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Monthly Archives: September 2013

Ed Whelan has this must read story about more radical bumbling over at the DOJ.  Last week it was a federal judge in New Orleans spanking the Civil Rights Division.  This week it is a Michigan Supreme Court Justice spanking the Civil Rights Division.

The issue is whether Michigan courts must provide foreign language interpreters and to what extent.  The other issue is what does the law say about the matter.  On the latter question, Michigan Supreme Court Justice Stephan Markham says not very much.  Whelan tees it up:

Under the rules that have existed in Michigan, for example, interpreters have been provided for all criminal defendants who need them, and courts in civil matters have had discretion to appoint interpreters.  . . . Nevertheless, on August 16, 2010, Thomas E. Perez, the Assistant Attorney General for the U.S. Department of Justice’s Civil Rights Division, sent a form letter (“Dear Chief Justice/State Court Administrator”) to Michigan’s chief justice in which he purported to “provide greater clarity regarding the requirement that courts receiving federal financial assistance provide meaningful access for LEP individuals.” Perez’s letter includes among matters “of particular concern” limits on the types of proceedings for which interpreters are guaranteed; failing to “provide language assistance to non-party LEP individuals whose presence or participation is necessary or appropriate”; charging interpreter costs to non-indigent parties; and failing to provide language services for court-managed operations outside the courtroom.

Who needs laws when you work at Eric Holder’s civil rights division?

Section 5 of the Voting Rights Act doesn’t say a thing about the federal government approving all state procedures for translating ballots.  No matter, they say it does, and no state or locality ever fought back.

The Americans with Disabilities Act doesn’t say a thing about a federal mandate to force apartments to accept ”emotional assistance” ferrets and hamsters to help the “emotional well being” of tenants.  Who cares what the law says when you are the Justice Department.  Sue them anyhow.

Michigan Supreme Court Justice Markham deserves a free copy of Injustice. He opines:

The breadth of the Department’s demands, and the intransigence of its position, are all the more remarkable in light of the flimsiness of the legal support for its view that Michigan and other states would be in violation of the laws of the United States by failing to adopt in toto its LEP rules.… [T]he Department relies upon a letter signed by the Assistant Attorney General purporting to interpret his own “policy guidance” purporting to be grounded in a regulation of the Department purporting to construe an actual statute, which statute in relevant part closely implicates the Fourteenth Amendment to the Constitution. Not exactly, I would submit, what the Framers had in mind when they described the “legislative power” of the United States in Article I, § 1 of the Constitution….

Not surprisingly, the Department fails to provide any specific details or documentary, non-anecdotal evidence of instances in which discriminatory practices within the Michigan court system have actually prevented any individual from “meaningfully participating” in the judicial process because of race, color, or national origin. But, of course, as the Department views things, “discrimination” does not simply mean “discrimination,” as traditionally understood i.e., distinguishing or differentiating between persons “because of,” “due to,” “on account of,” “on the basis of,” or “on the grounds of” race, color, or national origin, but encompasses also the theory of “disparate impact or results,” or statistical “discrimination.” …

In numerous cases, … the U.S. Supreme Court has held that Title VI prohibits only intentional discrimination and that “[i]t is clear now that the disparate-impact regulations do not simply apply [Title VI]– since they indeed forbid conduct that [Title VI] permits.” Indeed, the Civil Rights Division’s own recent conduct demonstrates that it is well aware of the shaky foundations of its “disparate impact” theory. As the media has widely reported, Assistant Attorney General Perez, apparently apprehensive that the U.S. Supreme Court might directly repudiate the “disparate impact” theory, engaged in a quid pro quo in February with the city of St. Paul, Minnesota, whereby the Department agreed not to intervene in two civil rights cases against the city in exchange for the city’s agreement to withdraw its appeal in Magner v Gallagher, a case calling the “disparate impact” theory into question and scheduled to be heard by the U.S. Supreme Court.… However, not only has the Department failed to present any evidence of any intentional discrimination by Michigan based “on the ground of race, color, or national origin,” but it has failed even to present evidence of “disparate impact discrimination,” much less connect a state’s LEP policies with Title VI discriminations.…

But it gets worse, for DOJ, as Ed Whelan notes in Part 2:

I do wonder whether DOJ itself will soon seek support as an LEP (“limited English proficient”) entity. Note, for example, this sentence:

In an August 2010 Civil Rights Division Guidance Letter, DOJ again explained that “access to all court proceedings [are] critical.”

