Writing In “The Hill,” BIA and Congressional Staff Vet Nolan Rappaport Says Trump Must Combine Legalization With Interior Enforcement to Succeed

http://thehill.com/blogs/pundits-blog/immigration/311994-thanks-to-obamas-immigration-legacy-trump-inherits-our-home

“As of the end of Nov. 2016, the average wait time for a hearing was 678 days. President-elect Trump will have to reduce the population of undocumented immigrants to a manageable level with a very large legalization program before he will be able to address the home free magnet.

Also, so long as immigrants who want to come here illegally think that they will be safe from deportation once they have reached the interior, they will find a way to get past any wall that he builds to protect our border.”

Nolan’s thoughtful article gives a great summary of the prosecutorial discretion (“PD”) programs put into effect by the Obama Administration.  Although Nolan is is OK with the concept of PD, he believes that by formalizing and publicizing the PD program, the Obama Administration has given a “home free” signal to undocumented migrants who reach the interior of our country.  Nolan believes that this acts as both a magnet for undocumented immigration and a barrier to effective immigration reform legislation.

I agree with Nolan that removal of most of those with cases backlogged on the Immigration Court dockets will prove impractical.  I also agree with him that the huge backlogs and lengthy waiting times for hearings have robbed the Immigration Court system of credibilty.  But, with due respect, I tend to doubt that addressing “the home free magnet” is the primary answer to a workable system.

First, I think that human migration is an historic phenomenon driven primarily by forces in sending countries which we do not control.  Addressing the “root causes” of these problems has proved elusive.  Efforts to provide assistance through foreign governments have been largely unsuccessful because of endemic corruption and lack of the necessary infrastructure.  Efforts administered by the State Department and USAID within foreign countries have shown some promise, as described in one of my earlier blogs (12/26/16).  Yet, to date, they appear to be too labor intensive and too limited in the number of individuals who can be reached to have a major effect on migration patterns.

Additionally, I doubt that migration will be controlled without legislative changes and expansion of our legal immigration system to better match supply with demand.  Currently, the demand for immigration by U.S. citizen and lawfully resident families, U.S. employers, and displaced or threatened individuals in foreign countries far exceeds the supply of available visas.  Continued immigration is a reality and, in fact, a necessity for our nation’s prosperity.  Until there is a better balance between supply and demand, individuals will, as Nolan suggests, continue to breach any walls or interdiction systems that we can construct.  And, differing from Nolan, history shows that they also will evade interior enforcement efforts which, in any event, will prove to be costly, ineffective, disruptive, and unacceptable from a civil liberties standpoint.

Yes, I know this isn’t what folks, particularly those “outside the Beltway,” want to hear.  But, the fact that my message might be unpopular in today’s climate doesn’t necessarily mean that I’m wrong.

Immigration is a complicated issue that will require thoughtful, creative, cooperative, and human-oriented solutions.  Merely doubling down on enforcement, whether popular or not, will not give us control over human migration.

On an historical note, I greatly appreciate Nolan’s citation and link to the July 15, 1976 memorandum on prosecutorial discretion from INS General Counsel Sam Bernsen to Commissioner Chapman, which I wrote.  Go to the link and check out the initials at the end.  Oh, for the “good old days” of “real” carbon copies!

PWS 12/28/16

 

Post Editorial Suggests that “Extreme Vetting” of Migrants Might Be Overkill

https://www.washingtonpost.com/opinions/trump-wants-new-extreme-vetting-for-immigrants-that-might-be-a-waste-of-time/2016/12/28/c8a0a85c-cc78-11e6-b8a2-8c2a61b0436f_story.html?hpid=hp_no-name_opinion-card-a%3Ahomepage%2Fstory&utm_term=.5aa05587a4fb

“Those systems and programs, detailed by Homeland Security in explanation of NSEERS’s obsolescence, provide federal authorities with a range of tools to verify foreigners’ identities and monitor their movements. They apply broadly to visitors, travelers and immigrants. They also comport with constitutional standards and American values.

By contrast, a registry that singles out travelers from Muslim countries falls afoul of those standards — and may do little to enhance national security. While some prominent recent terrorist attacks in the United States and Europe were carried out by immigrants, the perpetrators of others, including the bloody assaults in Paris and Orlando, were by homegrown terrorists.”

