U.S. Department of Justice – Page 270 – immigrationcourtside.com

LEGISLATION: House GOP Takes The Low Road — Eschews Compromise — Goes For Enforcement Overkill!

http://www.cnn.com/2017/05/18/politics/immigration-bill-house-committee/index.html

Tal Kopan reports for CNN:

“Washington (CNN)Democrats and Republicans on Thursday faced off over immigration policy as a House committee began considering a set of immigration bills that Democrats say would amount to the creation of a “mass deportation force.”

Proponents of the first bill under consideration by the House judiciary committee — named after two law enforcement officers who were allegedly murdered by an undocumented immigrant — advocated for the bill as important to public safety and rule of law.
But Democrats on the committee decried the bill as an unnecessarily harsh anti-immigrant push by President Donald Trump.
“Proponents of this bill say that it’s necessary to keep us safe, but what the bill really does is pander to the noxious notion that immigrants are criminals and should be dealt with harshly,” said immigration subcommittee ranking member Zoe Lofgren, a California Democrat. “This bill gives Trump and (adviser Steve) Bannon the legislation to establish their mass deportation force. … This bill should really be called the ‘Mass Deportation Act,’ because that’s what it is.”
Judiciary Chairman Bob Goodlatte said the bill was not intended to target immigrants, but to “respect the rule of law.”
“This is simply a bill that gives any administration, the current one and future ones, the authority to enforce our laws properly, and gives to state and local governments … the ability to participate in that enforcement,” Goodlatte said.
The committee was set to mark up three Republican bills related to immigration on Thursday — one that would vastly expand the role of state and local jurisdictions in immigration enforcement and two others that would authorize immigration components of the Department of Homeland Security.
But by mid-afternoon, the committee recessed until next week after only making its way through two amendments. Both were brought by Democrats to strike portions of the bill, and after lengthy debate, both were rejected by the Republican majority committee. Democrats were expected to continue bringing a number of similar amendments when the markup continues on the nearly 200 page bill.
The main bill the committee discussed, the Michael Davis Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, was introduced by Republican Rep. Raul Labrador of Idaho, and closely resembles similar legislation that the House judiciary committee has advanced in the past and that now-Attorney General Jeff Sessions introduced in his time in the Senate.
The Davis-Oliver Act would substantially increase the capabilities of federal and local immigration enforcement, including empowering state and local law enforcement to enact their own immigration laws and penalties. It also would give the government powers to revoke visas, beef up Immigration and Customs Enforcement’s ability to arrest and deport undocumented immigrants, increase criminal penalties for undocumented immigrants and punish sanctuary jurisdictions.

The two parties went back and forth on the bill, with Democrats decrying it as demonization of all immigrants, as an increase in mass incarceration and as a promotion of racial profiling and as unconstitutional federal overreach. They noted that local law enforcement in sanctuary cities say their policies are important for victims and witnesses of crimes to feel comfortable coming forward.
But Labrador said the notion that the bill harms public safety is “the most preposterous and outrageous argument I’ve ever heard.”
“For too long we have allowed individuals to enter our country illegally and in many cases do us harm,” he said. “While other reforms are needed, this bill is vital to a long-term fix.”
The other two bills, introduced by Goodlatte, a Virginia Republican, would serve as authorizations for ICE and US Citizenship and Immigration Services, codifying the mission statements of both entities. The USCIS bill would focus the agency, which oversees the issuance of visas and grants immigrants the ability to enter the U.S. . . . .”

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America has all the immigration enforcement we need at present. Undocumented entries are down, the undocumented population is stable, and all reputable studies show that migrants of all types are among the most law-abiding sectors of our society. Also, the DHS is unable to remove everyone who is currently under a final order of removal. The U.S. Immigration Court system is completely backlogged, with nearly an astounding 600,000 pending cases.

Consequently, beyond funding “fixes” for the overwhelmed Immigration Courts and the DHS program for executing final orders of removal, there is no need for additional immigration enforcement personnel and authority at this time. Nor is there any need to push reluctant cities to help DHS out with immigration enforcement.

No, notwithstanding the disingenuous statements by GOP Reps. Goodlatte and Labrador, this is all about generating anti-immigrant sentiment and promoting a non-existent link among immigrants, crime, and national security..

What America really needs is some type of legalization program to allow the millions of law-abiding undocumented individual already here to continue to work and contribute to our society. Additionally, we need immigration reform that would expand the legal immigration system to more realistically match supply with demand. This, in turn, would encourage individuals to enter through the legal system and thereby register and submit themselves to complete pre-entry vetting. That’s what would actually promote the safety and prosperity of America!

PWS

05-19-17

Six Compelling Stories Of How Refugees ARE America That You Should Read!

http://www.seattletimes.com/seattle-news/trump-america-refugees-immigrants-seattle-pacific-northwest/?utm_source=The+Seattle+Times&utm_campaign=893d2c55f3-Morning_Brief_05_19_2017&utm_medium=email&utm_term=0_5beb38b61e-893d2c55f3-12276787

Daniel Beekman writes in the Seattle Times:

“The United Nations defines a refugee as someone forced to flee his or her country because of persecution, war or violence.

He or she has a well-founded fear of being targeted for reasons of race, religion, nationality, political opinion or membership in a particular social group.
A refugee can be an adult or a child.

Julie Wong was 10.

“It couldn’t have been longer than a football field from where we were hiding to that ship, but I remember what I saw along the way,” Wong said of the night she left the Vietnamese city Danang in 1975.

