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Donald - you’ve been served, again

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Posted on August 27 2019

 

Give me your white rich immigrants...

 

By way of background - in the Spring of 2018 besides the Washington Post - by in large the majority of news organization (inadvertently or not) the Trump Administration’s overt hostility towards the Flores Agreement. This was a seminole moment, at the least, it shou-oooe but if you blinked you would have likely missed the early red Flashing lights. Especially if you had the misfortune of following me on twitter or on this blog. Below are a few previous write ups about the cruel and intolerable onerous Immigration policy of this administration. It’s almost as if Stephen Miller’s puppet Donald Trump finds joy and incandescent pleasure in being as vicious and cruel as possible.

 

USCIS, CBP, ICE and the years long investigation, here.

SouthWest Key & unaccompanied minors, here

June 18th, widespread impact of Trump’s zero Tolerance Policy  here.

June 19th, unaccounted for unaccompanied minors, here

June 22nd, call it what it is, Trump’s Zero Tolerance is actually Child Abuse, here.

Operation Streamline meets Operation Janus 1.0 & 2.0, here.

 

Furthermore this link will take you to the 18+ previous write ups concerning the DHS and Trump’a onerous Immigration Policies. This link will take you to the 21 previous write ups concerning Unaccompanied Minors, This link will take you to the two DHS-OIG Report concerning living conditions. Three of the four facilities are run by the GEO Group, See part I and See Part II - where I walked you through the follow the money and it is a lot of money. 

I should probably disclose that I hold a very unfavorable and unapologetic bias against Stephen Miller, Gen Kelly and former Secretary Neilsen. And while i readily admit my grudge might be petty - I have literally nothing complimentary to say to or about her. Although a few months ago I had the misfortune of briefly running in to her at the Sugar Shack. It was slightly awkward, for her, not me. I may have uttered “shame on you - you should be tried in the ICC for Crimes Against Humanity” - I cant remember if she responded because I was laser focused on being polite but assertive.

 

 

May 15, 2018 HSGAC HEARING FLORES AGREEMENT

 

Neilsen appeared before the Senate Committee on Homeland Security and Governmental Affairs hearing titled “Authorities and Resources Needed to Protect and Secure the United States” below is the direct exchange with Senator Harris. This link will take you to the May 2018 HSGAC Hearing docket,

  

Neilsen’s Written Testimony, I now refer you to page 3 which upon first glance you may have overlooked the Trump Administration and DHS’ intention:

 

DHS will continue to work with Members of Congress to pass critical legislation to eliminate the loopholes that undermine border security and place our communities at risk. This includes terminating the Flores Settlement Agreement, amending the TVPRA, clarifying the statutory definitions of “unaccompanied alien children” and “special immigrant juvenile,” passing .legislation that clearly defines an “aggravated felony,” and allowing DHS to promptly remove violent criminal aliens from our nation. These solutions will provide the essential tools that the men and women of DHS need to secure our borders and defend our communities.

 

Flores Agreement

 

Now under this exhausting “so called” administration - everyday is like Groundhog Day. Where scandals that would ruin any other administration tend to only embolden Trump. By now it’s an indisputable fact that the Trump Administration’s Chaos isn’t a big - it’s the main feature. On any given day by the evening I find myself utterly exhausted by today’s “breaking news” - which means this May 2018 Hearing went largely unreported and unnoticed. Except for some odd reason when I saw the hearing and subsequently read Neilsen’s testimony I knew that this was the end goal - terminating the Flores Agreement at the peril of what actually makes America Great - inclusiveness and offering asylum to refugees I knew that Stephen Miller’s Plan (let’s be honest Trump isn’t competent enough to come up with the onerous Immigration Policy shifts, that’s all Nazi-Voldemort) that tracking the Flores Agreement was paramount.

 

October 2018 - Flores Agreement  - notice of Rule Making

July 2019 - Flores Agreement -Case Update

 

On June 26, 2019, Plaintiffs filed an Ex Parte Application for a Temporary Restraining Order and an Order to Show Cause Why a Preliminary Injunction and Contempt Order Should Not Issue:

Document # 572  The Ex Parte Application primarily seeks the following

Exhibit 1 -  it’s gut wrenching to read - it was this particular paragraph that may have induced actual rage.

 

Flores v. Reno, Case No. CV 85-4544 RJK. See pages 7 and 10 of the Flores Agreement - which unequivocally states:

Unaccompanied Minors (UACs) are to be released from Government custody as “expeditiously as possible”. UACs are to be released to a parent, legal guardian, adult relative, individual specifically designated by the parent, a child welfare licensed program, or, alternatively when family reunification is not possible, an adult seeking custody deemed appropriate by the responsible government agency.

