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Citing DHS secretary’s unlawful appointment, court blocks changes further gutting asylum system


Policy experts had said that if the rules had gone into effect, “none but the lucky few will be able to win asylum. The regulation creates near-total bans on asylum for wide swathes of people and herculean procedural barriers.” Even though the nearly 90,000 comments made when the administration opened the rule to public comment were in opposition to the changes, the administration set them to go into effect nine days before Biden is to be sworn into office.

”Aaron Frankel, an attorney for plaintiffs, has called the rules ‘nothing less than an attempt to end the asylum system,’” NBC News reported.

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However, Donato’s ruling will be limited by the fact that the Trump administration still has other policies in place blocking asylum-seekers, like the Remain in Mexico policy and the politically motivated public health order pushed by White House aide and noted white supremacist Stephen Miller. “Still, letting the rules take effect would have been felt by some who can still claim asylum and make it significantly more difficult for all asylum-seekers once pandemic-related measures are lifted,” NBC News continued.

“This is the most far-reaching of the midnight asylum regulations unveiled in the Trump administration’s final days,” Harvard Immigration and Refugee Clinical Program Director Sabrineh Ardalan told CBS News. “But try as it may, this administration cannot destroy our asylum system and rewrite our laws by executive fiat.”

Unlawful Chad was also at the center of one of the most far-reaching rulings of the entire administration, when a federal court last year similarly said he was unlawfully serving at DHS and forced officials to fully reopen the Deferred Action for Childhood Arrivals (DACA) program to new applicants. “Today, after waiting nearly three years, I will finally be able to apply for DACA,” Batalla Vidal v. Wolf plaintiff Ximena Zamora said in a statement received by Daily Kos at the time.

The Trump administration last week withdrew Unlawful Chad’s nomination to officially lead the department after finally submitting it in a blatant attempt to save other anti-immigrant and anti-asylum policies he’s signed into place. Immigration policy experts say his continued unlawful status could help the incoming administration reverse other policies by the outgoing administration.

With Wolf’s confirmation dead, Biden now has a powerful tool to get rid of Trump DHS policies; decline to appeal decisions striking them down on the grounds that Wolf lacked authority,” American Immigration Council policy counsel Aaron Reichlin-Melnick tweeted.





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Health

Citing ADA, Idaho Lawmakers Sue Over Returning To Capitol During Pandemic : NPR


Democratic state Rep. Muffy Davis, seen here in 2019, and Democratic Rep. Sue Chew are suing Idaho’s top House Republican. They contend he’s preventing them from safely participating in the upcoming legislative session amid the pandemic.

James Dawson/Boise State Public Radio


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Democratic state Rep. Muffy Davis, seen here in 2019, and Democratic Rep. Sue Chew are suing Idaho’s top House Republican. They contend he’s preventing them from safely participating in the upcoming legislative session amid the pandemic.

James Dawson/Boise State Public Radio

Two Idaho state lawmakers, both Democrats, have filed suit against Republican state House Speaker Scott Bedke, saying he has violated the Americans with Disabilities Act by forging ahead with the legislative session — scheduled to begin Monday — without providing them an option to participate remotely in the midst of the coronavirus pandemic.

Reps. Sue Chew from Boise, and Muffy Davis from Sun Valley, say their respective health conditions jeopardize their lives if they contract COVID-19 and that they haven’t been given reasonable accommodations as required by the ADA.

“This is the last thing I wanted to do. I’m not a fan of lawsuits,” Davis says.

Davis, a Paralympic gold medalist, has paraplegia after injuring her spinal cord during a training run while skiing on Bald Mountain as a teenager. She also says that her daughter, who is 12, has asthma. Chew has type-2 diabetes, as well as hypertension.

Muffy Davis of USA on her way to Silver during the Salt Lake City Winter Paralympic Games in Ogden, Utah, in 2002.

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Muffy Davis of USA on her way to Silver during the Salt Lake City Winter Paralympic Games in Ogden, Utah, in 2002.

Adam Pretty/Getty Images

Medical experts say certain conditionsincluding these — can put individuals at higher risk for serious complications if they were to get sick with COVID-19.

Davis says the body’s reaction to getting the virus is like playing Russian roulette.

