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–

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

September 15, 2017: Ignorance & Hope

SEPTEMBER 14, 2017

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

scales_of_justice

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 CNN.com 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–

Posted by: Floyd J Fernandez, J.D. | June 21, 2017

Of Trump, Of ICE, & Of Frustration

The last week in the world of immigration law has been a study of contradictions, frustrating contradictions.  On one hand the head of ICE, that is, the acting head of ICE, Thomas Homan, was giving answers to those who demanded he act with some semblance of understanding to those whose families were under the threat of being fractured with deportation, when he said, “Those who are ‘in the shadows’ need to be looking over their shoulder.  They should be worried.  They have committed a crime in being in the country illegally.”  By the way, unless they have been arrested coming over the border before, 8 U.S.C. Sec. 1324 is not a crime in its violation, but a civil infraction.  ICE’s acting head should know better.

In the meantime, President Trump grants complete satisfaction to those who are DREAM kids, by ordering that the Deferred Action for Childhood Arrivals (DACA) continue indefinitely.  Mr. Trump is doing much to short-circuit the narrative in the media and among political activists…on the left.  And he is getting plenty of cover, in the actions of federal immigration judges handslapping ICE officers trying to deport DACA holders who get arrested precisely because they were protesting heavyhanded removals of law-abiding immigrants by ICE under Trump.

The Supreme Court is also getting in on the act.  In the recent case of  ‘Sessions v. Santana-Morales’, 136 S. Ct. __ (2017), they held that the Equal Protection Clause forbade giving different standards for qualifications for children of male vs. female U.S. citizens to have American citizenship derived to them.  It was not a hotly contested case, but was virtually unanimous (Justice Thomas concurred in the result only).  The effect of that decision was to walk the area of immigration law closer to that of the rest of the body of law.  For most of American legal history, the ‘plenary power’ doctrine gave almost complete control of the realm of immigration law to the executive branch.  But for the last two decades the movement of the American judiciary has been to interpret the law to allow for judicial review of persons affected by immigration activity to the same acknowledgement of rights and privileges as those in other fields of the law.

The fact is that President Trump’s aggressive actions toward those seeking refugee or other immigration status from predominantly Muslim nations presently wracked with war and terrorism may be the very thing that a hostile judiciary and legal system will use to pretty well pull the plug on the ‘plenary power’ doctrine.  Such a move will subject all executive-administrative actions in the immigration field to judicial review.  On one hand that would begin to stop what has often been runaway abuse of authority by unelected bureaucrats that can harm not just foreigners but American citizens and legal residents that are seriously and negatively affected.  On the other, a grave danger exists that American legal rights would be extended to non-citizens who are not residing in the USA, that would at best flood and choke our already dysfunctional immigration system to collapse.  At worst, it would make the whole concept of national sovereignty meaningless, with disastrous results.

The amazing thing is that, by an Act of Congress, passed in December 2015, there is a ban on travel by individuals coming out of the affected 6 countries already!  Not only are those from those countries not able to come to the USA without individualized review from the various departments working together (DOS, DOD, CIA, DHS), but those citizens of Visa Waiver-eligible countries, mostly in Europe, who had visited those countries, are ineligible to use VWP or come in at all, unless cleared as a government employee or another special waiver.

I am also amazed at how President Trump has now decided to make a new overture to those who are either undocumented, or those who are sympathetic to them.  In a meeting with high-tech executives from Silicon Valley, he dropped the bomb of actually supporting comprehensive immigration reform!  This would, you would think, have his political opponents singing praises to God (but then, many of them don’t believe in Him–yes, HIM!) over this incredible willingness to compromise, but I am not surprised that the response is….”crickets.”  

But it will not be always thus.  

Postnote:  I apologize for the amateurish link cover for the entire last paragraph.  Somehow the field for the blog server simply would not allow me to block off the single sentence I would use, so I had to settle for what it would allow me to get the link on to the article by RedState on President Trump’s concession on immigration.  If he follows through, it IS huge!  Just blame WordPress, they’re probably leftists, anyway.  Ciao.

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

U.S. v. Trump, A Critical Analysis

The intelligence that went behind the decision on May 25th by the U.S. 4th Circuit Court of Appeals, in Richmond, Virginia, upholding a trial judge’s order of an injunction against President Donald Trump’s executive order placing a temporary ban on travel to the U.S. from six countries, is a puzzling thing of wonderment to me.

First of all, and worst of all, is the decision by the Court’s 10-3 majority to refuse to follow a basic principle of law that is employed every single time a court reviews the interpretation and the language of a legal document.  The thing you do first is look at the clear meaning of the document, within the four corners of that document.  The second thing you do, is you look at the orders and statements of the executive, and especially, if it involves an administrative agencies’ regulatory rule or order, is to look at their announcement, and how it is likely to be implemented, to catch what the agency’s interpretation is going to be, in order to save the particular law.

