IMMIGRATIONPROF BLOG: PROFESSOR BILL ONG HING LAYS BARE THE WHITE NATIONALIST INTENT BEHIND THE RAISE ACT — “Asian, Latino, and African Exclusion Act of 2017” — And, It’s Bad For Our Economy To Boot!

http://lawprofessors.typepad.com/immigration/2017/08/trumps-asian-latino-and-african-exclusion-act-of-2017.html

Professor Ong Hing writes:

“From the Los Angeles and San Francisco Daily Journal:

President Trump’s recent call for overhauling the legal immigration system suffers from serious racial implications and violations of basic family values. Earlier this month he endorsed the Reforming American Immigration for a Strong Economy (RAISE) Act, which would eliminate all family reunification categories beyond spouses and minor children of U.S. citizens and lawful permanent residents (reducing the age limit for minor children from 21 to 18), and would lower capped family categories from 226,000 green cards presently to 88,000. The prime relatives targeted for elimination are siblings of U.S. citizens and adult children of citizens and lawful residents. The diversity immigration lottery program, which grants 50,000 green cards to immigrants from low-admission countries, also would be terminated. The RAISE Act is essentially the Asian, Latino, and African Exclusion Act of 2017. Why? Because the biggest users of family immigration categories are Asians and Latinos, and the biggest beneficiaries of the diversity lottery are Africans.

The RAISE Act is an elitist point system that favors those with post-secondary STEM degrees (science, technology, engineering, or mathematics), extraordinary achievement (Nobel laureates and Olympic medalists), $1.35 to $1.8 million to invest, and high English proficiency. However, it fails to connect prospective immigrants with job openings and makes incorrect assumptions about family immigrants.

Promoting family reunification has been a major feature of immigration policy for decades. Prior to 1965, permitting spouses of U.S. citizens, relatives of lawful permanent residents, and even siblings of U.S. citizens to immigrate were important aspects of the immigration selection system. Since the 1965 reforms, family reunification has been the major cornerstone of the immigration admission system. Those reforms, extended in 1976, allowed twenty thousand immigrant visas for every country. Of the worldwide numerical limits, about 80 percent were specified for “preference” relatives of citizens and lawful permanent residents, and an unlimited number was available to immediate relatives of U.S. citizens. The unlimited immediate relative category included spouses, parents of adult citizens, and minor, unmarried children of citizens. The family preference categories were established for adult, unmarried sons and daughters of citizens, spouses and unmarried children of lawful permanent resident aliens, married children of citizens, and siblings of citizens. Two other preferences (expanded in 1990) were established for employment-based immigration.

Asian and Latino immigration came to dominate these immigration categories. The nations with large numbers of descendants in the United States in 1965, i.e., western Europe, were expected to benefit the most from a kinship-based system. But gradually, by using the family categories and the labor employment route, Asians built a family base from which to use the kinship categories more and more. By the late 1980s, virtually 90 percent of all immigration to the United States – including Asian immigration – was through the kinship categories. And by the 1990s, the vast majority of these immigrants were from Asia and Latin America. The top countries of origin of authorized immigrants to the United States today include Mexico, China, India, the Philippines, the Dominican Republic, Vietnam, and El Salvador.

As Asian and Latin immigrants began to dominate the family-based immigration system in the 1970s and 1980s, somehow the preference for family reunification made less sense to some policymakers. Since the early 1980s, attacking kinship categories – especially the sibling category – has become a political sport played every few years. Often the complaint is based on arguments such as we should be bringing in skilled immigrants, a point system would be better, and in the case of the sibling category, brothers and sisters are not part of the “nuclear” family. Proposals to eliminate or reduce family immigration were led by Senator Alan Simpson throughout the 1980s, Congressman Bruce Morrison in 1990, and Senator Simpson and Congressman Lamar Smith in 1996. As prelude to the RAISE Act, the Senate actually passed S.744 in 2013 that would have eliminated family categories and installed a point system in exchange for a legalization program for undocumented immigrants.

Pitting so-called “merit-based” visas in opposition to family visas implies that family immigration represents the soft side of immigration while point-based immigration is more about being tough and strategic. The wrongheadedness of that suggestion is that family immigration has served our country well even from a purely economic perspective. The country needs workers with all levels of skill, and family immigration provides many of the needed workers.

A concern that the current system raises for some policymakers is based on their belief that the vast majority of immigrants who enter in kinship categories are working class or low-skilled. They wonder whether this is good for the country. Interestingly enough, many immigrants who enter in the sibling category actually are highly skilled. The vast majority of family immigrants are working age, who arrive anxious to work and ready to put their time and sweat into the job. But beyond that oversight by the complainants, what we know about the country and its general need for workers in the short and long terms is instructive.

The Wharton School of Business projects that the RAISE Act would actually lead to less economic growth and fewer jobs. Job losses would emerge because domestic workers will not fill all the jobs that current types of immigrant workers would have filled. In the long run, per capita GDP would dip. Furthermore, in the Bureau of Labor Statistics’s forecast of large-growth occupations, most jobs require only short- or moderate-term on-the-job training, suggesting lower skilled immigrants could contribute to meeting the demand for these types of jobs.

The economic data on today’s kinship immigrants are favorable for the country. The entry of low-skilled as well as high-skilled immigrants leads to faster economic growth by increasing the size of the market, thereby boosting productivity, investment, and technological practice. Technological advances are made by many immigrants who are neither well-educated nor well-paid. Moreover, many kinship-based immigrants open new businesses that employ natives as well as other immigrants; this is important because small businesses are now the most important source of new jobs in the United States. The current family-centered system results in designers, business leaders, investors, and Silicon Valley–type engineers. And much of the flexibility available to American entrepreneurs in experimenting with risky labor-intensive business ventures is afforded by the presence of low-wage immigrant workers. In short, kinship immigrants contribute greatly to this country’s vitality and growth, beyond the psychological benefits to family members who are able to reunite.

The preamble to the Universal Declaration of Human Rights highlights the unity of the family as the “foundation of freedom, justice and peace in the world” for good reason. Our families make us whole. Our families define us as human beings. Our families are at the center of our most treasured values. Our families make the nation strong.

Bill Ong Hing is the Founder and General Counsel of the Immigrant Legal Resource Center, and Professor of Law and Migration Studies, University of San Francisco”

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Unhappily, America has a sad history of using bogus arguments about the economy and protecting American labor to justify racist immigrantion acts.  Among other things, the Chinese Exclusion Act was supposed to protect the U.S. against the adverse effects of “coolie labor.”

I find it remarkable that those pushing the RASE Act are so ready to damage American families, the fabric of our society, and our economy in a futile attempt to achieve their White Nationalist vision.

PWS

08-18-17

BREAKING: IN MEMORIUM: HON. JUAN P. OSUNA, LEGENDARY IMMIGRATION FIGURE, DIES SUDDENLY — Was Chairman of BIA, Director of EOIR, High-Ranking DOJ Executive, Editor, Professor — Will Be Remembered As Kind, Gentle, Scholarly, Dedicated!

I have just learned that my friend and former colleague Juan P. Osuna tragically died suddenly of a heart attack last night. Until May of this year, Juan was the Director of EOIR. But, he was much more than that to those of us in the immigration world.

I first met Juan when he was an Editor for Interpreter Releases, the leading weekly immigration newsletter, working with one of my mentors, the late legendary Maurice A. Roberts. Juan later succeeded Maury as Editor-In-Chief and rose to a major editorial position within the West Publishing legal empire. He was serving in that position when I recommended him for a position as an Appellate Immigration Judge/Board Member of the Board of Immigration Appeals during my tenure as BIA Chair. Juan was appointed to that position by Attorney General Janet Reno in 2000.

