"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.
http://i2.cdn.turner.com/cnn/2017/images/02/03/state.of.washington.v.trump.pdf
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This is the issue that never sleeps. A copy of Judge Robart’s Order is at the link. Judge Robart is a George W. Bush appointee.
Here’s more on the TRO and the USG’s reaction from CNN:
Haste makes waste.
PWS
02/04/17
“Washington (CNN)In the first court victory for the Trump administration, a federal judge in Boston declined Friday to renew a temporary restraining order that prohibited the detention or removal of foreign travelers legally authorized to come to the US.
The win in court comes at the same time that the administration issued a clarification to its travel order allowing for some citizens from the seven banned countries — Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen — to enter the US under specific circumstances.
The original temporary restraining order, issued by US District Court Judge Allison Burroughs and US Magistrate Judge Judith Dein, was put in place early Sunday morning and was set to expire on February 5.
But a different federal judge, US District Court Judge Nathaniel Gordon, ruled Friday that the claims brought by legal permanent residents are now moot given the White House counsel’s recent clarification that the travel ban order does not apply such individuals.”
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Read the full story at the link. Check the internet for updates and additional analysis as it becomes available.
PWS
02/03/17
http://www.politico.com/story/2017/02/trump-travel-ban-virginia-234609
Politico reports:
“Brinkema was also harshly critical of the review and implementation of Trump’s order. “It’s quite clear not all the thinking went into it that should have gone into it,” she said. “As a result, there was chaos.”
During the hearing in federal court in Alexandria, Justice Department lawyer Erez Reuveni said that more than 100,000 visas were canceled as a result of Trump’s order last Friday limiting travel by residents of seven majority-Muslim countries, the Associated Press reported.
However, a State Department official told POLITICO later that the total number of visas canceled was fewer than 60,000. Some of those people are currently in the U.S. Their legal status here is not affected, but their visas will not be valid for re-entry if they travel out of the country, officials said.
. . . .
“At the court hearing, Brinkema said the alarm caused by Trump’s order was widespread. She said no case she has ever handled produced the level of public concern she observed in this one.
“It’s obvious that this put hundreds of thousands of people into a state of great discomfort,” the judge said. “People are really upset.”
Brinkema, an appointee of President Bill Clinton, commended the government for its effort to resolve issues raised by Trump’s order, but said more needs to be done.
“I don’t think it’s far enough,” she said as she ruled to keep the case before her alive.
“There’s no question the president of the United States has almost—almost unfettered “ power over foreign policy and border issues, but “this is not ‘no limit,’” the judge said.
Brinkema said individuals and families had “relied” on decisions made to grant visas. She has not ruled on the merits of the case, but she suggested the government could not reverse course in specific immigration cases without a legitimate reason to do so.”
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Hey, 100,000? 60,000? 40,000 difference? — close enough for Government work. BTW, Judge Brinkema has handled a major terrorist prosecution. So, she actually knows what real terrorism and national security are all about.
Once again, “haste makes waste!”
PWS
02/03/17
Elise Foley Reports on HuffPost:
“WASHINGTON ― The Trump administration provisionally revoked 100,000 visas as part of its ban on travelers from seven Muslim-majority countries, a government lawyer said in court on Friday.
The revelation caused shockwaves on Twitter, but the State Department actually confirmed earlier this week that it had provisionally revoked most visas held by people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
State Department officials said later Friday that fewer than 60,000 individuals’ visas were provisionally revoked as a result of the order. “To put that number in context, we issued over 11 million immigrant and non-immigrant visas in fiscal year 2015,” a spokesman for the State Department’s Bureau of Consular Affairs told The Huffington Post.
The Justice Department did not immediately respond to a request for comment on the discrepancy in numbers.”
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As I’ve noted before, to date lawyers have been the only real beneficiaries of the Trump immigration orders.