It’s DOJ that has put the word “are” in brackets (substituting for “as” in the original source). The three signatories to the letter—the acting Assistant Attorney General and two United States Attorneys—either haven’t read their bullying letter with care or don’t know elementary English grammar well enough to recognize that the singular noun “access” is the subject of the clause (and thus calls for the verb “is”).

Here’s another gem: “we are disappointed that the issuance of this Rule did not reciprocate our concerted efforts to ensure that Michigan state courts meet their longstanding civil rights obligations.” (Emphasis added.)

Ouch, and ouch.

Here’s the silver lining.  Judges like Kurt Englehardt and Justice Markham show that the bench is beginning to understand this peculiar breed of lawlessness which has characterized the Civil Rights Division over the last 5 years.  Their small experiences are part of a wider pattern of power being exercised in ways neither Congress nor the Founders ever intended. The DOJ is exercising power in ways hostile to the rule of law.

Justice Markham

Justice Markham

State officials are also learning.

I had the humbling experience to learn that one state Attorney General not only reads my book Injustice but passes it around to as many others to read as possible.  Whether you are a state official, a judge or a mayor, the behavior of the Justice Department Civil Rights Division is unlike anything courts or elected officials have ever experienced.  It is a real life example of government beyond the boundaries.

 

 

 

Mobilizing Election Integrity, at Judicial Watch

September 26th, 2013 - 5:49 am

Judicial Watch is mobilizing resources for the fight over election integrity — the organization has just announced the hiring of former Department of Justice Voting Section Deputy Chief Robert Popper. This is very bad news for vote fraudsters, vote deniers, and organizations (including Eric Holder’s Justice Department) that stand in the way of election integrity.

Popper worked with me on the New Black Panther case at the Justice Department. This means that three of the four lawyers who worked on that case have left DOJ, and are now on the side of preventing lawlessness in voting rather than aiding and abetting it.

Panther King Samir Shabazz

Panther King Samir Shabazz

In the past, left-wing groups dedicated to eradicating safeguards of the integrity of American elections have had a monopoly on the litigation agenda and public narrative regarding election process. Usually these groups were funded by radical billionaire George Soros; they now have a partner in Attorney General Eric Holder. He uses taxpayer resources to attack election-integrity safeguards such as citizenship-verification requirements for voters in Georgia and Florida and voter photo identification laws in Texas and South Carolina.

In the past, nobody would oppose these attacks on election integrity. When states are sued, state officials often do a shoddy job defending election integrity statutes. Worse, attorneys working for the state are often sympathetic with the plaintiffs, and barely register a fight. Consider Pennsylvania’s anemic defense of the voter identification statute there: the lawyers for the Commonwealth actually agreed to submit an affidavit saying there was no voter fraud in Pennsylvania, a false position that hurt their case. Naturally, the left pounced on this blunder and pushed the narrative that voter fraud doesn’t exist in Pennsylvania.

Such blunders and bumbles by attorneys representing states defending election-integrity laws reveal that something has to change. For the last few years, lawyers with hard experience in federal election laws have marshaled a response to this circumstance. For too long, conservatives have only considered campaign finance laws to constitute “election law.” Meanwhile, the left has moved the ground underneath them by changing election process laws.

As I have written:

Literally hundreds of individuals man permanent stations, full time, at these groups. They benefit from tens of millions of dollars in funding. They bring lawsuits under federal and state statutes ranging from the Voting Rights Act, Motor Voter law and the Help America Vote Act. They station teams of election observers in polling places around the nation every election to fuel their litigation and their media efforts. Almost nobody opposes their efforts.

Their efforts pay off over and over again. Whether preventing Michigan or Colorado secretaries of state from purging the voting rolls of dead voters in 2008, or grandstanding about purported “voter intimidation” when law-abiding citizens in Houston, Texas deploy retirees to serve as poll watchers in 2010, these leftist groups are affecting the outcomes of elections.

Have GOP institutions stood in the breach? Hardly. There hasn’t been a single serious litigation effort by a party to help ensure election integrity anywhere. Campaign finance rules have remained the shiny object.