“We had to step over dead bodies. Bicycles. Suitcases. People’s lives strewn all around.”

Wong is 52 and lives with her husband in Sammamish. Their sons play football. She works for a pharmaceutical company as an oncology diagnostic consultant.

She cried when she talked about Danang being shelled and the refugee camp near San Diego where she took English classes.

She doesn’t usually talk about those things. Most people never ask, and she doesn’t feel the need to tell. She leads a busy life as a proud American.

But when Wong sees Syrian refugees on the news, running for their lives, she’s reminded of her own story.”

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Read about Wong and five other Americans from refugee backgrounds at the link’

PWS

05-19-17

Willie To Jeffie: “You Need To Toke Up, Dude!” — Challenges AG To Take A Hit Before Targeting Weed!

http://www.huffingtonpost.com/entry/willie-nelson-jeff-sessions_us_591d4534e4b034684b0960d9

Ed Mazza reports in HuffPost:

“Country music legend Willie Nelson has some advice for Attorney General Jeff Sessions, who said marijuana is only “slightly less awful” than heroin.

Nelson, a longtime advocate for legal pot, told Rolling Stone:

“I wonder if he’s tried both of them. I don’t think you can really make a statement like that unless you tried it all. So I’d like to suggest to Jeff to try it and then let me know later if he thinks he’s still telling the truth!”
The 84-year-old County Music Hall of Famer has his own brand of marijuana, Willie’s Reserve, for sale where it’s legal and often speaks highly of his own personal experiences with the drug.

Rolling Stone asked if there’s been a downside to his own habit.

“I haven’t run into any yet,” he said. “I guess if you go somewhere where it’s illegal, that’s a pretty good downside.”

Police have arrested the singer several times for marijuana-related offenses.”

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Don’t think this will be happening anytime soon!

PWS

05-19-17

THWARTED: Judge Stops Feds From Interfering With Pro Bono Help!

US judge blocks restriction on immigrant legal help – San Francisco Chronicle

Gene Johnson reports for AP:

SEATTLE (AP) — A federal judge temporarily blocked a Justice Department decision that immigrant legal rights organizations around the country said would curtail much of the work they do help those facing deportation.

U.S. District Judge Richard Jones issued his ruling Wednesday immediately following oral arguments in a lawsuit brought by the nonprofit Northwest Immigrant Rights Project.

The Justice Department last month sent the group a cease-and-desist letter saying it cannot provide certain legal assistance to immigrants unless it undertakes formal representation of them in court. The nonprofit says it doesn’t have the resources to do that, as formal representation can require intensive investigation of a client’s case and remaining involved until its resolution.

The order would force it and similar groups around the country to stop preparing motions and other documents on behalf of immigrants who represent themselves, the organization said.

The judge agreed that the Justice Department’s action would violate the Northwest Immigrant Rights Project’s constitutional rights to freedom of speech, association and to petition the government, and that the cease-and-desist letter would limit its work — forcing many immigrants to go without legal help, since people facing deportation are not entitled to an attorney the way criminal defendants are. He barred the Justice Department from sending such letters to any other nonprofit organizations doing similar work around the nation.”

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Read the full article at the link.

My good friend and former colleague, retired U.S. Immigration Judge Eliza Klein prepared an affidavit in support of the plaintiffs in this cases.

PWS

05-19-17Jug

BUST: ICE Nabs Mother Of 4 With Minor Driving Violation!

https://www.washingtonpost.com/local/social-issues/salvadoran-mom-of-2-detained-by-ice-in-fairfax-no-criminal-record-advocates-say/2017/05/18/afcbe0ce-3bec-11e7-a058-ddbb23c75d82_story.html?utm_term=.92d83e15b9c6

Maria Sacchetti and Antonio Olivo Report in the Washington Post:

“Federal immigration officials detained an undocumented woman from Falls Church who came to their offices for a routine check-in on Thursday, drawing angry protests from advocates who say President Trump should focus on deporting those who pose a public-safety threat.p

The arrest of Liliana Cruz Mendez, 30, a mother of two from El Salvador, comes a day after U.S. Immigration and Customs Enforcement released statistics showing a significant increase in deportation arrests since Trump’s inauguration, mostly involving undocumented residents with criminal records.

While immigration hard-liners are applauding Trump’s efforts, advocates for those here illegally say ICE is defining the term “criminal” so broadly that many minor offenders — including Cruz Mendez, who has a misdemeanor conviction for driving without a license — are being torn from their U.S.-born children.

The agency also more than doubled the arrests of noncriminal immigrants, to nearly 11,000, about a quarter of the arrests reported Wednesday.

“This is the real face of what ICE is doing,” said George Escobar, senior director of human Services for CASA, a Maryland-based nonprofit that is aiding Cruz Mendez. “They are shattering families and children’s lives.”

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This is making America safer and better? This is a good use of enforcement resources?

PWS

05-19-17

NEW PRECEDENT: Applicant Bears Burden Of Showing Mandatory Denial Inapplicable: MATTER OF M-B-C-, 27 I&N Dec. 31 (BIA 2017)

https://www.justice.gov/eoir/page/file/967306/download#31

BIA HEADNOTE:

“Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a preponderance of the evidence that such grounds do not apply.”

PANEL: Appellate Immigration Judges Malphrus, Mullane, Liebowitz

OPINION BY: Judge Mullane

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This was an unusual case, with lots of competing evidence on both sides. But, normally, this issue came up in routine NACARA or even TPS cases.