 

On August 21, 2019 the Department of Justice filed in Case 2:85-cv-04544-DMG-AGR Document 627 entitled:

 DEFENDANTS’ NOTICE OF PUBLICATION OF REGULATIONS

 

Notice the November 2019 typo? I’m pretty sure it’s suppose to be November 2018 not 2019, but the last sentence of the Government's filing should give most Americans pause, although I can affirmatively state had you followed me on Twitter or this blog the notion that the Trump Administration planned to “terminate the Flores Agreement” would not be a surprise. At all. I mean I even embedded the May 2018 DHS Secretary’s written testimony and the Fall 2018 Public Notice Comments on a “proposed rule making” of terminating this Agreement. Yet here we are, exactly what some of us predicted some 16+ months ago, but I digress.

 

 

Administrative Procedure Act 

The Administrative Procedure Act (APA) was codified as Public Law 79-404, after the 79th Congress passed both chambers of Congress in June of 1946. This Public Law applies to all federal government agencies. The APA articulates general procedures required when an Agency contemplates various rule-making actions. The key point is the APA provides a structured step by step process. This DOJ Link will take you to the aforementioned public law aka APA.

For those of you who have followed my twitter account or this blog then you might recall the constant drumbeat of mine:

the Trump Administration believes the APA is optional, it’s not.”

 At this point I have lost count how many times the Federal Courts have ruled against the Trump Administration and how they have consistently found the Administration’s assertion that his Executive Orders and Rule Changes by various federal agencies are “not judicially reviewable” or that “Federal courts do not have jurisdiction over the application of the APA” 

The facts (not my opinion but facts) are the case law concerning the APA procedures and how Agency endeavor in rule-making is vast. The APA specifically grants Courts jurisdiction to review the procedural steps and substantive standards set forth when an Agency promulgates, amends or even repeals Agency Rules. For reference see 5 U.S.C. § 551

https://www.govinfo.gov/content/pkg/USCODE-2011-title5/pdf/USCODE-2011-title5-partI-chap5-subchapII-sec551.pdf

 You should know that the  APA - See 5 U.S.C. §551 (1) specifically defines a federal agency as “each of authority of the Government of the United states ...,” conversely the APA exempts certain entities such as “Congress” and the “courts of the United States.”. Moreover the APA governs Agency adjudications, See 5 U.S.C. §§ 555-57 Ancillary Matters

And yes, with respect to the Environmental Protection Agency the APA drills down even further -  See 42 U.S.C. § 7607(d)

 

Under the Clean Air Act, Congress removed certain Environmental Protection Agency (EPA) rulemaking activities from the APA’s coverage and instead established a separate set of similar procedures that the agency must follow in promulgating specific rules and regulations.

 

APA Exemptions - See 5 U.S.C. §553 which reads in part:

These exception covers rules pertaining to (1) “a military or foreign affairs function of the United States,” (2) “a matter relating to agency management or personnel,” or (3) a matter relating to “public property, loans, grants, benefits, or contracts.

 

In non-legalese the APA acts as a ubiquitous guide, giving Agencies procedures and ensures there’s uniformity when an Agency promulgates new Rules, amending current rules or terminating an existing rule. One could argue absent the APA any Federal Agency at any given time could in fact change the rules sans public notice and public input. 

 Which now brings us to the many, many, many Federal Complaints brought by various Attorneys General and/or Advocacy Groups. Almost always these plaintiffs cite:  5 U.S.C. §§ 702, 704 - Judicial Review, specifically §702 - Right to Review - this is the important part, under §702, which reads in part:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States...

 

5 U.S.C. §704 - Actions reviewable - which reads in part:

Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.

 

Donald - you’ve been served, again

 

On August 26, 2019 as the Orange Highness was wheels up flying back home, after spending less than 72 hours embarrassing himself and our Country on the Global Stage - henceforth and colloquially known as the G6 + Trump. Where Trump managed to out trump himself. California Attorney General announces his Office is leading a coalition of 18 State Attorneys General and the District of Columbia AG filed a complaint before the U.S. District Court for the Central District of Californiis which sets to challenge the legality of the Trump Administration’s new Rule -  84 Fed. Reg. 44,392  published on Aug. 23, 2019

Attorney General Becerra is leading the coalition of the following Attorneys General of; Massachusetts, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

The important distinction here (and I am grateful to these AGs) is they highlight the usurpation of State’s Rights. Meaning prior to this Rule, States acted as a safety-net for children. That the HHS-ORR executed referrals of unaccompanied minors to “state certified” fosters homes or group homes, in accordance to the main protection within the Flores Agreement “least restrictive means”...