Now, that’s all changing. A coalition of groups — including True the Vote, American Civil Rights Union, and Judicial Watch, among others — have partnered with former Justice Department Voting Section lawyers to fix this situation. Simply, this coalition is doing what Eric Holder fails to do: protect the integrity of American elections. Judicial Watch is currently fighting to clean up the voter rolls in Indiana and Ohio. It intervened with True the Vote to defend citizenship verification in Florida. They oppose Holder when he takes the side of the lawless.

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The blockbuster scandal emanating out of Eric Holder’s prosecution of New Orleans police officers for events in the wake of Hurricane Katrina raises questions  about DOJ’s attitude toward local police officers, and from where DOJ derives those attitudes.  In New Orleans, United States District Court Judge Kurt Englehardt issued a blistering 129-page opinion vacating the civil rights convictions of the police officers and granting a new trial.  The basis was pervasive and shocking misconduct by a number of DOJ lawyers.  (Read coverage here and here and here.)

I was reminded of a passage from my book Injustice about the DOJ’s lecturing of police departments, and who helps them lecture:

A stable of academics serving as paid consultants help to fuel the DOJ’s fixation on systematic racial profiling by the police. One such consultant, Dr. Jack McDevitt of Northeastern University, heads the Institute on Race and Justice (IRJ). Past collaborators with the IRJ include Angela Davis, a former member of both the Communist Party USA and the original Black Panther Party. The IRJ receives at least $440,448 in DOJ funds to teach department lawyers about racial profiling by police departments. The IRJ’s reports on racial profiling by the police have another deep pocket benefactor—George Soros and his Open Society Institute. Soros sponsored the IRJ’s project “Confronting Racial Profiling in the 21st Century: Implications for Racial Justice,” the very same work that IRJ is doing for the DOJ. Thus, police departments are subjected not only to DOJ muscle, but DOJ muscle with the financial backing of George Soros.

For those of you who don’t know, Davis was a central figure in the murder of four people, including a judge.  That Davis has anything to do with an organization that has anything to do with the DOJ’s approach toward local police departments is a disgrace.  That you, the taxpayer, are paying for it makes it more disgraceful.  Sadly with this Attorney General, it is not surprising.

dav

 

Justice Department attorney Karla Dobinski has hired a criminal defense lawyer.  Dobinski is in the center of the scandal involving the DOJ’s bungled and lawless prosecution of New Orleans police officers under federal civil rights statutes (covered here and here.)

Dobinski has hired David Laufman.  His webpage states:

David H. Laufman is a veteran Washington, DC, lawyer specializing in white-collar criminal defense and corporate compliance counseling. A former federal prosecutor, Mr. Laufman utilizes his experience at the U.S. Department of Justice, as well as his experience in Congress and the U.S. intelligence community, to resolve a wide array of issues for his clients. Mr. Laufman represents parties in all phases of federal criminal investigations and other government enforcement actions, as well as in congressional investigations, Inspector General investigations, professional misconduct investigations, and sensitive national security matters.

The Times Picayune reports that Dobinski’s behavior is currently being reviewed by the DOJ Office of Professional Responsibility.  This is the exact same office which failed to ask the lawyers involved the central question in their investigation of who inside DOJ was leaking secret grand jury information and posting comments to news stories: did you do it?

The Office of Professional Responsibility has a long history of partisan and half-baked investigations.  United States District Court Judge Kurt Englehardt had less than kind words for OPR’s investigation in the New Orleans police case.  OPR is also in Eric Holder’s chain of command.  He can hire and fire the head of OPR.  It has a history of whitewashing bad behavior by left leaning DOJ officials and negative views toward conservative DOJ officials.  Worse, some of the malfeasance in the matter may involve Deputy Attorney General James Cole and his top deputy.  Thus, one cannot expect much from OPR.

UPDATE: Another explosive passage indicates both that former U.S. Attorney and current Tulane Dean Jim Letten 1) may have engaged in unethical conduct subjecting him to a bar complaint, and 2) that higher DOJ officials were informed about what was going on but did not act, and further, that they covered up the outrageous conduct in the trial:

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Also, this:

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A current dean at Tulane Law, former United States Attorney Jim Letten, knew for months that lawyers in his office were secretly blogging at the Times Picayune website to influence the outcome of a criminal case. Yet Letten never instructed his lawyers to inform United States District Judge Kurt Englehardt about their shenanigans, and never did so himself for months.

