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Another Ninth Circuit Judge Goes Off on Immigration Enforcement

By Andrew R. Arthur, June 23, 2017

In a June 2, 2017 post, I detailed the case of Magana Ortiz v. Sessions, in which Ninth Circuit Court of Appeals Judge Stephen Reinhardt described the removal of a Mexican national who had entered the United States in 1989 as "contrary to the values of this nation and its legal system." He continued:

Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

On Monday, June 12, 2017, it was the turn of Judge Reinhardt's colleague, Ninth Circuit Judge Harry Pregerson, to attack the government for enforcing the immigration laws. Read more...

Sanctuary for Illegal Alien Drunk Drivers?

By Andrew R. Arthur, June 20, 2017

It is almost trite and redundant to state that there is a contentious debate in the United States between those who are pushing for the strict enforcement of the immigration laws and those who believe that certain aliens, notwithstanding the fact that they are removable from the United States, should not be subjected to the "harsh punishment" of removal.

An interesting part of this debate is its framing. "Immigration enforcement" is linked to President Donald Trump, notwithstanding the fact that he has not signed a single piece of legislation that has changed the immigration laws of the United States, which are codified at 8 United States Code, commonly known as the "Immigration and Nationality Act", or "INA". The INA is a series of individual provisions, some of which were originally passed in 1952, that have been amended and added to since then. Read more...

Tackling the Backlogs in Immigration Court

By Andrew R. Arthur, June 19, 2017

On June 1, 2017, the Government Accountability Office (GAO) issued a report detailing a significant increase in the immigration courts' case backlog between Fiscal Year (FY) 2006 and FY 2015. In a June 6, 2017 post, I summarized that report, and in a June 9, 2017 post, I offered some explanations for the increase in the backlog over that 10-year period. In this post, I will offer some solutions to ease that backlog. Read more...

Ninth Circuit Takes on the Trump Travel Executive Order

By Andrew R. Arthur, June 14, 2017

In a May 27 blog post, I detailed the affirmance (in part) by the Court of Appeals for the Fourth Circuit of a district court judge's injunction barring enforcement of section 2(c) of Executive Order 13,780, "Protecting the Nation from Foreign Terrorist Entry Into the United States" (EO-2). On Monday, June 12, the Ninth Circuit took its chop at that order, reviewing a decision by the United States District Court for the District of Hawaii, which had entered a temporary restraining order (TRO) prohibiting enforcement of sections 2 and 6 of EO-2 nation-wide. Read more...

Breaking Down the Increasing Backlogs in Immigration Court

By Andrew R. Arthur, June 9, 2017

In my last post, I detailed the results of a June 1, 2017, report from the Government Accountability Office (GAO) that exposed a massive increase in the immigration courts' case backlog between Fiscal Year (FY) 2006 and 2015. Understanding the reasons for these backlogs is critical to addressing them, and to putting the immigration courts in a position to handle their workflow. Read more...

GAO Exposes Massive Increase in Immigration Court Backlog

By Andrew R. Arthur, June 6, 2017

On Thursday, the Government Accountability Office (GAO) issued its long-awaited report on the management of the immigration court system by the Executive Office for Immigration Review (EOIR). The results, as they pertained to the immigration court backlog, revealed significant declines in the ability of the immigration courts to complete cases over the past 10 years.

For those not familiar with its work, GAO "is an independent, nonpartisan agency that works for Congress. Often called the 'congressional watchdog,' GAO investigates how the federal government spends taxpayer dollars." The impetus for this report was a request from Congress that GAO "review EOIR's management and oversight of the immigration court system, as well as options for improving EOIR's performance, including through restructuring." Read more...

The Ninth Circuit Tees Off on ICE Enforcement

By Andrew R. Arthur, June 2, 2017

There were two items in the past week that reflected the state of political discourse in this country.