“You don’t know if it’s going to be the one with the bullet or not, and I’m not willing to take that risk for my life or my daughter’s life,” she says.

Both lawmakers say they want the ability to participate in the legislative session remotely, something that would require a two-thirds House vote to approve. Legislatures across the country are in the middle of similar disputes concerning their 2021 sessions, though many have allowed members to participate remotely.

In an interview with Boise State Public Radio in December, Bedke, who is being sued in his official capacity, said he didn’t think there was enough support to go remote.

“I think there’s a lot of momentum with the status quo and I think people will want to operate that way until they cannot,” Bedke said at the time.

Neither legislator is demanding that the session be postponed, nor for a mask mandate within the Idaho Capitol.

Chew and Davis say they have repeatedly contacted Republican leaders who control the chamber about their concerns but haven’t received a response.

Over the past several months, many Idaho lawmakers have regularly refused to socially distance or wear face coverings while they’ve been in the statehouse. Seating in neither the House nor Senate chambers offer adequate space, the complaint alleges.

During the special legislative session in August, a crowd, of which some members were armed, shoved their way past law enforcement into the Idaho House gallery, shattering a glass door in the process. They also ripped down signs taped to every other chair to promote physical distancing.

Davis, who uses a wheelchair, was stuck in a committee hearing room with only one accessible exit point when maskless protesters disrupted the meeting she was attending. She had to be escorted out by state troopers.

“One went in front and kind of broke crowd and the other one pushed me up and through.”

But it was “incredibly nerve-racking,” Davis says. She was worried that a gun might discharge in the crowd.

“They were all very agitated and riled up,” she recalls. “All it was going to take was one moment a gun to go off and then there’d be 60 going off, and I’d be right there in the middle of it,” she says.

Ultimately, just three people were arrested during the special session, including Ammon Bundy, the man who led an armed standoff with federal agents at a wildlife reserve in rural eastern Oregon in 2016. No one was arrested for the initial clash with the police.

Neither Chew nor Davis were able to avoid crowds in the public hallways, which they had to enter in order to access their office space, according to the complaint.

Chew contends she was also promised access to remote seating in the House gallery where she could vote and debate while being distanced from others, but that seating was taken by the throngs of maskless people who shoved their way in.

The result was a “complete and total failure to respect any kind of accommodation” for these legislators, they say.

The two also say they want self-contained offices, rather than the cubicles they were assigned, after Republicans reserved each of those spaces for themselves.

“Though it’s unfortunate that negotiations have taken this turn, I will continue to move forward in good faith toward a solution workable for all members,” House Speaker Bedke said in a statement. “I can assure everyone that the Leadership Team from the House Republican Caucus is working to make a safe and productive environment where we can complete our business as quickly and effectively as possible.”



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Citing Trump’s Pardon, Judge Dismisses Case Against Michael Flynn


WASHINGTON — A federal judge dismissed the criminal case against President Trump’s former national security adviser Michael T. Flynn on Tuesday, two weeks after Mr. Trump pardoned him, but portrayed the Justice Department’s previous arguments for dismissing the matter as “dubious to say the least” and suggested he “likely” would have rejected them.

In a 43-page opinion, Judge Emmet G. Sullivan of the Federal District Court for the District of Columbia expressed strong doubts about the legitimacy of Attorney General William P. Barr’s decision to try to end the case against Mr. Flynn even though he had twice pleaded guilty to lying to the F.B.I. But he said the subsequent pardon had rendered the legal question moot.

“The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one,” Judge Sullivan wrote. “Because the law recognizes the president’s political power to pardon, the appropriate course is to dismiss this case as moot.”

The move appeared to bring to a close the twisting legal and political saga of Mr. Flynn, a decorated lieutenant general who was an early supporter of Mr. Trump’s 2016 campaign and got caught up in the beginning stages of the Russia investigation, resulting in his ouster days into the administration in 2017 and federal charges for making false statements to investigators.

Mr. Flynn — the only White House official charged in the Russia investigation by the special counsel, Robert S. Mueller III — lied to his colleagues and then the F.B.I. about conversations he had in December 2016 with the Russian ambassador to the United States, Sergey I. Kislyak. Mr. Flynn urged Moscow not to escalate in response to sanctions imposed by the departing Obama administration over Russia’s covert election interference to help Mr. Trump, and raised the possibility that the incoming Trump administration would work more closely with Russia.

