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Biden administration replaces top immigration court official

Staffers and judges were informed of the shift Wednesday morning in a memo from Acting Deputy Attorney General John Carlin. The move will be effective Sunday.

“Jean will provide continuity in EOIR’s leadership until a new director is selected,” Carlin wrote, according to a person who received the memo.

The personnel change follows grumbling from immigration advocates who were troubled to see McHenry’s name on the agency-wide list the Justice Department released last Thursday of those holding top posts on an acting or continuing basis for the first weeks of the Biden presidency.

McHenry’s presence on the roster of officials staying on into the new administration rankled immigration reformers seeking an immediate change in direction for an operation with huge power over immigrants accused of being in the U.S. illegally.

“I saw that list….and I was just shocked,” said Jeremy McKinney, an immigration lawyer in Greensboro, N.C., prior to Wednesday’s announcement. “The policies he was putting out in terms of his attempts to control what judges do inside the courtroom, those efforts have been monumental over the last three years. To see he’s one of the hangers-on is very surprising.”

“To have someone like that leading EOIR, who doesn’t embrace the vision of restoring due process & fairness….this would undermine that goal and that hope,” Marielena Hincapie of the National Immigration Law Center said last week.

McHenry was named as acting chief of EOIR in May 2017 and was given the permanent director title the following January. As the top executive branch official overseeing the immigration courts, McHenry spearheaded a series of policy initiatives that rankled immigration advocates, including efforts to narrow asylum standards and to press immigration judges to close cases more quickly.

One immigration advocate said that Biden transition personnel at the Department of Homeland Security seemed more urgently focused on immigration issues, while those issues appeared to be put on the back burner by those planning for the Justice Department.

That perception was reinforced by a report last week that the career official the Biden team tapped to act as acting attorney general, Monty Wilkinson, played a role in an internal dust-up several years ago related to the Trump-era policy of separating immigrant children from their parents at the Mexican border.

As an official running the office that oversees U.S. attorneys, Wilkinson approved the reassignment of a line prosecutor who was seen as resisting an early pilot of the controversial family-splitting effort, which Trump officials abandoned in 2018 following public outcry and bipartisan pressure from Congress.

Given the attention to Wilkinson’s minor role in that widely-denounced policy, it was notable that when the Justice Department formally jettisoned part of that policy this week, the announcement came in a memo from Wilkinson. The new directive said the department was abandoning a so-called zero-tolerance rule that called for nearly all adults who cross the border illegally to be criminally prosecuted.

“A policy requiring a prosecutor to charge every case referred for prosecution….without regard for individual circumstances is inconsistent with our principles,” Wilkinson wrote.

Greg Chen, director of government affairs for the American Immigration Lawyers Association, called McHenry’s exit a necessary precursor for Biden to carry out his immigration agenda.

“AILA has deep concerns about the current director and other appointees currently leading EOIR, who have stripped judges of fundamental authorities that make it impossible for them to render fair and consistent decisions,” Chen said. “If he is allowed to stay in office, the many steps he has taken to steamroll cases through the courts for removal orders will continue apace. His removal is imperative to the new administration being able to implement its vision of make courts fairer and more efficient.”

Some lawyers said civil service laws may have complicated the Biden administration’s ability to swiftly reassign McHenry. One legal provision creates a 120-day moratorium on reassigning certain senior career executives following a change in agency leadership. But with Attorney General-designate Merrick Garland still awaiting confirmation, it is unclear whether the Justice Department transitioning from an acting attorney general under President Donald Trump to another appointed by Biden triggers that 120-day clock.

However, several advocates said they were confident that the department had the power to move McHenry out of his post at least temporarily. A Justice Department spokesperson declined to comment on the personnel shift.

Regardless of the precise legal requirements, the Biden administration may be reluctant to involuntarily reassign members of the senior executive service over concerns about disregarding civil service protections. The Trump administration often seemed to be at war with the civil service and with federal employee unions, the subject of much criticism over the previous president’s four years in office.