I had NSEERS cases come before me during my early years at the Arlington Immigration Court.  None of them appeared to relate to national security.

PWS

12/28/16

Hungarian Human Rights Scholar Sees Authoritarian Danger in Populist Drift — Cites Hungarian Example

https://www.washingtonpost.com/opinions/global-opinions/i-watched-a-populist-leader-rise-in-my-country-and-that-is-why-i-am-genuinely-worried-for-america/2016/12/27/6b4cf632-cc65-11e6-b8a2-8c2a61b0436f_story.html?hpid=hp_no-name_opinion-card-d:homepage/story&utm_term=.ac8ebaf01f3b

“The world is looking at the United States now in a way that we never thought would be possible: fretting that the ‘deals’ of its new president will make the world’s first democracy more similar to that of the others. I wish we onlookers could help the Americans in making the most out of their hard-to-change Constitution. We still are thankful for what they gave to the world, and we will be a bit envious if they can stop the fast-spreading plague of national populism.”

I sure hope he’s unduly pessimistic.  The United States has a history of being able to reorient back to the center when necessary.  Also, we do have a vigorous free press and, at least with respect to our “Article III Courts,” the world’s most independent court system.

PWS

12/28/16

The Most Dangerous Place In Syria, the Most Dangerous Country in the World? Sadly, It Might Be The Hospital!

http://www.huffingtonpost.com/entry/syria-hospital-attacks_us_56c330f0e4b0c3c550528d2e

“The first airstrike hit at 9:02 on the morning of Feb. 15. As rescue teams dashed to the scene, warplanes circled back for a ‘double tap,’ pummeling the isolated hospital in northwestern Syria a second time, minutes later. And a third. And a fourth.

Twenty-five people died, including nine health care workers and five children. Staff and volunteers who survived the onslaught at the Doctors Without Borders-supported facility rushed victims to the next closest emergency center in a nearby town. The bombs followed.

It’s an utterly grim and tragic irony: Hospitals are now among the most dangerous places in Syria. There have been 252 attacks on Syrian health care centers in 2016 so far, according to the Syrian American Medical Society, a nonprofit organization. Countless men, women and children suffering from injury or illness in the war-torn country have endangered their lives simply by seeking treatment. Many of the brave doctors who voluntarily walk into hospitals to help those in need ― dismally aware of the grave personal risk ― never come back out.”

I wake up each morning thankful for two things.  First, that I woke up, never a given, particularly at my age.  Second, that I’m not a refugee.

PWS

12/27/16

Residents With Differing Beliefs Have Learned to Tolerate Each Other in Murfreesboro, TN. But, They Wonder What the Future Will Bring.

https://www.washingtonpost.com/national/muslims-in-a-bible-belt-town-hold-their-breath/2016/12/26/d870a1da-b745-11e6-959c-172c82123976_story.html?utm_term=.e7561894292a

“”But there’s more tolerance because of the public acrimony over the mosque,’ said City Council member Bill Shacklett.

‘I wish some of the things hadn’t happened. But the one thing it has done is compel people to open their hearts and minds to be drawn toward each other . . . get out and flesh out your faith with different people,’ Shacklett said, adding that Muslims and Christians have started to do that.

‘Maybe that wouldn’t have happened if we hadn’t had the spotlight put on us for all of that.'”

Hope that the spirit of tolerance continues to prevail.

PWS

12/27/16

 

Fat City? What Will the Trump Administration Mean For Michelle Obama’s “Healthy Lifestyle” Initiatives?

https://www.washingtonpost.com/news/wonk/wp/2016/12/14/trump-doesnt-just-threaten-barack-obamas-legacy-he-could-ruin-michelles-too/?utm_term=.73b4de5af291

“Much of this uncertainty springs from the fact that Trump has never publicly spoken on school lunches or nutrition policy, though plenty of lobbyists and administration officials are scrutinizing the tea leaves behind closed doors. They note that Trump’s agricultural advisory committee includes Aderholt and Texas Agriculture Commissioner Sid Miller, who reintroduced deep-fryers to that state’s schools.”

Stay tuned.

PWS

12/27/16

Maryland Schools Move to Quell Migrant Student Fears

https://www.washingtonpost.com/local/education/schools-warn-of-increased-student-fears-due-to-immigration-arrests-trump-election/2016/12/26/a4b2b732-c0a7-11e6-b527-949c5893595e_story.html?utm_term=.9fd1b4cc1447

“Much of what schools want to convey is that students are not in peril when they are on campus.