Here’s a more “normal”scenario.” The respondent was a private in the El Salvaoran Army during the Civil War in the 1980s. The DHS introduces old country reports and excerpts from the “El Rescate Database” showing that the respondent’s unit was in the department where human rights abuses took place. That’s sufficient to shift the burden to the respondent. to prove he did not engage in persecution.

The respondent testifies that he performed routine duties around the base and was never involved on combat, never harmed any civilian, and never witnessed any civilian being harmed.

That’s the case! Now the Immigration Judge has to make a decision on that skimpy evidence.

Things to keep in mind:

!) The U.S. Government was supporting the Salvadoran military during the Civil War. Indeed, a number of the individuals that DHS now claims were “persecutors of others” received military training in the U.S. or from U.S. officers.

2) The INS and the Immigration Courts summarily rejected asylum claims from individuals who suffered severe human rights violations amounting to persecution inflicted by the Salvadoran Government, the Armed Forces, the Civil Patrol, and entities aligned with them, such as so-called “death squads.”

Victim or persecutor,

Friend or foe,

The U.S. system,

Is a tough go.

PWS

05-19-17

DOJ’s Location Of U.S. Immigration Courts At Obscure Detention Locations Helps DHS To Deny Due Process, Punish Lawyers!

https://www.propublica.org/article/immigrants-in-detention-centers-are-often-hundreds-of-miles-from-legal-help

Patrick G. Lee writes in ProPublica:

“One morning in February, lawyer Marty Rosenbluth set off from his Hillsborough, North Carolina, home to represent two anxious clients in court. He drove about eight hours southwest, spent the night in a hotel and then got up around 6 a.m. to make the final 40-minute push to his destination: a federal immigration court and detention center in the tiny rural Georgia town of Lumpkin.

During two brief hearings over two days, Rosenbluth said, he convinced an immigration judge to grant both of his new clients more time to assess their legal options to stay in the United States. Then he got in his car and drove the 513 miles back home.

“Without an attorney, it’s almost impossible to win your case in the immigration courts. You don’t even really know what to say or what the standards are,” said Rosenbluth, who works for a private law firm and took on the cases for a fee. “You may have a really, really good case. But you simply can’t package it in a way that the court can understand.”

His clients that day were lucky. Only 6 percent of the men held at the Lumpkin complex — a 2,001-bed detention center and immigration court — have legal representation, according to a 2015 study in the University of Pennsylvania Law Review. Nationwide, it’s not much better, the study of data from October 2006 to September 2012 found: Just 14 percent of detainees have lawyers.

That percentage is likely to get even smaller under the Trump administration, which has identified 21,000 potential new detention beds to add to the approximately 40,000 currently in use. In January, President Trump signed an executive order telling the secretary of homeland security, who oversees the Immigration and Customs Enforcement agency, to “immediately” start signing contracts for detention centers and building new ones.

If history is any guide, many of those facilities will end up in places like Lumpkin, population 2,741. The city’s small downtown has a courthouse, the police department, a couple of restaurants and a Dollar General. There’s no hotel and many of the nearest immigration lawyers are based 140 miles away in Atlanta.

“It’s been a strategic move by ICE to construct detention centers in rural areas,” said Amy Fischer, policy director for RAICES, a San Antonio-based nonprofit that supports on-site legal aid programs at two Texas facilities for detained families. “Even if the money is there, it’s very difficult to set up a pro bono network when you’re geographically three hours away from a big city.”
ICE currently oversees a network of about 200 facilities, jails, processing centers and former prisons where immigrants can be held, according to a government list from February.

Unlike criminal defendants, most immigrants in deportation proceedings are not entitled to government-appointed lawyers because their cases are deemed civil matters. Far from free legal help and with scant financial resources, the majority of detainees take their chances solo, facing off against federal lawyers before judges saddled with full dockets of cases. Frequently they must use interpreters.

An ICE spokesman denied that detention facilities are purposely opened in remote locations to limit attorney access. “Any kind of detention center, due to zoning and other factors, they are typically placed in the outskirts of a downtown area,” said spokesman Bryan Cox. “ICE is very supportive and very accommodating in terms of individuals who wish to have representation and ensuring that they have the adequate ability to do so.” At Lumpkin’s Stewart Detention Center, for instance, lawyers can schedule hourlong video teleconferences with detainees, Cox said.

But a ProPublica review found that access to free or low-cost legal counsel was limited at many centers. Government-funded orientation programs, which exist at a few dozen detention locations, typically include self-help workshops, group presentations on the immigration court process, brief one-on-one consultations and pro bono referrals, but they stop short of providing direct legal representation. And a list of pro bono legal service providers distributed by the courts includes many who don’t take the cases of detainees at all. Those that do can often only take a limited number — perhaps five to 10 cases at a time.

The legal help makes a difference. Across the country, 21 percent of detained immigrants who had lawyers won their deportation cases, the University of Pennsylvania Law Review study found, compared to just 2 percent of detainees without a lawyer. The study also found that 48 percent of detainees who had lawyers were released from detention while their cases were pending, compared to 7 percent of those who lacked lawyers.

Legal counsel can also speed up the process for those detainees with no viable claims to stay in the country, experts said. A discussion with a lawyer might prompt the detainee to cut his losses and opt for voluntary departure, avoiding a pointless legal fight and the taxpayer-funded costs of detention.

Lawmakers in some states, such as New York and California, have stepped in to help, pledging taxpayer money toward providing lawyers for immigrants who can’t afford their own. But such help only aids those detainees whose deportation cases are assigned to courts in those areas.