Last October, Trump issued an executive order that could have led to tens of thousands of government positions being converted from civil service positions to ones where employees can be fired without cause. Trump officials failed to complete that process by Inauguration Day.

Last Friday, Biden signed an executive order unwinding many of Trump’s civil service-related actions, which the new president said had “undermined the foundations of the civil service and its merit system principles.”

In 2018, more than a dozen liberal lawyers sent a letter complaining that Trump appointees were mistreating members of the senior executive service by reassigning them as retaliation and potentially in violation of civil service protections. That history may have left the new administration sensitive about any perception that it is short-circuiting the laws and rules.

While immigration advocates have been highly critical of McHenry’s tenure, the Trump administration boasted of the immigration courts’ successes and efficiency under his oversight.

McHenry made major strides towards replacing the courts’ archaic paper-based filing system with a computerized one, hired a record number of new immigration judges and sharply increased the number of cases closed out every year — at least before Covid-19 hit.

Immigration judges concluded a record 276,000 cases in fiscal 2019 and were on pace to close 400,000 cases in fiscal 2020 before the pandemic ground the immigration court system to a near halt.

McKinney, the North Carolina immigration lawyer, said McHenry deserves credit for being forthright about EOIR policies and policy changes, even though they proved controversial in many quarters. “He has always been consistent when meeting with us to answer our questions. While we may not always have liked his answers, he always provided those answers,” McKinney said.

Unlike other federal courts, the immigration courts operate within the Executive Branch under authority delegated by the attorney general. Prosecutors in those proceedings come from the Department of Homeland Security and immigration court rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.

Many immigration judges and immigration lawyers have urged that the immigration courts be moved outside of the Justice Department to give them greater independence.

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Biden’s United Nations nominee to take a hard line on China

“In particular: We know China is working across the UN system to drive an authoritarian agenda that stands in opposition to the founding values of the institution — American values,” she is set to say. “Their success depends on our continued withdrawal. That will not happen on my watch.”

Thomas-Greenfield, who is Black, is among the most prominent diplomats of color in Washington. The Louisiana State University graduate’s many State Department postings took her from Pakistan to Switzerland to Jamaica. She has served as ambassador to Liberia, assistant secretary of State for African affairs, and as the State Department’s top human resources official.

She is expected to work to strengthen international relationships that frayed under the Trump administration, which withdrew from a number of UN bodies and often pursued a solo approach to diplomacy.

“When America shows up — when we are consistent and persistent — when we exert our influence in accordance with our values — the United Nations can be an indispensable institution for advancing peace, security and our collective well-being,” Thomas-Greenfield is to say. “If instead we walk away from the table, and allow others to fill the void, the global community suffers — and so do American interests.”

She will add, however, that the UN must be held accountable.

“We must have the courage to insist on reforms that make the UN efficient and effective, and the persistence to see reforms through,” she is set to say.

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Biden’s new climate orders to reshape U.S. energy policy

Green groups were quick to welcome Biden’s climate initiatives, which had been the subject of chatter among environmental activists for weeks. Many of those groups had spent the past four years locked in court challenges against Trump’s own steady stream of executive orders.

“These actions stand in stark contrast to the denial of climate change and the attacks our oceans and coasts have faced over the past four years,” Diane Hoskins, campaign director at Oceana, a group advocating for protection of oceans, said of Biden’s plans to place an open-ended moratorium on the issuing new leases for oil and gas drilling in federal waters. “This stuff is a major step forward.”

Wednesday’s orders are part of an early slew of actions to fulfill Biden’s campaign pledges to address climate change as one of the top four crises confronting the U.S., alongside the coronavirus pandemic, economic stagnation and racial inequality. Last week, on his first day in office, Biden signed an executive order calling for reconsidering methane emission rules from new oil and gas sources, reversing Trump rules that rolled back vehicles’ tailpipe carbon dioxide limits, and canceling a permit for the Keystone XL pipeline, the subject of pitched political battles for a decade.

Wednesday’s orders fill in many of the details left out of last week’s orders, including setting the date that Biden will convene a promised climate change summit with world leaders for April 22, Earth Day.