PWS
01/03/17
http://www.newsweek.com/steve-bannon-fever-dream-american-gulag-551472
Jeff Stein writes in this week’s Newsweek:
“Imagine: Miles upon miles of new concrete jails stretching across the scrub-brush horizons of Texas, New Mexico, Arizona and California, with millions of people incarcerated in orange jumpsuits and awaiting deportation.
Such is the fevered vision of a little-noticed segment of President Donald Trump’s sulfurous executive order on border security and immigration enforcement security. Section 5 of the January 25 order calls for the “immediate” construction of detention facilities and allocation of personnel and legal resources “to detain aliens at or near the land border with Mexico” and process them for deportation. But another, much overlooked, order signed the same day spells out, in ominous terms, who will go.
Trump promised a week after the November elections that he would expel or imprison some 2 million or 3 million undocumented immigrants with criminal convictions—a number that exists mainly in his imagination. (Only about 820,000 undocumented immigrants currently have a criminal record, according to the Migration Policy Institute, a nonpartisan think tank. Many of those have traffic infractions and other misdemeanors.)
Still, the spectre of new, pop-up jails housing hundreds of thousands of people is as powerful a fright-dream for liberals as it is a triumph for the president’s “America first” Svengali, Steve Bannon. But, like the fuzzy Trump order dropping the gate on travelers from seven Muslim-majority states, the deportation measure presents so many fiscal and legal restraints that is also looks suspiciously like just another act of ideological showboating from the rumpled White House strategy chief.
“I’m a Leninist,” Bannon proudly proclaimed to the writer Ronald Radosh at a party at his Capitol Hill townhouse in November 2013. “Lenin,” he said of the Russian revolutionary, “wanted to destroy the state, and that’s my goal too. I want to bring everything crashing down, and destroy all of today’s establishment.”
The executive orders were “not issued as result of any recommendation or threat assessment made by DHS to the White House,” Department of Homeland Security officials conceded in a closed-door briefing on Capitol Hill Wednesday, according to a statement from Missouri Senator Claire McCaskill. They were all Bannon-style revolutionary theater.
. . . .
Expect DHS to start advertising for bids from private prison operators, a much-maligned industry that was collapsing in the latter years of the Obama administration. Two of the largest, GEO Group Inc. and CoreCivic Inc., are already seeing windfalls from their second chance at life: Their stock prices have nearly doubled since the election.
All of which recalls another Leninist idea that Bannon may have forgotten: Prisons are universities for revolution.”
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Stein’s article confirms what many of us had suspected all along — these draconian and unnecessary measures were were “’not issued as result of any recommendation or threat assessment made by DHS to the White House.’” No, they were part of a pre-hatched anti-immigrant, anti-Muslim program cooked up by Bannon and others in the White House to “make good” on Trump’s campaign promises (regardless of whether the measures were necessary of sensible).
But they will be a boon for two important U.S. industries: the private prison industry and the legal industry, as both sides “lawyer up” for a long-term, avoidable, and wasteful fight. Who needs foreign enemies when the Administration is so determined to wage warfare against a large number of our own citizens and residents who disagree with his ill-considered and ill-timed policies?
Stein’s full article (well worth the read) is at the link.
PWS
02/03/17
https://www.wsj.com/articles/trump-country-might-suffer-more-in-a-trade-war-study-says-1485752403
Bob Davis writes in the WSJ on Jan. 30:
“WASHINGTON—Should the U.S. get embroiled in a trade war, communities that voted for Donald Trump are likely to take a bigger hit than those that voted for Hillary Clinton, according to a study by the Brookings Institution.
Brookings measured what it called the export intensity of urban areas around the country—meaning local goods and service exports as a percentage of local GDP in 2015—to get a picture of those places most dependent on access to the global economy. The most export-intensive places tended to be smaller cities in the Midwest and Southeast—solid Trump country—rather than the big metropolitan areas that went heavily for Mrs. Clinton.
“Trump communities are relatively more reliant on trade,” said Mark Muro, head of Brookings’s metropolitan policy program. “They are smaller communities with less flexibility” to adapt to a cutoff in trade.
