books and ordered a top-to-bottom review of the government with an eye toward shrinking it.
Any day now, Trump is expected to sign an executive order aimed at undoing Obama’s Clean Power Plan and end a moratorium on federal-land coal mining. This would ensure that the U.S. does not meet its commitments under the Paris climate agreement.

The administration is also preparing new executive orders to re-examine all 14 U.S. free trade agreements, including NAFTA, and the president could start to sign some of them this week.

— Trump plans to unveil a new White House office today with sweeping authority to overhaul the federal bureaucracy and, potentially, privatize some government functions. “The Office of American Innovation, to be led by Jared Kushner, the president’s son-in-law and senior adviser, will operate as its own nimble power center within the West Wing and will report directly to Trump,” Ashley Parker and Philip Rucker report. “Viewed internally as a SWAT team of strategic consultants, the office will be staffed by former business executives and is designed to … create a lasting legacy for a president still searching for signature achievements. … Kushner’s team is being formalized just as the Trump administration is proposing sweeping budget cuts across many departments, and members said they would help find efficiencies.”

Kushner’s ambitions are grand: “At least to start, the team plans to focus its attention on re-imagining Veterans Affairs; modernizing the technology and data infrastructure of every federal department and agency; remodeling workforce-training programs; and developing ‘transformative projects’ under the banner of Trump’s $1 trillion infrastructure plan, such as providing broadband Internet service to every American. In some cases, the office could direct that government functions be privatized, or that existing contracts be awarded to new bidders.”

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On Gorsuch, Deference, & The Administrative State

by Paul Wickham Schmidt

Hohmann’s points make quite a bit of sense to me — until he gets down to his rather remarkable conclusion that progressives should have invested more in a fight against Gorsuch. What? Just how would they have done that? The GOP has the votes to confirm, as they will do, and there is nothing the Dems can do to stop it, except to look feeble, petty, and out of touch in the attempt.

The confirmation hearings revealed nothing that was not already known. Gorsuch should be a reliable conservative vote on the Court, perhaps, but not necessarily, even more than Justice Scalia. Surprise!

We just had an election during which McConnell’s scheme to block the nomination of Chief Judge Merrick Garland to the Supremes, the control of the Senate, and the ability of the next President to appoint a liberal (Hillary) or a conservative (Trump) as Scalia’s replacement were big issues. And, guess what? Whether Dems like it or not, the GOP won both the Presidency and the Senate and thereby the ability to appoint their man (in this case) as the next Justice.

What’s remarkable about that? It would have only been remarkable if President Trump had nominated someone less conservative than Judge Gorsuch. And, certainly, if Hillary had won and the Democrats won the Senate she could legitimately have chosen to resubmit Judge Garland or chosen an even more liberal candidate who would have duly been confirmed by the Democrats over the GOP’s objections. Elections have consequences, particularly when your party loses control of both of the political branches of Government.

I continue to suspect that while Justice Gorsuch will be very conservative, at some point in the future he will be persuaded to side with the so-called “liberal Justices” against some position that is key to the GOP — perhaps, the scope of Executive authority. At that point, the same GOP Senators who gushed on about his “judicial independence” will be screaming “betrayal,” while the Democrats will be congratulating him on “conscientiously following the law.”

Look at how Chief Justice Roberts went from poster boy for judicial conservatism to “dupe of the left” just by failing to veto Obamacare as the GOP had been counting on. All politicians want judges who exercise their “judicial independence” in a predictable way consistent with the political philosophy of the party that appointed them. Once on the bench, however, with lifetime tenure and only their judicial colleagues to answer to, few actually live up to all of the exceptions of their political appointers.

Moreover, I don’t agree with the supposedly “liberal” position that Executive Branch administrative judges (like I was) and bureaucrats (which I also was) should have the power to impose their views on legal issues, even if not particularly sound ones, on the Article III Judiciary. Chief Justice John Marshall must be turning over in his grave, while Thomas Jefferson dances on top of it, at this bizarre voluntary surrender of judicial authority known as “Chevron.”

There is always pressure on Executive Branch officials, be they administrative judges or just “regular agency bureaucrats,” to construe the law in ways that favor Executive policies and Executive power over the power and prerogatives of the other two branches of Government and often over the rights of individuals in the U.S.

