"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Trump inherited a number of immigration enforcement problems from the Obama administration, the most serious of which was an immigration court backlog that has prevented him from using removal proceedings to reduce the size of the undocumented alien population.
His solution seems to be to heed the advice of Mitt Romney, who said, when asked about reducing the population of undocumented aliens during a debate in 2012:
“The answer is self-deportation, which is people decide they can do better by going home because they can’t find work here because they don’t have legal documentation to allow them to work here.”
But Trump is using harboring prosecutions to discourage people from helping undocumented aliens to remain here illegally in addition to enforcing employer sanctions to discourage employers from giving them jobs.
Neither is likely to be successful.
. . . .
If Trump doesn’t find more promising enforcement measures, historians familiar with Macbeth may say that his “hour upon the stage” just amounted to “sound and fury, signifying nothing.”
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Go on over to The Hill at the link to read Nolan’s complete article with much more analysis!
I agree with Nolan that in practical terms of reducing the overall undocumented population, Trump’s strategies are not likely to succeed to a numerically significant extent. But, maybe that’s not the objective.
If the real objective to inflict unnecessary pain and suffering, keep stirring the pot of xenophobia, and rev up a restrictionist base, the policies might make more sense. And, certainly guys like Trump, Sessions, & Neilsen never take any responsibility for their own failures — they just shift the blame to others and use that as a bogus justification for seeking (or demanding) unneeded, draconian changes in the law.
I raised the possibility a year ago that Chicago Mayor Rahm Emanuel will face criminal charges for harboring undocumented aliens if he goes much further with his sanctuary policies.
Punishment for harboring ranges from a fine and/or up to a year in prison to life in prison or a death sentence.
It hasn’t happened…yet. But Attorney General Jeff Sessions has called for more harboring prosecutions and is not limiting the reach of the harboring provisions.
The Border Patrol arrested a member of the No More Deaths humanitarian group in the Arizona desert a few months ago and charged him with harboring for giving aliens who had made an illegal crossing food, water, and a place to sleep for three days.
Harboring prosecutions are still uncommon, but I expect this to change when Sessions realizes that the immigration court backlog crisis is making it impossible for him to enforce the immigration laws effectively.
He will have to find ways to make America a less desirable place for undocumented aliens to live. In other words, he will have to encourage “self-deportation.”
Harboring prosecutions can serve this purpose by making individuals, landlords, employers, humanitarian organizations, etc., afraid to become involved with undocumented aliens. Even church congregations would be vulnerable.
. . . .
Will harboring prosecutions be more successful than employer sanctions were?
Maybe not, but Sessions has to try something and harboring prosecutions might help.
To convict someone of harboring, the government must establish that the defendant concealed, harbored, or shielded an undocumented alien from detection. A conviction can result from committing any one of the three acts.
The harboring provisions provide the following penalties for each alien in respect to whom a violation occurs:
If the offense did not involve commercial advantage or financial gain, a fine or imprisonment for up to 5 years, or both;
If it was done for commercial advantage or financial gain, a fine or imprisonment for up to 10 years, or both;
In the case of a violation during and in relation to which the offender causes serious bodily injury, or places in jeopardy the life of any person, a fine or imprisonment for up to 20 years, or both; and
In the case of a violation resulting in the death of any person, a death sentence or imprisoned for any term of years or for life, a fine, or both.
The statute does not define “conceal,” “harbor,” or “shield from detection.” The federal courts have had to define these terms.
“Conceal” generally has been taken to mean hiding or otherwise preventing the discovery of an undocumented alien.
Courts have interpreted “shielding” more expansively. Even the making of false statements or falsifying documents may constitute “shielding.”
According to the ACLU, “harboring” is defined differently in the various federal jurisdictions across the country.
The most frequent characteristic the courts have used to describe “harboring” is that it facilitates an immigrant’s remaining in the United States illegally, which encompasses an extremely wide range of activities.
This is certain to result in inconsistent verdicts. People are going to be incarcerated for conduct that wouldn’t have been considered a crime if it had been committed in a different judicial district.
While a large-scale, nationwide campaign of harboring prosecutions might make it harder for undocumented aliens to live in the United States, the cost will be too high if it fills our prisons with American citizens and Lawful Permanent Residents who were just trying to be good Samaritans.
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Get Nolan’s complete article over at The Hill at the link!
Yeah, I could see Sessions pursuing this. But, believe it or not, it’s been tried before and failed as a deterrent.
During the Reagan Administration, when I was the INS Deputy General Counsel, the Administration brought criminal cases against some of the leaders of the so-called “Sanctuary Movement” in Texas and Arizona.
Unlike undocumented migrants held in immigration detention, those charged with harboring are always vigorously represented by good defense lawyers. The trials are very time-consuming and labor intensive.
I remember once spending the better part of a week in South Texas waiting to be called as a Government witness in a sanctuary prosecution. Upon finally being reached on the witness list, all I got to state was my name and position before the U.S. District Judge sustained the defendants’ objection to my testimony and disqualified me as a witness.
Also, unlike prosecuting undocumented migrants in Immigration Court, 100% of the convictions are appealed, a process that also stretches out for many years. Even when the Government “wins” the case and a conviction is sustained, the sentence is almost always probation or something quite nominal.
In other words, this is a “strategy’ that will tie up lots of U.S. Attorney and Federal Judicial resources, create lots of ill feeling in the community, but provide no real deterrence. Indeed, my recollection is that rather than deterring the “Sanctuary Movement,” these prosecutions actually inspired and motivated groups opposed to the Government’s policies on Central American migrants!
