Posted by: Floyd J Fernandez, J.D. | November 16, 2017

Fear & Haste—16 November, 2017

What I have been reading in immigration-related stories in the media and the professional immigration media, seems to be typical of an age in which fear motivates people to take swift positions and make snap judgments.  It is no different for left as for right.

The USCIS has engaged in new changes in policies that have affected people as varied as those from poor nations who seek to come as refugees and asylees and those highly educated who come from rich countries who would be technology workers and executives for American companies and foreign subsidiaries.  They are now subjected to bizarre policies ranging from refusing to interview green card applicants and saddle them with rejection based upon petty misunderstandings of questions that would be easily corrected with a simple clarifying statement in the interview that would be customary for a person applying for permanent residency; to engaging in rejection of expert testimony of esteemed university professors commenting on the suitability of job positions and the immigrants who would occupy them.  This is so for both H-1Bs and employer-sponsored green cards, but especially H-1Bs and L-1s.

The appointment of Thomas Homan as the permanent head of ICE, upgrading him from the status of Acting Director, is just confirming what has been greatly feared.  A man who brazenly boasts that everyone who is undocumented, no matter when he/she came to this country, no matter how young, how old, how long they have lived here, how many American citizens in their families, they must all “be looking over their shoulders.”  This is born of a fear that is as old as the Republic, the fear of strangers, of “the Other.”

The incessant fear and hypocrisy at the same time that demands that “a clean Dream Act” come with no conditions or exchanges is wrong.  The notion that a “wall” must of definition be something racist is inherently dishonest.  It is only unacceptable when a conservative Republican wants to do so.  It doesn’t matter, they think, that it would probably dry up crime on both sides of the border with Mexico, would probably have negligible effects on the environment, would probably result in a regulated border economy that would create greater prosperity.  They don’t care.  They are only wanting to recreate the world where the America of limited government, freedom of the individual, the Judeo-Christian ethic, a powerful military, free markets, and leadership of the world, is not acceptable.

Donald Trump is evil, so by definition he is not allowed to do anything constructive.  This is not a way to get positive change done.

Consigiliere Pacifica—

Posted by: Floyd J Fernandez, J.D. | November 7, 2017

On Saipov and Maria Hernandez—Bigotry and Discernment—November 6, 2017

Sayfullo Saipov, an immigrant from Uzbekistan, self-radicalized by viewing ISIS-run websites on the Internet, took his taxi in a New York neighborhood, and took off a bike path, screaming “Allahu akbar”, as he mowed down nearly two dozen people, killing eight.  Immediate calls for the end of the DV Lottery Visa program, which the INA authorizes to admit up to 55,000 persons per year, erupted in the media, since Saipov received his green card through the DV program.  No one bothered to notice that almost 1,500,000 people have been admitted since its opening in 1995, and that the level of education, job creation, low crime rate, by almost any measure has brought people of quality in great numbers from countries where immigration is difficult due, not to terrorism or armed conflict, but due to poverty.  The rage of the moment brought forth the predictable blame game on immigrants.

Rosa Maria Hernandez is a 10-year old undocumented immigrant from Mexico, who lives in the Long Beach, California area.  She has severe physical abnormalities and was suddenly in need of a liver transplant.  A liver transplant.  Something without which you die.  And it was an emergency surgery.  And she was being transported in an ambulance to the hospital near her home.  But someone alerted the police, or ICE directly, about her status.  At the hospital, as she was about to be pulled out of the ambulance for that surgery, Customs officers came, pulled her off the gurney, and took her away in an official SUV, and placed her in detention at the regional ICE detention center in Santa Ana, CA.  Up to this moment all that is happening is that ICE claims that she has medical care, and is being held, with a removal proceeding coming up.

The thing that these two occurrences have in common is that the innocent pay for the sins of the guilty.  Hundreds of thousands of people are held out to be parasites upon American society because they were smart and fortunate enough to obtain legal residency through the DV Lottery Visa program.  A suffering little girl was held up as a dangerous threat to American society and a thief of taxpayer dollars, and taken into jail, where she is denied basic medical assistance, which may eventually hasten her death.

We who believe in both vigorous opposition to terrorism and Islamism and to bigotry against those who have come to America in search of a better life are going to have to keep beating the drum of common sense against fear and prejudice, from any quarter.  You don’t stop terrorism by fixing it so that decent people of education and healthy ambition can’t come to America, and you don’t stop the bleeding of the health care and welfare system by illegal immigrants through seizing 10-year old girls about to get emergency surgery and putting them in detention, cutting them off from their parents and family.

Let us hope that Congress will get a reasonable immigration reform law passed early next year, with “the better angels of our nature,” as Lincoln said, prevailing in the minds of our legislative branch of the federal government.