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Congressman Frank Wolf (R-VA) pulled out a Sharpie marker and wrote in big block letters at the bottom of a letter: ”THIS IS VERY IMPORTANT. THE FBI MUST COMPLY WITH THE LAW.”

The letter was addressed to FBI Director James Comey:

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Wolf was referring to the FBI’s violation of the ban on cooperation with the unindicted co-conspirator terrorist organization CAIR (Council on American-Islamic Relations), according to a just-released DOJ Inspector General report. CAIR was determined to be related to the web of terrorist financing during the Holy Land Foundation trials in Dallas, a trial which resulted in guilty verdicts. Afterwards, the FBI issued a blanket policy: no cooperation in the field with CAIR.

But the FBI’s Office of Public Affairs issued instructions to ignore the policy.

Why are DOJ press flunkies in Washington, D.C. issuing directives to FBI field offices about how to deal with CAIR? The answer to this question lies at the heart of the scandal, demonstrating that the politicized lawlessness of the Eric Holder Justice Department now is affecting the FBI.

From the DOJ Inspector General’s report:

Instead, a different headquarters entity, the Office of Public Affairs (OPA), provided policy interpretation and advice to FBI field offices on potential interactions with local CAIR chapters, without consulting [NAME REDACTED].

I suspect the redacted name is a national security component that would have objected to the interaction.

Following the directive, the FBI brought in CAIR to teach “diversity training” to FBI officials in New Haven, Connecticut, in October 2010, and in Chicago in December 2010. Yet the rules specifically prohibited CAIR from participating in an “FBI Citizens Academy” community outreach program:

Nevertheless, based on guidance it received from OPA, the Philadelphia Field Office allowed a local CAIR official to attend as an invited guest. A few days later, CAIR-Philadelphia posted an article on its website describing its participation in the training program, with a link to the FBI’s website.

The DOJ Inspector General report only pertains to five documented instances of CAIR being brought into the DOJ family.  Mr. Wolf correctly notes in his letter that this probably “only represents a fraction” of everything else going on.

The insertion of the FBI press office into political and policy affairs is similar to the behavior of former DOJ OPA head Tracy Schmaler. Schmaler pushed leaked information to left-wing websites like Media Matters, and managed a campaign to smear Senator Chuck Grassley (R-IA) and other Fast and Furious whistleblowers. In the Holder Justice Department, OPA doesn’t merely provide information to reporters. Instead, they are top political operatives driving department policy.

Tracy Schmaler

Tracy Schmaler

Such is the state of the nation: the institutions responsible for enforcing the law are instead in need of bold capital letter lectures from a congressman just to remind them to comply with the law.

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What does it take for an employee to get fired in Eric Holder’s Justice Department Civil Rights Division?

Certainly perjury doesn’t do it. Neither does using a government credit card to book airfare for romantic liaisons with a Miami girlfriend — that just gets you a nice buyout. Want to use civil rights laws to protect only black victims of discrimination? Ho hum. The culture of lawlessness is so pervasive at the Civil Rights Division that a former Voting Section chief felt comfortable telephoning current DOJ employees and suggesting they turn over confidential memos … because they were worth cash (see page 145).

Now we learn that that an attorney in the infamous and lawless Civil Rights Division was engaging in clandestine blogging at a major newspaper in order to help convict New Orleans police officers in a matter to which she was assigned. Enter Karla Dobinski, DOJ Civil Rights Division lawyer by day and secret blogger by night. Dobinski was posting in the comments at newspaper sites and anonymously polluting the atmosphere about cases against New Orleans police officers on which she was working.

Karla Dobinski

Karla Dobinski

Dobinski’s misconduct was so egregious that United States District Court Judge Kurt Englehardt vacated the convictions of five New Orleans police officers convicted of using excessive force in the wake of Hurricane Katrina.