In fact, eventually there were enough demonstrated problems with the Regan/Bush I Administrations’ approach to Central American asylum seekers that the plaintiffs succeeded in a class action in getting a “redo” of all the cases. This was known as ABC v. Thornburgh. This case, for all practical purposes, ended the U.S. Government’s efforts to expel the Central American asylum seekers who arrived during the 1980s.
Eventually, class members were allowed to obtain green cards under the Nicaraguan and Central American Relief Act (“NACRA”). I was pleased to have approved numerous NACARA cases during my tenure as an Immigration Judge in Arlington. (Yes, they were still around decades later.)
I was continuously inspired by what these hard-working families had achieved in their lives, notwithstanding our efforts to expel them. No, they weren’t all “rocket scientists.” But, nearly without exception, they were contributing members of our community, providing important services or creating necessary goods.
One of the many things that “gives lie” to the restrictionist claim that the current wave of asylum seekers and migrants from the Northern Triangle won’t “fit in” and be able to assimilate. About the only thing inhibiting “assimilation” is our Government’s unwillingness to allow it to take place, and actually acting to discourage it in many, many ways.
I found NACARA applicants to be remarkably “the same as the rest of us, perhaps better” in terms dedication to the “American Dream,” work ethic, respect for education, and willingness to sacrifice so that future generations could have better lives. The only real difference was the “pure luck” of those of us who had the good fortune to be born here.
A “smart” approach to immigration would be to “can” the waste of resources on border prosecutions and detention and put together another legislative effort like NACARA, only this time for all long-time undocumented residents of the US. But, of course, that wouldn’t serve to “fire up” the White Nationalist electoral base that Trump relies upon.
Common sense, learning from history, responsible use of Government resources, and basic human decency are qualities conspicuously absent from Sessions. But, I think that the “NACRA story” shows a very plausible “ultimate long-term outcome” for the latest, ultimately doomed, efforts to deal with immigration issues exclusively with restrictionist policies.
Finally, Nolan has kindly supplied us with an updated link to a list of all seventy (70) of his past articles in The Hill on immigration policy. Congratulations, Nolan, for your prodigious contributions!
A TRAC Immigration study concluded that the outcome at asylum hearings over a recent six-year period depended largely on where the hearing was held and which immigration judge was assigned to the case.
. . . .
Examples of improper hiring practices.
Political considerations. A July 28, 2018 report from the Office of Professional Responsibility and the Office of the Inspector General at the Department of Justice reveals that the office of former Attorney General Alberto R. Gonzales let political considerations guide the selection of immigration judges.
His chief of staff, Kyle Sampson, claimed that he thought immigration judge positions were “political” and therefore that it was appropriate to consider political factors in assessing candidates.
He solicited candidates for immigration judge positions from the White House’s Office of Political Affairs, its Office of Presidential Personnel, and its Office of the Counsel to the President.
Potential immigration judge candidates were screened at these offices to establish their “political qualifications.” This included searching databases to determine whether the candidates had made monetary political contributions.
Sampson also accepted recommendations from Republican Members of Congress and from colleagues within the Justice Department who were political appointees.
Affirmative action. On October 5, 2004, the Department of Justice, without admitting wrongdoing, agreed to pay $11.5 million to settle a class action lawsuit alleging discrimination against white male applicants for immigration judge positions.
I was a decision-writer at the Board when the discrimination allegedly was occurring.
A close friend who had received EOIR’s Director’s Award twice for being the most outstanding attorney of the year couldn’t even get an interview for a position as an immigration judge, but women and minority applicants with much less impressive credentials were being hired, some of whom had no immigration experience at all.
Acknowledging the problem. In response to rising criticism of the disparities in the decisions in asylum cases, EOIR has begun to track decisions to identify immigration judges who have unusually high or low rates of granting asylum, but that just highlights the problem, it doesn’t solve it.
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I encourage everyone to go on over to The Hill at the above link for Nolan’s complete article.
Nolan is right: the EOIR hiring system is broken and has been for many years.
The problem of “Refugee Roulette” was first documented by a group of three scholar-practitioners at Georgetown Law in 2007.
Although the situation abated somewhat for a few years after that study’s publication, large disparities seem to have persisted.
Perhaps because of space limitations (I believe Nolan told me he had an “800 word limit” — something that doesn’t happen at “Courtside”) Nolan wasn’t able to cover two of the most egregious examples of a broken system:
The “Ashcroft Purge” of 2001-2003 that reduced the BIA from approximately 20 Members to 12 by expelling those of us on the BIA duly appointed by prior AG Janet Reno whose views were considered “too liberal” for Ashcroft;
The BIA is now seeking to “reconstitute itself” as a 20 judge body, confirming the “political motivations” behind the original purge;
The 2017 GAO Study that documented the incredible two-year average hiring cycle for filling Immigration Judge vacancies that evolved under the Obama Administration;
That process produced highly skewed results favoring candidates from DHS, DOJ, and other governmental backgrounds by an astoundingly inexplicable ratio of nearly 9 to 1 over qualified attorneys from private practice, academia, and NGOs.
At present, judges who have actual experience representing asylum applicants in Immigration Court are grotesquely “underrepresented” in relation to those from prosecutorial or other governmental backgrounds.
Jeff Sessions will likely make things even worse.
Not surprisingly, Sessions has already drawn credible allegations from Democratic Representatives of political and ideological interference in judicial hiring. See, e.g., https://wp.me/p8eeJm-2rz
As Nolan demonstrates, the Immigration Courts need a true merit based hiring system.