 

...the rule as promulgated violates a number of the Flores Agreement’s critical protections for immigrant children’s safety and well-being, intrudes into the core state function of licensing care facilities for children, and will cause irreparable harm to immigrant children, their parents, and the States which will welcome them upon their release.

...contravenes the Flores Agreement’s terms by stripping children in
immigration custody of protections ensuring their placement in the least restrictive setting consistent with their best interests and their prompt release from federal custody whenever possible. Instead, the Rule permits and calls for the prolonged and indefinite detention of immigrant children in detention facilities.

The Rule removes the Flores Agreement’s core mechanism for ensuring the safety and well-being of children in immigration custody: state licensing and oversight. By replacing state licensing and enforcement of state child welfare laws with audits by federal contractors, the Rule will prevent the States from fulfilling their historical and ongoing responsibility to protect the health, safety, and welfare of all children

 

If I were to speculate the carve out of the “Federal Scheme” will be one of the major sticking points for all parties but in my opinion the strength of this Complaint actually rest within these paragraphs (found on page 3 of the Complaint) because the AG’s present a substantive argument. this Rule was promulgated in an “arbitrary and capricious” manner. But the secondary element of the AG’s argument is the innovation of “ultra vires” - which is Latin for “beyond the powers”...

 

And while you might disagree with me, the “State’s Rights” argument is well placed and further buttressed by a vast amount of case law. Remember that in many of the unaccompanied minors (UACs) referral and subsequent placement in a foster home and/or shelter the Federal Government via HHS-ORR has entered in to hundreds if not thousands of contracts for placement of UACs. Furthermore each of these facilities must meet state certification and requirements. In yesterday’s Press Release, Attorney General Becerra stated the following:

“This new Trump rule callously puts at risk the safety and well-being of children. It undermines a decades-old agreement reached in court by the federal government to prevent the unlawful detention of immigrant children,

No child deserves to be left in conditions inappropriate and harmful for their age. We’re taking the Trump Administration to court to protect children from the irreparable harm caused by unlawful and unnecessary detention. With our partners across the country, we will fight for the most vulnerable among us.” 

 

 

Furthermore on June 27, 2019 the American Psychological Association sent Trump this two page letter, concerning the mental harm his Administration’s “Immigration deterrent” policies likely have on the UACs.

...express our shock and dismay about the burgeoning humanitarian crisis at the border and in U.S.-run detention facilities. Migrant children are still being separated from their families, despite the administration's commitment to end this policy. Now we are hearing about many young children being housed in inadequate facilities without proper hygiene or care. This is inconsistent with our values as a nation.

 

It’s also worth noting the APA’s June 2019 largely echos the March 2018 letter from the President of the American Academy of Pediatrics  to the Trump Administration.

 

 

We ask you to put children first and not exacerbate their suffering by the additional trauma of being separated from their parents. As children develop, their brains change in response to environments and experiences. Fear and stress, particularly prolonged exposure to serious stress without the buffering protection afforded by stable, responsive relationships– known as toxic stress – can harm the developing brain and harm short- and long-term health. Pediatricians work
to keep families together in times of strife because we know that in any time of anxiety and stress, children need to be with their parents, family members and caregivers.

 

 

 

 

And lastly it is not lost on me how the Trump Administration treats refugees fleeing unspeakable violence, extreme poverty and unrest by making a thousands of mile long perilous journey to dare to dream for a better life for their children. This Administration’s inhumanity, contempt and cruelty will be remembered as how Trump ripped the very fiber of what makes America great. Our Country’s greatness is found in our diversity, the melting pot of many cultures. Trump’s fear mongering and disgusting “othering” of his toxic “Us versus Them” mentality is antithetical to real American Values. Full Stop.

 

 

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2 comments

  • Marie G: November 11, 2019

    Thank you, Spicy. This administration’s treatment of immigrants breaks my heart.

  • Marie G: November 11, 2019

    Thanks, Spicy. I can’t tell you how awful this all makes me feel, that when I travel just a little ways away I feel the need to carry our passports with me. My father and father-in-law served in the Navy for many years and believed in the greatness of this nation. I am glad that my father is no longer with us to see what has become of this country, but I hope my father-in-law lives long enough to witness it’s redemption so he can tell my dad, it was alright in the end.

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