“Disruption could be especially troubling for those places,” he said. Brookings said it traces exports back to the point where value is added via production, rather than where goods and services are shipped. The latter gives too much weight to big ports.
Columbus, Ind., a center of machine-making, is the most export-reliant city in the country, Brookings found. The GDP of the city of 46,000, which voted 2 to 1 for Mr. Trump, is 50.6% dependent on exports. Three other Indiana cities—Elkhart, Kokomo and Lafayette—are among the top 10 cities dependent on exports.
The work by Brookings researchers is in some ways the complement to the better-known work of economists David Autor,Gordon Hanson and David Dorn, who identified the localities most vulnerable to Chinese import competition.”
Will Connors writes in the Jan. 31 WSJ:
“An array of Republican and Democratic officials from across the Rust Belt and Midwest are united in concern about President Donald Trump’s clampdown on refugees and certain immigrants for one overriding reason: Their communities need more people.
Large Democratically-controlled “sanctuary cities” including Chicago, San Francisco and New York have been outspoken in resisting the administration’s ban on refugees and immigrants from seven Muslim-majority countries, citing political and moral reasons.
But officials from a second tier of smaller cities, from Columbus, Ohio, to Troy, Mich., to Garden City, Kan., are highlighting the economic importance of welcoming refugees and immigrants to bolster declining populations and add manpower, skills and entrepreneurial know-how.
“I understand that the president is trying to protect the U.S. However, there are many good people that have located here that are escaping wars and political actions, and they’re just looking for a chance to raise their families in a safe environment,” said Janet Doll, a Republican city commissioner in Garden City, Kan. “The immigrants we have here are productive members of society. They have nice jobs and want to contribute to the quality of life in our community.”
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We haven’t even gotten around to the Trump Administration’s next initiative: an attack on legal immigration to the U.S., family members, workers, both temporary and permanent, and refugees, which was covered in one of my earlier blogs.
Perhaps, instead of stirring the pot for a fruitless “can’t win war” on a well-qualified conservative Supreme Court nominee (actually, along with taking Ivanka to be with the family of Chief Special Warfare Operator William “Ryan” Owens at Dover AFB, one of the most reasonable things Trump has done since Jan 20) the Democrats should take the “high road.” Democrats might also want to do some thinking about how to “build bridges” with with some of these folks in “Trump Country” who are more likely to find economic disappointment, than economic success, in the Trump Administration’s blunderbuss assault on loyal allies, trading partners, and immigrants of all types who fuel the success of the real America (not just Washington, D.C. or “big cities”).
President Trump proved that he could win a comfortable (even if not the “landslide” he likes to claim) electoral victory with only 46.1% of the popular vote. That’s about 40% “Trump base” and a critical 6.1% who might have voted for Obama or Bernie Sanders in earlier elections, but pulled the lever for Trump this time around. If the Democrats don’t come up with a workable strategy to connect with and “peel off” at least some of those voters, Trump will likely be headed for a second term even if he never gets support from a majority of American voters. In that case, Democrats will long for the days when screwing around with an otherwise well-qualified conservative Supreme Court nominee was their biggest problem.
http://www.huffingtonpost.com/entry/58922d69e4b0f009905272bc?timestamp=1485983968492
“The ACLU Executive Director, Anthony D. Romero, claims that President Donald Trump’s Executive Order suspending the admission of aliens from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen for 90 days is “a Muslim ban wrapped in a paper-thin national security rationale.”
. . . .
President Trump’s Executive Order directs the Secretary of State and the Director of National Intelligence to determine what information is needed from any country to decide whether one of its nationals who is seeking admission to the United States is who he claims to be and is not a security or public-safety threat.
The Executive Order also requires finding out which countries will be willing to provide the needed information. If the governments of the seven designated countries agree to provide this information, the ban will not be extended, but their nationals will have to pass through the new screening process to get a visa to come to the United States.