Systems such as that used for selecting U.S. Bankruptcy Judges and U.S. Magistrate Judges are useful models that have earned praise for being efficient, inclusive, involving the practicing bar, and producing unbiased, merit-based judiciaries.
A merit-based system is impossible while the Immigration Courts and the BIA are in the Executive Branch at the DOJ.
The only solution is an Article I U.S. Immigration Court or some other type of structure independent of the Executive.
Despite political spin to the contrary, the border is not secure, and the hearing highlighted problems which are preventing DHS from securing it.
The National Immigration Forum submitted a statement claiming that U.S. border policies have been effective, but that claim was contradicted by testimony from the director of the Texas Department of Public Safety (DPS), Colonel Steven McCraw.
According to McCraw, the federal government did not respond to numerous requests from Texas Governor Greg Abbott to provide the Border Patrol with the resources it needs to secure the border, so Texas has had to provide the necessary assistance at its own expense.
Texas deployed State Troopers, Special Agents, and Texas Rangers to the border to conduct around-the-clock ground, marine, and air operations. Then, three years later, it deployed 500 State Troopers, tactical marine boats, aircraft and detection technology assets, and the Texas National Guard to the border.
But illegal crossings and smuggling continued and crime in the border region continued to rise.
. . . . .
Credible fear determinations have increased from 5,000 in 2009 to 94,000 in 2016, and due apparently to misapplication of asylum law, a credible fear was found in 88 percent of the cases.
Also, the William Wilberforce Trafficking Victims Reauthorization Protection Act (TVPRA) has been used to require placement with the Office of Refugee Resettlement instead of removal proceedings for the 200,000 unaccompanied alien children (UACs) who have come to America from Central America since 2013. But most of them are not trafficking victims.
According to the White House, most UACs fail to appear at their hearings and many who do and are found deportable do not comply with their deportation orders. Only 3.5 percent of them are removed from the U.S.
It is apparent from this testimony that the border is not secure and that the measures being taken to secure it are not likely to be effective.
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Go on over to The Hill at the link to read Nolan’s complete article.
Nolan an I agree on one important point: Jeff Session’s announcement of “Immigration Judge quotas” will not help solve the Immigration Court backlog phenomenon.
However, I wouldn’t assume as Nolan apparently does, that the Texas DPS is a better source of information than the National immigration Forum. Nor, would I make the assumption that an 88% approval rate for credible fear screening represents a “misapplication of the law.” Based on my experience with credible fear reviews in Immigration Court, that number of positive determinations seems perfectly reasonable. Moreover, on the life or death question of asylum, the system should always error on the side of giving the individual a full hearing on a protection claim rather than denying the claim with no day in court.
Now, it’s my turn.
According to a 2016 study by the American Immigration Council (“AIC”) using EOIR’s own data, represented children appear for their hearings about 95% of the time. https://www.justice.gov/eoir/file/852516/download
As this AIC report points out, most of the reasons for non-appearance relate to defects in the DHS/EOIR notice system. Moreover, even when children understand the system, they are usually dependent on the actions of others like guardians to actually appear in Immigration Court. It’s highly unlikely that many children make an intentional decision not to appear.
I was not assigned to the so-called “Priority Juvenile Docket.” But, I did plenty of juvenile cases during my 13-year tenure at the Arlington Immigration Court. In my experience, the overwhelming majority of juveniles appeared as scheduled. When represented, the appearance rate was close to 100% as suggested by the AIC report.
Of the minority who didn’t appear, most eventually had their cases reopened based on defective notice or extraordinary circumstances beyond their control.
Many of those denied asylum actually had legitimate fears of harm upon return, but did not fit the overly restrictive “refugee” definition developed by the BIA with the apparent purpose of limiting Northern Triangle protection.
Juveniles often were able to obtain relief through means other than asylum such as Special Immigrant Juvenile (“SIJ”) status, “U” nonimmigrant status for victims of crime, “T” nonimmigrant status for trafficking victims, and Convention Against Torture (“CAT”) withholding.
As these reports suggest, a better approach to Southern Border arrivals would involve:
Insuring that counsel represents all asylum applicants.
Improving the quality and accuracy of hearing notices served by DHS & EOIR.
Expanding the asylum definition to be more generous and to conform to UNHCR interpretations.
Allowing all asylum applicants to have an initial non-adversarial application before the Asylum Office to take pressure off of the Immigration Courts.
Initiating a realistic legalization program for long-term undocumented residents of the US that would take the majority of the “non-criminal” cases off the Immigration Court docket, thus allowing the Courts to re-establish a reasonable 12-18 month completion cycle for non-detained cases.
Re-establishing “in country” refugee processing programs in the Northern Triangle and making them more timely and expansive so as to reduce the pressure to apply for asylum at our Southern Border.
Creating other forms of temporary protection for those with legitimate fears of return who fall outside the legal definitions for protection.
Working closely with the UNHCR, Mexico, and other Western Hemisphere countries to 1) address the conditions in the Northern Triangle driving the refugee flow, and 2) sharing the distribution of Western Hemisphere refugees equitably.
We know for sure from over four decades of consistent failure what DOESN’T WORK:
“Militarization” of the border;
Increased detention, criminal prosecution, and other ineffective “deterrents;”
Reducing or truncating rights of asylum seekers;
Endless “reprioritization” of Immigration Court dockets.
Yet, these are the very types of failed programs that the Trump Administration is mindlessly pushing.