Consigiliere Pacifica— 


Posted by: Floyd J Fernandez, J.D. | October 19, 2017

The Battle Continues – October 18, 2017


The U.S. District Court in Hawaii has once again decided that one statement, later retracted, that Donald Trump wanted a temporary ban on all Muslims who would immigrate to the U.S. until “extreme vetting” could be done, is an anti-Muslim animus that would disqualify any executive order restricting travel or immigration to the U.S. from nations that are war-torn, failed states, or that are led by regimes that pledge jihad and destruction against the U.S.A., or for that matter, pledged Communist-based war against America or that are possessed of extreme, Marxist-based corruption.  (Venezuela, North Korea, Libya, Iran, Syria, Yemen, Somalia, and Chad).  This is the third time such a violation is alleged, as anti-Muslim animus disqualifies any such order, because there is no proof of anyone killed by terrorists from any of those countries inside the United States.   In effect, Donald Trump is legally disallowed from acting as President of the United States, in the eyes of those who support this decision.  That does not even consider the issue of whether there has to be an actual mass murder of Americans by ISIS members from each one of these countries to constitute such proof to satisfy the judge in this case.

Attorney General Jeff Sessions made a speech on Monday decrying the present asylum-seeking system, stating that most people seeking asylum status are criminals who are acting on the advice of “dirty immigration lawyers.”  He felt that no one coming from Mexico or Central America could possibly have legitimate grounds to obtain asylum or refugee status.  He expressed “concern” that the entry of so many people into the U.S.A. from nations south of our border would undermine America’s economy and heritage.  It did not matter that the unemployment rate is the lowest since 2000, that the labor participation rate is the highest since 2006, that the number of new persons on unemployment insurance is the lowest since 1970, that the stock and equity markets are exploding with grown (DOW JONES reached 22,000 just yesterday.  “These immigrants are coming over and stealing our jobs,” he says.

A final proposed legislative arrangement has been made within the Senate Judiciary Committee concerning the EB- 5 self-petition investment visa, which is subject to expiration if it is not renewed by Congressional act by April of next year.  A major part of that proposed renewal involves the failure to allow the reinstatement of thousands of unused visas, due to failure to award within the fiscal year caused by bureaucratic inability to process review of financial supportability.  Worse, the policy intended by Congress when the EB-5 Program was passed in 2000, that 10,000 visas should be awarded to 10,000 investors, has been distorted by DHS to have family members of investors included against the cap.

The State of California now has as official policy “sanctuary” from turning over undocumented criminal aliens over to ICE, when their undocumented status is discovered after a background check.  That decision now has ICE going into neighborhoods and camping out outside of schools.  That action now puts large areas of the cities of California on the tinderbox of urban riots.  Whereas, President Trump put out his 70-point list of policy changes that he wants passed into law in exchange for relief for undocumented aliens brought here as children, the so-called DREAM kids.  Some of these policy proposals are sound, but some, such as eliminating exceptions to inadmissibility, include things like DUI-charged (not just convicted) individuals.  There are already controls since 1996 that have shredded the constitutional rights of people living in America, most with long-standing roots to the country.  Mr. Trump’s proposals, which are largely pushed by Attorney General Sessions, compound those denial of rights, especially of judicial review and of equal treatment of the laws of aliens versus citizens.

The use of policy in creating law is inevitable.  The thought that it can, or even should be avoided, is naive and silly.  But there has to be some relationship with logic and reality, and usually, that means compromise with what the more zealous portions of the constituencies of left and right would want.  In this climate, such is virtually impossible.  Even such a lioness of liberalism in California, Sen. Dianne Feinstein (D-CA), has now received two primary opponents for next year.  Her crime, acknowledging that President Trump will probably last the entirety of his presidential term, and that she hopes that he would succeed in improving his actions over those she has strongly objected to.  That used to be called “objective analysis.”  Now it’s called “treason.”

What is now happening is the failure to govern.  When an election ends, you stop campaigning and you govern.  You appoint officials, you pass laws, you create a budget, you argue over how far you can implement your policy, based upon simple math; whether you have the votes to pass items into law.  You decide whether your actions will survive a court challenge that is based upon reality.  If you’re a judge, you look upon challenged laws and regulations based upon the plain meaning of the documents themselves, not what somebody said in a campaign speech a year and a half earlier.

A basic principle of contract law is the parole evidence rule, which is also a part of statutory construction.  All prior statements or agreements are eliminated in favor of the final contract or legislation, in the “four corners of the documents” containing the contract or law.  When a law is being interpreted, one looks to the “plain meaning” of the law before a judge looks to the lawmaker’s intent to clarify its meaning.  That principle is ignored in these cases, especially that of the Trump travel ban case.

Furthermore, the determinations made in the California “sanctuary city law”, or the proposals on law enforcement, or Attorney General Sessions’ contempt of immmigrants, are all built in one attribute—fear.  Fear that somebody who differs from a person will get credit for having an intelligent point of view.  Fear then leads to illogical thought and behavior, which in turn become policy, or failure to make policy or law, which ends in the failure to govern a country.  That is what we have in American government, and that is why we have virtual paralysis in government.

—-Consigiliare Pacifica


Posted by: Floyd J Fernandez, J.D. | September 22, 2017

September 21, 2017–Part Two: DACA & Other Painful Realities

On this day I have several matters to reveal.