The last thing you do is look at a politician’s campaign speeches in a previous election.  There isn’t a political leader alive that hasn’t had to walk back statements he made to get elected, once he gets elected and into the office he holds.  But alas, a different world was, and is, around now.  In effect, it did not matter what, once he was President, he may have done to instruct his department secretaries at DOS, DHS, DOL, and elsewhere to do.  It did not matter how he may have ordered his staff, on advice of his attorneys, to walk away from campaign rhetoric and craft his policy and regulatory rules to fit within constitutional and statutory law.  It did not matter how well the policy is justified with historical record.  All that mattered is that at one time Donald Trump said he wanted a ban on Muslims traveling to the U.S.A until they can be properly vetted.  From then on, his orders are racist, sexist, anti-Muslim, anti-gay and worst of all, pro-Christian, and as such are illegal.  He cannot ever give an order to a janitor to take out the trash, for that is racist.

As far as the 4th Circuit is concerned, stopping the movement of individuals who include those who, in the name of their religion, have spread death and horror already in France, Belgium, Sweden, Germany, and Italy, and who come from nations who are either supporting terrorism, or whose governments have virtually collapsed, is a violation of the Establishment Clause of the 1st Amendment of the Constitution, as long as the one ordering it is DONALD TRUMP!  That is not jurisprudence, that is unadulterated bigotry against patriots.  And the logic fails on multiplied fronts, but I will point out a few.

One, the 4th Circuit totally ignored a fundamental fact, the provisions within the INA that do not allow for denied visas based upon religion, race or national origin, are absolutely not applicable to nations which are verified to either be nations supporting terrorism or failed states.  In no proceeding so far addressing the travel ban orders by President Trump, has a single consideration been made to the fact that the countries involved are of the nature of either category.  The 4th Circuit majority simply said that no one from any of the six countries subject to the ban had committed a terrorist act, therefore President Trump has no case for national security as a reason for the temporary ban.  That is simply unbelievable, for it has been well-established that ISIS has been a powerful presence in Syria, Somalia, Libya, Sudan, and Iran in Syria, and Yemen, through Hezbollah, and Iran as an entity itself, has spread terrorism and murder, including against Americans.  We should not have to wait until a Yemeni or a Syrian opens up a suicide vest in an American shopping mall to decide that the country’s citizens need extreme vetting.

But the lead judge of the 4th Circuit forgot how to review facts, he wasn’t there when they said that, the day they taught law at law school.  He was too busy reading ‘Das Kapital’, I suppose.

Second, the notion that using previous campaign rhetoric, or a layman-politician’s imprecise language, overrides the clear language of that politician’s legal counsel, or his army of cabinet officials and bureaucrats and lawyers, all preparing the language of that executive order, reviewing it, vetting it, consulting, writing and rewriting it….and for what!? To make sure it is in compliance with THE LAW—that means NOTHING to this collection of “circuit judges”.  The fact is, all they cared about was the President was Donald Trump!  Clean language does not describe what should be said about such pathetic legal writing.

The Ninth Circuit does make more of a challenging opinion in its invalidating of the March 6, 2017 Executive Order by President Trump.  They eschewed limiting their findings to a constitutional issue under the Establishment Clause, and resorted to a sound move to interpreting the President’s actions in light of the most relevant provisions of the Immigration & Nationality Act, 8 U.S.C. Sec. 1182(f), 1185(a)(1), and 1152(a)(1)(B).  In short, they used respected principles of judicial construction to try to cut off the most vulnerable of the previous court holdings against Pres. Trump.  They went to statutory law to determine whether the acts of ceasing the grant of visas to the people coming from these 6 nations and limiting the number of individuals coming with refugee/asylum visas were properly applied.  They decided that Pres. Trump could not limit the number of refugees in the middle of the fiscal year from 110,000 to 50,000, that the determination of a national security risk as the basis of the temporary ban was misapplied, and that no such need for “extreme vetting” was demonstrated.

The truth is that the limitation on the numbers was not by regulatory law, but by Presidential executive order (in the fall of 2016).  That EO was not in force once Barack Obama left the White House in January 2017.  Therefore, the 110,000 figure could be set aside by a new order by a new President.  The notion that “extreme vetting” was unnecessary was both incredibly silly in light of the complete chaos in the refugee camps of those fleeing Syria, Libya and Yemen, as well as Somalia and Sudan.  The determination, I would add, that national security has no evidence of any threat by individuals from those countries has been completely ignorant, by the judges, and in the poor arguments of counsel by the government.  To limit threats only to those within the USA to find a security issue is naivete in the extreme, especially in the light of trucks running down children in Nice, or Berlin, or bombs used on weary travelers in Brussels, or children at a rock concert in Manchester.  These countries are nations that are our allies, our fellow members of NATO.  If they are under threat there, then we are so threatened here.