Why not try something smart and humane, rather than repeating past expensive, ineffective, and inhumane mistakes over and over?
Trump isn’t the first president to use the National Guard this way. Presidents George W. Bush and Barack Obama did it when they were presidents. Their National Guard operations were successful, and Trump’s probably will be too, if his operation is similar to theirs.
Apparently, the Border Patrol feels that way too. According to Brandon Judd, president of the National Border Patrol Council, experience has shown that the military can supplement the work of agents on the ground.
We do not know yet how the troops will be used. The memorandum gives the secretary of Defense, working with DHS and the attorney general, 30 days to submit an action plan detailing what resources and actions are needed, including federal law enforcement and U.S. military resources.
. . . .
In any case, it doesn’t make sense to use the number of apprehensions as the criterion for determining how secure the border is. What about the aliens who were not apprehended? There is no way of knowing how many aliens succeeded in making an illegal entry without being detected by the Border Patrol.
Ultimately, Trump’s decision to send Border Patrol agents to the border should not be considered unusual or inhumane. Instead, it is a continuation of his existing immigration policies and even presidential precedent.
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As Nolan points out, sending the National Guard to the border is neither unusual nor unprecedented. But, that doesn’t mean it’s smart, effective, or cost efficient.
I’m aware of no hard evidence that sending the National Guard makes any long-term difference in border enforcement or security.
A number of commentators have also questioned whether the somewhat marginal short-term enforcement benefits of sending troops outweighs the substantial costs and negative perception issues. See e.g.,
I see no evidence of any real security crisis at the Southern Border. Certainly, Trump’s panic about the so-called “Caravan” (actually largely made up of desperate women and children) is totally bogus, apparently based on over-hyped reports by Fox News.
It’s obvious that having blown the chance to get funding for his Wall, Trump is looking for some way to hype a non-existent “Southern Border Crisis” to show his base that he hasn’t given up on his racist approach to immigration. He also keeps raising his bogus claims that we need to further truncate the already too limited existing rights of children and asylum seekers and expand the “New American Gulag.” What total BS
There is an ongoing humanitarian crisis in the Northern Triangle causing individuals to undertake the journey North. That’s been going on for many years, and is almost certain to continue as long as folks like Trump are in charge. It’s not like Obama or Bush helped the situation either. Indeed, the US policy toward Latin America has been screwed up during my entire lifetime and shows no signs of changing.
Nothing Trump does is going to change that. Indeed, by almost any rational measure, Trump’s enforcement bluster is likely to make the situation even worse. As a number of commentators have pointed out, if Trump actually goes through with his stated wish to expel Hondurans and Salvadorans currently here in TPS status, that would almost certainly further destablilize both countries, further strengthen the hands of gangs, and guarantee an even larger northward flow.
But here’s a better reason to oppose the quotas: Session’s performance goals are not an effective way to deal with the backlog crisis.
As of March 5, 2018, there were approximately 350 judges, and the immigration court had 684,583 pending deportation cases.
If the judges do 700 cases-a-year, it will only dispose of approximately 245,000 cases-a-year. At that rate, it would take almost three years to eliminate the backlog … if there are no new cases. But there will always be new cases.
Sessions also will hire more judges, but the problems the immigration court is having with the current judges should be addressed first to determine whether the selection process needs to be changed.
From FY2013 through FY2017, 379 complaints were filed against the judges, approximately 30 percent of the judges every year!
Also, there are gross disparities in the way the judges are applying the law.
TRAC Immigrationreports that the outcome at asylum hearings over a six-year period depended largely on which judge was assigned to the case.
For the 6,922 asylum seekers whose applications were adjudicated at the San Francisco Immigration Court, the likelihood of a denial varied from only 9.4 percent up to 97.1 percent, depending on which judge handled the case.
For the 1,233 individuals whose cases were heard at the Newark Immigration Court, the likelihood of a denial ranged from 10.9 percent up to 98.7 percent, depending on which judge handled the case.
In other words, the likelihood of being granted asylum in these courts could be as high as 90 percent or as low as 3 percent, depending upon which judge handles the case.
According to a Reuters report on disparities in how frequently immigrants are deported in removal proceedings, “the findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.”
GAO makes similar findings in its November 2016 report on variations in the outcomes of applications across immigration courts and judges. GAO also found that judges with 7 years of experience were 28 percent less likely to grant asylum than less experienced judges, which could be a factor in explaining the disparities.
Are unqualified judges being hired? Is the training program for new judges inadequate?
To some extent, the problem may be due to misconduct on the part of officials involved in the selection process.
For instance, in 2004, the Justice Department paid $11.5 million to settle a class action suit claiming that the immigration judge hiring practices of the Executive Officer for Immigration Review were discriminatory. Four years later, Monica Goodling from the Office of the Attorney General admitted that she had taken political considerations into account in soliciting candidates and reviewing applications.
In any case, it is apparent that Sessions isn’t going to eliminate the backlog crisis by setting performance goals or hiring more judges. He has to reduce the number of cases the immigration court has to handle.”
. . . .
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Read Nolan’s complete article over on The Hill at the link.
Nolan’s points are well taken! He’s asking the types of obvious questions that folks genuinely interested in fixing this system should be asking. But, significantly, Jeff Sessions isn’t asking those types of questions!
The current Immigration Court system needs thoughtful quality controland due processtargeted reforms on many levels, including a real merit-based hiring system — preferably run by the Article III Federal Courts. After all, the Federal Courts are the “ultimate consumers” of the Immigration Court’s work product.