The new orders will also address “environmental justice” issues, such as by establishing new commissions to address the concerns of so-called fenceline communities that are disproportionately people of color or low-income families that live near pollution sources. Biden is also directing agencies to weigh the climate change effects of all their decisions, a move that could affect procurement strategies for government vehicle fleets or electricity production.

In another move, Biden will call for meeting his campaign promise to place 30 percent of U.S. federal land and waters under conservation protections by 2030. The so-called 30×30 plan was proposed by Rep. Deb Haaland, Biden’s nominee to lead the Interior Department, and former New Mexico Sen. Tom Udall.

The order that has generated the sharpest opposition from oil companies is one that promises to re-write the relationship between the industry and public lands. The Biden administration will order an open-ended freeze on offering public land for oil and gas drilling and coal mining, pending reviews of whether such leases were in the public interest. Under that review, the administration is expected to consider whether to add language to new government lease agreements to tighten standards on greenhouse gas emissions and increase the royalties that companies must pay for minerals they produce on public land.

“The federal government has a fiduciary responsibility to manage public resources as strategic financial assets,” said Autumn Hanna, vice president of Taxpayers for Common Sense, a nonpartisan group focused on government finances. “The Biden administration must now conduct a thorough review of the rules and regulations guiding federal resource production and implement the reforms necessary to protect the taxpayer interest.”

Wednesday’s move will not affect production currently underway or the oil and gas leases and permits that companies had stockpiled under Trump administration in expectation of new restrictions. That means oil and gas production on federal land, which contributes about one-fifth of overall U.S. production, will not stop immediately, with activity likely to continue for at least another year, energy analysts have said.

People in the oil and gas industry have said they fear the moratorium could end up becoming an outright ban, something Biden had promised on the campaign trail.

But conservation groups and even some industry analysts have argued that the fossil fuel industry is already sitting on leases for thousands of acres of federal land that companies havent used yet, and they questioned why the government should offer even more.

The planned review will assess whether the leasing program delivers a fair return for taxpayers, which will include calculating the effects of climate change from fossil fuels produced on federal land. That will significantly reduce the benefits from energy extraction, but the Biden team’s iterative process might also insulate the administration from legal challenges, said National Wildlife Federation CEO Collin O’Mara.

“It’s clear that they’re going to use sound science and the law to achieve the commitments that he made in the campaign, that are incredibly thoughtful and methodical,” O’Mara said. “It’s encouraging that they’re doing it systematically.”

Still, a pause on new activity could come back to take major bite out of some state budgets, especially those with an out-sized dependence on oil production for revenue, such as New Mexico, which gets more than 10 percent of it revenue from the activity.

New Mexico Chamber of Commerce President and Chief Executive Rob Black said the moratorium would simply lead companies to shift their operations to neighboring Texas, a state with little federal property and a state oil industry regulator who has called concerns about greenhouse gas emissions “misplaced.”

“It won’t further our shared goals on carbon emissions,” Black said during a call with reporters. “It would just cause production to move a few miles down the road to private oil and gas leases [in Texas] or will incentivize it to go overseas to Saudi Arabia and Russia.”

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Putin and Biden confirm extension of New START treaty – POLITICO

Russian President Vladimir Putin and U.S. President Joe Biden agreed Tuesday to extend the New START nuclear nonproliferation treaty, which is due to expire next month, according to Kremlin and White House summaries of a phone call between the leaders.

“They discussed both countries’ willingness to extend New START for five years, agreeing to have their teams work urgently to complete the extension by February 5,” the White House said.

The Kremlin in its summary said, “The Presidents expressed satisfaction in connection with the exchange of diplomatic notes carried out today on reaching an agreement on the extension of the Treaty on Strategic Offensive Arms. In the coming days, the parties will complete all the necessary procedures to ensure the further functioning of this important international legal mechanism for the mutual limitation of nuclear missile arsenals.”

Formally called the “New Strategic Arms Reduction Treaty,” the agreement limits Washington and Moscow’s deployed nuclear weapons to 1,550 each. It was signed in 2010, entered force on February 5, 2011 and was set to expire on its 10th anniversary.