Despite initially distancing himself from Mr. Flynn and dismissing him from his White House position, Mr. Trump later came to embrace the case as part of his campaign to attack the Russia investigation as a “deep state” conspiracy against him. Mr. Flynn eventually fired his legal team and hired a new defense lawyer, Sidney Powell, and sought to withdraw his guilty plea — saying he simply had not remembered the calls, which were intercepted.

But Judge Sullivan expressed skepticism.

“With regard to Mr. Flynn’s alleged ‘faulty memory,’ Mr. Flynn is not just anyone; he was the national security adviser to the president, clearly in a position of trust, who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian ambassador that undermined the policy of the sitting president prior to the president-elect taking office,” the judge wrote.

Last spring, before Judge Sullivan had ruled on Mr. Flynn’s motion to withdraw his guilty plea, Mr. Barr directed the Justice Department to withdraw the charge against him after a public campaign by Mr. Trump and his allies. But Judge Sullivan held up the request to scrutinize its legitimacy, leading to a fight in an appeals court and then Mr. Trump’s pardon.

Judge Sullivan had appointed a retired federal judge and former mafia prosecutor, John Gleeson, to critique the department’s new stance. Mr. Gleeson argued that prosecutors’ rationale made no sense and could only be a pretext for a politically motivated favor to a presidential favorite. He urged Judge Sullivan to instead proceed to sentencing Mr. Flynn — an extraordinary prospect that, the judge wrote on Tuesday, had presented a “close question.”

A spokeswoman for Mr. Barr did not immediately respond to a request for comment. The department last week had formally brought the pardon to Judge Sullivan’s attention, arguing in a motion that “no further proceedings are necessary or appropriate, as the court must immediately dismiss the case with prejudice.”

Before the pardon, the Justice Department’s main argument for dismissing the case despite his guilty plea was that Mr. Flynn’s lies to the F.B.I. were not a crime because they were not “material” to any legitimate investigation since the bureau had been moving to close an inquiry into whether Mr. Flynn was a Russian agent before his pattern of lying to colleagues about the Russian ambassador raised new suspicions.

That rationale was widely disputed, in part because F.B.I. agents have broad authority to conduct voluntary interviews and Mr. Flynn’s statements seemed obviously relevant to the larger investigation into the nature of any relationship between the Russian government and the Trump campaign.

In his opinion, Judge Sullivan said the department’s narrow definition of what counted as “material” in the Flynn matter was simply “not the law.” He called the government’s arguments “perplexing,” contrary to what it had previously said even in the Flynn case and unsupported by what prosecutors have said in any other false-statements case.

He wrote that to dismiss the case before the pardon, he would have had to be satisfied that the government undertook a “considered judgment,” but said prosecutors “likely” fell short.

The other major argument put forward by Mr. Barr’s prosecutors after the about-face was that the Justice Department was no longer certain it could prove beyond a reasonable doubt that Mr. Flynn uttered false statements, citing issues surrounding the F.B.I. interview that Mr. Flynn’s defenders have pointed to with suspicion.

Judge Sullivan rejected those arguments, too.

For example, Mr. Trump’s allies have emphasized that agents who interviewed him said that they did not detect signs that he was lying. But the judge said that was “irrelevant in a false statements case.”

Mr. Trump’s allies have also argued that the F.B.I. set up Mr. Flynn, seizing on notes before a brainstorming session about how to question him that were written by William Priestap, the F.B.I.’s counterintelligence chief at the time. Mr. Priestap wrote: “What’s our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?” But the judge wrote that “an objective interpretation of the notes in their entirety does not call into question the legitimacy of the interview.”

Moreover, he noted, prosecutors could have used Mr. Flynn’s prior admissions in court as “powerful evidence” against him.

The judge wrote: “Asserting factual bases that are irrelevant to the legal standard, failing to explain the government’s disavowal of evidence in the record in this case, citing evidence that lacks probative value, failing to take into account the nature of Mr. Flynn’s position and his responsibilities, and failing to address powerful evidence available to the government likely do not meet” the legal standard that would have led him to dismiss the case.