Deciding difficult questions of law, where the answers are not clear, is what Article III Judges are paid to do, and what they are supposed to do under the Constitution! At one time, this is what they actually did! The pre-Chevron “Skidmore doctrine” already gave the Article III Judiciary adequate latitude to recognize the expertise of certain Executive Branch officials and to defer to their interpretation when it appeared to be the best one, or at least as good as any of the alternatives.

But, Chevron basically substituted the concept of “any plausible interpretation” for the “best interpretation.” That’s simply not the way an independent judiciary should function under the separation of powers established in our Constitution.

I say all of this as someone who spent the bulk of my professional career as a public servant within the “administrative state” and who, unlike the Bannons of the world, believes in the power of the Federal Government to do good things for the general population. But, I have also seen first-hand the weaknesses and biases of the Executive when it comes to interpreting the law.

Meaningful independent judicial oversight over the “administrative state,” which includes “de novo” (basically unrestricted) review of Executive legal decisions by the Article III Judiciary, is a requirement for fairness and due process under our Constitution.

Finally, the Dems should abandon Schumer’s ill-conceived idea of a “Gorsuch filibuster.” Of the minority of Americans who actually care about the Gorsuch confirmation, only a minority of those are opposed. In other words, the Dems are about to proceed on a futile parliamentary maneuver that really only speaks to a small number of voting Americans, who are already in their “base.” Absolutely no need to do that.

What is needed if the Dems don’t want another Gorsuch appointment is to start winning more elections, particularly in the U.S. Senate and for the Presidency the next time around. That will require more than feeble posturing, tilting at windmills, and some additional “Trump fails.”

The Democrats need some dynamic leadership (which currently is conspicuously absent) and some real, down to earth programs and proposals to solve America’s problems (something which I haven’t heard to date). What can the Dems do that the GOP can’t, and why should folks care?

Otherwise, the next nominee for the Supremes could be along the lines of Judge Jeannie or Judge Napolitano. And, the Dems will continue to be powerless to stop it.

PWS

03/27/17

WashPost: “Rural America” Isn’t As “White” As Most People (& Politicians) Think — “People Of Color” Are 20% — And, Even More Than Their White Counterparts, They Are Being Ignored By The Rest Of Us!

https://www.washingtonpost.com/opinions/theres-a-big-part-of-rural-america-that-everyones-ignoring/2017/03/24/d06d24d0-1010-11e7-ab07-07d9f521f6b5_story.html?utm_term=.62b8967c82ea

Mara Casey Tieken, an Assistant Professor of Education at Bates College, writes:

“Last year’s earthshaking election brought new attention to rural America. This attention is overdue — rural America has long been largely ignored by reporters, researchers and policymakers — and much of it is useful, as this increasingly urban-centric country tries to understand and reconnect with those living far from cities.

But so far, the narrative emerging about rural America has been woefully incomplete, because so much of the media coverage has focused on only one slice of it: rural white America. Some stories are clear about their scope: Their authors have intentionally chosen a particular geographic and racial population to explore and explain. Others are less obvious in their focus, though details — region of the country or photographs — soon make explicit what is merely implied or assumed. Either way, though, a particular racial narrative is being told.

There’s another rural America that exists beyond this rural white America. Nearly 10.3 million people, about one-fifth of rural residents, are people of color. Of this population, about 40 percent are African American, 35 percent are nonwhite Hispanic, and the remaining 25 percent are Native American, Asian, Pacific Islander or multiracial. And this rural America is expected to grow in the coming decades, as rural areas see a rapid increase in Latino immigration.
This rural America, much like rural white America, can be found from coast to coast. But these rural Americans tend to live in different places from rural whites: across the Mississippi Delta and the Deep South; throughout the Rio Grande Valley; on reservations and native lands in the Southwest, Great Plains and Northwest.

This rural America has a different history from rural white America: a history of forced migration, enslavement and conquest. This rural America receives even lower pay and fewer protections for its labor than does rural white America. And, as my own research shows, this rural America attends very different schools than rural white America, schools that receive far less funding and other resources.
In fact, the relationship between rural white communities and rural communities of color is much like the relationship between urban white communities and urban communities of color: separate and unequal.”