New START is the last remaining nonproliferation agreement between the former Cold War superpower rivals, after another key nuclear accord, the Intermediate-Range Nuclear Forces Treaty, expired in August 2019.

According to the Kremlin, Putin used his first call with Biden to urged improved ties. “He noted that the normalization of relations between Russia and the United States would meet the interests of both countries and — taking into account their special responsibility for maintaining security and stability in the world — of the entire international community,” the Kremlin said.

The Kremlin said the presidents also discussed the coronavirus pandemic, the Open Skies Treaty and the Iran nuclear deal, called the Joint Comprehensive Plan of Action, as well as the conflict in Ukraine and Putin’s call for a summit meeting of permanent members of the United Nations Security Council.

The White House said Biden also confronted Putin on the issues of election interference and of the jailing of the Russian opposition leader, Alexei Navalny.

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Rep. Buddy Carter signals support for federal privacy legislation

Carter cited concerns about artificial intelligence in light of China’s broad use of AI facial recognition and other technology for surveillance.

“People are naturally and rightfully concerned,” Carter said. “In order for it to succeed, we’ve got to have a buy-in if you will by the general public. We need them to have confidence in that.”

Carter emphasized that he wants the government to not have “that strong” of a role, but said he understood that the government will have to have some role in regulation.

“The benefits of AI are enormous. There are risks, there’s no question about it. And we’ve got to understand and know how we’re going to manage those risks,” Carter said.

Carter acknowledged finding support for increased regulation might be hard to find among the GOP caucus, though.

The European Union implemented its own privacy law in 2018, but concerns about a lack of enforcement have remained. The U.S. has lagged behind the Europe in privacy, Terrell McSweeny, a Federal Trade Commission commissioner from 2014-2018 and current partner at Covington & Burling LLP, said at the event Tuesday.

Carter also said he is committed to working with the Biden administration on tech issues. Working with the EU can help to alleviate fears about AI, he said.

“We need to work with the European Union,” Carter said. “Russia and China are not our friends. There are a lot of good things that can come out of AI … but there is also a lot of bad things. We’ve got to get past that fear … and we’ve got to move forward.”

Panelists at the event called for a more unified approach to privacy regulation. An alliance on tech between the EU and the United States faces major impediments, with the two entities not agreeing on some key policy issues.

“It doesn’t mean we have to come up with the same exact regulatory frameworks globally,” McSweeny said. “I’m hopeful that because the new administration is really committed to working with our allies we can reset the conversation with Europe a little bit. We’re at an early enough stage, especially with regards to AI, that we can start to bring some of these ideas together.”

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Biden dealt blow on 100-day deportation moratorium

The order represents the first notable setback to Biden’s immigration agenda, which is largely focused on undoing the Trump administration’s controversial immigration policies and securing an overhaul to the U.S. immigration system that former President Barack Obama failed to do.

The 100-day pause went into effect on Friday. Biden, while campaigning, had promised he would put a stop to deportations for 100 days, a move that was welcomed by immigrant advocates looking to see if he was serious about making immigration reform a priority.

In the lawsuit, Paxton argued that the moratorium violated federal law and agreements that DHS signed with Texas and several other states that would require the department to provide notice and allow time for a review before making certain immigration policy changes. The agreements, signed on the final days of the Trump administration, were first reported by Buzzfeed News.

However, Tipton’s order specified that the decision was not based on that agreement between DHS and Texas. “The issues implicated by that Agreement are of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits,” the ruling explains.

But Tipton, according to the order, found that Texas was able to prove that the pause “establishes a substantial risk of imminent and irreparable harm to Texas.” He added that Texas was able to demonstrate “a substantial likelihood of success” in its claim that the moratorium violates federal law.

In its memorandum, DHS explained that it would implement a 100-day pause on certain removals “to enable focusing the Department’s resources where they are most needed.” The department also noted the “unique circumstances” the U.S. is facing along the southern border given the pandemic.

The Justice and Homeland Security departments did not immediately respond to requests for comment.