According to the recent GAO study, it currently takes an average of two years — fully half of an Administration — to hire an Immigration Judge! That’s longer than the Senate confirmation process!
Sessions has promised but not delivered on yet another bureaucratic opaque system that would supposedly reduce the hiring cycle to 10 months, still ridiculously long. At most, IJ hiring should be on a 3-6 month cycle.
By comparison, in 1995 when I was hired, then EOIR Director Tony Moscato and Attorney General Reno had the Chairman and eight additional Board Members (“Appellate Immigration Judges”) hired, background cleared, and actually on board within a six month period — even though it involved a regulations change to increase the number of Board Members.
And, it’s certainly not that the current process produces remarkable results in terms of either diversity or background. Nearly 90% of the Immigration Judges hired over the past 10 years have come from very similar government backgrounds — mostly DHS and DOJ attorneys.
Attorneys from the private sector and academia, even those with superior qualifications, effectively have been systematically excluded from the 21st Century Immigration Judiciary. As Nolan pints out, the system cries out for judges of the highest caliber and universal reputations for fairness and scholarship as well as the ability to deal in an effective professional manner with the many “performing artist” aspects of running a fair courtroom in a stressful high volume system.
Additionally, a comprehensive 2016 report by Human Rights First (“HRF”) found that the appropriate number of case completions per Immigration Judge should be no more than 500 per judge to produce fair, high quality decisions that would meet the criteria for judicial review. So, why, without even referencing that report or reaching out to HRF, would Sessions & Co. create a “quota” that is 140% of that optimum number?
How is this about building a real due process court system rather than a “deportation railroad?” Obviously, Sessions is only interested in the latter.
HRF actually went to experts involved in the Immigration Court system. Sessions, who has never been an Immigration Judge and disrespects most of those actually involved in the system, apparently invented his “quotas” without any meaningful input from any of the folks who actually work in and use the system.
As Nolan points out, the “wheels are coming off” the Immigration Court system. Mindless, “haste makes waste,” just pedal faster” invectives from Sessions can’t and won’t solve the problem.
That’s why Congress must create an independent Article I U.S. Immigration Court — devoted to the only true purpose any court system can have: guaranteeing fairness and due process for all individuals appearing before it!That has nothing whatsoever to do with fake assembly line “production quotas!”
It might be more productive at this point to put negotiations about DACA and DREAM Acts aside and try a different approach. My suggestion is to work on creating a place in the Special Immigrant Juvenile (SIJ) program for the DACA participants.
This little-known humanitarian program makes lawful permanent resident (LPR) status available to undocumented alien children in the United States who have been abused, abandoned, or neglected by one or both parents and who should not be returned to their own countries.
. . . .
DACA
Undocumented aliens were considered for the DACA program if they:
Were under the age of 31 as of June 15, 2012;
Came to the U.S. before reaching their 16th birthday;
Have continuously resided in the U.S. since June 15, 2007;
Were physically present in the U.S. on June 15, 2012, when they filed their DACA applications; and
Had no lawful status on June 15, 2012.
The aliens in both programs came to the United States as children and humanitarian relief is warranted in both situations to prevent them from having to return to their own countries. The SIJ aliens would be returning to abuse, neglect, or abandonment; and the DACA aliens spent their childhoods here and know no home other than America.
The need for the new category would end when all of the DACA participants have been taken care of, but this should not be a problem. Section 1059 of the FY2006 National Defense Authorization Actestablished Special Immigrant status for Iraqi and Afghan nationals who had served as translators for the U.S. Armed Forces, and the need for that program will end when the translators are no longer needed.
Trump’s Framework
The first pillar of Trump’s framework is the legalization program.
Putting the DACA participants in the SIJ program would facilitate a compromise on Trump’s pillar requiring an end to chain migration.
The SIJ provisions take away a participant’s right to confer immigration benefits on his parents when he becomes an LPR. INA §101(a)(27)(J)(iii)(II)states that, “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”
This restriction continues even if they naturalize.
It might be necessary to amend this provision to include the rest of the family-based classifications that Trump wants to eliminate, but that would be a much smaller concession than terminating chain migration for everyone.
Trump has made it very clear that he will reject any deal that does not include funding for his wall.
Lastly, terminating the DVP should not be a problem. The Democrats have shown a willingness to end that program. Section 2303 of Senator Charles Schumer’s (D-N.Y.) Gang of Eight bill would have repealed the DVP if it had been enacted.
In any case, the parties have nothing to lose from trying this approach.”
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Go on over to The Hill at the link to read Nolan’s complete article.
This seems like an interesting idea that could work if, and it’s a big “if,” the parties can get over their respective “all or nothing” approaches.
For the Dems, it gives the Dreamers closure, permanent status, and a path to eventual citizenship. A very big deal!
At the same time, the GOP and Trump basically get three of “Trump’s pillars” in some form or another.
Yes, the inclusion of the “parent bar” could be a sticking point for the Dems. But, it will be at least three to five years after the Dreamers get their “green cards” before any of them would be eligible to naturalize. By that time, both the thinking and the politics behind the issue of status for parents of naturalized U.S. citizens could well change. We would definitely have better data about the “real universe” in terms of numbers.
Even now, many Dreamers no longer have two living parents who would be able to or interested in immigrating. Estimates of “future impact” based on the assumption that each Dreamer would “immigrate” two parents always have appeared wildly exaggerated to me. A “special immigrant program” would provide better data.