The first was a gruesome photograph of comedian Kathy Griffin "holding aloft a bloodied imitation of President Trump's decapitated head", which was apparently published on Tuesday, May 30. The second was a decision from the Ninth Circuit Court of Appeals, issued the same day, in which, as the Washington Post reported, Judge Stephen Reinhardt "wrote that a Trump administration order to deport a Mexican man was 'inhumane' and 'contrary to the values of the country and its legal system.'"

Given the timing, both the photograph and the order were issued in isolation. Both reflect a larger issue that is poisoning political discourse in our society. And, of the two, the Ninth Circuit order is probably worse in the long run. Read more...

Missing the Point on the "Travel Ban"
A concurrence explains the problems with the Fourth Circuit's analysis of Executive Order 13,780

By Andrew R. Arthur, May 27, 2017
A concurrence explains the problems with the Fourth Circuit's analysis of Executive Order 13,780

On Thursday, May 25, 2017, the United States Court of Appeals for the Fourth Circuit issued its long-awaited decision in International Refugee Assistance Project v. Trump. In that decision, the Fourth Circuit reviewed an injunction from the United States District Court for the District of Maryland barring enforcement of section 2(c) of Executive Order 13,780, "Protecting the Nation from Foreign Terrorist Entry Into the United States" (EO-2). The Fourth Circuit affirmed the district court judge's order in part, holding that "the district court erred in issuing an injunction against the President himself," but otherwise leaving the district court's decision enjoining enforcement of that provision intact. Read more...

Shadows and Lies
Why won't politicians help inform immigrant victims?

By Andrew R. Arthur, May 26, 2017
Why won't politicians help inform immigrant victims?

The Wednesday, May 24, Baltimore Sun online edition ran a story that shocked the conscience of even its most jaded readers. Although it was a complicated narrative of obstruction and deceit, it was also amply summed up by its headline: "Baltimore attorney arrested for allegedly offering rape victim $3K to not testify, saying Trump will deport her." Read more...

Locking the Revolving Door
Davis-Oliver puts teeth into reinstatements, but more could be done

By Andrew R. Arthur, May 24, 2017
Davis-Oliver puts teeth into reinstatements, but more could be done

The House Judiciary Committee has returned this week to mark-up the "Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act" (Davis-Oliver) (H.R. 2431), which was introduced by Rep. Raul Labrador of Idaho. (The committee approved the bill today by a vote of 19-13.) Earlier, I discussed how Title V of the bill will provide ICE officers and agents with the needed body armor and weapons that they need to do their jobs, particularly given the restrictions placed on them by sanctuary jurisdictions that endanger their lives and the public at large.

A separate section of that bill, section 604, will prevent aliens who are subject to expedited removal from obtaining review of those decisions by reentering illegally. Read more...

Leveling the Playing Field
How the Davis-Oliver Act keeps ICE agents from being outgunned

By Andrew R. Arthur, May 22, 2017
How the Davis-Oliver Act keeps ICE agents from being outgunned

On Thursday, May 18, the House Judiciary Committee began the mark-up of the "Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act" (Davis-Oliver) (H.R. 2431), which was introduced by Rep. Raul Labrador of Idaho. As Rep. Labrador, the Vice Chairman of the Immigration and Border Security Subcommittee, explained it in his press release introducing that bill:

The bill improves the enforcement of immigration laws to enhance public safety, adds tools to crack down on dangerous sanctuary city policies and contains needed changes to protect American communities from unlawful immigrants who commit crimes in the United States.

Loaded Questions and False Assumptions
The Ninth Circuit reviews the executive order on foreign terrorist entry

By Andrew R. Arthur, May 17, 2017
The Ninth Circuit reviews the executive order on foreign terrorist entry

On Monday, May 15, a three-judge panel of the Court of Appeals for the Ninth Circuit heard arguments in the government's appeal of a preliminary injunction issued by a Hawaii federal district court judge of sections 2 and 6 of Executive Order 13,780, "Protecting the Nation from Foreign Terrorist Entry into the United States". As Fox News reported, the panel was "skeptical" of the government's position. The case shows the dangers that ensue when courts fail to see the whole picture and rely on false assumptions. Read more...