Student absences do not appear to have spiked in recent weeks, but Nora Morales, diversity officer in the Prince George’s school system, said the district wants to make sure that families understand educators do not ask about immigration status and would not share such information if they knew it.

‘My primary concern is that our school community knows our schools are safe spaces and that students will be valued, respected and welcomed,’ she said. ‘There are a lot of unanswered questions about immigration reform. One thing remains constant: If kids don’t show up to school, they won’t learn.'”

As a Judge, my advice to youth coming before me was:  “Go to school, study hard, get all the education that you possibly can. However your case comes out, your education belongs to you.  Nobody can take it away from you, and it will make your life better.”  I usually asked them about their grades, as well as their extracurricular activities.  If there were any below “B,” I made them promise to improve.  Most of them  brought their report cards showing improvement to the next hearing.  I also told them they needed to help their parents around the house.

Many of them had parents working two jobs.  The older kids were basically in charge of the household, in addition to going to school, and often playing soccer, playing in the band, or being in the science club.   Remarkable young people.

PWS

12/27/16

immigrationcourtside.com Gets a “Shout Out” From Lexis Nexis Immigration Communities!

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2016/12/27/paul-wickham-schmidt-takes-to-the-web-www-immigrationcourtside-com.aspx?Redirected=true

12-27-2016 | 08:17 AMAuthor: Daniel M. Kowalski
Paul Wickham Schmidt Takes to the Web! – www.immigrationcourtside.com
immigrationcourtside.com

Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt.

__________________________

Many thanks to my long time friend and the “King of Immigration Bloggers” Dan Kowalski.  I got most of my inspiration to do this from reading Dan’s timely and informative blogs over the years.  Usually, he had more information about what was “really happening” in the Immigration Court System than those of us who were working there!

PWS

12/27/16

 

Will Venezuela Be Our Next Refugee “Crisis?” (Editorial From the Washington Post)

https://www.washingtonpost.com/opinions/global-opinions/venezuela-is-lurching-closer-and-closer-to-chaos/2016/12/26/63af5186-c79c-11e6-bf4b-2c064d32a4bf_story.html?utm_term=.ff4bd310ec6a

I wouldn’t be surprised.  Maybe our Government should be thinking about how to handle another humanitarian flow now, instead of waiting for a “crisis” to develop.

PWS

12/27/16

Conservative Latino Leaders Warm to Trump

http://www.huffingtonpost.com/entry/latino-leaders-who-dumped-trump-now-hopeful-hes-their-guy_us_585fffd3e4b0de3a08f5a204

They doubt that he will carry out his harshest pronouncements on immigration.

“Massey Villarreal, a Republican businessman in Houston who denounced Trump’s Phoenix speech, told HuffPost he’s optimistic about the president-elect because it’s in everyone’s best interest if he succeeds.

‘It’s like getting on an airplane [where] I don’t like the pilot and hope he crashes,’ he said. ‘I’m on the plane too.'”

PWS

12/26/16

A Christmas Wish — Protect Children Seeking Refuge — Let Them Out of Jail — Get Them Lawyers — Treat Them As If They Were Ours — Because They Are

http://immigrationimpact.com/2016/12/23/wish-holiday-season/

In this article which I found on Immigration Impact, Katie Shepard says:

“The 19 children who will likely be spending the holidays in detention range in age from three to fifteen-years-old. In fact, just last week, the youngest child being held in the Berks detention facility turned three. This little boy fled Honduras with his mother after being targeted by the gangs and threatened with kidnapping and violence. He has spent more than half his life in detention.

Imagine going through such a harrowing journey to then have those you’ve asked to protect you, fail you. I don’t believe this nation can or should allow the most vulnerable among us to be held for prolonged periods, robbed of their access to a fair and just process, and left without protection. We can and must do better.

My wish this holiday season is that we find a way to do right by these families. My wish is that they, like me and many of you, will be able to live safe and happy lives with the people they love.”

I had similar thoughts.  During the Christmas Eve service at our church, we offered the following prayer:  “Tonight we give thanks for every child among us.  Each new birth — regardless of circumstances — reminds us of the preciousness of life, the potential of tomorrow, the promise of God.”