The truth that you have to understand about DACA is that it was never meant to be a program that would have permanence.  It was basically an act of frustration against a state of stubborn refusal.  Barack Obama, and before that, former President George W. Bush and Senators and Congressmen from both parties (mostly Democrat), wanted to pass an Act of Congress protecting those undocumented immigrants who came to the United States as small infants or young children.  These individuals have lived in the U.S.A for 15, 20, 25, 30 years or more.  They have been completely Americanized, speaking English as a first language, educated in American schools, familiar only with American culture.  If they do speak the language of their parents’ home country, it is as a second language.  They have started careers in many cases, have started businesses, have often themselves begun families of their own with American citizen spouses, with American citizen children of their own.  The overwhelming majorities of members of both political parties, and of independents and Americans in general, strongly favor granting legal status to these immigrant youth, called DREAM kids.  They are so named because of the original title to the Immigration Act applicable to them, called appropriately, the DREAM Act, introduced in the early 2000s by Senators John McCain (R-Ariz.)  and the late Edward Kennedy (D-Mass.).

And yet, the DREAM Act has, up to now, had virtually no chance of passage.  The DREAM Act was advanced in 2005, in 2007, in 2009, in 2010, and as part of a larger bill in 2013, and again now.  Each time the result was the same.  The Democrats, and about a quarter of the Republicans support it, but more than enough Republicans oppose it, driven by their fear of a segment of the party’s rank and file that will hear of any reform and respond with “Amnesty!” Doesn’t matter the amount of time these people have lived here, the youth or infancy of their age when they were brought here, their education, the degree in which they were Americanized, the businesses they may own, the American citizen families they have married and raised, the lives they have invested into.  It’s “Amnesty! They’re stealing our jobs! They steal our tax dollars by going to school! How dare they go to the emergency room! They should just die, or go back to Mexico! Stealing our tax dollars doing that! Join the military? No! They’ll take a place in the Army from a ‘real American!’ ” It doesn’t matter how many things are incorrect with those statements, they’re too busy yelling and screaming to bother letting you be heard.  Being heard means they might have to do something about it.

So, the most conservative of Republicans stop bills from being passed, people I normally would agree with, and so frustration builds until the man occupying the White House at the time decides to take advantage….a man who didn’t lift a finger to get the law passed when his party controlled Congress….and utters two executive orders that benefit DREAM kids and more…..both of which either would be struck down by the federal courts, or were about to be.  So now it is up to a bunch of conservative Republicans to pick up the pieces.

Fortunately, there are options.  There are seven different prime means that people who have had the benefit of DACA, or would have received it, had they applied:

1) Section 245(i): The amnesty of 1986, continued with a revision of 1998, in the form of The LIFE Act, gives the affected person the ability to obtain legal residence, if they have a former petition for them before April 30, 2001, and have a petitioner now who is either a U.S. Citizen spouse or a child over 21, or a parent for a child under 21;

2) I-601A: The program of waiver of unlawful presence, as long as there is a willing and eligible U.S. Citizen spouse or child over 21, willing to petition for them with an I-130 petition for alien relative, will then be eligible to apply for waiver of unlawful presence, if the immediate relatives, or another eligible immediate relative will suffer extreme hardship if they are forced to move to their country of birth;

3) U Visa:  This program protects those who are victims of crime in the U.S.A., or who have family members who are victims of crime, and who are certified as victims of crime by a judge or a prosecutor or responsible member of a law enforcement office.  They are then given a temporary, that is a non-immigrant visa, that lasts for 4 years, and grants the right for an affected individual to self-petition for permanent legal resident, in the fourth year of that temporary visa grant;

4) T Visa:  This program is a companion to the U Visa, that gives the same benefits, under the same conditions, for those who are verified that they are victims of sex or human slave trafficking.  The option to self-petition, as granted by the Violence Against Women Act (VAWA), is likewise extended to the victims of human trafficking;

5) Special Immigrant Juvenile Status (SIJS):  The program is available for those unaccompanied children or juveniles, who are forced by their presence to be placed as wards of the state in which they reside through a formal court order, placing them either in foster care, or through court-ordered guardianship.  That placement will allow them to self-petition for permanent legal residence, as long as the application is made by the individual alien before they turn 18;

6) Violence Against Women Act (VAWA):  Those individuals, or their children, who are categorically and documentedly shown as victims of U.S. Citizen or legal resident spouses or parents, are allowed to self-petition and then adjust status for permanent legal residence.  Those individuals are even allowed as an exception to the rule against departing the U.S.A., and then returning, without suffering the permanent ban from immigrating, as long as the violation listed in Section 212(a)(9)(C) of the Immigration & Nationality Act (INA), is shown to have been caused by the violent abuse;

7) Asylum/Refugee/Withholding of Removal:  While there has been a move by the Trump administration to restrict admissions of those seeking asylum or refugee status, that is still available to those, with ultimate access to opportunity for permanent residence, who can demonstrate the reasonable fear of persecution or harm, in their home country, either by their governments or by those criminal cartels like those of Mexico, and when the government is shown as unable or unwilling to stop them.

To ensure that those application opportunities are successful, there must be the kind of legal help that can only be provided by an experienced attorney and his/her staff.  The good news, is that while the DREAM battle is still raging, there are still good options to take that can protect many from that dreaded “knock on the door.”

Consigiliari Pacifica–

Posted by: Floyd J Fernandez, J.D. | September 15, 2017

September 15, 2017: Ignorance & Hope

DACA Cartoon

Today I spent time making a presentation at College of the Canyons in Santa Clarita, in which I discussed the options young immigrants have in the aftermath of the Trump administration’s announcement that the DACA (Deferred Action for Young Arrivals) Program would be phased out in 6 months, by March 5, 2018. The program was at a rally sponsored by the Associated Student Government, and the Political Science Department at COC. About 250 students, faculty and visitors were there, hearing speakers and individuals testifying about the fear and uncertainty faced by those affected by the decision to end DACA’s benefit in six months.