But Mr. Trump’s constitutional pardon power is broad and clearly covered the matters pending before him, Judge Sullivan added — so he was ending the case. At the same time, he stressed, that does not render Mr. Flynn “innocent” of the allegations against him.



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U.S. Restricts Chinese Apparel and Tech Products, Citing Forced Labor


But that order was never announced. Officials from the Agriculture Department, the Treasury Department and the U.S. Trade Representative intervened to raise objections about the measure, saying it could threaten American cotton exports to China, or put the trade deal Mr. Trump signed with China in January at risk, people familiar with the matter said.

In their call on Monday, homeland security officials denied that any intervention prompted the delay, saying the legal review had been “driven by the unique nature” of the policy. “We want to make sure that once we proceed that it will stick,” Mr. Cuccinelli said.

Under a withhold release order, importers are still allowed to bring their products into the United States if they are able to provide proof to customs that the goods were not made with forced labor, for example through an extensive audit of the manufacturing facilities, said John Foote, a partner at Baker & McKenzie who specializes in international trade and forced labor issues. If the importer is not able to produce that proof, the product must be sent back, or it is subject to seizure by U.S. customs.

In August, labor and human rights groups including the A.F.L.-C.I.O. and the Uyghur Human Rights Project filed a petition asking Customs and Border Protection to issue a withhold release order on all cotton goods from the Xinjiang region.

“The system of forced labor is so extensive that there is reason to believe that most cotton-based products linked to the Uyghur Region are a product wholly or in part of forced labor,” the petition read.

Customs has issued several withhold release orders in the past against individual companies with ties to Xinjiang, including clothing makers Hetian Taida Apparel Company and Hero Vast Group. Other entities and people in Xinjiang have been subject to sanctions, including the Xinjiang Production and Construction Corps, an economic and paramilitary group that plays an important role in Xinjiang’s development, and Changji Esquel Textile Co. Ltd., whose parent company, Esquel Group, said it has ties to Ralph Lauren, Hugo Boss and Muji. Esquel Group denies that it uses forced labor in its supply chain and says it is appealing the listing.

In July, the Departments of State, Treasury, Commerce and Homeland Security issued an advisory jointly warning American companies to monitor their activities in China, particularly in Xinjiang, saying they could face “reputational, economic and legal risks associated with certain types of involvement with entities that engage in human rights abuses.”



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Citing tax benefits and nineteenth-century promises, six richmond residents sue to keep Lee aloft



The new lawsuit, filed by six residents who own property on Richmond’s Monument Avenue, claims that the statue’s removal would adversely affect the plaintiffs by nullifying the neighborhood’s status as a National Historic Landmark district, resulting in “the loss of favorable tax treatment and reduction in property values.”

“Plaintiffs will also suffer injury as a result of the loss of a priceless work of art from their neighborhood and the degradation of the internationally recognized avenue on which they reside,” the suit reads.

The lawsuit, filed in Richmond Circuit Court, says removal of the statue would also violate the monument’s 1890 deed, which stipulates that the Commonwealth of Virginia “will hold said Statue and pedestal and circle of ground perpetually sacred to the monumental purpose to which they have been devoted and that [Virginia] will faithfully guard it and affectionately protect it,” according to court documents.

Patrick McSweeny, an attorney for the Monument Avenue residents, confirmed to CNN that they had refiled a lawsuit, but he would not comment on the suit’s substance.

In a statement on their website, the Monument Avenue Preservation Society, a neighborhood group dedicated to historic preservation, expressed support for the removal of the Lee statue and others.

“Black lives matter, and we support the initiatives to remove the Confederate monuments from Monument Avenue,” the statement said. “For too long, we have overlooked the inherent racism of these monuments, and for too long we have allowed the grandeur of the architecture to blind us to the insult of glorifying men for their roles in fighting to perpetuate the inhumanity of slavery.”

Virginia Attorney General Mark Herring said Thursday that a separate suit seeking to halt the removal of the Lee statue had been dismissed for lack of standing. The judge in that case, however, extended an injunction against the removal and gave the plaintiff more time to file a new complaint.

“I’ll keep fighting as long as I have to,” Herring wrote on Twitter. “This statue needs to come down.”



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