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Actually, seems like rural communities of all ethnicities share some strong common interests. They need jobs, education, roads, and services which are essential but not necessarily “cost-effective” and therefore have to be underwritten largely by those in “blue states” and urban areas.

Hard to seen how any part of rural America rationally aligns with Trump & the GOP, the party of handouts for the rich, destruction of public education, dirty air, polluted water, money wasted on xenophobic immigration enforcement, big weapons, lousy to non-existent health care, Wall Street, and no realistic plans for job creation.

But, for much of American post-Civil-War history, politicians of both parties have been amazingly successful at enticing white rural America to ignore it’s logical community of interest with African American, Native American, and Hispanic rural residents and to instead vote to prop up an establishment whose genuine interest in helping rural America is ephemeral at best.

PWS

03/26/17

Adios Amigo! — Xenophobia Trumps Rationality, Humanity, As ICE Boots Law-Abiding Indiana Hispanic Businessman Whose Wife Voted For Trump — “Mixed Family” Learns The Hard Way They Aren’t Welcome In The Trump-Pence America!

https://www.washingtonpost.com/news/post-nation/wp/2017/03/25/she-thought-trump-would-deport-bad-hombres-instead-hes-deporting-her-law-abiding-husband/?hpid=hp_no-name_hp-in-the-news:page/in-the-news&utm_term=.b30be44bad1e

Peter Holley reports in the WashPost:

“Stories such as Beristain’s — in which law-abiding parents are deported because of their immigration status — have inundated the news media in recent months. The Twitter account “Trump Regrets” has amassed nearly 260,000 followers by retweeting disappointed and angry Trump voters.

“Previously,” as The Post’s Samantha Schmidt and Sarah Larimer reported last month, “the Obama administration prioritized the deportation of people who were violent offenders or had ties to criminal gangs. Trump’s executive order on Jan. 25 expanded priorities to include any undocumented immigrants who had been convicted of a criminal offense.”

“Personally, I think the president should be giving him a handshake,” Flora said. “Either Trump was lying when he said we were only deporting bad guys, or Trump’s view of bad guys is so expansive it can literally include every single immigrant.”

Days after Beristain’s arrest, Flora said, he filed a “stay of removal” to prevent deportation, but it was rejected March 15.

“Once the case is finalized and done, there’s really no reason to keep him around in their eyes,” Flora said, referring to ICE. “They think, ‘Why take up jail space for no reason if all the legal options have been exhausted?’ ”

Flora said the decision to deport Beristain is a “wildly disproportionate” response when measured against the law he broke nearly two decades ago.

“If you asked 100 people to paint you a picture of a bad guy, no one would draw anyone remotely resembling Roberto,” he said.
Helen Beristain told the Tribune that — in their effort to get her husband U.S. citizenship — the couple has had 10 attorneys over the past 18 years. Many of those attorneys, she said, told them that they had no choice but to wait for immigration laws to change.

Instead of changing in the couple’s favor, the laws evolved to make her husband more vulnerable to deportation, a development the Beristains never expected. She told the Tribune that Trump’s deportation measures — the one’s she thought her family would be exempt from — are harming “regular people.”

“I understand when you’re a criminal and you do bad things, you shouldn’t be in the country,” Helen told the CBS TV affiliate WSBT. “But when you’re a good citizen and you support and you help and you pay taxes and you give jobs to people, you should be able to stay.”

“We were for Mr. Trump,” she added. “We were very happy he became the president. Whatever he says, he is right. But, like he said, the good people have a chance to become citizens of the United States.”

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And, folks can thank restrictionist, white nationalist “fellow travelers” like then-Senator, now Attorney General Jeff Sessions, egged on by the likes of current Presidential Advisors Steve Bannon and Stephen Miller, for blocking sensible immigration reform efforts in Congress. So, we’re spending taxpayer money and Government resources to make American a worse place by deporting members of the business community who have done nothing but good things for the country and those around them. You’d have to reside somewhere deep in the bowels of the “GOP Swamp” to make sense of this type of policy.

PWS

03/26/17

US Immigration Judge Samuel Cole (CHI) Grants Asylum To Singapore Dissident

https://www.nytimes.com/aponline/2017/03/25/us/ap-us-singapore-us-teen-asylum-seeker-.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region®ion=top-news&WT.nav=top-news

The AP reports in the NY Times:

“A blogger from Singapore who was jailed for his online posts blasting his government was granted asylum to remain in the United States, an immigration judge ruled.