Also, once Dreamers become Lawful Permanent Residents and U.S. citizens, they are likely to be in a position favorably to influence the dialogue about parental migration.
“Congressman Bob Goodlatte’s (R-Va.) immigration bill, the Securing America’s Future Act (SAFA) may be the last chance this election year to pass a bill that would help the Dreamers. It needs more support, but he should be able to get it from the Democrats.
First, however, he needs to overcome the negative impression some Democrats have of him and his bill, which is expressed in this commentthe ACLU made when SAFA was introduced:
“This bill should be viewed for what it is — an obvious attempt by longtime anti-Dreamer lawmaker Rep. Bob Goodlatte and his allies to derail a legislative solution for Dreamers.
“The policies in the new legislation are a collection of hardline provisions designed to sabotage, rather than advance, the possibility of a bipartisan breakthrough.”
The best approach may be to revise SAFA to include a statutory DACAprogram with a legalization program that would not become available until the bill’s enforcement measures are implemented. Also, Goodlatte should remove enforcement measures that are not needed to prevent a recurrence of what happened the last time the Republicans agreed to a legalization program.”
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Please go over to The Hill at the link to read Nolan’s complete, much more detailed, analysis of the opportunities for compromise.
This case is very risky for Trump. He is likely to lose in the Ninth Circuit, and it is difficult to predict how the Supreme Court would handle this federal vs. state rights issue. Immigration experts on both sides say this lawsuit takes the sanctuary-cities debate into uncharted territory.
The only certainty is that a loss would clear the way for the enactment of more sanctuary laws in California and other states.
Ironically, California’s sanctuary policies make it easier for ICE to find undocumented aliens.
Instead of being spread out across the United States, a quarter of the nation’s undocumented aliens are living in California. California’s labor force has 1.75 million undocumented aliens. Nearly 10 percent of its workers are undocumented aliens. And in 2014, more undocumented aliens lived in Los Angeles County, Calif., than in any other county in the United States.
This would make it easy for Trump to carry out a successful, large-scale enforcement campaign in California to arrest undocumented aliens and impose sanctions on the businesses that employ them, which is likely to be his next step if the lawsuit fails.
California could end up having to abandon its sanctuary policies to protect its undocumented population.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
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Go on over to The Hill at the link for Nolan’s complete article.
Putting together Nolan’s analysis with that of Professor Peter Markowitz in the preceding article, one can conclude that both sides are likely to come out losers in this contest. We’ll see.
“Making the situation worse, pursuant to the EU’s Dublin II regulation, refugees are supposed to apply for asylum in the first EU country they reach, and EU nations are resisting any changes to this regulation that would cause them to receive more migrants.
This has created an impossible burden for Greece and Italy, which have become the main gateways for 1.5 million refugees arriving on Europe’s shores over the last three years.
The EU Commission sought to redistribute 160,000 asylum seekersthroughout the EU from Greece and Italy, but lack of cooperation from other EU nations made it impossible to achieve that goal. When the program ended, only 31,000 refugees had been resettled.
The numbers have not gone down because fewer people need refuge.
European governments entered into partnership agreements with North African countries in 2017. They offered financial support to them in exchange for stepped-up border patrols and crackdowns on migrant smuggling in their territories.
While these agreements have succeeded in reducing the numbers, it has come at a human cost. In Libya, the launch point for most of the migrant journeys to Europe, migrants intercepted while fleeing from Libya are sent to detention centers. Government and NGO reports have documented widespread physical and sexual violence, more conditions and killings at these centers.
Crime.
In 2016, Germany accepted the largest population of asylum seekers in Europe, but it has not worked out well for Germany. According to a study conducted by the Zurich University of Applied Sciences, the German state of Lower Saxony has experienced a 10.4 percent increase in violent crime.
German criminologists claim that the best way to prevent violent crime among migrants is to provide them with better integration opportunities. It also could help if Germany allowed them to be reunited with their families. Germany recently limited family reunifications.
In view of Europe’s low natural population growth rate, refugee family reunification could be a great benefit by adding to the birth rate in the EU. In the first half of the 1960s, the population of the EU increased by only 0.8 percent a year, and the birth rate is even lower now.
The European economy, meanwhile, is growing, which is producing labor shortages. Europe needs population inflows from outside the EU to increase its workforce.
The EU needs to ensure that the Schengen Agreement does not prevent individual nations from securing their borders, and it should consider making a greater effort to integrate its migrant population.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.”
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I encourage you to go over to The Hill at the above link to read Nolan’s complete article.
It’s difficult to impossible to solve migration problems solely by working on them at the “receiving” end. I suspect that there will continue to be additional arrivals and more deaths unless and until the problems causing the refugee migration are addressed at the “sending” end.
Seems like the African nations acting as “middlemen” are the only “winners” here. The get paid by the EU for shutting down some routes for refugee migration. In the meantime, I suspect that they get paid by the smugglers for leaving some routes “open” or “looking the other way.”
Nolan’s point that Europe’s economic future might well depend on their better integrating migrants is well taken. Generally, the US has done a superior job of integrating migrants into our society. That’s one reason why our economy generally has done better than those of most EU nations.
A compromise is possible. It does not have to be a choice between the current chain migration system and a purely merit-based system. The two systems can be merged with the use of a point system.
Visas currently allocated to extended family members can be transitioned to a merit-based point system that provides extra points for family ties to a citizen or LPR. The merit-based aspect of the point system would eliminate the main objection to chain migration, which is that it allocates visas to extended family members who do not have skills or experience that America needs.