My job was to tell them about five main option areas of future benefit for DACA benefit holders, whether students or those who are in the work force: possible immediate relative petitions (spouses and parents who are U.S. Citizens); those who are eligible under the Violence Against Women Act (VAWA) to either petition for legal residence on their own, and those who are able to self-petition as victims of crime under the U Visa program; those who may be eligible for asylum or withholding of removal; those who are eligible as juvenile arrivals under the SIJS Program to obtain green card status; and those who are eligible to obtain status through the old section 245(i) amnesty or through the unlawful domestic presence waiver program.

However, while I covered those subject areas, I wanted to make this presentation a humanized one. So I shared my own perspective as the grandson of an illegal immigrant from Spain, and the experiences of humble people obtaining, or trying to obtain, relief from being deported from the USA, and representing them in the process of making their cases. I found myself sounding more like a preacher than like a legal advocate, but hoped that it wasn’t too disconcerting. The fact is, it is silly how so many people see these humble people, just trying to make a life here, in accordance with the promise of this country, treated like they are some kind of a threat to the Republic.

They are not. And it is time to tell people so. The fact is, in the case of the myth of immigrants, stealing American jobs, that those are jobs offered by willing employers, to people whose fault is the need to work by the sweat of their brow. They are here because they were offered the opportunity by those with jobs Americans will not take. They are here because their countries are violent, riven with war and criminal violence of a degree that the worst American urban ghettos do not come close to match. They are here because they believed that this country has promise, a promise that is as old as this land.

Unfortunately, the fear of the stranger, the suspicion of what they would bring, the mistrust concerning their intentions, marking them as “the Other,” is older than the Republic as well. From the suspicion of impoverished English workers who started as indentured servants, to slaves, to German immigrants, Irish immigrants, French Hugenouts, Catholics from a dozen nations, to Scandanavians, to Chinese and Japanese railroad laborers, to Eastern Europeans, Jews and Italians. They all have their history of being branded as a threat, and all in turn do the branding. And then all have a legacy to live down, of being part of the promise, and as part of the dashing of hopes and disillusionment.

When the DACA issue is resolved, which it appears to be happening, a great question will be answered: “Will the concept of “one nation under God” be fulfilled? I will write about that next time.

In the meantime, it appears that the courts and the agencies and the Congress and the White House are all performing the predictable dance of democracy in a time of moral decadence. Unfortunately, Benjamin Franklin was prophetic. We forgot God, and we are now declining into our own petty arguments and our own narrow interests, and our noble experiment may prove no better than that of the builders of Babel.

Hope? I would like a reason for it. I may have it, but it needs more evidence for it to get full flower.

—Consigiliari Pacifica—

Posted by: Floyd J Fernandez, J.D. | August 7, 2017

Sensibility and Obstinacy: August 7 , 2017

The discussion of the moment deserves a look at two contrasting articles, and a human interest story coming out of two others:  First the position statement of Acting ICE Director Thomas Homan before the Senate Judiciary Committee two days ago.  His position has always been to see after as aggressive a program of mass deportation as is practicable.  He has previously been quoted as saying that “all undocumenteds should be looking over their shoulders at him and his ICE agents, no matter how long they have lived in America.”

Second to consider is an article from Anis Shivani in ‘Salon’ magazine yesterday.  The proposal in the title of his article “Beyond Left and Right”, is as blatant an advocacy for open borders as you might find.  He rejects the very notion that national sovereignty has a right to exclude individuals from the USA.

In contrast are three poignant stories of immigrants, and those affected by immigrants, caught up in the real-world struggles and heartbreak that comes from this broken immigration system.

The first is the story of what I would call “shocking the conscience,” a United States Citizen, held in deportation detention for over 3 years, and in deportation proceedings for almost a year and half, and never given the satisfaction of holding the Immigration authorities accountable in court.   This is the poster child for outrage for immigration advocates.

Second, the Cotton-Perdue Bill, proposed and supported by President Trump, was trotted out as the grand breakthrough bill to change immigration law forever.  Well, if the President thought he was stabbed in the back on the Obamacare repeal by John McCain, he is going to think he was gangbanged on immigration.  There are probably 20-25 Republican senators who will oppose his bill, and may, if he’s not careful, support a Democrat alternative that could even overcome his veto, along with a good 80-100 votes in the House.  That would serve to be a crippling setback on his promise to crack down on an immigration system that he claims to be stealing American jobs.

The problem with that notion is that it is based upon a flawed set of data that keeps coming up from anti-immigrant nativists.  First, the fact is that farmers and vineyard and orchard growers will be screaming bloody murder over the notion that every worker they would have to sponsor has to practically have college background in order to have sufficient points to qualify to apply for a green card, and that he has to prove (not the employer) that he is not displacing an American worker within 90 days (how is he going to do that from China or Mexico?).  And he has to show that the employer is providing his health care, or he has to pay a bond of up to $100,000.  And the total numbers are going to be shrunk by half, which are already inadequate to meet the demand.  Oh, and goodbye Lottery Program, and goodbye sibling based petitions by U.S. Citizens.