Amos Yee, 18, has been detained by federal immigration authorities since December when he was taken into custody at Chicago’s O’Hare International Airport. Attorneys said he could be released from a Wisconsin detention center as early as Monday.

Judge Samuel Cole issued a 13-page decision Friday, more than two weeks after Yee’s closed-door hearing on the asylum application.

“Yee has met his burden of showing that he suffered past persecution on account of his political opinion and has a well-founded fear of future persecution in Singapore,” Cole wrote.

Yee left Singapore with the intention of seeking asylum in the U.S. after being jailed for several weeks in 2015 and 2016. He was accused of hurting the religious feelings of Muslims and Christians in the multiethnic city-state. Yee is an atheist.

Many of his blog and social media posts criticized Singapore’s leaders. He created controversy in 2015 as the city-state was mourning the death of its first prime minister and he posted an expletive-laden video about Prime Minister Lee Kuan Yew just after his death.

Such open criticism of political leaders is discouraged in Singapore. The case raised questions about free speech and censorship and has been closely watched abroad.

Cole said testimony during Yee’s hearing showed that while the Singapore government’s stated reason for punishing him involved religion, “its real purpose was to stifle Yee’s political speech.” He said Yee’s prison sentence was “unusually long and harsh” especially for his age.

Singapore’s government criticized the decision.”

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

Mr. Yee was successfully represented by Maryland immigration attorney Sandra Grossman of Grossman Law LLC.

As I have mentioned before in this blog, most fully litigated U.S. Immigration Court cases today, particularly those involving asylum or criminal law, involve exceptionally complex, and often sensitive, issues of law and fact which can’t be fairly resolved in a one to two hour time block. Yet, most of the Administration’s recent enforcement initiatives seem to assume that Immigration Court is an “assembly line” and that U.S. Immigration Judges are more or less “assembly line workers” who can be detailed to obscure locations on demand and perhaps required to work “night shifts” to keep the “deportation railroad running at full throttle.”

But, due process is not an assembly line operation. It usually takes time, expertise, careful scholarship, and detailed fact-finding for U.S. Immigration Judges to produce fair decisions that will pass muster upon judicial review in the Circuit Courts of Appeals. (I note that the Administration’s first, high-profile attempt to “ram” an immigration case — “Travel Ban 1.0” — through a Court of Appeals was spectacularly unsuccessful.)

These days, most individuals who are represented by competent counsel and reach the “Individual (Merits) Hearing” stage have at least some plausible defenses to removal. Indeed, a 2016 study by TRAC Immigration showed that more than half (57%) of the total dispositions in U.S. Immigration Court favored the individual. http://trac.syr.edu/immigration/reports/435/

And, this was during the Obama Administration which already was prioritizing so-called “serious criminals.” By expanding the “criminal alien” definition to include minor criminals and non-criminals, the Trump Administration will probably be taking on even more cases where it ultimately will fail to get a “final order of removal” unless concerted attempts are made to “game the system” to insure that individuals lose (for example, by denying individuals fair access to counsel or using prolonged detention in poor conditions as a device to persuade individuals to abandon their claims to remain in the US).

PWS

03/26/17

immigrationcourtsidePOLITICS: Somewhere Out In Ohio Yesterday Afternoon . . .

at about 3:45 PM EST, an already well-tanned man was sunning himself, dragging on a cigarette, enjoying a big glass of red wine, with tears of joy streaming down his face, his feet propped up, and thinking “YES, there is justice in this world!”

MATT FLEGENHEIMER and THOMAS KAPLAN write in the NY Times that Speaker Paul Ryan is now in “damage control mode” after he and President Trump were “stiffed” by their own party (no Trumpster, you can’t blame this on the Dems, who were kept “locked in the hallway” while this circus was going on, probably having to check Fox News to see what time the vote was scheduled), suffering a stunning, but well-deserved, defeat on their horrible bill to “repeal and replace Obamacare:”

“The episode not only demonstrated an inability to honor a longstanding pledge that powered Republicans through a string of election cycles. It was also a remarkable setback for Mr. Ryan as the body’s principal arm-twister, in his first major test as the speaker under a Republican president.