We say these words, but our country is falling short in its humanitarian and human obligation to protect vulnerable children.  We treat them as statistics, a “border surge,” an “enforcement problem,” a plague that should be deterred and discouraged.  In plain terms, we seek to dehumanize the most vulnerable and needy humans among us.  We detain them, expedite their cases, and tell Federal Courts that they can represent themselves in complicated, life determining, legal proceedings that baffle many smart attorneys, judges, and scholars.  Where is the mercy, compassion, kindness, humility, and championship of the downtrodden shown by Christ?

As I have previously said in my own op-ed:

“Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to ‘stem the tide.’ It is time to demand an immigrant justice system that lives up to its vision of ‘guaranteeing due process and fairness for all.’ Anything less is a continuing disgrace that will haunt us forever.”

You can read my full op-ed which has been published in LexisNexis Immigration Community by clicking on this link:

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2016/10/18/saving-child-migrants-while-saving-ourselves-hon-paul-wickham-schmidt-ret.aspx?Redirected=true

Its is also posted on the index and information toolbar of this Blog.

PWS

12/26/16

 

 

Not All Undocumented Migrants Are From South of the Border — Politicians Should Represent Everyone

http://www.huffingtonpost.com/entry/undocumented-immigrants-armenian-trump_us_584edd21e4b0bd9c3dfdb444

Here’s an account by freelance reporter Gohar Chichian, an Armenian American, of growing up in America with undocumented parents.  Eventually, her parents were able to obtain legal status.

The U.S. Supreme Court agrees with her that American politicians have a responsibility (often ignored) to represent the interests of everyone, including  immigrants both legal and undocumented.  In the 2016 case Evenwel v. Abbott (link below), the majority opinion by Justice Ginsburg said:

“As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”

Here’s an excerpt from Chichian’s article in Huffpost:

“Our battle was finally over. But the war over immigration will continue with the start of the Trump administration. As Trump’s policies begin to unfold, politicians in Washington should remember that the immigration debate isn’t just about a few particular groups. The rhetoric of Donald Trump over the past year may have focused on Mexicans and Muslims, but my parents are Christian, and they are from a country that was devastated by a totalitarian left-wing ideology. Their story makes clear just how broad an impact the immigration decisions made in Washington will have on diverse communities nationwide. We are a nation built by immigrants — our politicians should work to represent them. All of them.”

The link to the full article is at the top.

Click to access 14-940_ed9g.pdf

PWS

12/26/16

With “Peacekeepers” Like These, Who Needs War? The UN Has a BIG Problem!

https://www.washingtonpost.com/world/africa/they-served-an-abusive-government-the-un-made-them-peacekeepers-anyway/2016/12/23/05c0a5ad-108f-46b9-b6f7-5f2303f6cdfe_story.html?utm_term=.c36afbf0c92e

“The three officers had received blue badges and slipped blue covers over their helmets. They were now U.N. peacekeepers, sent from Burundi to help protect victims of a brutal war in the Central African Republic.

But each of them had a past the United Nations was unaware of. When the deployments became public, Burundian activists were aghast.

One of the officers had run a military jail where beatings and torture occurred, according to civil-society groups and former prisoners. Another had committed human rights violations when anti-government demonstrations erupted in Burundi last year, U.N. officials would eventually learn. The third had served as the spokesman for the Burundian army, publicly defending an institution accused of abuses.

They set out for the Central African Republic in different U.N. deployments over the past year. In each case, U.N. officials soon determined that the allegations against the soldiers and their units were credible enough to send them home.”

Apparently, according to this article in  the Washington Post, well-paying UN Peacekeeper jobs have become spoils that autocratic rulers hand out to their cronies for helping them stay in power.  Bad system.

PWS

12/26/16

Former Deputy Attorney General Heymann Slams DOJ Handling of Criminal Case Arising From Iowa Immigration Raid

https://www.washingtonpost.com/opinions/107-former-justice-officials-think-this-case-was-handled-unjustly-doj-must-act/2016/12/26/71203530-c6e6-11e6-bf4b-2c064d32a4bf_story.html?hpid=hp_no-name_opinion-card-e%3Ahomepage%2Fstory&utm_term=.39a0e3fb838c

An unusually harsh criticism of the Justice Department and Attorney General Loretta Lynch in this Washington Post op-ed by Phillip Heymann, who was the Deputy AG during the Clinton Administration.  The case was generated by a controversial immigration raid on a Kosher Meat plant in Iowa that netted hundreds of undocumented workers and resulted in the business’s bankruptcy.  Heymann represents the views of 107 former DOJ officials, including former Attorneys General.