Unsubstantiated Voting Fraud?
The president establishes a commission on election integrity

By Andrew R. Arthur, May 12, 2017
The president establishes a commission on election integrity

On Thursday, May 11, President Trump announced the establishment of a commission on election integrity. The commission: "[W]ill review claims of improper registrations and voting, fraudulent registrations and voter suppression. ... Members will provide the president with a report in 2018 and may issue recommendations to the states."

Almost instantaneously, the president's critics attacked the commission, and its Vice Chairman, Kansas Secretary of State Kris Kobach. Read more...

The Nobel Prize Standard

By Andrew R. Arthur, May 12, 2017

The phrase "deeds not words" has long been associated with Alice Paul, suffragette, political activist, and one of the founders of the National Women's Party. The Washington Post, which describes the phrase as Ms. Paul's "battle cry", reports it is "an allusion to Paul's preference for attention-getting protest stunts, such as hurtling rocks at windowpanes, in the name of equal rights." Read more...

A Platform for Change?
Connecting the unemployed with jobs through Facebook

By Andrew R. Arthur, May 10, 2017
Connecting the unemployed with jobs through Facebook

Facebook founder Mark Zuckerberg has long been active in the "immigration reform" movement. Four years ago, he helped found FWD.us, an organization whose mission "is to mobilize the tech community to support policies that keep the American Dream achievable in the 21st century." As the group's website explains: "FWD.us has focused on immigration reform first because America's broken system prevents far too many talented immigrants from fully contributing to our communities and our economy." Read more...

The Fifth of May — an American Holiday

By Andrew R. Arthur, May 5, 2017

Happy Cinco de Mayo!

An interesting aspect of my morning news every year on the fifth of May is the festive manner in which the broadcasters note that the day that will be celebrated by revelers at their local Mexican/Tex-Mex restaurant with drink specials and free salsa. On the Baltimore morning news this year, they actually listed some of the half-price taco and $2 Tecate deals that are available to the happy hour crowd.

News reports never remark, however, on the importance of this day to American freedom, and the defeat of the Confederacy in our Civil War. Read more...

Two Sets of Rules in Mobtown
Baltimore's prosecutor announces more lenient treatment for alien criminals

By Andrew R. Arthur, May 5, 2017
Baltimore's prosecutor announces more lenient treatment for alien criminals

In a recent opinion piece I wrote for the Baltimore Sun, I discussed a recent decision by the Baltimore State’s Attorney’s Office to employ different standards when prosecuting certain criminals: a stricter standard the office will follow when it prosecutes citizens, and a more lenient standard that it will follow when dealing with aliens.

This decision is reflected in a memorandum issued on April 27, 2017 (and disclosed the next day by the Sun), in which Marilyn Mosby’s staff "instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration." Read more...

Illegal Immigrants Get Off Easy in Baltimore

By Andrew R. Arthur, May 2, 2017

This is the first paragraph of an op-ed I wrote for the Baltimore Sun today. Read the whole article here.

Baltimore's State's Attorney's Office now has two sets of rules: one for citizens and legal immigrants, and one for illegal immigrants. In an April 27 memorandum, Marilyn Mosby's office "instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration." Read more...

Chilling the Bully Pulpit: The Effects of the Sanctuary City Ruling

By Andrew R. Arthur, April 26, 2017

Lyman Abbot, editor of The Outlook, began an essay in an issue of that publication, "A Review of President Roosevelt's Administration", with an anecdote about then-President Theodore Roosevelt: "He had just finished a paragraph of a distinctly ethical character when he suddenly stopped, swung round in his swivel chair, and said, 'I suppose my critics will call that preaching, but I have got such a bully pulpit!'" The hortatory power of the presidency has since come to be known as "the Bully Pulpit."