In the meantime, the Executive Order permits the Secretaries of State and Homeland Security to waive this ban on a case-by-case basis when a waiver is in the national interest.
DHS already has applied this waiver to the entry of nationals from those countries who are lawful permanent residents returning from a trip abroad. He has stated that, “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”
It certainly would have been better if President [Trump] had provided more guidance on such waivers and set up procedures for requesting them before issuing the Executive Order. He also could have delayed its effective date to prevent people from being caught by it in transit to the United States.
Nevertheless, it is apparent that it is not “a Muslim ban wrapped in a paper-thin national security rationale.”
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Read Nolan’s full article which develops his legal arguments further at the above link.
PWS
02/01/17
The NYT reports:
“WASHINGTON — Rex W. Tillerson, the former chairman and chief executive of Exxon Mobil, was confirmed by the Senate on Wednesday in a 56 to 43 vote to become the nation’s 69th secretary of state just as serious strains have emerged with important international allies.
The many votes against Mr. Tillerson’s confirmation made his selection among the most contentious for a secretary of state in recent history, and he takes his post just as many traditional American allies are questioning the policies of President Trump. In the past 50 years, the most contentious confirmations for secretary of state were those of Condoleezza Rice in 2005, who passed by a vote of 85 to 13, and Henry Kissinger in 1973, who was confirmed 78 to 7.
Mr. Trump is the most unapologetically nationalistic president of the modern era who has questioned the value of many of the alliances and multilateral institutions that the United States has nurtured since World War II to keep world order.”
How Mr. Tillerson’s translates Mr. Trump’s vow of “America First” into the kind of polite diplomatic parlance that will maintain vital alliances will be a significant test.”
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Among Secretary Tillerson’s most Important duties as Secretary of State will be supervising the visa issuance process under the Immigration and Nationality Act, dealing with the foreign policy implications of U.S. immigration and refugee policies, negotiating international treaties, and overseeing the preparation of the U.S. Department of State’s Country Reports on Human Rights Conditions which are an important source of background information used in deciding many cases in Immigration Court and at the DHS Asylum Office as well as a tool used by refugee adjudicators in other nations that are signatories to the 1952 U.N. Refugee Convention.
Human Rights is also (or at least has been up until now) an important focus for the Secretary. And, the Administration’s inclination to turn its back on the African continent because there is “nothing in it for us” (after all, what’s the value of saving thousands of human lives compared to profit making business opportunities — America First — Humanity, why bother?) But, at some point, Secretary Tillerson is likely to discover that the Administration’s short-sighted dismissive attitude toward 1.3 billion of the earth’s inhabitants will come back to haunt him (and us).
PWS
02/01/17
https://sputniknews.com/us/201702011050221283-trump-three-candidates-justice-dept-posts/
“WASHINGTON (Sputnik) — Trump announced he is going to nominate Rod J. Rosenstein of Maryland to be Deputy Attorney General, Rachel B. Brand of Iowa to be Associate Attorney General and Steven Andrew Engel of the District of Columbia to be Assistant Attorney General, according to the release.
Rosenstein was previously US Attorney for the federal, or District Court of Maryland, Brand served as an assistant attorney general under President George W. Bush and Engel was a successful litigator who had served previously as a deputy assistant attorney general.”
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Sounds like the type of candidates most any Republican President would appoint. The “real question” is will they have any real influence on policy at the DOJ or will they be confined to “working out the Xs and Os of daily agency operations” while aides at the White House “pull the strings” with Attorney General Sessions on major legal and policy issues (like the operation of the U.S. Immigration Courts).
Too early to tell, of course. But, it’s something that Democrats should at least raise during the confirmation process. I wouldn’t expect any of these candidates to have difficulty getting confirmed.