“What brings good results is access to family and access to counsel and access to evidence, and when you’re in a far off location without those things, the likelihood of ICE winning and the person being denied due process increase dramatically,” said Conor Gleason, an immigration attorney at The Bronx Defenders in New York.”

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Read the complete article at the above link.

Lumpkin is “at the outskirts” of what “downtown area?” Don’t all major metro areas have “metropolitan correctional centers,” city jails, county jails, or some equivalent located near the courts and hub of legal activities for criminal defendants awaiting trial? Why are civil detainees allowed to be treated this way?

For far too long, under AGs from both parties, the DOJ has participated in this disingenuous charade designed to promote removals over due process. Because cases often have to be continued for lawyers, even where none is likely to be found, the procedure actually adds to detention costs in many cases. Why not house only those with final orders awaiting removal or with pending appeals at places like Lumpkin? Why don’t the BIA and Courts of Appeals rule that intentionally detaining individuals where they cannot realistically exercise their “right to be represented by counsel of their own choosing” is a denial of due process?

Look for the situation to get much worse under Sessions, who envisions an “American Gulag” where detention rules as part of his program to demonize migrants by treating them all as “dangerous criminals.”

Meanwhile, as I pointed in a recent panel discussion at AYUDA, the only part of the immigration system over which the private sector has any control or influence these days is promoting due process by providing more pro bono lawyers for migrants. Eventually, if those efforts are persistent enough, the Government might be forced to change its approach.

PWS

05-18-17

DEATH WATCH: Average 1/MO Dies In ICE Custody — And It’s Only Just Beginning, As Another ICE Detainee Dies, This Time In Atlanta!

http://www.cnn.com/2017/05/17/us/ice-atlanta-detainee-dies/index.html

Catherine E. Shoichet reports for CNN:

“Atlanta (CNN) A man in Immigration and Customs Enforcement custody has died after being hospitalized for shortness of breath, officials said Wednesday.

Atulkumar Babubhai Patel was pronounced dead at Atlanta’s Grady Memorial Hospital on Tuesday afternoon.

The 58-year-old Indian national’s death is the second death of a detainee in ICE custody this week — and the second this week in the state of Georgia.

Officials said complications from congestive heart failure were ruled the preliminary cause of death.

Patel arrived at the Atlanta airport on May 10 on a flight from Quito, Ecuador. Authorities denied him entry into the United States because he did not have the necessary immigration documents, ICE said.

He was transferred to ICE custody in the Atlanta City Detention Center on Thursday, according to the agency. An initial medical screening at the time determined he had high blood pressure and diabetes. Two days later, Patel was transported to the hospital after a nurse checking his blood sugar noticed he had shortness of breath, ICE said. He died on Tuesday afternoon.

In its statement announcing Patel’s death, officials said fatalities in ICE custody are “exceedingly rare.”

“ICE is firmly committed to the health and welfare of all those in its custody and is undertaking a comprehensive agency-wide review of this incident, as it does in all such cases,” ICE said.

Second death this week

Patel is the eighth person to die in ICE custody this fiscal year, which began in October.

Authorities are also investigating the death of another immigrant detainee in Georgia. Jean Jimenez-Joseph, 27, was found unresponsive in his cell on Monday with a sheet around his neck. The preliminary cause of death was self-inflicted strangulation.

Immigrant detained at Stewart Detention Center dies in apparent suicide

He’d been in solitary confinement for more than two weeks at the Stewart Detention Center in Lumpkin, Georgia.

The recent deaths have drawn sharp criticism from immigrant rights activists, who have long decried conditions in immigration detention centers and called on the government to close such facilities.

US President Donald Trump has called for increasing detention as part of his crackdown on illegal immigration. And Congress recently upped its funding for immigrant detention, approving a spending bill that pays for an average of more than 39,000 detention beds per day.

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“Exceedingly rare?” Like in two deaths in one week in ICE custody in Georgia? In addition to ruined lives, the Trump/Sessions/Kelly vision for an “American Gulag” is certain to cause more preventable deaths in DHS custody, in light of the well-documented substandard conditions in such facilities, particularly those run by private contractors and local jailers. I guess each member of the “Triumvirate of Death” is well enough off so a few million in civil judgments wouldn’t be a problem. But, the taxpayers are likely to be shelling out megabucks for some tort claims.

PWS

05-17-17

ICE Gets Jollies By Busting More Non-Criminals, Adding to Immigration Court Backlogs!

https://www.washingtonpost.com/local/immigration-arrests-up-during-trump/2017/05/17/74399a04-3b12-11e7-9e48-c4f199710b69_story.html

Maria Sacchetti reports in the Washington Post:

“Federal immigration agents are arresting more than 400 immigrants a day, a sharp leap from last year that reflects one of President Trump’s most far-reaching campaign promises.

In Trump’s first 100 days in office, U.S. Immigration and Customs Enforcement arrested 41,318 immigrants, up 37.6 percent over the same period last year, the agency said Wednesday. Almost 3 out of 4 of those arrested have criminal records, including gang members and fugitives wanted for murder. But the biggest increase by far is among immigrants with no criminal records.

“This administration is fully implementing its mass-deportation agenda,” said Gregory Chen, government relations director for the American Immigration Lawyers Association. “They’re going after people who have lived here for a long time.”

. . . .

Acting ICE director Thomas Homan said the statistics released Wednesday show that agents still prioritize lawbreakers: 30,473 criminals were arrested from Jan. 22 to April 29, an 18 percent increase from the same period in 2016.