PWS

12/26/16

 

 

Trump Administration Will Have Huge Influence on Federal Courts — Particularly the U.S. Immigration Court

https://www.washingtonpost.com/politics/trump-to-inherit-more-than-100-court-vacancies-plans-to-reshape-judiciary/2016/12/25/d190dd18-c928-11e6-85b5-76616a33048d_story.html?hpid=hp_rhp-top-table-main_trumpjudges805p:homepage/story&utm_term=.3eb2c51133dc

According to this article from today’s Washington Post, the incoming Trump Administration is preparing to fill more than 100 lifetime Federal Judicial appointments in addition to an existing vacancy on the Supreme Court.  That’s almost twice the number of vacancies that were available to the incoming Obama Administration eight years ago.  The article points out that since these appointments require Senate confirmation, Democrats might have some bargaining power.  But, with Republicans in the majority, that’s likely to be quite limited.

However, there might be an even bigger opportunity available for the incoming Administration —  reshaping the U.S. Immigration Court System for many years to come.  Plagued by a self-created ponderously glacial selection and hiring process, and a badly outdated and ineffective  court structure and administration, the Obama Administration is on track to leave nearly 100 out of the just under 400 authorized U.S. Immigration positions “on the table.”  Additionally, there currently are two vacancies on the critically important Immigration Appeals Court (known as the “Board of Immigration Appeals”), which is effectively the “Supreme Court” of immigration law, with authority to decide tens of thousands of appeals annually and to set binding precedents for our nation’s more than 50 U.S. Immigration Courts.  Beyond that, a significant number of the most experienced Immigration Judges are “baby boomers” who are currently eligible to retire or will become eligible shortly.  For most of the Obama Administration, Immigration Judge hiring has barely exceeded the retirement replacement rate.

The bulk of the currently unfilled vacancies were relatively recently authorized by a bipartisan Congressional effort.  But, not so recently that they could not have been filled by a management process that treated them as what they are — probably the most important large group of senior career Civil Service positions in Government and certainly within the U.S. Department of Justice, the repository for the Immigration Courts.  Beyond helping to authorize the additional positions, however, Congressional Democrats have paid scant attention to the public unraveling of our Immigration Court system during the past eight years.

With over 500,000 pending cases, the Immigration Court System actually has a larger caseload that the entire U.S. District Court System — Civil and Criminal Dockets — with only about 60% of the authorized number of judges.  Moreover, unlike U.S. District Court Judges, who are appointed by the President for life with Senate confirmation required, U.S. Immigration Judges are civil servants appointed by the Attorney General, and they serve at his or her pleasure.  Consequently, Democrats cannot point the collective finger at Republicans for the high vacancy rate and the dismal state of justice in our largely dysfunctional Immigration Court System.  Republicans generally have supported more resources for the overburdened Immigration Courts, and the hiring process has been within the sole control of the Obama Administration’s Department of Justice.

Assuming confirmation, new Attorney General Jeff Sessions potentially could select approximately 25% of the Immigration Judiciary, with more down the road.  No Senate confirmation is required, and the new Attorney General would not be bound to follow the current hiring practices.

Because Due Process — the Immigration Courts’ one and only mission — should be a nonpartisan, nonpolitical issue, I hope that Attorney General Sessions will establish an efficient, strictly merit based hiring system that will be transparent and provide opportunity for meaningful input and participation from all segments of the immigration community, including  practitioners, clinicians, and non-governmental organizations, as well as government entities involved in the administration of our immigration laws.  For example, the board-based merit selection processes used for U.S. Magistrate Judges and U.S. Bankruptcy Judges have won widespread acclaim for putting professional qualifications and demonstrated excellence before partisanship.

But, if that doesn’t happen, and Democrats don’t like the results, they will have only themselves to blame for failing to pay attention and make the needed administrative and structural improvements to our critically important Immigration Court System over the past eight years.

PWS

12/26/16