While serving together on the BIA, Juan and I often joined forces in seeking full due process and legal protections for migrants. Sometimes, our voices were heard together in dissent. In one of those cases, Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) we joined in finding that our colleagues in the majority were interpreting the Convention Against Torture (“CAT”) in an overly restrictive way. In another, Matter of Andazola, 23 I&N Dec. 219 (BIA 2003), we joined in finding that our colleagues in the majority had significantly undervalued the Immigration Judge’s careful findings of “exceptional and extremely unusual hardship” to U.S. citizen children.

Following my reassignment from the BIA to the Arlington Immigration Court, Juan became the Vice Chair and eventually the Chair of the BIA after the departure of Lori Scialabba. But, Juan’s meteoric rise through the DOJ hierarchy was by no means over. In 2009, Attorney General Eric Holder appointed Juan to the position of Deputy Assistant Attorney General for the Civil Division with responsibility for the Office of Immigration Litigation. Later, he was promoted to Associate Deputy Attorney General with responsibility for the Department’s entire “immigration portfolio.”

Not surprisingly, following the departure of EOIR Director Kevin Ohlson, Attorney General Eric Holder named Juan Director of EOIR. In that position, Juan shepherded the U.S. Immigration Courts through some of the most difficult times in EOIR history, involving astronomically increasing caseloads and resource shortages. Throughout all of it, Juan remained calm, cool, and collected.

He was a frequent public speaker and testified before Congress on a number of occasions. He was known for his honesty and “straight answers.” Indeed, in one memorable television interview, Juan confessed that the Immigration Court system was “broken.”

One of my most vivid recollections of Juan’s sensitivity and humanity was when he occasionally stopped by the Arlington Immigration Court to “find out what’s happening at the grass roots.” After lunching with or meeting the judges, Juan invariably went to the desk of each and every staff member to ask them how their jobs were going and to thank them for their dedicated service. He understood that “the ship goes nowhere without a good crew.”

Shortly before I retired, Juan called me up and said he wanted to come over for lunch. We shared some of our “old times” at the BIA, including the day I called to tell him that he was Attorney General Janet Reno’s choice for a Board Member. We also batted around some ideas for Immigration Court reform and enhancing due process.

Back in my chambers, I thought somewhat wistfully that it was too bad that we hadn’t had an opportunity to talk more since my departure from the BIA. Little did I suspect that would be the last time I saw Juan. At the time of his death, he was an Adjunct Professor at Georgetown Law, where I am also on the adjunct faculty. Ironically, Juan took over the “Refugee Law and Policy” course that I taught from 2012-14.

Juan will always be remembered as a gentleman, a scholar, and an executive who appreciated the role that “ordinary folks” — be they migrants, staff, interpreters, or guards, — play in building and sustaining a successful justice system. He will be missed as a friend and a leader in the immigration world.

My thoughts and prayers go out to Juan’s wife, Wendy Young, President of Kids In Need of Defense (“KIND”), and the rest of Juan’s family and many friends. Rest in peace, my friend, colleague, and champion of due process for all!

PWS

08-16-17

 

 

NEW FROM TAL KOPAN AT CNN: DACA ON THE ROPES — “Only Congress can enact a permanent solution to the DACA situation!”

http://www.cnn.com/2017/08/15/politics/daca-anniversary-peril/index.html

Tal reports:

“Washington (CNN)Tuesday marks the fifth anniversary of a program that protects young undocumented immigrants from deportation — but supporters worry this one could be its last.

The Deferred Action for Childhood Arrivals program, or DACA, was implemented in 2012 under President Barack Obama, and President Donald Trump’s administration has continued running despite heated rhetoric against it from Trump on the campaign trail.
But DACA has arguably never been on shakier ground, and advocates for the program are desperately trying to protect it, including with a planned march Tuesday on the White House.
Nearly 800,000 undocumented immigrants have benefited from DACA, which protects individuals who were brought to the US illegally as children from deportation, and offers them the ability to work, study and drive legally. Applicants must meet certain criteria, pass a background check and maintain a clean record.
But despite the fact that the administration has continued to issue permits, concerns are increasing that the program could be ended.
“DACA is under grave threat,” Nevada Democratic Sen. Catherine Cortez Masto said on a conference call with reporters Monday.
Ten state attorneys general, led by Texas Attorney General Ken Paxton, have issued an ultimatum to the Trump administration — sunset DACA by September 5, or we’ll challenge it in court. The attorneys general have threatened to petition a court that’s considering a similar but separate Obama administration deferred action program, for parents, to also weigh the legality of DACA.
Experts believe that given the makeup of the court hearing the case, and its previous ruling against the parents program, the judges involved would likely strike down DACA as well.
If the court allows arguments against DACA, the Justice Department would be forced to decide whether it will defend the program. While Trump has recently spoken about how sympathetic he is to the “Dreamers” who receive DACA, saying the choice is “very, very hard to make,” he campaigned on a pledge to immediately rescind it. And the US attorney general, former Sen. Jeff Sessions, has been a chief opponent of the program.
The White House offered a cryptic statement on the program’s future, expressing only concern with illegal immigration.
“The President’s priority remains protecting the jobs, wages and security of American workers, families and communities — including the millions of Hispanic and African American workers disadvantaged by illegal immigration,” an administration official said.
On the call with reporters and a DACA recipient, Masto and California Democratic Sen. Kamala Harris extolled its virtues, citing estimates that the US economy would lose hundreds of billions of dollars without the contributions of DACA recipients.
“This is not just about what is morally right, this is not only a point about what is right in terms of fighting for the ideals of our country,” Harris said. “This is also right and smart in terms of public benefits.”
Both are co-sponsors of one bipartisan proposal to make the program permanent in Congress, the Dream Act, which also has three Republican co-sponsors. It’s one of four proposed bills that would codify DACA if the administration were to rescind it or the courts were to strike it down.
The Department of Justice did not respond to a CNN request for comment.
US Citizenship and Immigration Services, the division of the Department of Homeland Security, said the program remains under review.
“The Department of Homeland Security’s stance remains the same — the future of the DACA program continues to be under review with the administration,” said USCIS press secretary Gillian Christensen. “The President has remarked on the need to handle DACA with compassion and with heart. As a matter of policy, we do not comment on pending litigation, but we have said before only Congress can enact a permanent solution to the DACA situation.”
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I think the last statement in Tal’s article, from USCIS, hits the nail on the head. Congress has to come up with a solution to this issue or there will be chaos. Imagine another 800,000 cases of young people thrown into the U.S. Immigration Courts on top of the 610,000 cases already there! It’s Jason Dzubow’s vision of “Trump’s 100 year deportation plan” in action. http://immigrationcourtside.com/2017/08/14/jason-dzubow-in-the-asylumist-trumps-101-year-plan-for-removals-malevolence-tempered-by-incompetence/
As Nolan Rappaport has pointed out, it’s unlikely that any of the pending bills, in their present forms, will attract enough GOP support to be enacted. http://immigrationcourtside.com/2017/08/07/n-rappaport-in-the-hill-dems-dreamer-bill-offers-false-hope/
But perhaps Democrats and some willing Republicans can work on a compromise legislative solution. Otherwise, the results aren’t likely to be pretty — for the Dreamers or for our country’s future.
PWS
08-15-17

THE GIBSON REPORT — August 14, 2017

The Gibson Report 08-14-17

Here are the “Headliners:”

“TOP UPDATES

 

ICE eService for OCC

On Monday, August 21, 2017, U.S. Immigration and Customs Enforcement (ICE) eService will become available in the ICE Office of the Principal Legal Advisor (OPLA) New York City Office of Chief Counsel (OCC) area of responsibility.  See attached brochure, which describes what can be served electronically. To request access to ICE eService, please visit eserviceregistration.ice.gov.