In January, he coasted to re-election with almost unanimous party support, prompting allies to gloat that he had tamed the hard-line House Freedom Caucus far more deftly than his predecessor, John A. Boehner.

By Friday, his bill had at once alienated those archconservatives and more moderate members who abandoned the legislation as Mr. Ryan and Mr. Trump began caving to demands of the far right, to little effect.

“We were a 10-year opposition party, where being against things was easy to do,” Mr. Ryan said at a sheepish news conference shortly after the bill was pulled, adding with uncharacteristic candor that Republicans were not yet prepared to be a “governing party.”

“We will get there,” Mr. Ryan said, “but we weren’t there today.”

His job will not get easier. With disparate coalitions in his conference, outside groups like the political arm of the Heritage Foundation pushing lawmakers to pursue conservative purity, and a less-than-popular president whom some members have appeared more willing to buck recently, there are few establishment forces helping Mr. Ryan keep the peace.”

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

PWS

03/25/17

Oral Argument Set For May 8 In International Refugee Assistance Project v. Trump — 4th Cir. Grants Gov’s Request to Expedite!

http://www.nationallawjournal.com/home/id=1202781955190/Fourth-Circuit-Expedites-Travel-Ban-Case-Sets-May-8-Hearing?mcode=1202617074964&curindex=0&slreturn=20170225010630

The National Law Journal reports:

“The U.S. Court of Appeals for the Fourth Circuit agreed Thursday to expedite a challenge to President Donald Trump’s travel ban executive order, setting oral arguments in the case for May 8 at the court in Richmond.
The government appealed a Maryland U.S. district court’s order last week that blocked a portion of the president’s March 6 executive order restricting travel from six majority-Muslim countries. On Wednesday, the Justice Department requested the court expedite the briefing schedule for the appeal, arguing that lower courts and the Ninth Circuit all expedited litigation surrounding both the March 6 executive order and the first order, now revoked, which was issued Jan. 28.
The government had also indicated in its request to expedite the process that it intends to file a motion to stay the injunction pending appeal. According to the court’s schedule, the government plans to file that motion Friday. The plaintiff’s response will be due March 31, with the government’s reply due April 5.
The government said the issue is “of national importance” and has national security implications, making it worthy of a speedy schedule. According to the filing, the plaintiffs disagreed with the government’s proposed schedule, and requested a May 10 deadline for their briefs. The Fourth Circuit originally issued a briefing schedule requiring the government to file its opening brief April 26, with the briefing completed by June 9.”

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

PWS

03/25/17

Trump Wins One In Virginia!

http://www.cnn.com/2017/03/24/politics/virginia-federal-judge-revised-travel-ban/

CNN reports:

“(CNN)A federal judge in Virginia ruled in favor of the Trump administration Friday, declining to join other federal courts that halted the President’s revised travel ban last week.

Two federal judges — one in Maryland and one in Hawaii — have blocked implementation of the core provisions of the travel ban, and it remains on hold nationwide. Drawing on a litany of then-candidate Donald Trump’s statements about Muslims during the presidential campaign, both of the judges concluded that the new executive order likely violates the establishment clause of the Constitution by disfavoring Muslims.

But Virginia-based US District Judge Anthony Trenga was not persuaded that Trump’s past statements automatically mean the revised executive order is unlawful, especially given the changes it made from the first version.
“This court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent,” Trenga explained. “And while the President and his advisers have continued to make statements following the issuance of EO-1 (the first executive order) that have characterized or anticipated the nature of EO-2 (the revised ban) the court cannot conclude for the purposes of the motion that these statements, together with the President’s past statements, have effectively disqualified him from exercising his lawful presidential authority.”
The practical effect of Trenga’s decision is limited at this point because the travel ban is already frozen nationwide, but it adds another judicial voice in support of the legality of the executive order as it makes its way through further proceedings in federal appellate courts.
Trump’s new travel ban blocked: What you need to know
“The substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose,” Trenga added.
The Justice Department championed the news.”

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

Not much immediate impact here, because TRO’s from Federal cases in Hawaii and Maryland remain in effect. But, Judge Trenga’s legal analysis will certainly be helpful to the Government moving forward.

PWS

03/25/17

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