There would be even more hardship.  Parents can only be sponsored by Parents can only sponsor their children until they are 18, rather than 21.  Children and dependents count against a sharply diminished cutoff annual number.  And the point system itself has badly misplaced priorities.  People with large amounts of work experience get nothing in the rating system, especially after age 50.  But easily manipulable young people in their 20s get a full complement of 13 points, higher than experienced business investors.  Cotton-Perdue deserves to be roadkill.

In the meantime, there is a cadre of GOP senators that are pushing for more constructive immigration reform.  Senator Lindsey Graham has proposed a DREAM Act that will protect those immigrants that came here as children, particularly those with DACA eligibility that may be eliminated in September.

The problem is that common sense and compromise has been tortured to death long ago in Washington.  In the meantime, it doesn’t seem to improve much with the distance from there.  The battle over ‘sanctuary city’ designation and federal funding is now in the courts, and is inevitable to end with the Supreme Court.

–Consigiliere Pacifica–

Posted by: Floyd J Fernandez, J.D. | August 1, 2017

Fear and Need–July 30, 2017

During the past week or so, I have heard the following events in the news concerning the issue of Immigration in the United States:

1) The intention of the Department of Justice is likely not to defend the policy of Deferred Action for Childhood Arrivals (DACA) against a lawsuit by 10 states, led by Texas Attorney General Ken Paxton;

2) At the same time the Secretary of DHS, Gen. John Kelly, said that he personally supports the policy;

3) The House of Representatives finally approved the first funds toward construction of the network of walls, reinforced multi-layer fencing, and river levees tagged with the name ‘The Wall’;

4) The number of raids against people who have felony or major misdemeanor criminal records, or who have existing orders of deportation-removal, and their deportations, have risen more than 35% under President Trump, but so have deportations of long-time individual “undocumenteds” that are long-time residents with no significant criminal record or orders of removal (the latter group is still 3% of all removals, but is still on the rise);

5) And yet the number of actual deportations have actually fallen by almost 25% since the same time last year, which actually indicate that the number of attempted border crossings have drastically dropped, since the number of deportations, in the metrics used by ICE, include those who have been caught and removed at the border with Mexico;

6) The Acting Head of ICE, Thomas Homan, announced that he expects a new Executive Order from the head of DHS, that changes and expands the breadth of priorities justifying removal from the U.S.A on the part of undocumented immigrants in the U.S., and included an expansion in the array of possible persons subject to “expedited removal”, which is the device allowed to ICE personnel to remove individuals from the U.S.A without immigration judicial proceedings;

7) Senator Lindsey Graham turned, however, and introduced legislation that would establish and ensure legal status for DREAM immigrants–those who had come to the USA as children and consist the bulk of DACA recipients and applicants;

8) Legislation has been proposed that would allow E-1/E-2 treaty trader and investor applicants and visa holders the ability to self-petition after 5 years to obtain legal residence.

The indication is that what seems to be happening is almost driven by a rather crafty, crazy-as-a-fox manner.  So that I am beginning to believe this is the strategy employed by the President.  Therefore, what I think will wind up happening is that a new reform bill, or a series of reform bills, will result in a phase-out of the process of immigration being based upon family reunification and will shift to employer-sponsorship or a points-based criteria that will weigh economic benefit on the same basis as that of family relationships.

Now that Gen. Kelly is now White House Chief of Staff, the likelihood is that a much stronger sense of control will begin to occur over the cabinet.  Gen. Kelly will likely force Attorney General Sessions and DHS to come into agreement on a common policy.  Either a new policy that will protect DACA, but pass muster with the states and comply with the Administrative Procedure Act, which governs the imposing of regulations, or the congressional DREAM Act will be expedited, or there will be instruction to Sessions to defend DACA in the lawsuit by the 10 states.

There will be a “wall”, but the hysteria that rack and ruin will occur will continue.  And the losers will be the people, both immigrants and the population that wants justice and protection from criminal aliens.


–Consigiliere Pacifica–

Posted by: Floyd J Fernandez, J.D. | July 17, 2017

July 16, 2017–Hubris and Honor


When justice doesn’t care, where does that leave us?

HUBRIS AND HONOR:   The U.S. Constitution, in Article III, provides for the creation of the Supreme Court, “and such inferior courts as Congress shall so authorize.”  The same article mandates that the appointment of federal judges whose appointments are authorized under Article III should be authorized to serve for life, subject to impeachment.  This has been carried out since 1789, without a break, with ever increasing establishment of federal judgeships, made to meet the increased demand of a population that grew from barely 4 million in 1789 to some 330 million persons living in the USA now.

These judges (and Justices) have been appointed by Presidents of each of the major parties and approved by the U.S. Senate, composed by majorities of each of the same parties.  That provision for appointments for life have ensured that the judiciary was able to administer justice outside the immediate changes of the moment in American politics.  The individual judges certainly engaged in decision making and legal interpretation that mirrored their own philosophies and usually reflected that of the Presidents who appointed them, but frequently exceptions to that pattern occurred (Felix Frankfurter against Franklin Roosevelt, William Brennan to Eisenhower, Byron White to Kennedy, Harry Blackmun to Nixon, Anthony Kennedy to Reagan, David Souter to Bush 41), and the general body of the actions of the judiciary have served as that check upon the elected branches of government the Founding Fathers envisioned.