 

ACLU Class Action Suit Charges that Efforts to Detain and Deport Children are Based on Unfounded Gang Allegations

Attorneys representing immigrant children and their families sued Attorney General Jeff Sessions, Immigration and Customs Enforcement (ICE), and the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR) today for using unsubstantiated claims of gang affiliation to illegally detain teenagers in jail-like facilities in California.

 

National Conference of State Legislatures Issues Report on Increase in State Immigration Legislation

Enacted legislation related to immigration increased in the first half of 2017 by 90 percent to 133 laws compared with 70 laws in 2016. The number of resolutions increased by 22 percent to 195 from 159. Lawmakers in 47 states enacted 133 laws and 195 resolutions related to immigration, for a total of 328. An additional nine bills were vetoed by governors and 18 are pending signatures. Trends 2017: Sanctuary policies, Refugees, Education/civics, Education/in-state tuition.

 

For-Profit Private Prison Operator Tells Investors that ICE Will Improve Company Earnings

“While in the past, ICE processing centers have been primarily utilized for individuals detained for multiple illegally border crossings, increasingly, ICE intends to utilize contract bed capacity for interior enforcement.”

 

ICE Investigating Families

Catholic Charities: It seems that ICE and HSI are getting contact information for families from minors at the border and are going on a fishing expedition to get evidence of immigration and criminal violations.  The first wave is taking action against people with immigration violations–arresting and detaining household members with outstanding removal orders, issuing NTA (but also sometimes detaining) those who are undocumented. There will likely be a second wave of using smuggling inadmissibility charges to limit the relief that these immigrants can receive.  The third wave will be criminally prosecuting people on federal charges of alien smuggling (which is a crime and carries 5 years of jail time). CLINIC and NYIC  and others are tracking these encounters. You may want to report to them. This is what we are telling people contacted by HSI and ICE:

  1. Talking to them is completely voluntary.  They have not issued a subpoena and you are not obligated to go to a meeting or answer your door. They may show up at your house; you do not have to let them in.
  2. You have a right to consult with a lawyer before you talk to them. You have a right to have a lawyer present during any conversations with them.
  3. 5th Amendment.  If you talk to them, what you say can and will be used against you in a deportation case and a criminal case. They are looking for evidence to use against you.

4.      Smuggling is a crime. (We usually walk then through the statute). It includes paying for but also just arranging and planning for someone to enter the U.S.  It doesn’t matter why you did this or how sympathetic the story is. If you admit to this crime, you can be prosecuted and put in jail. It is also an immigration violation which can be used against you.”

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Interesting that even ICE is more advanced in electronic filing than the Immigration Courts!

PWS

08-14-17

POLITICO HIGHLIGHTS LACK OF DUE PROCESS, CULTURAL AWARENESS, PROPER JUDICIAL TRAINING IN U.S. IMMIGRATION COURT’S HANDLING OF VIETNAMESE DEPORTATION CASE!

http://www.politico.com/story/2017/08/14/trump-immigration-crackdown-vietnam-241564

“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.

The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.

. . . .

The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.

Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.

At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.

POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.

Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.

On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.

Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.

Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”

Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.

The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.

Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.

Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.

“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”

*********************************************

Read Rogers’s much longer full article at the link.

It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”

http://immigrationcourtside.com/2017/07/20/in-immigration-circles-the-atlanta-court-is-known-as-where-due-process-goes-to-die-will-it-be-the-new-norm-the-asylumist-jason-dzubow-says-were-all-in-atlanta-now/

Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.

And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?

Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.

As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”

Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.

But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.

Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.

Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.

PWS

08-14-17

 

 

 

DIANE HENDRICKS: AMERICA’S SECOND RICHEST WOMAN’S QUEST TO REVIVE BELOIT, WI!

https://www.nytimes.com/video/business/100000005337194/beloit-a-small-wisconsin-town-seeks-to-become-a-tech-haven.html?emc=edit_nn_20170807&nl=morning-briefing&nlid=79213886&te=1

Alexandra Stevenson writes in the NY Times Business Section:

BELOIT, Wis. — When Diane Hendricks sees something she doesn’t like here, she buys it.

A bankrupt country club. A half-empty mall. Abandoned buildings. The rusting foundry down by the river.

Beloit used to be a town that made papermaking machines and diesel engines. Ms. Hendricks thinks it can be a place where start-ups create the next billion-dollar idea, and she is remaking the town to fit her vision. She can do so because she is the second-richest self-made woman in the United States, behind only Marian Ilitch of Little Caesars Pizza, according to Forbes magazine.

“I see old buildings, and I see an opportunity for putting things in them,” says Ms. Hendricks, 70, who got her start fixing up houses here as a single mother and made her billions selling roofing felt, copper gutters and cement with her late husband, Ken.

Now Ms. Hendricks is fixing up Beloit.

She took the library from its historic location downtown and resurrected it inside a failing mall at the edge of town, replacing the original with a performing arts center where dance and music students from Beloit College can study and perform each year. Then she scooped up nearly every building on a downtown block and knocked each one down, making way for a sushi restaurant, a high-quality burger joint and modern apartments with marble countertops and exposed-brick walls.

Lyndon French for The New York Times

“It’s the one thing that Ken and I said we’d never do: buy restaurants or a golf course. And now we have both.”

Diane Hendricks, founder and chairwoman of ABC Supply.

She called the complex the Phoenix. “It looks like we’re beautifying the city, but we’re really beautifying the economy,” she says, casting her piercing blue eyes out of the window of her office in Ironworks, the old foundry complex she converted into a commercial space.

She has wooed several start-ups, persuading them to set up shop in the old foundry building — one with the help of Wisconsin’s governor, Scott Walker, who personally called the co-founders on her behalf.

Ms. Hendricks, a major Republican donor, was briefly thrust into the national spotlight a few years ago when she was recorded asking Mr. Walker to break up the labor unions. He then introduced a bill limiting the ability of public workers to bargain over wages. In response, protesters occupied the halls of the Capitol for weeks.

Not long ago, Beloit’s economy was ugly. Like many American cities — Detroit, Youngstown, Gary — it had fallen victim to the damage that is wrought when one major industry vanishes from town, reversing local fortunes.

Beloit is different today. That’s because this town of nearly 37,000 has a billionaire who has gone to great lengths to help it turn a corner.

In a nation with countless struggling towns and small cities, Beloit is not a model for economic revival that is easily replicated, although a few others have tried.

. . . .

Despite Ms. Hendricks’s efforts, unemployment is still high. A short drive south of the Phoenix and new buildings turn to boarded-up shops. Beloit remains deeply troubled. About a quarter of the population lives in poverty, twice the rate of residents in the rest of Rock County. One in every four children lives in poverty in the county, according to Project 16:49, a nonprofit group that works with homeless youth.

What’s more, many new jobs are filled by people who commute to Beloit from nearby cities. At AccuLynx, a software company based in the Ironworks, just 17 percent of the employees live in Beloit. The rest live in nearby towns in Wisconsin and just over the border in Illinois.

And many of the new jobs require technical skills, like engineering, that residents who once worked in manufacturing often lack. “I know that there are parts of Beloit that are not sharing in this renaissance,” says Scott Bierman, president of Beloit College.

Mr. Bierman credits Ms. Hendricks for providing a vision of how things can be. Still, he says, “I worry a lot.”

While he does see signs that what Ms. Hendricks has built can be sustainable, “We’ll know a lot more once we get through the next recession,” he said.

For now, around 1,000 people currently work out of Ironworks, according to Mr. Gerbitz of Hendricks Commercial Properties. “Our goal is to get to 5,000, which was what was lost when Beloit Corporation went away,” he said.

Ironworks today is a far cry from its foundry origins. At AccuLynx, the software firm, there is a giant slide running down from the second floor to the first, a video-game console and a giant gold bell that is rung when sales are made.