Trump’s framework also would terminate the Diversity Visa Program. Those visas could be transitioned to the new point system too.
This would be a small price to pay for a legalization program that would provide lawful status for 1.8 million Dreamers.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.“
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Go on over to The Hill at the link to read Nolan’s complete article.
I disagree with Nolan’s statement that extended family members don’t bring needed skills. As David J. Bier of the Cato Institute recently pointed out in the Washington Post, that argument is one of a number of “Myths” about so-called chain migration.
Bier writes:
“MYTH NO. 5
Chain immigrants lack skills to succeed.
In making his case for the president’s proposals last month, Attorney General Jeff Sessions said, “What good does it do to bring in somebody who is illiterate in their own country, has no skills and is going to struggle in our country and not be successful?” This description distorts the picture of immigrants who settle in the United States.
Nearly half of adults in the family-sponsored and diversity visa categories had a college degree, compared with less than a third of U.S. natives. America would lose nearly a quarter-million college graduates every year without the family-sponsored and diversity programs.
Even among the 11 percent who have little formal education, there is no evidence that they aren’t successful. By virtually every measure, the least-skilled immigrants prosper in America. Immigrant men without high school degrees are almost as likely as U.S.-born men with college degrees to look for a job and keep one.
Family-sponsored immigrants are the most upwardly mobile American workers. Whether high-skilled or not, chain or not, immigrants succeed in and contribute to this country.”
I highly recommend Bier’s article
All of my many years of first-hand observation of family immigration at every level supports Bier’s analysis.
Indeed, even if I were to assume that the majority of extended family were so-called “unskilled” (meaning largely that they have skills elite restrictionists don’t respect) that would hardly mean that they aren’t greatly benefitting the US. In many ways, immigrants who perform important so-called “unskilled jobs” essential to our economy but which most Americans neither will nor can do well, are just as important to societal success as more doctors, professors, computer geeks, and baseball players. Fact is, immigrants of all types from all types of countries consistently benefit the US.
That being said, why not try something along the lines that Nolan suggests by taking the Diversity visas and establishing a “pilot program” that combines skills and family ties in a numerical matrix? Then, track the results to see how they compare with existing employment-based and family-based immigration.
FGM has been a crime in America since 1996. Federal law provides that, “whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.”
The first federal FGM prosecution, however, was not filed until 2017, when two Michigan doctors and the wife of one of the doctors were charged with performing FGM on two seven-year-old girls.
FGM is a crime under state law in 26 states, but I was not able to find examples of state prosecutions. Attempts to make it a crime in the remaining 24 states have met resistance. It can be difficult to separateattempts to end FGM from claims of Islamophobia.
In Maine, a Republican bill to criminalize FGM failed to pass in 2017 in part because FGM had been used in Maine to demonize immigrants and refugees from predominantly Muslim countries in Africa. It would have made FGM a Class A crime, which is punishable by up to 30 years in prison and a fine of as much as $50,000.
Maine has a population of approximately 12,000 people from Somalia, an officially Islamic country, and UNICEF estimates that 98 percent of the females in Somalia have had FGM.
But a survey of immigrant communities in Maine indicates that they recognize the need for such a law. More than 70 percent of participants said that FGM is harmful.
Political correctness also is an issue. The New York Times would not use the term “Female Genital Mutilation” in its article about the Michigan doctors, except in a quote. The Times called the offense, “genital cutting,” despite the fact that the prosecution was based on a federal criminal provision entitled, “Female genital mutilation.”
According to Celia Dugger, the Times’ Health and Science editor, “genital cutting” was a “less culturally loaded” term than “FGM.”
Ayaan Hirsi Ali, a woman’s rights activist, has said, “It is one thing to respect other cultures and religions, and quite another to turn a blind eye to cultural practices that violate the human rights of women and girls.”
The federal and state laws that prohibit FGM need to be enforced.”
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Go over to The Hill at the above link to read Nolan’s complete article.
“FGM,” of any type, is “bad stuff” as we found and I wrote in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), the first case finding FGM to be “persecution” for U.S. asylum purposes!
Agency Will Focus on Processing Recently Filed Applications
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today that the agency will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog.
USCIS is responsible for overseeing the nation’s legal immigration system, which includes adjudicating asylum claims. The agency currently faces a crisis-level backlog of 311,000 pending asylum cases as of Jan. 21, 2018, making the asylum system increasingly vulnerable to fraud and abuse. This backlog has grown by more than 1750 percent over the last five years, and the rate of new asylum applications has more than tripled.
To address this problem, USCIS will follow these priorities when scheduling affirmative asylum interviews:
Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;
Applications pending 21 days or less since filing; and
All other pending applications, starting with newer filings and working back toward older filings.
Additionally, the Affirmative Asylum Bulletin issued by USCIS has been discontinued.
“Delays in the timely processing of asylum applications are detrimental to legitimate asylum seekers,” said USCIS Director L. Francis Cissna. “Lingering backlogs can be exploited and used to undermine national security and the integrity of the asylum system.”
This priority approach, first established by the asylum reforms of 1995 and used for 20 years until 2014, seeks to deter those who might try to use the existing backlog as a means to obtain employment authorization. Returning to a “last in, first out” interview schedule will allow USCIS to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings.
For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter ( @uscis ), YouTube ( /uscis ), and Facebook (/uscis).