This phrase makes an appearance three times in District Judge William Orrick's order in County of Santa Clara v. Trump, in which he granted the motions of the County of Santa Clara and the City and County of San Francisco's motions to enjoin section 9(a) of Executive Order 13768 (E.O. 13768), "Enhancing Public Safety in the Interior of the United States." Read more...

SCOTUS Leaves in Place Lower Court Ruling Limiting Rights of Illegal Entrants

By Andrew R. Arthur, April 21, 2017

On April 17, 2017, the Supreme Court denied a petition for writ of certiorari in Castro et al. v. Dep't of Homeland Sec., U.S., 2017 WL 1366739 (2017), a case involving the constitutional rights of a group of aliens who had entered the United States illegally. Although "a variety of considerations underlie denials of the writ" generally, the Supreme Court's denial of the petition in this case leaves in place a circuit court decision that limits the rights of aliens who were apprehended shortly after entering the United States illegally, at least in the Third Circuit. Read more...

Is It Time for Magistrate Immigration Judges?

By Andrew R. Arthur, April 21, 2017

As the backlog of pending immigration cases grows, Congress and the Department of Justice (DOJ) should take a page from the federal courts and establish a corps of magistrate immigration judges.

A bit of background: Up until the early 1980s, special inquiry officers, or "immigration judges" were employees within the former Immigration and Naturalization Service (INS). In January 1983, Attorney General William French Smith moved the immigration judges and the Board of Immigration Appeals into the newly created Executive Office for Immigration Review (EOIR) within the Department of Justice (DOJ), giving the immigration judges independence from the prosecuting authority at the time, the INS. Read more...

Trump Administration Cracks Down on Gangs, with Focus on MS-13

By Andrew R. Arthur, April 19, 2017

During remarks to the Attorney General's Organized Crime Council (AGOCC) and the Executive Committee of the Organized Crime Drug Enforcement Task Force (OCDETF) on April 18, 2017, Attorney General Jeff Sessions announced: "Under President Trump, the Justice Department has zero tolerance for gang violence." The attorney general specifically targeted La Mara Salvatrucha, or "MS-13," stating:

MS-13 has become a symbol of this plague that has spread across our country and into our communities. There are over 30,000 members abroad with their headquarters in the El Salvadoran prison system. According to the National Gang Intelligence Center, MS-13 now has more than 10,000 members in at least 40 states in this country – up significantly from just a few years ago.

Ninth Circuit Significantly Extends TPS Eligibility for Adjustment of Status

By Andrew R. Arthur, April 12, 2017

A three-judge panel of the Court of Appeals for the Ninth Circuit on March 31, 2017, in a little-noted decision in Ramirez v. Brown, __F. 3d ___ (9th Cir. 2017), vastly expanded the potential number of aliens who may be eligible for adjustment of status under section 245 of the Immigration and Nationality Act (INA).

Adjustment of status is a process through which an alien may acquire a green card while in the United States, without having to depart this country and obtain an immigrant visa through consular processing. (See section 245 of the Immigration and Nationality Act (INA).) It is generally unavailable, however, to aliens who entered the United States illegally. (See section 245(a) of the INA.) Read more...

Pepsi – and ICE

By Andrew R. Arthur, April 6, 2017

A Pepsi commercial featuring Kendall Jenner is currently trending on Twitter and Facebook. (Pepsi pulled the ad yesterday after an outcry.) Jenner's encounter with a police officer at the climax of the ad reminded me of the arguments of critics in the ongoing debate on immigration enforcement.

The commercial begins with Jenner (a member of the extended Kardashian family) modeling for a photo shoot as a protest march assembles in the street outside. She joins the marchers, who are confronted by stone-faced police officers, some in riot gear. The assembled crowd flashes peace signs at the police, who stand stoically by, all business. Read more...