AccuLynx’s founder, Rich Spanton, described the day his grandfather, who had worked at the foundry as a superintendent for nearly a half-century, visited the building, where he had spent a career assembling steel parts for paper machines. He was astonished at what he saw.

“He walked in,” Mr. Spanton recalls, “and he said, ‘Jeez, we couldn’t have gotten any work done if this had been our office.’”

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Cathy, Luna, and I happen to be in Beloit, Wisconsin this week visiting our daughter Anna, who is a middle school teacher in the Beloit Public Schools, her husband, Daniel, who is a Professor of Musicology at Beloit College, and their children Oscar and Eve. Cathy, Luna, and I actually walked by the “Phoenix Complex” this morning on our way to a vegan morning breakfast and coffee at “Bagels and More.” On the way back to Anna’s we walked along the Rock River walkway and saw the revitalized Iron Works Complex on the other side. Daniel’s office and classrooms are in the Hendricks Center for the Arts, mentioned in this article. All in all, Hendricks’s vision is everywhere in this part of Beloit.
As its often the case, not everyone here is a “fan” of Hendricks, particularly because of her politics and opposition to unions. On the other hand, one has to respect that 1) Hendricks worked hard for her money — she was a key part of her husband’s American success story; 2) she is turning her money into a public good, something that certainly not all billionaires do (nobody is “making” her invest in Beloit, rather than buying more cars, private planes, swimming pools, vacation homes, etc,. or doing some of the self-indulgent things that some other billionaires enjoy), 3) much like “white resentment,” there is always a certain amount of resentment of the rich just because they are rich; and 4) she can’t do it all — she’s bringing a different kind of job opportunity to Beloit and maybe it’s now up to others in the community and those who want to improve their lot to work hard to develop the skills needed to be successful in a technology-based regional economy — heavy manufacturing and machine tooling aren’t coming back to Beloit — ever.
I have to say that I’m quite favorably impressed by Hendricks’s efforts. Makes me wonder what would happen if someone “on the other side of the political equation” like Bill Gates, Jeff Bezos, Mark Zuckerberg joined up with her in a nonpartisan effort to bring the technological training to the area necessary to get the rest of the community into meaningful jobs. At any rate, she’s certainly someone who is “walking the walk and talking the talk.” Seems like a good role model for folks of any political persuasion.
Interestingly, in the complete story, a key point was when Hendricks and her late husband were turned down for a loan in Janesville, WI because the bank “didn’t want their kind of entrepreneurs.” (Sort of reminds me of the attitude some folks take toward migrants today.) So, they got out of Janesville and went to a more welcoming community — Beloit.
Just shows that “little insults, slights, and ‘disses,’ can have a huge and unexpected long term impact.” Something that Trump and his followers should keep in mind when dealing with all types of migrants. There almost certainly will come a day when we will need the goodwill and help of many of them — what impressions are we leaving with our current national dialogue on immigration and what will be the long-tern impact on America and our history?
Finally, this story wouldn’t be complete without a “shout out” to Anna, Daniel, and the other families making up the “Beloit Proud” movement. A core of young professionals, many connected with Beloit College, have chosen to make Beloit their homes, rather than “fleeing” to Madison, Rockford, IL., or even Janesville. They send their children to Beloit Public Schools, are heavily involved in community activities cities, and try to “buy local” and use local services whenever possible. Many have chosen to live in neighborhoods within walking distance from Beloit College. And, it seems to be working. Just in Anna’s and Daniel’s immediate neighborhood some dynamic young families have chosen to make Beloit their home and fix up their properties “just because it seems like a great place to live and do business.” I also wrote about “Beloit Proud” and the Beloit College in a post earlier this summer about my short experience as a “Guest Professor” in Professor Jennifer Esperanza’s Cultural Anthropology course June. http://immigrationcourtside.com/2017/06/05/anth-375-beloit-college-professor-jennifer-esperanza-her-students-blaze-path-to-understanding-migration-in-the-liberal-arts-context-every-college-in-america-should-be-teaching-these-essential/
I doubt that I will ever meet Diane Hendricks. If I did, I’m sure we wouldn’t find much common political ground. But, we would agree that investing in Beloit and making it a great place to live — for everyone — is a great and noble idea and that she is setting an example for others to follow.
PWS
08-07-17

POLITICS: CAROL ANDERSON IN THE NYT: TRUMP CHANNELS WHITE RESENTMENT — “policies . . . based on perception and lies rather than reality . . . nothing new!”

https://mobile.nytimes.com/2017/08/05/opinion/sunday/white-resentment-affirmative-action.html?em_pos=small&emc=edit_ty_20170807&nl=opinion-today&nl_art=13&nlid=79213886&ref=headline&te=1&referer=

Anderson writes in the NYT Sunday Review:

“White resentment put Donald Trump in the White House. And there is every indication that it will keep him there, especially as he continues to transform that seething, irrational fear about an increasingly diverse America into policies that feed his supporters’ worst racial anxieties.

If there is one consistent thread through Mr. Trump’s political career, it is his overt connection to white resentment and white nationalism. Mr. Trump’s fixation on Barack Obama’s birth certificate gave him the white nationalist street cred that no other Republican candidate could match, and that credibility has sustained him in office — no amount of scandal or evidence of incompetence will undermine his followers’ belief that he, and he alone, could Make America White Again.

The guiding principle in Mr. Trump’s government is to turn the politics of white resentment into the policies of white rage — that calculated mechanism of executive orders, laws and agency directives that undermines and punishes minority achievement and aspiration. No wonder that, even while his White House sinks deeper into chaos, scandal and legislative mismanagement, Mr. Trump’s approval rating among whites (and only whites) has remained unnaturally high. Washington may obsess over Obamacare repeal, Russian sanctions and the debt ceiling, but Mr. Trump’s base sees something different — and, to them, inspiring.

Like on Christmas morning, every day brings his supporters presents: travel bans against Muslims, Immigration and Customs Enforcement raids in Hispanic communities and brutal, family-gutting deportations, a crackdown on sanctuary cities, an Election Integrity Commission stacked with notorious vote suppressors, announcements of a ban on transgender personnel in the military, approval of police brutality against “thugs,” a denial of citizenship to immigrants who serve in the armed forces and a renewed war on drugs that, if it is anything like the last one, will single out African-Americans and Latinos although they are not the primary drug users in this country. Last week, Mr. Trump and Attorney General Jeff Sessions put the latest package under the tree: a staffing call for a case on reverse discrimination in college admissions, likely the first step in a federal assault on affirmative action and a determination to hunt for colleges and universities that discriminate against white applicants.

That so many of these policies are based on perception and lies rather than reality is nothing new. White resentment has long thrived on the fantasy of being under siege and having to fight back, as the mass lynchings and destruction of thriving, politically active black communities in Colfax, La. (1873), Wilmington, N.C. (1898), Ocoee, Fla. (1920), and Tulsa, Okla. (1921), attest. White resentment needs the boogeyman of job-taking, maiden-ravaging, tax-evading, criminally inclined others to justify the policies that thwart the upward mobility and success of people of color.

. . . .

Part of what has been essential in this narrative of affirmative action as theft of white resources — my college acceptance, my job — is the notion of “merit,” where whites have it but others don’t. When California banned affirmative action in college admissions and relied solely on standardized test scores and grades as the definition of “qualified,” black and Latino enrollments plummeted. Whites, however, were not the beneficiaries of this “merit-based” system. Instead, Asian enrollments soared and with that came white resentment at both “the hordes of Asians” at places like the University of California, Los Angeles, and an admissions process that stressed grades over other criteria.

That white resentment simply found a new target for its ire is no coincidence; white identity is often defined by its sense of being ever under attack, with the system stacked against it. That’s why Mr. Trump’s policies are not aimed at ameliorating white resentment, but deepening it. His agenda is not, fundamentally, about creating jobs or protecting programs that benefit everyone, including whites; it’s about creating purported enemies and then attacking them.