However, since, I would say the 1970s, the general movement has been to buck that trend, rather dramatically.   Those appointed by Democratic Presidents have generally acted in virtual lockstep with a left-of-center bias, while Republican appointees engaged in frequent bucking of their appointers’ intentions.  Beginning in the 1990s, Republicans, however, were more typically likely to hew to a right of center bent, and especially so since 2001.  The confirmation process, formerly a respectful review of the intellectual qualifications and temperament of the appointees, has become something resembling an ideological food fight.  The judicial system is now as political as the other two branches.  Long standing legal custom, legal precedent, long-understood rules of legal interpretation, statutory interpretation, jurisdictional limitations, are freely ignored when serving the fancy of the individual judge or collection of judges (or Justices).

The situation is most pronounced now, in the age of Donald Trump.  On June 26th, the U.S. Supreme Court announced that the injunction stopping the Trump administration from executing the March 6, 2017 Executive Order 16780 was for the most part lifted. The order, which stopped refugee traffic for individuals from Syria, Iran, Sudan, Yemen, and Libya, until such time as needed until the U.S. State Department and Department of Homeland Security has created a new and reliably accurate program for “vetting”, which refers to background checking those who seek visas to ensure that there are no connections between the applicant and a terrorist organization or state sponsor of terrorism, had been stopped–enjoined by four U.S. District Courts and the Ninth and Fourth U.S. Courts of Appeals.  And those who believed that President Trump’s Order was but a thinly veiled attack against Muslim immigration to the USA, borne out of a racist hatred against that religion, were confident that the U.S. Supreme Court would uphold their decision.

Their arrogant confidence was not only misplaced but grossly so.  The High Court did not simply overrule the combined orders of the courts, they obliterated them.  And it was a unanimous decision.  The Court accepted review of the decision, and decided that they would hear oral arguments for the next term, which begins, Lord willing, on October 1st.  In the meantime, most importantly, they lifted the injunction and allowed the Trump administration to proceed with the program while the case was under review.  In the case of who would be allowed into the country with non-immigrant travel visas, the High Court held that those with a significant relationship with a U.S. Citizen or permanent resident or business or educational institution would qualify.  The Court allowed the Trump administration to define the limits of that “significant relationship.”

On June 29th, the U.S. Department of Homeland Security (DHS) issued the rules governing the interpretation of those relationships, along with the other elements of implementation of EO 16780.  The rules limited the accepted relationships to spouses, children, parents, siblings, and shortly afterward, to fiancees.  Those possessing visas already issued were still allowed to enter the USA, but the limitations were affixed to pending applicants.  The rules issued by DHS were in exact accordance with normal limits for those who would be receiving visas for permanent residence, not just for immediate relatives but those who would be required to stay on a lengthy waiting period.  The categories are exactly those that are allotted those U.S. Citizens and legal residents who are petitioning on behalf of green card applicants.  The new DHS directive blocked those who were a laundry list of relatives who present law would deem not qualified: grandparents, grandchildren, in-laws, aunts, uncles and cousins.  But the immediate effect of the DHS directive was to make probably thousands more than before to be qualified to enter the country.

Immediately the conglomerate of left-wing organizations and Muslims and other activists, along with the leftist Attorney General of Hawaii, sued, ignoring the fact that they just had a U.S. Supreme Court Order allowing the program to continue!  They demanded that the District Courts that first ruled in their favor, in Washington and Hawaii, reimpose the injunction, by widening the list of excepted categories to include every single category that DHS had excluded, which meant that those included would be….everybody!  

The District Judge in Seattle, Washington demurred, citing the Supreme Court’s Order.  But District Judge Derrick H. Watson of Honolulu, Hawaii, in a decision that, in my 29 years as an attorney, has to go down as the most bizarre act of judicial hubris I have ever heard of, struck down the DHS Order, ruling that DHS was violating the letter as well as the spirit of the Supreme Court order, even though the Court had given precisely that discretion to DHS!  He superimposed every one of the forbidden categories, plus allowed refugees who were sponsored by non-government organizations (NGOs), who had themselves not been vetted by the U.S. State Department (DOS) consular personnel.  These refugees (or ISIS plants) were the very ones that President Trump had in mind in his order to put a hold on new admittances to the USA.  But that was exactly what Judge Watson had in mind to stop, which he believes he did, in an order which, in his capacity as a federal district judge dealing with pleas for injunctive relief against the federal government, had complete authority over the entire United States!

However, Judge Watson is operating under an illusion, born of his arrogance.  He believes that he can hairsplit his way to violating the terms of a Supreme Court order lifting an injunction.  He has forgotten that when a higher appellate court chooses to set aside an injunction, or stay enforcement of an injunction until appellate review is complete, that means that his Order is not in force!  He has violated, in issuing his order, a basic principle of judicial review.  For that matter, the Attorney General of Hawaii acted in defiance of a direct order of the highest Court of the land.  Anywhere else that would land that state AG into contempt of court.  In any other situation that judge would be told two things: 1) he has no jurisdictional right to issue that order, and; 2) his actions would be turned over to the Administrative Office of U.S. Courts, to be considered for disciplinary action, and possible referral to the speaker of the U.S. House for possible impeachment proceedings.