It is obvious that judges have already pre-judged the result, and are simply wanting to confirm them.  So, we are going to have to fight hypocrisy and dishonesty in the judiciary….again.

Posted by: Floyd J Fernandez, J.D. | May 24, 2017

May 23, 2017

Is Immigration Still Responsible for

Determining Terrorist Acts?

There has been a great deal of talk about the terror attack in Manchester, England on the night of May 22, 2017.  The initial knee-jerk reaction on the part of the right (of which I am normally a part) has been to blame runaway immigration so-called, particularly coming from those who have been refugees from the Middle East and North Africa, particularly those from the failed states of Syria, Libya, Yemen, and northern Iraq.  Then you find that Salman Abedi, the mass killer who attacked the Manchester Center where the Ariana Grande concert was held, was born and raised in England, and was thoroughly Anglicized, with parents who immigrated from Libya to escape another evil dicatator, Moammar Gadhafi.  Yet he was thoroughly radicalized, by his own accord, as his family traveled to Syria for “vacation”, trained by ISIS, and turned into a killer.  It is as of yet unknown whether Mr. Abedi was directed in his actions, or merely inspired after his training.  Logical deductions about protecting the expert bombmaker and police raids that have already taken at least one other person in custody would indicate the former–that he was a foot soldier in the Islamic State.

The casual observer would say that immigration is no longer an issue, therefore, in determining the actions and motivations of such murderous actions.  However, to do that would miss the point of the precise reason immigration must be discussed.  For, in the middle of discussing immigration, you get to the issue of why you have it in the first place.

Time-honored principles of how and why human beings create communities that solidify and form nation-states show that they are created for two reasons: 1) to give a people a sense of identity as human beings; 2) to give people a place to call home and work to better themselves and their families.  In this plan these entities make decisions on how to create and exploit opportunities to attract others whom they would want to be part of their entity, whether it is as small as a neighborhood or as large as a country.

In the process of deciding who to admit or deny, a nation’s legal and security apparatus will engage in creating laws and regulations; the rules of the road for administering that policy of admission and denial.  The process then invariably pulls in a long cast of characters: agents, reviewing officials, law enforcement officers, prosecuting lawyers, and advocates (both lawyers and advocacy service organizations).  They all then participate in working in the meat and potatoes work of reviewing, questioning, arguing, appealing, and endless amounts of paper, paper, paper (until the day comes that digital filing will FINALLY be allowed).

And in the process of making decisions that can either send a family into destruction through a denial of a petition or application, or ensure that generations of people will have fulfilled dreams.  We forget that none are ever possible without the choice to say “yes” by a single overworked clerk in a single suboffice of a Homeland Security regional center, who is so caught up in the nuance of the adjudicator’s field manual, that she never thinks about the question, “Why am I doing this?”

We have to remember, as a people, that the reason you want balanced immigration is very simple in form, but seriously complex in how you answer and explain the question.

People should be able to live where they want, as long as they don’t hurt anybody, and they’re willing to live by and accept the customs and traditions of the people where that migrant wishes to live.  When a people, when all nations understand that principle, they live in peace, prosperity, and balance.

We have forgotten that principle, and we have two warring camps that don’t even speak the same language.  One simply says that the land on which they live is theirs, and they don’t have to let anybody in, and they fear that their country will change into something that destroys their special sense of identity.  The other says simply that the doors should be wide to everyone, and that assimilation, the process of bringing these arrivals to blend into the national community into which they have moved, is evil, and they are under no obligation to accept or embrace any part of the host culture; no obligation of loyalty.

So the result is that we have a society split between the naive and the sinister.  And that is the nature of our battle in Western society.


CASE NOTES

Of all the cases and articles that I have read about over the last couple of weeks, the list of U.S. Supreme Court cases, as you would expect, has the most potential impact on my practice of law, and on the lives of those presently dealing with the immigration system in the U.S.A.  From considerations of: whether there is a maximum period of time for a person to be held in immigration detention; to whether the gender distinctions between American citizen fathers and mothers of children in determining citizenship for those children are unconstitutional; to whether the basic statute for deciding whether an immigrant’s criminal act is a “crime of violence” is so vague that it is unconstitutional; to whether a nation can revoke a person’s citizenship for making false statements, no matter how many years have gone by, even if the lie had no impact on the decision to grant the alien his/her citizenship; all will have an impact both on immigration cases by the millions, and on some of my cases as well.

Most of those cases will have decisions rendered by the U.S. Supreme Court, and will involve the participation of President Trump’s new appointment to the High Court, Justice Neil Gorsuch.  These cases will be a strong indication of whether the highly-anticipated conservative bent of Justice Gorsuch is actually a reality.  Hopefully, Mr. Trump will not be the latest in a long string of Republican presidents who wound up rueing the day they made a certain appointment to the High Court.

—The Humble Alcalde—

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