Meanwhile, arrests of immigrants with no criminal records more than doubled to nearly 11,000, the fastest-growing category by far.

“Will the number of noncriminal arrests and removals increase this year? Absolutely,” Homan said. “That’s enforcing the laws that are on the books.”

What is less clear is what is happening to the immigrants who are being taken into custody.

Overall, deportations have fallen about 12 percent this year, to about 56,315 people, which Homan attributed to a severe backlog in federal immigration courts. He also said it can take longer to deport criminals than those without criminal records, because those in the former category may have additional court proceedings. The Trump administration has called for additional immigration judges and detention space to speed deportations.

Homan did not say how many of the 41,318 people whose arrests were announced Wednesday have been deported, remain in custody or have been released.

Unlike criminal arrests, records of immigration arrests — which are considered civil violations — are not publicly accessible.

The secrecy allows immigration officials to pick and choose which examples of their work to highlight. On Wednesday, they said the immigrants arrested since Trump’s executive order include Estivan Rafael Marques Velasquez, an alleged MS-13 gang member from El Salvador captured in New York in February; Juan Antonio Melchor Molina, a fugitive wanted for a 2008 murder in Mexico who was arrested last month in Dallas; and William Magana-Contreras, another reputed MS-13 member arrested in Houston last month. Magana-Contreras is wanted for aggravated homicide in El Salvador, officials said.

Some advocates questioned whether ICE is truly prioritizing the most serious criminals.

Parastoo Zahedi, an immigration lawyer in Virginia, said ICE is actively trying to deport one of her clients to Italy because of a conviction for possession of a small amount of marijuana. He has lived in the United States nearly all his life.

“It’s not criminal aliens,” Zahedi said. “It’s anyone that they can catch.”

Ava Benach, a D.C. immigration lawyer, said ICE agents are “empowered, emboldened and . . . eager to enforce the law aggressively.”

Advocates also questioned the wisdom of arresting thousands more immigrants — especially those who pose no known public safety threat — when immigration courts are severely backlogged. But Homan said that is the agency’s job.

. . . .

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Let’s put this in plain language. We have a law that doesn’t work, and a system that is broken. There are an estimated 11 million undocumented individuals residing in the U.S. Most of them work, pay taxes (in some form), and contribute to the economy. Many have immediate relatives who are US citizens or otherwise in the country legally.

Because everyone can’t possibly be removed, the “unfocused” enforcement advocated by Homan on behalf of the Trump Administration turns out to be highly if not completely arbitrary. In most cases of those without serious criminal records, removal would be a net loss to our country.

Moreover, the Administration has reassigned U.S. Immigration Judges away from their regular dockets to work on detained cases, which, understandably, are the highest priority. By mindlessly “jacking up” the detained docket, the Administration guarantees that backlogs will continue to build on the “non-detained” dockets.

The Immigration Courts now have a backlog approaching 600,000, and it continues to grow by leaps and bounds even though there are more Immigration Judges on duty now than in past years and productivity has remained constant over the past few years (although Immigration Judges still complete multiples of what other similarly situated Federal Judges do, and far more cases than the
“ideal”). This is because of the “Aimless Docket Reshuffling” — ADR — foisted on the Immigration Courts by the past two Administrations.

While, at the very end of the Obama Administration ICE was making some progress toward smarter, more focused use of enforcement resources, which took into account the finite limits of Immigration Court dockets, the Trump Administration has returned to a policy of random irrational enforcement. They have also limited the discretion of individual ICE Assistant Chief Counsel to exercise discretion to get what should be “low priority” cases off the docket — in other words, to exercise “prosecutorial discretion” — “PD” — as other prosecutors do.

PWS

05-17-17

WashPost: Courtland Milloy Lays Bare Sessions’s White Nationalist Agenda!

https://www.washingtonpost.com/local/a-virginia-politician-calls-for-hate-to-leave-his-hometown-easier-said-than-done/2017/05/16/0ca5dc3a-3a55-11e7-9e48-c4f199710b69_story.html?utm_term=.39c1a4b01e14

Milloy writes in an op-ed:

“Here’s what white supremacy really looks like:

Attorney General Jeff Sessions gearing up for another “war on crime.” But first, he has to manufacture enough fear of people of color. He recently tried by declaring, falsely, that New York “continues to see gang murder after gang murder, the predictable consequence of the city’s ‘soft on crime’ stance.”

Sessions threatened to withhold millions of dollars in federal grants from the city’s police department if the city didn’t start turning in undocumented immigrants to federal authorities.

[Sessions issues sweeping new criminal charging policy ]

In other words, if New York doesn’t have a crime problem now, Sessions would cut police funding until it did have one.

New York Mayor Bill de Blasio, citing the city’s low crime rate, called Sessions’s remarks “outrageous” and “pitiful.” Sessions later conceded that New York police had created “some of the best” techniques for fighting crime.

But that’s not the end of it.

Under the Trump administration, local police departments are slated to get more powerful weaponry and expanded powers to use them. Corporate prison complexes could see an increase in profits if Sessions’s push to bring back mandatory minimum sentences moves forward. Rural communities in majority white areas will get new prisons — along with jobs overseeing a veritable plantation of mostly black and Hispanic inmates.
The judiciary is a key component in the maintenance of this system. Police are rarely charged for fatally shooting someone while on duty. According to an analysis by The Washington Post and researchers at Bowling Green State University, 54 officers faced charges for such shootings between 2005 and 2015, a fraction of the fatal police shootings that occurred across the country in that time. The majority of the officers whose cases have been resolved have not been convicted, The Post found.