Judge Watson no longer has jurisdictional authority to rule, much less make this of nationwide breadth.  The President, through the Secretaries of DHS and DOS, has exclusive plenary authority over determining the definition of the terms of that Supreme Court Order, assuming that the spirit and letter of the Order of June 26th is agreed to.  It is.  Frankly, the truth is that there never should have been a submission to the original lawsuit against President Trump’s Executive Orders, especially not the March 6th Order, which revamped an earlier related one.

Therefore, President Trump should be issuing this statement to his administration.  “Enough is enough.  The administration will pursue the appeal before the Supreme Court, and will appeal this illegitimate order to attempt to get it set aside by regular means.  But as of now, we consider this order as lacking jurisdiction or any authority whatsoever.  I will not allow Judge Watson to strip this Supreme Court order of any ability to be applied.  His order is void, and will not be obeyed, for it has no binding authority.  I order all members of DHS and DOS and the Justice Department to implement this Executive Order, as defined by the Supreme Court’s Order, and according to the Directive of June 29th, 2017.  Any U.S. Marshal, U.S. DHS or DOS member, U.S. Justice Department member, or any other member of the Executive Branch who attempts to follow the non-Order of Judge Watson, or who fails to follow the Directive of June 29, 2017, will be summarily fired for insubordination.  As Andrew Jackson said about a similar situation. ‘Judge Watson has issued his paper order.  Let him try to enforce it.’  Oh, and Attorney General Sessions is ordered to inform the staff of Judge Watson, ‘You are all reassigned to other jobs within the U.S. Court and justice system. Let’s watch Judge Watson conduct business without a staff.”

Will it create a constitutional crisis?  Yes.  Will Trump win it?  Watch and see.  But it’s time to tell the political left, and the entrenched members of the federal government who believe that they are untouchable that they are not.  The Constitution is not a toy, it is the foundation for the Republic, and defending it is long overdue.  It is time to tell the Left that we can “resist”, too.

—Consigiliere Pacifica—

Posted by: Floyd J Fernandez, J.D. | July 6, 2017

9th Circuit Decisions & Congressional Acts–Maybe

The 9th Circuit Circuit Court of Appeals just made a defiant act, a veritable raking fire at the U.S. Congress, that is indicating that, as long as the present makeup of the U.S. Supreme Court exists, the Circuit is not going to lay down and let the Congress dictate to them their interpretation of the Constitution, especially in regards to immigration.

In the case of ‘Flores v. Sessions’, (Case No. 17-55208), a decision rendered in San Francisco today, a three-judge panel ruled on the effect of two Congressional acts, passed to apply to minors arrested at the border, freshly applied even while Barack Obama occupied the Presidency, but dealing with the rush of tens of thousands of unaccompanied minors to the American border from Central America.  That panel held that these minors still are not allowed to be held by ICE without an opportunity to have a hearing before an immigration judge to determine whether a bond should be granted, and the minor be released to a parent or responsible adult guardian.  The lead judge, Stephen Reinhardt, who was appointed by Richard Nixon in 1969, emphatically said that a 1997 settlement, ironically called ‘The Flores Settlement’, referring to a 9th Circuit case in that year, still applies to both accompanied and unaccompanied minors, and is not set aside by either law.  They included the Homeland Security Act of 2002, and the Traffic Victims Reauthorization Act of 2008.

A companion case from 2016, that dealt with accompanied minors, Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016), would almost certainly be appealed by the Jeff Sessions’ Justice Department to the Supreme Court.  Probably the motives would be half out of a campaign commitment to stop the rush of illegal immigration, and half out of just overwhelmed frustration at a rush of people who have come out of both the terror of a country overrun in their narco gang war, and the fear of the sealing of the border by Donald Trump.

There is a sense that patriotic border patrol and ICE officers, trying to get a sense of order, are deeply upset that they are being held up as gun-toting barbarians, simply because they are trying to stop wholesale release of tens of thousands, even more, into the streets of the country.  So many instances can be recounted by ICE officers of juveniles getting bond, ordered to be released into the custody of U.S. Citizen or Resident parents or guardians, only to find that they have simply disappeared into the countryside, with a majority of them not appearing for their court dates, and not even living at home.

Yet, the simple fact is that there are simply not sufficient facilities to handle all of these minors, and there are insufficient personnel to handle all of these persons in the various detention facilities, and insufficient courts and attorneys and personnel to handle the cases now before them.  And the government has to placate a public howling for stopping the surge in crime committed by those young immigrants who, are not the sad and frightened children, but the tatoo-covered teenagers who taunt and intimidate ICE officers, waiting for their chance to join their “brothers” in Mara Salvatruca 13, and other gang chapters in the USA.

The truth is, frustrated law enforcement and disgusting gangbangers has never been an acceptable excuse to mistreat young boys and helpless mothers of infant children.  The old 8th Amendment is a frustrating reminder that it is the last line of defense between a prison-detention system that is an orderly and restrained symbol of a civilized people, and a gehenna-style chain of holes that cause harm, and even sickness and death.  If the Flores Settlement is still good law, and I suspect it still will be, then it will be up to Congress to make sure that misguided people are returned to their countries without delay.