PWS
01/01/17
http://thehill.com/homenews/administration/317035-sessions-approved-by-senate-committee
The Hill writes:
“A Senate committee voted to confirm Sen. Jeff Sessions (R-Ala.) to be attorney general on Wednesday, two days after the growing controversy surrounding President Trump’s travel ban on seven Muslim nations led to the firing of an acting attorney general for insubordination.
The Senate Judiciary Committee approved Sessions 11-9 along party lines. His nomination now goes to the floor, where he is widely expected to be confirmed given the GOP’s 52-seat majority.
The committee vote comes as Senate Democrats have sought to slow progress on other Trump nominees, including Steve Mnuchin, the pick at the Treasury Department, and Rep. Tom Price (R-Ga.), Trump’s pick to lead the Health and Human Services Department.
The Alabama senator’s already difficult path to confirmation was made more contentious by Trump’s firing of acting Attorney General Sally Yates, who deemed the president’s order illegal and said she would not have Justice attorneys defend it.”
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As we have known for weeks, Jeff Sessions will soon be the Attorney General of the United States. What exactly does that mean for our justice system and particularly for the beleaguered and backlogged United States Immigration Courts which he will now control?
Among the most immediate questions:
Will he exempt the Immigration Courts from the Administration’s hiring freeze?
If so, what will he do with the many “pipeline candidates” for existing Immigration Judge vacancies who were “caught in limbo” when the hiring freeze went into effect?
Will he continue with the existing DOJ hiring process for the Immigration Judiciary, or will he establish his own recruitment and hiring system for Immigration Judges and BIA Judges.
We’ll soon find out. Stay tuned to immigrationcourtside.com for all the latest!
PWS
02/01/17
http://www.wsj.com/articles/homeland-security-chief-and-white-house-clash-1485823301
The WSJ reports:
“WASHINGTON—Homeland Security Secretary John Kelly has clashed with the White House over staffing and other decisions in recent days, people familiar with the matter said, leaving the agency without a second-in-command as it tried to institute a new travel ban during a chaotic weekend at the nation’s airports.
When President Donald Trump selected Mr. Kelly, the pick won broad support from Republicans and Democrats in part because they believed the retired Marine general would be willing to speak up and challenge Mr. Trump.
That tension didn’t take long to materialize. Mr. Kelly hasn’t been able to name the deputy he wants at the agency, people familiar with the matter said, and he fought off attempts by the White House to put Kris Kobach, the Kansas secretary of state known as a hard-liner on immigration, into the position.
Mr. Kelly was also frustrated at not knowing the details of the travel ban earlier, so he could prepare his agency to respond, according to people familiar with the matter. Mr. Trump signed the executive order that created the ban late Friday afternoon. Mr. Kelly was only informed of the details that day as he was traveling to Washington, even though he had pressed the White House for days to share with him the final language, the people said.”
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According to the article, President Trump has now decided to nominate Elaine Duke, a former Bush Administration official, to the #2 job at DHS. Have to wonder how long Kelly, a former Marine and a reputed “straight shooter” (in more ways than one) will last in “the circus.”
PWS
01/31/17
The Washington Post reports:
“The Trump administration is considering a plan to weed out would-be immigrants who are likely to require public assistance, as well as to deport — when possible — immigrants already living in the United States who depend on taxpayer help, according to a draft executive order obtained by The Washington Post.
A second draft order under consideration calls for a substantial shake-up in the system through which the United States administers immigrant and nonimmigrant visas, with the aim of tightly controlling who enters the country and who can enter the workforce, and reducing the social services burden on U.S. taxpayers.
The drafts are circulating among administration officials, and it is unclear whether President Trump has decided to move forward with them or when he might sign them if he does decide to put them in place. The White House would not confirm or deny the authenticity of the orders, and White House officials did not respond to requests for comment about the drafts Monday and Tuesday.
If enacted, the executive orders would appear to significantly restrict all types of immigration and foreign travel to the United States, expanding bars on entry to the country that Trump ordered last week with his temporary ban on refugees and people from seven Muslim-majority countries.”