– USCIS –
Last Reviewed/Updated:
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LIFO, FIFO, LILO, FILO, ADR. Gimmicks, gimmicks, gimmicks, and smokescreens. They never work in the long run. Been there, done that, myself during my Government career. Never, ever, saw it work. Just moves the backlog to different places (sometimes more obvious, sometimes “semi-hidden” for a while) and makes things worse in the long run.
And, once the “newly expedited denials” get over to EOIR they will either 1) be put at the front of the line, an exercise in ADR that will move everything else backwards and make the Immigration Court backlog worse, or 2) take their place at the back of the current backlog for adjudication sometime after 2020, by which time the priorities will have been reshuffled numerous times anyway.
There is little or no “hard evidence” that I’m aware of that ADR like this has any material effect on the flow of asylum seekers. Using what are supposed to be “fair adjudication” systems as “deterrents” and part of the “immigration enforcement initiatives” does compromise the integrity of the adjudication process, but has little or no effect on enforcement.
Most asylum applicants, successful and unsuccessful, come because of conditions in their home countries, not because of “intelligence” or “messages” about waiting times at the Asylum Office or in Immigration Court. And, by sending more and more cases to the end of the line, where the message is that they might never be reached, the ADR process also creates a “De Facto TPS Program” of sorts at both the Asylum Office and the Immigration Courts.
What’s a “better solution?” Legalize or PD the folks currently in line who have no serious criminal record. Then, do the rest of the cases on a FIFO basis except for detainees. No, it’s not a “perfect solution.” But, it’s what works best in the long run. And, it does establish 1) achievable expectations, 2) predictability, and 3) at least some approximation of fairness.
BTW, the current Asylum Office “backlog” appears to be largely the result of the Obama Administration’s poor decision to up detention levels and take a huge proportion of the Asylum Officer workforce off of “Final Interviews” and instead send them to the Southern Border to do “Credible Fear Interviews” as a result of a so-called “Border Surge Strategy.” In other words, ADR by the Obama Administration begets ADR by the Trump Administration. When will they ever learn, when will they ever learn . . . ?
Many thanks to Nolan Rappaport for sending this my way.
“Senator Chuck Schumer (R-N.Y.) has dismissed the White House’s new Framework on Immigration Reform & Border security as a “wish list” for hard-liners. According to Schumer, Trump is using protection for Deferred Action for Childhood Arrivals program (DACA) participants as “a tool to tear apart our legal immigration system and adopt the wish list that anti-immigration hardliners have advocated for years.”
But Schumer’s own DACA proposal, which he put together as part of the Gang of Six, was just as unacceptable to Trump as Trump’s current proposal is to Schumer.
Schumer rejected Trump’s previous proposal, which was to establish a program for the 690,000 DACA participants that would continue their temporary legal status, and proposed a legalization program for a couple of million Dreamers. Moreover, he offered Trump just $1.591 billion for building a wall, which is only a small fraction of the amount he needs; and did not meaningfully address his chain migration concerns.That was not the first time Schumer has advocated a position he knew would be rejected. Four years ago, he moved his immigration reform bill, S.744, through the Senate despite the fact that it was opposed by 70 percent of the Senate Republicans. It was dead on arrival in the Republican controlled House.
. . . .
This does not have to be an “either or” situation. The visas currently given to extended family members could be transitioned to a merit-based point system that would give extra credit for family ties to a citizen or LPR. Under such a system, aliens who have family ties would be chosen ahead of aliens with similar qualifications who do not have family ties.”
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Go on over to The Hill at the above link to read Nolan’s complete analysis!
Seems like an idea worth exploring, particularly since current negotiations appear to be running up against a “brick wall.” No, it won’t resolve all of the outstanding issues. But trying to work the concepts of “merit and family” into one system could be a starting point. After all, it’s hard to argue that “family” doesn’t have “merit” — both for the individuals involved and for the U.S.
“The difference between ‘DACA’ and ‘Dreamers’: A primer
The government shutdown ended Monday when Senate Majority Leader Mitch McConnell (R-Ky.) promised to take up an immigration bill that would protect an estimated 800,000 Dreamers from deportation under an open amendment process, if the Democrats would agree to end the shutdown. Senate Minority Leader Charles Schumer (D-N.Y) said that pledge was enough for his caucus to accept a three-week government funding bill, which passed on a vote of 81-18.
But what do the parties really intend to take up? A DACA-fix for the 690,000 current participants or a DREAM Act to provide a path to citizenship for 2.7 million undocumented aliens?
And who are the Dreamers?
. . . .
If the Senate passes the DREAM Act of 2017, it almost certainly will be dead on arrival in the House, which is what happened four years ago when Schumer, as part of the Gang of Eight, succeeded in getting an immigration bill passed in the Senate that was opposed by 70 percent of the Senate Republicans.
It would be more realistic to pass a bill that would just continue the DACA program for the current participants, but even that would fail if Trump will not sign it unless it includes a border wall, an end to chain migration, and an end to the Diversity Visa Program.”
In any case, the floor debates and their media coverage will be easier to understand if the senators are clear about who they are trying to help and how they want to help them.”
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Go on over to The Hill to read Nolan’s excellent explanations of “DACA” and “Dreamers.”
Along the lines mentioned by Nolan, I think an “indefinite DACA extension” for “The Wall” trade might still be a possibility. I actually don’t see Trump refusing to sign something along those lines. But, with Trump, nobody really knows. Might depend on the day.
As suggested by Nolan, a “full Dream Act” would likely be DOA in the House. And, I don’t see the Dems offering up the restrictions Trump wants on legal immigration in return for a narrow DACA extension.