The House of Representatives passed the twin acts dealing with sanctuary cities and repeat illegal re-entrants who commit violent crimes last Thursday.  There are a string of people who have talked this issue to death, so I won’t join them, except on one issue.  A recent article in by Danny Cevallos addressed the matter of costs of immigration enforcement via withholding federal funds from “sanctuary cities” and those being sent to prison for what would then be felony re-entry.  In effect, he argues that the 10th Amendment would grant the states full rights to federal money, regardless of whether they cooperate with federal authorities, and that holding illegal re-entrants would cost too much more money.  Therefore, he asks, why bother?  He says that the issue can’t be solved by these laws, and that more reform should be passed by Congress to keep more undocumenteds in the USA.  In other words, it’s just too expensive, so do nothing.

Mr. Cevallos is a typical “open borders” activist, who believe there is no such thing as someone who is “illegal.” The notion that anyone should be deported or detained is distasteful to him, after all, the southwest border was drawn as a result of an illegal war from 1846-48, therefore any kind of aggressive immigration enforcement is a guilty shame.  However, we don’t stop prosecution and incarceration of other criminals simply because of the cost. And since I believe that the Mexican War was a just and moral one, the notion of guilt goes nowhere with me.  The sovereign borders of the U.S.A have been recognized as legitimate for 170 years, and shall continue to be.

Therefore, the entitlement personality of many on both sides of the border needs to be altered….permanently.  Once done, then there is room to let cooler heads prevail, and start with the warm blood of compassion, flowing to give space to those long-time, law abiding persons, who would live as productive Americans, with a path to full legalization.  But it would be done in a country with secure borders, not as the act of intimidated sheep.

–Consigliere Texicana–

Posted by: Floyd J Fernandez, J.D. | July 4, 2017

July 4, 2017–Crossroads & Change

“And you will hear a voice behind you, saying, ‘This is the Way, walk in it.’ ” (Isaiah 30:21).

The Supreme Court of the United States is caught up of a series of decisions just made, and deferred.  They range from the simple choice that a church school has the right to expect funds from the State of Missouri to make safety changes to its playground that the State required it to make in order to be able to function as a school, to telling immigrants who are fleeing war and upheaval that they will have to wait 120 days until either the President of the United States is satisfied with the security measures exercised to screen out would be terrorists, or until the High Court itself would decide whether their earlier decision was right after all.

A baker and his wife in Colorado will have a case heard in which he will be told whether he will have to write the words, “Congratulations, Bob and Steve”, on a wedding cake, to celebrate a wedding and a marriage, in violation of a 4,000-year-old faith’s conviction, held by that baker.  The Court, if so minded, will tell that baker that he will be able to bow out of the task.  The baker is willing to bake anything else, and will even bake the cake, but not squeeze out the words with a icing tube, leaving it to the couple to take care of that inscription.

For these and other decisions, such as the decision on whether the 2nd Amendment’s acknowledgement of the right to arm oneself is actually true for a private citizen, as understood for 230 years, a significant portion of the American population believes that the Nazi Party has been reborn in America.

In the meantime, a new President has been elected and inaugurated in France.  That President, younger than any man ever elected to the highest office of a major democratic nation, at 39, is suspending the right of courts to decide whether police should exercise search and seizure of property and writings and hard drives in someone’s home, leaving it to the national police.  He is already compared to Napoleon, and may be worse.  He claims that he, and he alone, will transform not only France, but all Europe, into a peaceful one-state system.

Given that Emmanuel Macron was nothing more than a lower level bank executive with the Rothschild Bank until less than 3 years ago, was a minor cabinet head until a year ago, and then decided to run for President with no portfolio, no political party, and less than 1% support from the public just a year ago, is unnerving as to the rapidity of his rise.  That, on top of his marriage to a wealthy woman 25 years his senior, with serious word that he has a double life with a bisexual lifestyle and a string of male-male sex partners, all make his plans even more unnerving.  But anyone who would raise the question whether this man’s election fits the description of what ancient prophets would identify as a monster defying description, is himself an insane fool.

The Billy Graham Evangelistic Association has identified, using journalists and investigators of their own in assessing the extent thereof, more than 90,000 people who have been murdered in 2016, all for the crime of believing that Jesus of Nazareth is the only begotten Son of God, that He died for the entire human race to take away their sins, and that the Bible is the sole holy book of God.  These people have been met by these same objectors as blind and bigoted, denying the existence of anti-Christian persecution, and insinuating that those claiming persecution are lying, and may even have provoked their own mistreatment.

The work that I am going to be doing will change.  I will write on immigration subjects, but they will be joined by commentary on issues of international law, of both American constitutional law, and similar legal issues of other nations.  I will be examining the news and developments of a coming globalist order, but with a twist: how a new counter-order, something not even imagined but probably the brainchild of the greatest of men, can be the undoing of this building globalist order.

I will be anchoring my perspectives in the law, but feeling free to go “beyond the legallines”, in finding what new structures can be created, and work harmoniously with democratic institutions of government, in preserving freedom.

I will add my voice in the way I always wished to.  I am excited about the prospect.

–Consigiliarius Texicanistas–

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