In the end, white resentment is so myopic and selfish that it cannot see that when the larger nation is thriving, whites are, too. Instead, it favors policies and politicians that may make America white again, but also hobbled and weakened, a nation that has squandered its greatest assets — its people and its democracy.

PWS
08-07-17

THE “GIBSON REPORT” FOR AUGUST 7, 2017

GIBSON REPORT, 08-07-17

As usual, lots of “good stuff” in Elizabeth’s Report.  Here are the “Top Stories:”

“TOP UPDATES

 

NYIFUP Accepting New Cases Again

BDS: As most of you know, the New York Immigrant Family Unity Project (NYIFUP) has not been in intake recently. We are pleased to let you know that the NYIFUP providers will be back accepting new cases at the Varick Street Court as of August 14th for clients who are detained, unrepresented, and financially eligible. We will not be imposing a bar to our services based on criminal history. Because we intake unrepresented clients directly at the court, there is no need to refer us cases, although you are welcome to let the providers know about someone who will be coming through intake ahead of time. At this time, the providers are still determining our capacity to accept cases whose first appearance was during the time that we were out of intake. If you have specific questions about NYIFUP or an individual case, you can reach out to me, to Sarah Gillman at the Legal Aid Society (stgillman@legal-aid.org), or to Sarah Deri Oshiro at the Bronx Defenders (sarahdo@bronxdefenders.org). Thank all of you for your strong support of NYIFUP this year. NYT Coverage.

 

Increased number of RFEs for pending I-360 SIJS petitions and notices of intent to revoke approved I-360 SIJS petitions

USCIS has been issuing an increased number of RFEs for pending I-360 SIJS petitions and notices of intent to revoke approved I-360 SIJS petitions. USCIS is primarily issuing RFEs to SIJS applicants that were 18 years old or older at the time the guardianship order was issued. However, they are also issuing RFEs to SIJS applicants that obtained a custody order.

 

EOIR Memo on continuancesIssued July 31, 2017, it directs IJs to take a less liberal stance with regards to continuances, taking into account the complexity of the case, etc. Respondents will be granted at least one continuance to obtain counsel, but it may be harder to receive additional adjournments if they cannot show diligence in seeking counsel.

 

  1. 1720: RAISE Act

While it is unlikely that this bill will ever become a law, it has gained a lot of press since Trump announced his support for it. The law would have a significant impact on family-based immigration and also would affect employment-based and refugee programs. In short, it would, cut family-based immigration in half over the next decade (eliminating the categories of adult parents of U.S. citizens, adult siblings of U.S. citizens, unmarried or married adult children of U.S. citizens, and unmarried adult children of LPRs), end the diversity visa lottery, and cap refugee admissions at 50,000. For elderly parents there would be a renewable nonimmigrant visa granted on the condition that parents will not work, access public benefits, and must be guaranteed support and health insurance by their sponsoring children. MPI analysis.

 

DOJ Announces Anti-Sanctuary City Language Required for Participation in Public Safety Partnership Program

The Department of Justice announced that, in order to participate in the Public Safety Partnership (PSP) program, local jurisdictions must answer questions that “show a commitment to reducing crime stemming from illegal immigration.” Twelve locations were initially selected for the program. AILA Doc. No. 17080333

 

Data Shows Prosecutorial Discretion Grinds to a Halt in Immigration Courts

The Department of Justice (DOJ) announced last month that it now has hired 326 immigration judges, 53 more judges than July 2016, yet during that time the immigration court backlog has grown. According to new data released by the Transactional Records Access Clearinghouse (TRAC) the reason for this may be due to the fact that the Trump administration has nearly ended the use of prosecutorial discretion to close cases, forcing judges to place them all on their dockets.

 

Advocates File Amicus Brief with BIA on the Modified Categorical Approach and CIMTs

Responding to an amicus invitation, AILA, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild filed a brief taking the position that the BIA should not depart from the categorical approach when analyzing reprehensibility element of the CIMT analysis. AILA Doc. No. 17080403

 

Civil Rights Groups Sue State Department – demand processing of Diversity Visa Winners

Civil rights groups filed a federal lawsuit challenging the State Department’s refusal to process visa applications for winners of the U.S. Diversity Visa Program lottery who hail from the six countries covered by President Trump’s Muslim ban.  P.K. v. Tillerson, was filed in the U.S. District Court in Washington, D.C.

 

Still No Action Taken: Complaints Against Border Patrol Agents Continue to Go Unanswered

According to more recent CBP data obtained by the American Immigration Council, the agency has made little progress in its efforts to improve accountability. This data, obtained through a Freedom of Information Act (FOIA) request, includes 2,178 cases of alleged misconduct by Border Patrol agents and supervisors that were filed between January 2012 and October 2015.”

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Go the the full report at the link for more.

PWS

08-07-17

 

CATO’S DAVID J. BIER IN THE NYT: IGNORANCE IS NOT BLISS, PARTICULARLY WHEN IT COMES TO PUSHING MISGUIDED IMMIGRATION SCHEMES!

https://www.nytimes.com/2017/08/04/opinion/ignorant-immigration-reform.html?ribbon-ad-idx=5&rref=opinion&module=Ribbon&version=context®ion=Header&action=click&contentCollection=Opinion&pgtype=article&_r=0

Bier writes:

“This week the Republican senators Tom Cotton of Arkansas and David Perdue of Georgia introduced a bill that they said would cut legal immigration to the United States by 50 percent. They are right about that, but nearly everything else that they have said about their bill is false or misleading.

The senators, whose bill is endorsed by President Trump, argue that America is experiencing abnormally high immigration; that these immigrants are hurting American wages; and that their bill would prioritize skilled immigrants, the way Canada does, thus making the United States more competitive internationally. These talking points are pure fiction.

They have justified this drastic cut in immigration by stating that the bill will, as they put it in February when announcing an earlier version, bring “legal immigration levels” back down to “their historical norms.” But the senators fail to consider the impact of population growth. A million immigrants to the United States in 2017 isn’t equivalent to the same number in 1900, when there were a quarter as many Americans.

Controlling for population, today’s immigration rate is nearly 30 percent below its historical average. If their bill becomes law, the rate would fall to about 60 percent below average. With few exceptions, the only years with such a low immigration rate were during the world wars and the Great Depression. Surely, these are not the “norms” to which the senators seek to return.

Senator Cotton is trying to connect a slow increase in the immigration rate in recent decades to declining wages for Americans without a college degree, implying that low-skilled workers are facing more competition for jobs than in earlier years. But this correlation is spurious, because it ignores the size of the overall labor pool.

. . . .

Rather than cutting immigration, Congress should raise the employment-based quotas, which it has not adjusted since 1990 — when the United States had some 77 million fewer people and the economy was half the size it is now. A smart reform would double green cards and peg future work visas to economic growth, responding to market forces rather than political whims.

Smart reforms, however, require that Congress first understand the basic facts: America has not seen a deluge of immigration. Low-skilled American-born workers have not faced more competition for jobs. Other countries accept more immigrants per capita. Until these facts penetrate the halls of the Capitol, the immigration debate will continue to be mired in ignorant proposals like this.

*****************************************************

Read Bier’s complete op-ed at the above link.

Raising legal immigration to more realistic levels, consistent with market forces, would also facilitate “smart” law enforcement. Fewer needed workers would have to come “outside” the system. Once there is a realistic “line” the threat of being “sent to the end of the line” or even taken out of “the line” would become more effective in deterring unauthorized entries. Immigration enforcement could concentrate on a fewer number of folks trying to evade the system, rather than, as is the case now, concentrating largely on “busting” those who are coming to take jobs that play a constructive and expansive role in the American economy.