From NOLA:

Karla Dobinski, trial attorney in the department’s Civil Rights Division in Washington, D.C., posted comments on NOLA.com under the name “Dipsos,” U.S. District Judge Kurt Engelhardt said in his order, which cited “grotesque” prosecutorial misconduct as a reason to grant a new trial.

The judge called Dobinski’s posts a “wanton reckless course of action.”

Dobinski wasn’t any old attorney working on the prosecution of the New Orleans police officers: she was a supervisor, and the head of the “taint team.” The taint team is charged with ensuring that prosecutors do not use any information obtained by a police department internal affairs unit in a criminal prosecution. Because cooperation with an internal affairs unit is mandatory for cops, statements made in those interviews may not be used in any criminal prosecution of a police officer. The head of the taint team is charged with ensuring the police officers receive a fair trial by keeping all information from the internal affairs unit out of the hands of the criminal prosecutors and away from the trial.

Dobinski is also a highly paid deputy chief in the Criminal Section. In other words, she is a supervisor. Nevertheless, Dobinski used the Times-Picayune website to post anonymous comments about the trial and to discuss the evidence in the case. Per NOLA:

Dobinski under oath testified that she followed progress of the trial on The Times-Picayune and NOLA.com because “the prosecution team was busy and there was not a good flow of information back about the trial events.”  Englehardt was not satisfied with that response, saying she had other avenues to keep up with the trial. And she was urging others to keep posting comments on NOLA.com, especially when they had pro-prosecutor opinions, the judge said. ”In short, it is difficult to accept the story that an experienced trial attorney … would embark upon such a wanton reckless course of action, involving herself with two highly-opinionated trial observers, simply to obtain ‘a good flow of information back about the trial events.’”

He says less than 65 days before the jury got the case against Bowen and the others, Dobinski “personally fanned the flames of those burning to see him convicted.

Two other DOJ lawyers, both based in New Orleans, were fired for similar blogging at the Times-Picayune website in news stories covering the matter.

But Dobinski reported to work on Wednesday at her office on the fifth floor at 601 D Street N.W. in Washington, D.C .

Dobinski still earns $155,500 per year.

Has she faced scorn, ridicule or ostracism from her lawyer co-workers at the Justice Department?

Of course not. This is Eric Holder’s Justice Department.

Every other Justice Department lawyer who blogged about their New Orleans case has been fired, except Dobinski.

Why not?

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The Federal Voting Assistance Program, run out of the Pentagon, is responsible for aiding servicemembers participate in elections.  They are charged with informing those in uniform about upcoming elections  and helping them register and vote.

But if you are a servicemember from Virginia, you’d hardly know it.

If you go to the FVAP website, and click through to the page that should help Virginia servicemembers register to vote in Virginia, they are greeted with this news:

CaptureThis omission has created quite a stir among local election officials in Virginia.  Virginia has a scheduled November election for Governor, Lt.. Governor and Attorney General.  Republican Ken Cuccinelli is relying on the votes of servicemembers for victory.  While it is true there are no federal elections, servicemembers are entitled to register to vote using a special federal post card application – a program which FVAP should be promoting, but as you can see, isn’t.  Remember, the statement above is from the link to “register to vote.”  But hey, GOP leaning servicemembers can wait until next year to register to vote, after all, the Pentagon says there is no upcoming election.

FVAP is overseen by Assistant Secretary of Defense Jennifer Wright, a long time careerist.

Wright

Wright

FVAP is temporarily being run by another careerist with no election administration experience, Matt Boehmer.  The Pentagon Brass is currently looking for a full time director, and if one with no election administration experience is chosen, the response from Congress should be merciless.

FVAP has been plagued by partisanship and abuse.  Accounts of FVAP employees boozing it up on the dime of federal contractors, and hiring partisan Democrats as civil service employees because they are Democrats are rampant.  Worst of all, the record of FVAP actually helping military voters is embarrassing according to the Department of Defense Inspector General.

We’ll learn soon if the Obama administration rewards incompetence and promotes from within, or really cares about military voters.  Given the record of this administration so far, we can guess the answer.

The Eric Holder run Department of Justice keeps demonstrating that it is on the side of the lawless against the law abiding citizen.  The Justice Department has taken the side of the ACLU in a case to help public defenders.  State and local prosecutors take note:

But an unprecedented recent court filing from the Justice Department has cheered the typically overburdened attorneys who represent the poor and could have dramatic implications for the representation of indigent defendants.