The Post also reported: “Among the officers charged since 2005 for fatal shootings, more than three-quarters were white. Two-thirds of their victims were minorities, all but two of them black.”

It is as if the vision of Rep. Steve King (R-Iowa), who recently declared that white “culture and demographics are our destiny,” are coming true. In effect, black and brown lives do not matter.

And with voting rights under attack, the chances of getting elected officials who might take a stronger stance for justice becomes slimmer by the year.

On Monday, the U.S. Supreme Court upheld a lower court’s ruling that North Carolina legislators had acted “with almost surgical precision” to blunt the influence of black voters. But Chief Justice John G. Roberts Jr. made clear in a separate opinion that the ruling did not mean that court was taking a stand for or against the actions. Encouraged by the high court’s statement, the legislators have vowed to keep at their obstructionist ways.

President Trump, having fomented fears of “Mexican rapists” during his campaign, announced Monday that he was cracking down on a Mexican gang. “MS-13 is going to be gone from our streets very soon, believe me,” he said, during a ceremony for slain police officers. “When policing is reduced, it’s often the poorest and most vulnerable Americans who are the first to suffer. We have all seen the tragic rise in violence and crimes in many of our disadvantaged communities.”
But Trump offered no plan for dealing with that disadvantage. Nothing about more jobs or affordable housing. Not better health care — just more police officers with bigger guns.

No need for the white protesters to wave Confederate flags and chant “white power.” Trump and Sessions know how to placate them by attacking black freedoms.

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PWS

05-17-17

9th Cir. Panel Grills Both Sides In Travel Ban 2.0 Case!

https://www.washingtonpost.com/national/religion/another-appeals-court-to-weigh-trumps-revised-travel-ban/2017/05/15/5f188d56-3946-11e7-a59b-26e0451a96fd_story.html?utm_term=.038612a73dbd

Gene Johnson for AP reported in the Washington Post:

“SEATTLE — Federal judges on Monday peppered a lawyer for President Donald Trump with questions about whether the administration’s travel ban discriminates against Muslims and zeroed in on the president’s campaign statements, the second time in a week the rhetoric has faced judicial scrutiny.

Acting Solicitor General Jeffrey Wall, defending the travel ban, told the three-judge panel of the 9th U.S. Circuit Court of Appeals that the executive order should be reinstated because it falls well within the president’s authority.

“No one has ever attempted to set aside a law that is neutral on its face and neutral in its operation on the basis of largely campaign trail comments made by a private citizen running for office,” he said.

Further, Wall said the president had backed off the comments he made during the campaign, clarifying that “what he was talking about was Islamic terrorist groups and the countries that sponsor or shelter them.”

Neal Katyal, who represented Hawaii, a plaintiff in the lawsuit, expressed disbelief at that argument and said Trump had repeatedly spoken of a Muslim ban during the presidential campaign and after.

“This is a repeated pattern of the president,” Katyal said.

The 9th Circuit panel was hearing arguments over Hawaii’s lawsuit challenging the travel ban, which would suspend the nation’s refugee program and temporarily bar new visas for citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. The judges will decide whether to uphold a Hawaii judge’s decision in March that blocked the ban.

Last week, judges on the 4th Circuit Court of Appeals heard arguments over whether to affirm a Maryland judge’s decision putting the ban on ice. They also questioned whether they could consider Trump’s campaign statements, with one judge asking if there was anything other than “willful blindness” that would prevent them from doing so.

Dozens of advocates for refugees and immigrants rallied outside the federal courthouse in Seattle, some carrying “No Ban, No Wall” signs.”

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

Read the entire article at the link. Challenges to District Court orders enjoining parts of “Travel Ban 2.0” are pending on both coasts — in the 9th Circuit and the 4th Circuit. stay tuned!

PWS

05-16-17

TRAC: U.S. Immigration Court Backlog Careens Toward 600,000 — No End In Sight!

==========================================
Transactional Records Access Clearinghouse
==========================================FOR IMMEDIATE RELEASEGreetings. During the past 18 months, a total of 79 new judges have been appointed to the Immigration Court. Despite this spurt in hiring, it has not made a dent in the court’s mountainous backlog. Instead, the backlog along with wait times have steadily increased.As of the end of April 2017, the number of cases waiting for a decision had reached an all-time high of 585,930. Nine courts that account for a quarter of this backlog currently require some individuals to wait for more than four additional years before a hearing is scheduled. The Immigration Court in San Francisco with nearly 42,000 backlogged cases has some cases waiting for more than five additional years – as much as 1,908 days longer – for their July 21, 2022 hearing date.

These extraordinary wait times imply that some individuals are not scheduled to have their day in court until after President Trump’s current four-year term in office has ended. And we are only a little more than 100 days into his four-year term.

How quickly a case can be heard varies by court location, and the priority assigned to the case. Individuals detained by ICE are generally given priority and their cases are heard more quickly. Thus, there is tremendous variation in scheduled wait times from an average of 22 days for the Immigration Court hearing cases in the Cibola County Correctional Center in Minnesota, to 1,820 average days for individuals heard by the Immigration Court sitting in Chicago, Illinois.

These findings are based upon the very latest case-by-case court records – current through the end of April – that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

To see the full report, including the backlog and wait until hearings are scheduled for individual Immigration Court hearing locations, go to:

http://trac.syr.edu/immigration/reports/468/

In addition, many of TRAC’s free query tools – which track new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through April 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
_______________________________________________

Thanks to Dan Kowalski of LexisNexis for bringing this to my attention.