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For copies of the draft Executive Orders and the full story, go over to the Washington Post at the above link.
PWS
01/31/17
The Washington Post reports tonight:
“President Trump fired Acting Attorney General Sally Yates Monday night, after Yates ordered Justice Department lawyers Monday not to defend his immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.
In a press release, the White House said Yates had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.”
The White House has named Dana Boente, U.S. attorney for the Eastern District of Virginia, as acting attorney general. Boente told The Washington Post that he will agree to enforce the immigration order.
Earlier on Monday, Yates ordered Justice Department not to defend President Trump’s immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world, declaring in a memo that she is not convinced the order is lawful.
Yates wrote that, as the leader of the Justice Department, she must ensure that the department’s position is “legally defensible” and “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”
“At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful,” Yates wrote. She wrote that “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”
Yates is a holdover from the Obama administration, but the move nonetheless marks a stunning dissent to the president’s directive from someone who would be on the front lines of implementing it.”
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Nothing very surprising here. As noted in the article, Yates was a holdover from the Obama Administration. I suppose it’s a nice note of protest for her to end her DOJ tenure.
Nevertheless, Yates was basically a bystander and enabler as her boss, AG Loretta Lynch, and the Obama Administration created chaos in the U.S. Immigration Court system. Lynch and Yates, who, to the best of my knowledge neither set foot inside a U.S. Immigration Court nor took the time to speak in person with sitting judges, mandated enforcement-based priorities which attempted to race vulnerable women, children, and families from Central America seeking refuge in the U.S. through the process on an expedited basis without a reasonable chance to obtain lawyers or present their claims. Indeed, while she might be having pangs of conscience about defending the Trump orders, Yates’s DOJ lawyers had little difficulty defending the facially absurd contention that children who couldn’t even speak English could represent themselves on complex asylum claims in Immigration Court. Meanwhile, those who had been patiently waiting on the Immigration Court’s docket for years and were actually ready to proceed to trial on their claims for relief were arbitrarily “orbited” to the end of the line — years in the future. Yates and Lynch inherited a court system in crisis and left it a disaster.
Then, there was judicial selection. Yates presided over a “Rube Goldberg Type” glacial, hyper-bureaucratized, opaque, hiring process that effectively excluded those outside government from the Immigration Judiciary and the Board of Immigration Appeals, while leaving approximately 75 unfilled positions at the end of the Administration and a BIA structure and system that basically institutionalized and reinforced the aggressively anti-due-process procedures put in place by Attorney General Ashcroft during the Bush Administration. She and her boss left behind total chaos and a due process train wreck that mocked the noble vision of the U.S. Immigration Courts: through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all.
So, forgive me if I can’t get too enthused about Yates’s belated show of backbone. Her gesture was purely symbolic, and cost her nothing, since she was going to be replaced immediately upon Sessions’s confirmation. But, when she actually had a chance to improve due process in the U.S. Immigration Courts, she was, sadly, MIA.
PWS
01/30/17
Philip Rucker and Robert Costa write in the Washington Post:
“In jagged black strokes, President Trump’s signature was scribbled onto a catalogue of executive orders over the past 10 days that translated the hard-line promises of his campaign into the policies of his government.
The directives bore Trump’s name, but another man’s fingerprints were also on nearly all of them: Jeff Sessions.
The early days of the Trump presidency have rushed a nationalist agenda long on the fringes of American life into action — and Sessions, the quiet Alabamian who long cultivated those ideas as a Senate backbencher, has become a singular power in this new Washington.
Sessions’s ideology is driven by a visceral aversion to what he calls “soulless globalism,” a term used on the extreme right to convey a perceived threat to the United States from free trade, international alliances and the immigration of nonwhites.
And despite many reservations among Republicans about that worldview, Sessions — whose 1986 nomination for a federal judgeship was doomed by accusations of racism that he denied — is finding little resistance in Congress to his proposed role as Trump’s attorney general.