The workforce age individuals within the 10 –11 million undocumented individuals here now are almost all working in jobs that help support the American economy. Indeed, removing them all tomorrow would “tank” many American businesses and likely send the entire economy into a tailspin. Legalizing them would insure that they all pay takes and prevent them from being exploited by unscrupulous employers.

Legalization + more legal immigration is a “win-win” for America and its workers of all types and statuses.

PWS

08-07-17

In an Editorial today, the NY Times was equally unimpressed with the Trump/GOP proposal for cutting immigration, calling it “senseless:”

“The issue of immigration in America is volatile and complex and thus vulnerable to seductive promises. This bill falls into that category. Its central premise — that it would help American workers — is false. It’s true that an influx of workers can cause short-term disruptions to the labor market, but the impact on the wages of native workers over a period of 10 years or more is “very small,” according to a comprehensive National Academies of Sciences, Engineering and Medicine reportpublished last year.

Moreover, as studies have repeatedly shown, immigration boosts productivity and economic growth; restricting it would have the opposite effect. Growth is determined by the changes in productivity — how much each worker produces — and the size of the work force. Productivity in recent decades has been growing more slowly than in the past for reasons that economists do not fully understand. The labor force is also growing slowly as baby boomers retire. Restricting immigration would reinforce both trends.

Mr. Trump and the senators behind this bill seem to believe that immigrants who are admitted to America because they have family ties possess few skills and are of little value to the country. That’s simply not so. About 41 percent of legal immigrants, the large majority of whom are relatives of citizens, have at least a bachelor’s degree, according to a 2015 Pew Research Center report.

Hostility to immigration was a pillar of Mr. Trump’s presidential campaign, and he has surrounded himself with like-minded officials, so it’s no surprise that he likes this bill. But it is a bridge too far for Republicans like Senators Lindsey Graham of South Carolina and Ron Johnson of Wisconsin, which makes it unlikely to go anywhere. The right approach to immigration reform would be bipartisan and comprehensive. It would include stronger enforcement, better worker protections and a pathway to citizenship for the country’s 11 million unauthorized immigrants.

A Quinnipiac poll released last week showed the president’s job approval ratings at a new low, even among demographic groups that make up his base. About 61 percent of voters disapproved of the way Mr. Trump was doing his job, including half of whites without a college degree. Mr. Trump’s recent messages opposing transgender people in the armed forces and encouraging aggressive behavior by the police have been seen as efforts to recapture that base. His support for this immigration bill is more of the same.”

Read the complete editorial at this link:

https://mobile.nytimes.com/2017/08/07/opinion/trump-legal-immigration-senseless.html?em_pos=small&emc=edit_ty_20170807&nl=opinion-today&nl_art=0&nlid=79213886&ref=headline&te=1&referer=

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Ignorance, arrogance, while nationalism, racism, xenophobia are a dangerous combination.

PWS

08-07-17

 

 

TRUMP & GOP EXTREMISTS DECLARE WAR ON AMERICA: Xenophobic, Racist Agenda Also Attacks Young & Old — CNN’S TAL KOPAN BREAKS DOWN WHAT RAISE ACT REALLY DOES!

http://www.cnn.com/2017/08/02/politics/cotton-perdue-trump-bill-point-system-merit-based/index.html

Tal writes:

“Under the plan — if approved by Congress, which will be a heavy lift — the highest point-getting candidate, for example, not including special circumstances, would be a 26- to 31-year-old with a US-based doctorate or professional degree, who speaks nearly perfect English and who has a salary offer that’s three times as high as the median income where they are.
Have an Olympic medal or Nobel Prize? That will help too.
A candidate must have at least 30 points to apply.
Here’s how the points would be doled out:

Age

Priority is given to prime working ages. Someone aged 18 through 21 gets six points, ages 22 through 25 gets eight points and ages 26 through 30 get 10 points.
The points then decrease, with someone aged 31 through 35 getting eight points, 36 through 40 getting six points, ages 41 through 45 getting four points and ages 46 through 50 getting two points.
Minors under the age of 18 and those over the age of 50 receive no points, though people over 50 years old are still allowed to apply.”
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Read Tal’s complete article at the link.
PWS
08-03-17

CIVIL RIGHTS: Sessions Discovers America’s REAL Civil Rights Crisis — Insufficient White Privilege — Every White Kid Should Have Have Preferred Admission (How Else Do You Think Trump & Some Of His Cronies Got Into Good Schools?) — Gonzo Wants To Use Taxpayer $$$ To Turn Civil Rights Laws Against Blacks & Other Minorities!

https://www.nytimes.com/2017/08/01/us/politics/trump-affirmative-action-universities.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0

Charlie Savage reports for the NY Times:

“WASHINGTON — The Trump administration is preparing to redirect resources of the Justice Department’s civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants, according to a document obtained by The New York Times.

The document, an internal announcement to the civil rights division, seeks current lawyers interested in working for a new project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

The announcement suggests that the project will be run out of the division’s front office, where the Trump administration’s political appointees work, rather than its Educational Opportunities Section, which is run by career civil servants and normally handles work involving schools and universities.

The document does not explicitly identify whom the Justice Department considers at risk of discrimination because of affirmative action admissions policies. But the phrasing it uses, “intentional race-based discrimination,” cuts to the heart of programs designed to bring more minority students to university campuses.

Supporters and critics of the project said it was clearly targeting admissions programs that can give members of generally disadvantaged groups, like black and Latino students, an edge over other applicants with comparable or higher test scores.

The project is another sign that the civil rights division is taking on a conservative tilt under President Trump and Attorney General Jeff Sessions. It follows other changes in Justice Department policy on voting rights, gay rights and police reforms.

. . . .

The pending start of the affirmative action project — division lawyers who want to work on it must submit their résumés by Aug. 9, the announcement said — joins a series of changes involving civil rights law since Mr. Trump’s inauguration.

In a lawsuit challenging Texas’ strict voter identification law, the Justice Department switched its position, dropping the claim that the law was intentionally discriminatory and later declaring that the law had been fixed. Mr. Sessions has also made clear he is not interested in using consent decrees to impose reforms on troubled police departments and has initiated a sweeping review of existing agreements.

Last week, the Justice Department, without being asked, filed a brief in a private employment discrimination lawsuit. It urged an appeals court not to interpret the ban on sex-based discrimination in the Civil Rights Act of 1964 as covering sexual orientation. The Obama administration had shied from taking a stand on that question.

Vanita Gupta, who ran the civil rights division in the Obama administration’s second term and is now president of the liberal Leadership Conference on Civil and Human Rights, noted that the briefs in the Texas voter identification and gay-rights cases were signed only by Trump administration political appointees, not career officials, just as the affirmative action project will apparently be run directly by the division’s front office.

“The fact that the position is in the political front office, and not in the career section that enforces antidiscrimination laws for education, suggests that this person will be carrying out an agenda aimed at undermining diversity in higher education without needing to say it,” Ms. Gupta said.

The civil rights division has been a recurring culture-war battleground as it passed between Democratic and Republican administrations.”

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Wow! Talk about waste, fraud, and abuse by political officials at the DOJ! Oh, GAO, where art thou when the country needs you? Assuming that any minorities can still vote by the time Sessions and Trump get through — a big if — they might want to consider turning out for candidates who will support the “original intent” of Civil Rights laws, rather than perverting them to further entrench  the White (Largely Male) GOP Establishment.

PWS

08-02-17

The Gibson Report for July 31, 2017

The-Gibson-Report-July-31-2017

 

PWS

08-31-17

“BASIC ASYLUM TRAINING FOR LITIGATORS” — Read My July 25, 2017 Pro Bono Training Presentation For Jones Day!