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Leahy back at home after brief hospitalization

Leahy is supposed to preside over President Donald Trump’s second impeachment trial starting on Feb. 9 as president pro tempore of the Senate. The president pro tempore is third in line of succession to the presidency and Leahy has already held the position twice.

“The president pro tempore has historically presided over Senate impeachment trials of non-presidents,” he said in a statement earlier this week. Republicans have criticized Leahy’s role in the upcoming trial since, as a senator, he’s also a juror in the proceedings.

“I consider holding the office of the president pro tempore and the responsibilities that come with it to be one of the highest honors and most serious responsibilities of my career. When I preside over the impeachment trial of former President Donald Trump, I will not waver from my constitutional and sworn obligations to administer the trial with fairness, in accordance with the Constitution and the laws.”

The Vermont Democrat, who has spent 46 years in the Senate, also just became chair of the Senate Appropriations Committee.

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Baseball Hall of Fame rejects politically outspoken star Curt Schilling

Voting for the Hall had already closed by then, though Schilling’s words sparked a late effort to allow some voters to withdraw their votes, something that the Hall rejected.

“All votes must be cast by December 31. No changes are permitted,” Jon Shestakofsky, vice president of communications and education for the Hall, said on Tuesday.

Though not a slam-dunk candidate — there are a number of pitchers who’ve exceeded his total of 216 wins who are not in the Hall of Fame — Schilling was a strong candidate for baseball’s highest honor because of his string of all-star seasons and his World Series heroics with Boston, Arizona and Philadelphia. Last January, he fell just short of induction, appearing on 70 percent of the ballots.

Even so, some writers stated that they found it impossible to reward someone they see as offensive and intolerant.

In December, one of the nation’s best-known sportswriters, Joe Posnanski, said he could no longer support him.

On Jan. 6, Schilling sparked a new controversy by tweeting support of the riot at the Capitol: “You cowards sat on your hands, did nothing while liberal trash looted rioted and burned for air Jordan’s and big screens, sit back, stfu, and watch folks start a confrontation for shit that matters like rights, democracy and the end of govt corruption.”

Schilling doubled down on inflammatory rhetoric in the ensuing weeks. “True evil and corruption enters the WH tomorrow,” he tweeted Jan. 19.

The Hall of Fame’s ballots stipulate that the candidates are supposed to display “integrity” and “character,” which some voters took as sufficient to disqualify Schilling.

“I voted for Curt at least twice,” writer Claire Smith said, “but not so in the last two ballots (for classes of 2020 and 2021).”

“My decision was based on character (which I had been told is a valid consideration voters can use in their HOF ballot decision). My decision was made after Curt retweeted allegations that the mass murder of the children of Newtown, Ct., was a hoax,” added Smith, who is the only female writer ever awarded Cooperstown’s prestigious J.G. Taylor Spink Award.

Still, Smith said it made sense that the Hall of Fame refused to let voters change their votes after they were cast.

“I understand The Hall’s policy of not allowing ballots to change,” Smith said. “We’ve just withstood assaults on the ballot boxes of a different sort. Voters of all stripes should deliberate in good faith, then stand by their decision.”

Some voters argued that it didn’t matter what Schilling did or said in the years since his retirement; they were judging him exclusively on what he did in Major League Baseball from 1988 to 2007.

This was Schilling’s ninth year on the writers’ ballot, so he has one more shot. Among those who have supported his candidacy was Trump, who tweeted in 2019: “Curt Schilling deserves to be in the Baseball Hall of Fame. Great record, especially when under pressure and when it mattered most. Do what everyone in Baseball knows is right!”

None of the other 24 candidates were elected, a rarity in Hall elections. It has been a rough year for the institution, which has seen a number of its most beloved members die in recent months, including Tom Seaver, Joe Morgan, Bob Gibson, Lou Brock, and, most recently, Hank Aaron.

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Biden touts administration’s first steps on racial disparities

His words echoed those of a number of activists at the height of the protests against systemic racism over the summer. Biden administration officials say the executive orders are but one of several steps the president plans to take to battle racial disparities. It’s why both Biden and racial justice advocates demanding change view the executives orders the same way: as a good first step.