Sessions, left, and then-President-elect Donald Trump speak at a “USA Thank You Tour” rally in Sessions’s home town of Mobile, Ala., on Dec. 17. (Jabin Botsford/The Washington Post)
Sessions’s nomination is scheduled to be voted on Tuesday by the Senate Judiciary Committee, but his influence in the administration stretches far beyond the Justice Department. From immigration and health care to national security and trade, Sessions is the intellectual godfather of the president’s policies. His reach extends throughout the White House, with his aides and allies accelerating the president’s most dramatic moves, including the ban on refugees and citizens from seven mostly Muslim nations that has triggered fear around the globe.
The author of many of Trump’s executive orders is senior policy adviser Stephen Miller, a Sessions confidant who was mentored by him and who spent the weekend overseeing the government’s implementation of the refugee ban. The tactician turning Trump’s agenda into law is deputy chief of staff Rick Dearborn, Sessions’s longtime chief of staff in the Senate. The mastermind behind Trump’s incendiary brand of populism is chief strategist Stephen K. Bannon, who, as chairman of the Breitbart website, promoted Sessions for years.
Then there is Jared Kushner, the president’s son-in-law and senior adviser, who considers Sessions a savant and forged a bond with the senator while orchestrating Trump’s trip last summer to Mexico City and during the darkest days of the campaign.
[Trump lays groundwork to change U.S. role in the world]
In an email in response to a request from The Washington Post, Bannon described Sessions as “the clearinghouse for policy and philosophy” in Trump’s administration, saying he and the senator are at the center of Trump’s “pro-America movement” and the global nationalist phenomenon.”
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I suppose not surprisingly, Senator Session’s claim that he would rise above his past and be Attorney General for all Americans was just a disingenuous smokescreen. Well, as I’ve said before, sometimes philosophical bias prevents folks from acting both in their own self-interest and the national welfare. So, the fate of due process in the U.S. Immigration Courts is likely to end up in the hands of the U.S. Courts of Appeals and, eventually, the Supreme Court. If nothing else, Sessions could find out that he’s going to spend most of the next four years without much immigration enforcement at all, as the Article III Courts sort this out. Dumb me, for giving the guy the “benefit of the doubt.”
PWS
01/30/17
http://yalejreg.com/nc/draining-due-process-by-jill-e-family/
Professor Jill Family of Widener University Law writes in “Notice & Comment:”
“As I have argued before, the failings of the immigration adjudication system are not an excuse to perform end-runs around the system and to ignore administrative process design criteria. The system needs to be fixed and not forgotten. This is not only a question of what is fair for individuals charged with removal. It is also a signal of the administration’s attitude toward due process rights. That should be concerning to anyone interested in agency adjudication and individual rights.”
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I couldn’t agree more with Professor Family. I lived through lots of “haste makes waste” disasters in my Government career. Both Nolan Rappaport and I have pointed out, in our different ways, why it would be smart for the Trump Administration to do an “honest fix” for the Immigration Court system. A “level playing field” that concentrates on full due process in the Immigration Courts benefits everyone, including those who favor vigorous (yet fundamentally fair) immigration law enforcement.
But, sadly, after one week, this has all of the hallmarks of an Administration that will not be able to rise above its own intentionally divisive campaign rhetoric and its unfortunate biases. Just to be clear, as the events of the first week show, those biases have nothing whatsoever to do with the best interests or security of our country and everything to do with pandering to misguided nationalist/populist sentiment.
I suspect that eventually the entire Immigration Court System as well as the DHS “Administrative Removal Process” will end up in “receivership” in the Article III Courts, who will have to decide what to do with a supposed due process system that has been “drained” of both common sense and due process. But, given the failures of the last two Administrations to foster due process in the Immigration Courts, the apparent intention of the Trump Administration to mock established concepts of fairness and due process, and the failure Congress to act on long overdue reforms to establish an Immigration Court independent from the Executive, that might be the best thing for America.
PWS
01/29/17