Just hiring more U.S. Immigration Judges will not solve this problem. There is a huge mismanagement issue at the U.S. Department of Justice!

PWS

05-16-17

FBA Denver Wrap-Up — The Good, The Bad, & The Ugly!

The Good

It was a great conference in a great location — Denver. Lots of restaurants and things to do (although I was actually too busy to get out much).

Hats off to Conference Co-Chairs Barry Frager and the Honorable Lawrence O. (“The Burmanator”) Burman for putting the whole thing together and pulling it off without a hitch. Judge Burman, one of the few real judicial leaders at EOIR, also serves as the Chair of the Immigration Law Section (“ILS”) and editor of the outstanding newsletter, The Green Card.

An impressive group of approximately 400 attended, consisting of private practitioners, NGO lawyers, government attorneys, and several Federal Judges. They came from across the country. They heard from a faculty of dozens of experts covering 60 separate learning sessions over two days.

I particularly enjoyed catching up with old friends like fellow retired U.S. Immigration Judges Joan Churchill, Eliza Klein, and Bill Joyce and my former BIA colleague, Judge Lory Rosenberg. I was pleased to serve with Lory as the other member of the Due Process Panel, and I want to thank her for her very kind remarks about me.

A number of folks commented that they had never seen a happier and more relaxed group of Immigration Judges than our “Gang of Four” retired jurists. I should add that Bill and Eliza are both still actively practicing law, while Joan and I have chosen different retirement paths.

I loved the tremendous energy and spirit that the many younger practitioners brought to the conference. As I pointed out in my three presentations, never has the need for skilled immigration lawyers, ready to strongly and courageously fight the battle for due process, been greater. As one panelist put it, this is the time to show off and improve real legal skills and display creativity and toughness in conducting aggressive litigation in an era where the Government is seeking and intentionally provoking confrontation. Enjoy the moment! And these folks are ready to step up to the plate and give the Trump Administration’s anti-immigrant agenda all it can handle on every front.

It was heartening to see many “charter members” of the “New Due Process Army” (“NDPA”) — folks like Alex Ribe, Claudia Cubas, Eileen Blessinger, Jillian Blake, Robyn Barnard, Paromita Shah, and others — participating in the activities. I believe I also got some “new recruits” for the NDPA.

I’m already looking forward to next year in Memphis!

The Bad

Although The Office of Immigration Litigation (“OIL”), the DHS, U.S. Attorneys, and U.S. Magistrates participated in the panels, not a single current EOIR employee was on the faculty, although a number had been invited. The local U.S. Immigration Judges were “no shows,” although they would have had much to offer the group and vice versa.

Only a handful of EOIR employees attended, in their “personal capacities” and at their own expense. A troubling performance from an agency that amazingly cancelled their badly needed judicial training conference. And, the FBA is the only nationwide bar association concentrating on Federal Practice that encourages and makes possible full membership by both Federal employees and private sector attorneys.

The Ugly

In three words: “The Immigration Courts.” Everyone there, including government attorneys, has been affected in one way or another by the ridiculous backlog of non-detained cases. My references to “ADR” – aimless docket reshuffling – and feeling like I was in “Clown Court” some days struck a real chord with the audience.

Almost every session I attended was replete with descriptions of inappropriate behavior from several courts, Charlotte and Atlanta in particular. Things like Immigration Judges going off record and saying that they didn’t believe in A-R-C-G- (asylum for domestic violence) or asylum for Central Americans. Rude and intimidating treatment of counsel, failure to listen to arguments, unwillingness to grant bond, applying wrong legal standards, and inappropriately going “off record” were among the “horror stories” mentioned. It’s quite obvious that Atlanta and Charlotte, among others, are failing to follow the generous standards for granting asylum set forth by the Supreme Court in Cardoza-Fonseca and reinforced by the BIA in Mogharrabi.

It’s not about what an Immigration Judge personally believes. It’s about fairly and impartially applying the law, particularly to those needing protection. Gosh, I often had to apply BIA precedents that I not only disagreed with, but where I had actually dissented from the majority decision. But, the job of a judge is to follow the law, whether one likes it or not.

Much of the blame goes to the BIA. It sometimes appears to me that certain BIA Appellate Immigration Judges and panels are committed neither to enforcing due process nor their own precedent in Mogharrabi. Some folks are fortunate enough to be in Circuits that hold the BIA to the appropriate standards; others labor away in Circuits that have “blown off” their judicial review function by ”over-deferring” to the BIA. Clearly, the BIA has lost sight of its vision of “being the world’s best administrative tribunals guaranteeing fairness and due process for all.”

In any event, while some of the behavior issues could perhaps be addressed by EOIR management through the complaint system, that won’t solve the problem. Only the BIA has the ability to correct incorrect applications and attitudes about the law and due process in the U.S. Immigration Courts. Only the BIA can bring “outlier courts” – those with far too many asylum denials – into line with the law.

As I gave my keynote speech involving the history of EOIR, it occurred to me that EOIR, quite sadly, was actually returning to what the Immigration Courts were before the “spinoff” from the “Legacy INS:” inbred, staffed almost exclusively with former prosecutors, not user friendly, mismanaged, lacking necessary technology, and essentially being used as a tool for immigration enforcement. In other words, there is a notable lack of judicial independence. Very sad. It appears that as an due process oriented court system, EOIR has “run its course” in the DOJ and is now returning to it’s origins as a captive of the enforcement system.