Click on this link for a “Printable Copy”:

JONES DAY TRAINING

Here’s the “complete text:”

BASIC ASYLUM LAW FOR LITIGATORS

 

OUTLINE

 

I.  INTRODUCTION

II. WHO IS A REFUGEE?

A. Refugee Definition

B.  Standard of Proof

C.  What Is Persecution?

D.  Nexus

 

III. PARTICULAR SOCIAL GROUP

A.  The Three Requirements

B.  Success Stories

C.  The Usual Losers

D.  What Can Go Wrong?

E.  A Few Practical Tips on PSG

 

IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT

V.  CONCLUSION

 

  1. INTRODUCTION

 

Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.

 

Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.

 

There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!

 

I appreciate the outstanding leadership and amazing commitment of your managing partner Steve Brogan, your Global Pro Bono Coordinator Laura Tuell, and folks like Mary Hale and many others who have been making this happen on a daily basis. It’s what I call “due process in action.” I know that Steve feels very deeply about the overwhelming need for everyone to get a day in court. He has written very forcefully and eloquently on it in the past and has certainly helped to raise the profile of the representation crisis facing our Immigration Courts.

 

Jones Day isn’t just “talking the talk.” Although it’s now been 25 years since the end of my time as a partner in Jones Day’s Washington Office, I am well aware of the tremendous time and financial commitment that your partnership is making to saving and preserving our justice system and in many cases to saving the very lives of the folks who depend on it. For, as Steve and others at the firm realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.

 

I also congratulate and appreciate your willingness to undertake representation in all types of cases, rather than “cherry picking” likely winners as is always a temptation. As a judge, I found that cases that look like “sure losers” at the Master Calendar sometimes turn into “winners” when a knowledgeable and dedicated attorney enters the picture.

 

Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.

 

We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.

 

I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of a detained migrant are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.

 

Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.

 

I do want to offer one important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.

My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.

 

Please feel free to ask questions as we go along, or save them until the end.

 

II.        WHO IS A REFUGEE?

 

In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”

A.        Refugee Definition

 

An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.

The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:

  1. Generally, outside the country of nationality (not usually an issue in border cases);
  2. Unwilling or unable to return (failure of state protection);
  3. Because of persecution (undefined) or a well founded fear of persecution;
  4. On account of race, religion, nationality, membership in a particular social group, or political opinion (“nexus”).

 

There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.

Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.

Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution often do not qualify individuals for refugee status. However, some of these circumstances might be covered by the CAT, which has no nexus requirement.

The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.

B.        Standard of Proof

 

The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.

The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.

A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.

Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.

C.        What Is Persecution?

 

Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.

In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner of the Seventh Circuit Court of Appeals in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7th Cir. 2011). Judge Posner gave three examples.

“The three forms are discrimination, harassment, and persecution. The first refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”

Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”

Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”

These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.

D.        Nexus

 

The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.

The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.

The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fifth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fifth Circuit at present.

Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.

Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.

Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5th Cir. 2015). Consequently, you will have to deal with the restrictive interpretation in L-E-A- and Ramirez-Mejia.

The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”

What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”

But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears to made the family PSG ground largely superfluous.

This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A-, the BIA is unlikely to retreat from L-E-A-, and the Fifth Circuit seems disposed to go along with the L-E-A- view.

On the other hand, to my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.

In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your detained client’s current problems.

So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.

Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.

Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both Jones Day specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.

This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.

III.      PARTICULAR SOCIAL GROUP

 

In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.

A.        The Three Requirements

 

The BIA has established three requirements for a PSG.

  1. Immutability or fundamental to identity;
  2. Particularity; and
  3. Social distinction.

 

These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.

There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.

The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”

While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.

About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).

In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than Jones Day – you guys!

B. Success Stories

There are four basic groups that have been relatively successful in establishing PSG claims.

  1. LGBT individuals under Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990);
  2. Women who fear or suffered female genital mutilation (“FGM”) under my decision in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996);
  3. Victims of domestic violence under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); and
  4. Family under the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th 2011), a case in which I was the Immigration Judge and Jones Day was pro bono counsel.

You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.

Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.

You probably will not encounter too many FGM cases at the Southern Border. Nevertheless, there are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.

Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.

You are likely to find a number of Southern Border cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now. And, sadly, you won’t be presenting these cases in Arlington.

Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014).

C. The Usual Losers

PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases at the Southern border. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.

D. What Can Go Wrong?

Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.

An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.

We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.

That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.

Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.

E.  A Few Practical Tips on PSG

I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.

First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.

 

Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.

 

Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”

 

Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.

 

Fifth, as I just mentioned, check your particular social group for “circularity.”

Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.

My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.

 

Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.

 

Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.

 

Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.

 

At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?

 

 

That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.

 

But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.

However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.

 

In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”

 

“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.

 

My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.

 

My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.

 

I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”

 

My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.

 

For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit. Nor are the courts in Texas where most of you will be appearing.

 

This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.

 

My eleventh rule is to “Get Physical.”   In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).

 

I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?

 

My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm was effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.

 

My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.

 

Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”

 

But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.

 

Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyone who has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect more arrests, more detention (particularly in far-away, inconvenient locations like, for instance, Laredo, TX), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.

 

The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”

V. CONCLUSION

 

In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.

 

Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.

 

I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”

 

Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.

 

Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.

 

© Paul Wickham Schmidt, 2017, All Rights Reserved.

(08-01-17++)

 

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PROGRAM NOTE: I am a former Partner at Jones Day. resident in the Washington, D.C. Office.

 


 

U.S. IMMIGRATION COURTS APEAR STACKED AGAINST CENTRAL AMERICAN ASYLUM APPLICANTS — Charlotte, NC Approval Rates Far Below Those Elsewhere In 4th Circuit — Is Precedent Being Misapplied?

https://www.washingtonpost.com/national/migrants-in-surge-fare-worse-in-immigration-court-than-other-groups/2017/07/30/e29eeacc-6e51-11e7-9c15-177740635e83_story.html?utm_term=.5d2ca3c80278

 

Julia Preston of The Marshall Project reports in the Washington Post:

— Toward the end of a recent morning hearing in immigration court, Judge V. Stuart Couch looked out from his bench on a nearly empty chamber. On one side sat the prosecutor. But at the table for the immigrants, the chairs were vacant.

From a stack of case files, Couch called out names of asylum seekers: Dina Marciela Baires from El Salvador and her three children. No answer. Lesley Carolina Cardoza from Honduras and her young daughter. Silence. After identifying 17 people who had failed to appear for their hearings, the judge ordered all of them to be deported.

The scene is replaying across the country as immigration courts resolve the asylum cases of families who streamed across the Southwest border since 2014. Tens of thousands of families from El Salvador, Honduras and Guatemala, and some from Mexico, came here citing their need for protection from predatory gangs and criminal violence. Now, they face the prospect of being sent back to countries they fear have not become any less dangerous.

Of nearly 100,000 parents and children who have come before the courts since 2014, most asking for refuge, judges have issued rulings in at least 32,500 cases, court records show. The majority — 70 percent — ended with deportation orders in absentia, pronounced by judges to empty courtrooms.

Their cases are failing just as President Trump is rapidly expanding deportations.

Immigration courts have long had high rates of in absentia rulings, with one-quarter of all cases resolved by such decisions last year. But the rate for families who came in the border surge stands out as far higher, according to the Justice Department office that runs the immigration courts and tracked the cases of those families over the past three years.

Many immigrants did not understand what they were supposed to do to pursue their claims and could not connect with lawyers to guide them. Some just stayed away, fearing they could be deported directly from courthouses and choosing instead to take their chances in the immigration underground.

New cohort of fugitives

As a result, migrants from the surge are faring worse in the courts than other groups. By late January, the courts had granted asylum or otherwise allowed migrants to remain legally in this country in 3,792, or 11 percent, of those cases involving families, the figures show. By contrast, in all asylum cases last year, 43 percent ended in approvals.