“This is a breakthrough moment,” Norman Reimer of the National Association of Criminal Defense Lawyers told an audience earlier this month at the Law Library of Congress. “If you want to talk about something that could give us cause for optimism, this to me is the most optimistic development we have seen in years.”

At just 17 pages, the filing doesn’t seem like a milestone. But lawyers at the Justice Department say the decision to weigh in on a case about the quality of indigent defense in two cities north of Seattle is nothing short of historic.

“We are absolutely committed to the principle that every indigent person who is accused of a crime is entitled to his or her constitutional right to effective assistance of counsel,” says Jocelyn Samuels, who leads the DOJ civil rights unit.

In other words, the United States Justice Department, the agency in charge of prosecuting criminals and the lawless, has taken the side of the lawless in an ACLU lawsuit alleging that criminals aren’t receiving snazzy enough lawyers for their criminal defense.

Anyone who hasn’t been paying attention to Eric Holder’s radical ideological agenda better start.  If you are a county prosecutor or attorney with a state attorney general, this affects you.  If you live in a community racked by crime, this affects you.  You can’t just assume the immense power of the Civil Rights Division will have no impact on you.

“The ruling will influence what hundreds of cities and local governments do just in Washington state; whether it’ll have the same impact outside of Washington isn’t clear. But without a lot of federal guidance on this, I can’t imagine it won’t,” he says.

That’s why lots of people will be watching for the judge’s decision, expected this fall.

 

The inches-thick Senate immigration bill has so many flaws, it would take a book to list them all. The flaws provide ample reason for House members to refuse to pass immigration reform, as otherwise, a flaw removed may reappear in a conference report.

The biggest flaw: the bill would help terrorists and criminals call America home. This truth hasn’t stopped those supporting “comprehensive immigration reform” from pushing the falsehood that the Senate bill will increase American safety and security by encouraging people who are here illegally to come “out of the shadows.” The claim is nonsense. Here’s how the Senate bill aids criminals and even those who might aid terrorists, like those involved in Boston.

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The Senate bill, while spending massive sums to station more bodies and equipment at the southern border, does nothing to help interior enforcement track down immigrant criminals “living in the shadows.” Nothing is done to remove those in the United States who have already been denied the right to stay due to their criminal record.

As an example, let’s analyze what would happen with the two students from Kazakhstan who were friends with the Boston Marathon bombers: Dias Kadyrbayev and Azamat Tazhayakov. They were both in court recently facing obstruction of justice charges for allegedly helping to cover up the bombings. They are both also being held on immigration violations for remaining in the United States on expired student visas. (In fact, the federal government even allowed one of them back into the United States after his visa had expired.)

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Assume for a moment that prosecutors could not gather enough evidence to convince a jury they were guilty of aiding the bombers, but were otherwise sure they did based on the evidence. Or, assume the obstruction of justice charges are thrown out on a legal technicality. What would happen to them?

Under current law, the government still has the power to deport them quickly based on their immigration violations. But if the Senate bill becomes law? That may no longer be the case.

Without being criminally charged, they both would have been fully eligible to be granted legalization under the Senate’s legalization program (called the RPI program) because they came to the United States before December 31, 2011, and apparently had no disqualifying criminal record. Under the Senate bill, DHS would be barred from arresting them because they would “appear” to be eligible for the legalization program, even if they expressed no interest in applying.

DHS would even have to advertise the RPI program to them, and essentially encourage them to apply for it.

Assuming they applied for RPI under the Senate bill, DHS could not deport them or even arrest them as long as their applications were pending with DHS. Also, the bill provides a clear avenue for them to appeal DHS’s denial to the federal courts — both the District Court and still another appeal to the Circuit Court of Appeals — which often would stay their deportation while their appeals were pending, and further delay their deportation for many more years.

The bill also expressly provides for class action lawsuits, which would tie up legalization decisions for decades.

It would not even help if DHS put the men into proceedings to be deported by an immigration judge. The bill does not allow an immigration judge to rule on their cases as long as anyone has an application for legalization pending. The judge is forced to just put the case on hold.

This is what Senate Republicans supported, including Senator Marco Rubio?

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