The Immigration Courts’ problems have been aggravated by DHS leadership’s apparent decision to limit “prosecutorial discretion,” discourage cooperation and stipulation, and to “go to the mat” on everything. At a time when DHS should be looking for ways to get cases off the dockets, they instead appear to be looking for ways to jam the docket even fuller with cases, many of which are unlikely to be resolved in the next decade.

PWS

05-16-17

Sen. Rand Paul (R-KY) Slams Sessions On Sentencing!

http://www.cnn.com/2017/05/15/opinions/sessions-is-wrong-rand-paul-opinion/index.html

Sen. Rand Paul writes in an op-ed for CNN:

“The attorney general on Friday made an unfortunate announcement that will impact the lives of millions of Americans: he issued new instructions for prosecutors to charge suspects with the most serious provable offenses, “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

Rand Paul

Mandatory minimum sentences have unfairly and disproportionately incarcerated a generation of minorities. Eric Holder, the attorney general under President Obama, issued guidelines to U.S. Attorneys that they should refrain from seeking long sentences for nonviolent drug offenders.

I agreed with him then and still do. In fact, I’m the author of a bipartisan bill with Senator Leahy to change the law on this matter. Until we pass that bill, though, the discretion on enforcement — and the lives of many young drug offenders — lies with the current attorney general

The attorney general’s new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation’s drug epidemic for what it is — a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have.

If I told you that one out of three African-American males is forbidden by law from voting, you might think I was talking about Jim Crow 50 years ago.

Yet today, a third of African-American males are still prevented from voting, primarily because of the War on Drugs.

The War on Drugs has disproportionately affected young black males.

The ACLU reports that blacks are four to five times likelier to be convicted for drug possession, although surveys indicate that blacks and whites use drugs at similar rates. The majority of illegal drug users and dealers nationwide are white, but three-fourths of all people in prison for drug offenses are African American or Latino.

Jeff Sessions takes wrong turn on crime

Why are the arrest rates so lopsided? Because it is easier to go into urban areas and make arrests than suburban areas. Arrest statistics matter when cities apply for federal grants. It doesn’t take much imagination to understand that it’s easier to round up, arrest, and convict poor kids than it is to convict rich kids.

. . . .

Each case should be judged on its own merits. Mandatory minimums prevent this from happening.

Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives, and most Americans now realize it.

Proposition 47 recently passed in California, and it has spurred a cultural change in the way nonviolent drug offenders are treated, resulting in more than 13,000 fewer prisoners and a savings of $150 million, according to a Stanford Law School study.

Pew Research found that 67% of Americans want drug offenders to get treatment, not prison, and over 60% want an end to mandatory minimum sentences.

I urge the attorney general to reconsider his recent action. But even more importantly, I urge my colleagues to consider bipartisan legislation to fix this problem in the law where it should be handled. Congress can end this injustice, and I look forward to leading this fight for justice.”

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

Finally, the ever divisive Jeff “Gonzo-Apocalypto” Sessions is doing something to unite Americans — his “return to the failed policies of the past” on drugs is uniting Democrats and Republicans in bipartisan opposition.

PWS

05-16-17

Session’s Half Truths On Local Prosecutions

http://www.politifact.com/truth-o-meter/statements/2017/may/10/jeff-sessions/sessions-claims-district-attorneys-charge-immigran/

Miriam Valverde reports inPolitiFact:

“Attorney General Jeff Sessions raised concerns to New York law enforcement officers over practices of some district attorneys that he said favored immigrants.

“It troubles me that we’ve seen district attorneys openly brag about not charging cases appropriately under the laws of our country, so that provides an opportunity for individuals not to be convicted of a crime that might lead to deportation,” Sessions said April 28 in Long Island, N.Y. “Some have advertised that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen, so they won’t be deported. That baffles me.”

Is Sessions right about district attorneys advertising leniency in charges toward immigrants over U.S. citizens?

The Justice Department, led by Sessions, referred us to policies and practices of the Brooklyn District Attorney, Santa Clara District Attorney and Baltimore State’s Attorney’s Office.

While all three jurisdictions refuted Sessions’ characterization of their policies, we found that some offices are considering alternative offenses a defendant can plead to in order to avoid “disproportionate collateral consequences,” such as deportation. They also point to a U.S. Supreme Court case that said considering deportation consequences in the plea-bargaining process may be a wise move for defendants and states.

Here’s an overview of those policies.”

. . . .

Sessions said district attorneys “advertise that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen.”

District and state attorneys in Brooklyn, Santa Clara and Baltimore have issued directives for prosecutorial discretion in the handling of non-violent cases involving non-U.S. citizens (which includes immigrants living in the United States legally and illegally).

Attorneys told us that the alternative sentences are designed to help people avoid deportation for minor crimes, and that sometimes the plea deals mean the person ends up with a stricter or longer sentence, or a faster guilty plea. They also contend that they are not charging immigrants favorably over citizens, as policy consideration goes into effect after charges are made.

The Supreme Court recently recognized that deportations can represent a disproportionate punishment. A recent case found that defense attorneys must inform their clients when a plea carries a risk of deportation. Justices also noted that considering deportation consequences in the plea bargaining process may benefit both defendants and states.

Sessions’ statement is partially accurate, but leaves out important details or takes things out of context. We rate it Half True.”

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

For a guy who plays as fast and loose with the truth as Sessions, I suppose half true is a relatively decent rating. For anyone else, not so much. I’ve never seen even a shred of humanity and decency from this dude, at least on the issue of immigration.

Thanks to Nolan Rappaport for sending this in.

PWS

O5-15-17

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