The large-scale failure of the families’ claims is the final unraveling of President Barack Obama’s strategy to deal with the asylum seekers.

Unlike most illegal border crossers, who can generally be swiftly deported, many recent migrants from Central America asserted that they had strong reasons for seeking protection in the United States. Rather than dodging the Border Patrol, they turned themselves in, saying they were afraid to return home. Under U.S. law, that starts an asylum proceeding in which courts evaluate claims that migrants faced dangerous persecution.

When the surge began in 2014, Obama administration officials, worried they could spur an even greater flow if they accepted the migrants as refugees, tried to detain them near the border and deport them. But federal courts curtailed the detention of children and their parents, and so the Obama administration funneled them into immigration courts to ask for asylum. Families and unaccompanied minors who passed a first stage of screening at the border were released to pursue their cases in courts around the country.

In many of those cases, judges in the overburdened courts are only now rendering their decisions — and families from the Central American surge are becoming a new cohort of immigrant fugitives.

In the past, an order of removal — the immigration equivalent of an arrest warrant — did not necessarily lead to swift expulsion. But the Trump administration has made it clear that anyone on the wrong side of immigration law can be tracked down and deported, whether or not they committed a serious crime.


María Arita and her children, Amilcar, left, and Allison, at their home in Charlotte. Arita came to the United States from Honduras in 2013 with her then-3-year-old son to escape a gang that was targeting her family. (Logan Cyrus/For The Washington Post)
‘Don’t stop in Charlotte!’

The fates of the asylum-seeking families are particularly stark in Charlotte. Three immigration judges, appointed by the U.S. attorney general, labor under a backlog of nearly 8,000 cases. The court, which covers both Carolinas, has an amply earned reputation as one of the toughest in which to win an asylum case.

María Arita discovered these realities only after she left Honduras in 2013, forded the Rio Grande in south Texas with her 3-year-old son, turned herself in to border authorities and was sent to Charlotte to join her husband, who had found work here after coming illegally a year earlier. She said a mara — a criminal gang — had taken a dislike to her husband, for reasons the family still does not fully understand. But the gang made its animus very clear.

“First they killed my brother-in-law,” Arita said, trying to remember the attacks in the correct order. “Then they killed my father-in-law. Then . . . they shot another brother-in-law. That’s when my husband realized he had to get out, and he left for the United States. Then they broke down the door of my house. I wasn’t home, but they left a message saying they were going to kidnap my son to make my husband come back.”

Unlike many asylum seekers in this region, Arita found a lawyer. But after she paid several thousand dollars in legal fees, she said, he dropped her case. Despite her family’s trail of death in Honduras, he told her, she wasn’t going to win in Charlotte.


A photo of María Arita from when she was living in Honduras, next to a school photo of her son, Amilcar. (Logan Cyrus/For The Washington Post)

Terrified of going back, she went by herself to a hearing this spring. Before it was over, the judge had denied her claim and given her a few weeks to pack up, take her son and leave the United States. Results like that are among many reasons immigrants nationwide have been failing to appear in court.

Some migrants came to this country more to escape poverty than violence, and they may have avoided court because they knew their asylum claims were likely to be rejected. But more than 85 percent of the families passed the first legal test for asylum, in which they had to show they had a “credible fear” of returning home, according to Department of Homeland Security figures.

For many of them, the law itself presents a problem. Migrants running from gangs do not easily fit into the classic categories for asylum, which offers protection to people fearing persecution based on race, religion, nationality or politics. Yet in some courts, artful lawyers have won for people from Central America by crafting cases to fit a fifth, more loosely defined category of persecution in the law, against members of a “particular social group.” In recent years, migrant women have also won if they were escaping extreme domestic violence.

But not in Charlotte. Couch and Judge  — two out of three judges on the bench — have made it clear they view asylum as a narrow opportunity, and they regard claims stemming from gang violence as inconsistent with the letter of the law. Couch has scolded lawyers for trying to bend the statute like “silly putty” to make it work for Central American migrants.

Couch grants asylum in 18 percent of the cases he hears, while Pettinato grants 15 percent, both less than half the national rate, according to an analysis of court records by the Transactional Records Access Clearinghouse (TRAC), a data research group at Syracuse University. As sitting judges, Couch and Pettinato were not able to comment on their rulings.

“We should set up billboards on the highway for people coming from the border. Keep going, don’t stop in Charlotte!” said Viridiana Martínez, who works with Alerta Migratoria, a group in Durham, N.C., that helps immigrants fight deportation.”

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Read Julia’s complete article at the link.

According to the FY 216 Statistics Yearbook, elsewhere in the Fourth Circuit the Baltimore Immigration Court granted 63% of asylum application while the Arlington Immigration Court was nearly identical with 62%. The Charlotte Immigration Court, on the other hand, was 17%.

The Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) and the BIA in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) both commanded that the “well-founded fear” standard for asylum be generously applied in favor of applicants! Although the BIA has not been as generous as it could and should have been in cases involving Central Americans needing protection from targeted gang violence, they have gone out of their way to reject notions that there should be any “presumption” against asylum grants from Central America. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 251 (BIA 2014), the BIA cautioned their decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. . . . . Social group determinations are made on a case-by-case basis.”

Moreover, established BIA precedents giving favorable treatment to LGBT individuals and those seeking protection from domestic violence frequently apply to cases of those fleeing Central America. See e.g., Matter of Tobaso-Alfonso, 20 I&N Dec. 819 (BIA 1990) (gays); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)  (domestic violence). Additionally, the Fourth Circuit Court of Appeals has generally been protective of the substantive and procedural rights of asylum  seekers. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117  (4th Cir. 2011) (family members).

Something is seriously wrong in the Charlotte Immigration Court. Due process is not being fully protected. More seriously, nobody in “the system” — DOJ & EOIR — appears to care or be doing anything to correct the problems in Charlotte.

This is symptomatic of deeper problems in our U.S. Immigration Court system: 1) a weak BIA that fails to protect asylum seekers and require IJs to follow precedents favorable to asylum seekers; 2) lack of proper training compounded by the departure of experienced judges, hiring of new judges, and an inexplicable decision by the DOJ to cancel IJ training this year; and 3) a biased selection system that has systematically excluded private sector asylum expertise developed in representing applicants over this and the past three Administrations. Overall, it is what happens when a system lacks judicial independence and has not developed a merit selection system for judges.

The Immigration Judges in Charlotte can and should do better in providing fairness and due process for asylum seekers. Given the systemic failures, at present it appears to be up to those representing asylum seekers and the Fourth Circuit Court of Appeals to see that asylum seekers in the Charlotte Immigration Court receive the Constitutional due process to which they are entitled.

PWS

07-31-17

 

 

MY MOST RECENT SPEECHES: “MY LIFE & TIMES” — CATHOLIC LEGAL IMMIGRATION NETWORK (“CLINIC”), July 18, 2017; “JOIN THE ‘NEW DUE PROCESS ARMY’ — FIGHT FOR DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” — HUMAN RIGHTS FIRST, JULY 19, 2017

On Tuesday July 18, 2107, I gave a luncheon address to interns and staff at the Catholic Legal Immigration Network (“CLINIC”) in Silver Spring, MD. My speech entitled “My Life & Times” is at this link:

MY LIFE

On Wednesday, July 19, 2017, I delivered the a luncheon address that was part of the Frankel Lecture Series at Human Rights First in Washington, D.C. & New York, NY (by televideo). My speech entitled “Join The ‘New Due Process Army’ — Fight For Due Process In The United States Immigration Courts” is at this link:

AMERICA’S REAL IMMIGRATION CRISIS

Both speeches are also reproduced in the left menu of immigrationcourtiside.com.