Biden’s mandates are a positive sign that he’s willing to address racial inequities, advocates say, and they plan to continue lobbying him and other Democrats to go big on their policies impacting communities of color.

“I recognize this as an extraordinary first step,” said Nse Ufot, CEO of the New Georgia Project. “They say that you cannot fix what you have not faced. And so how we get there is the work.”

Tuesday’s four executive orders were drafted in partnership with White House and Justice Department legal counsel and policy staff. Prior Democratic administrations, one senior Biden official said, took steps to address racial inequities, but none engaged multiple federal agencies at the same time to make a large and immediate impact.

“What makes this different is that it has never been done before,” the official said, who spoke on condition of anonymity.

“Every part of the White House, every agency in all of its work, not in a silo, not in an Office of Diversity, Equity and Inclusion, but throughout everything they do,” the official said, “are mandated to consider and advance equity and then be held accountable for it.”

The Biden administration has charged the Domestic Policy Council with coordinating that effort. Led by former Obama national security adviser Susan Rice, the council will focus its efforts largely on racial equity. It has also made eradication of white supremacy part of its charge. During Tuesday’s press conference, Rice said the council will maintain a relationship with the National Security Council to study the threat of domestic extremism on the part of white supremacist groups and aims to make policy suggestions accordingly.

“We’re taking it very seriously,” she said.

Rice’s allies said she’s uniquely equipped to handle her mission, thanks to her national security chops and connection to prior presidential administrations. She’ll have the power to push Biden to deliver, they say.

“Too many leaders often think, ‘this is not my job’ [to advance racial equity in their everyday work],” said David Clunie, executive director of the Black Economic Alliance, where Rice used to sit on the board. “It will take someone like Susan Rice to make racial equity an everyday priority for all government leaders, and even point out opportunities to use their platform to drive racial equity.”

Black voters broke historic turnout records to help Democrats win the presidency and the Senate despite being among those most impacted by the virus and ensuing economic downturn: Black patients are nearly three times more likely to die from the coronavirus while most minority-owned businesses were among the last to receive financial assistance under the Paycheck Protection Program.

And activists still plan to push the Biden-Harris administration from inside and outside political circles. Organizers with the Movement for Black Lives, citing the role they played in securing the White House for Democrats, say they plan to use every avenue at their disposal to turn the demands from their protests into policy. This includes passage of key portions of the BREATHE Act, which would direct funds from law enforcement agencies into communities of color.

But while Biden’s begun to deliver on his promises to show up for communities of color, the most impactful work will happen in Congress. When he signed the executive orders, Biden also called for restoration and expansion of the John Lewis Voting Rights Act, which would protect voter access. In addition, congressional Democrats say they plan to revisit police reform in the George Floyd Justice in Policing Act and pass legislation protecting minority-owned businesses.

Organizers with the Movement for Black Lives say the Biden-Harris administration has warmed up to them — to a point. In the weeks before inauguration, organizers with the Movement for Black Lives met with the Biden-Harris transition team to discuss their First 100 Days’ agenda.

Patrisse Cullors, co-founder and executive director of the Black Lives Matter global network, said she was heartened to see the language Biden used in his directives eliminating discriminatory hiring practices was borrowed from the text of the BREATHE Act, the movement’s cornerstone policy proposal.

“It’s important, especially as folks who are trying to transform this country, that we take the time to have these meetings,” Cullors said. “Now is the time where we all set our intentions on the table … we know that they’re listening, and that they’re moving forward on some of the demands that we have made.”

Other aspects of the executive order are boons to organizers and advocates. Maurice Mitchell, national director of the Working Families Party and organizer with the Movement for Black Lives, said he was encouraged by the “speed and aggressive nature” with which Biden has been signing executive orders, particularly those that undo what he and other activists saw as the more egregious policies of the Trump administration: the Muslim travel ban, transgender military ban, leaving the Paris Climate agreement.

“In all those areas, black people, working people, people of color, have a particular perspective and interest and agenda items,” he said.

Laura Barrón-López contributed to this report.