"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Kareem Abdul-Jabbar is known as one of the greatest basketball players in history. During his 20-year professional career with the Milwaukee Bucks and Los Angeles Lakers, he appeared in 19 All-Star Games, won six championships and collected six MVP awards. In retirement, he has become a prominent cultural commentator and writer, a leading voice on the intersection between sports and politics. Recently, he published a memoir about his collegiate career at UCLA, Coach Wooden and Me: Our 50-Year Friendship On and Off the Court.
Fifty years ago he was the most dominant college basketball player America had ever seen. Between 1967 and 1969, he led UCLA to three consecutive national titles and an 88-2 record. Yet, his legacy transcends the game; in the age of Black Power, he redefined the political role of black college athletes. In 1968, when black collegians debated boycotting the Olympics, Lew Alcindor, as he was then still known, emerged as the most prominent face in the revolt on campus.
Why did Alcindor refuse to play in the Olympics? To answer that question we have to return to Harlem, New York, in July 1964, the first of many long, hot summers.
HARLEM, 1964
Basketball player Kareem Abdul-Jabbar (center), then Lew Alcindor, speaks at a news conference at the Power Memorial High School gymnasium in New York City.
DON HOGAN CHARLES/NEW YORK TIMES CO./GETTY IMAGES
The death of James Powell, a 15-year-old black youth from the Bronx, outraged Alcindor. On a sweltering July day in 1964, outside an apartment building on Manhattan’s Upper East Side, Lt. Thomas Gilligan, a white off-duty cop, shot and killed James, piercing the ninth-grader’s chest with a bullet from a .38 revolver. Conflicting accounts grayed a story that many saw in black and white. Gilligan, a 37-year-old war veteran, claimed that James charged at him with a knife, but bystanders insisted that James was unarmed.
Two nights later, on July 18, in the heart of Harlem, a peaceful rally organized by the Congress of Racial Equality (CORE) turned into a march against police brutality. Demanding justice for Powell, hundreds of demonstrators surrounded the 123rd Street precinct, some threatening to tear the building apart “brick by brick.” Incensed by decades of racial profiling and violent policing, the angry crowd began hurling rocks and bottles at officers. Suddenly, a scuffle broke out and the cops rushed the protesters, cracking their nightsticks against a swarm of black bodies. In a matter of minutes, violence spread through Harlem like a grease fire in a packed tenement kitchen.
That same night, Alcindor, an extremely tall, rail-thin 17-year-old, emerged from the 125th Street subway station, planning to investigate the CORE rally. Climbing up the steps toward the street, he could smell smoke coming from burning buildings. Angry young black men took to the streets and tossed bricks and Molotov cocktails through store windows. Looters grabbed radios, jewelry, food and guns. The sound of gunshots rang like firecrackers. Trembling with fear, Alcindor worried that his size and skin color made him an easy target for an angry cop with an itchy trigger finger. Sprinting home, all he could think about was that at any moment a stray bullet could strike him down.
“Right then and there, I knew who I was, who I had to be. I was going to be black rage personified, Black Power in the flesh.”
For six days, Harlem and Bedford-Stuyvesant burned. The “Harlem race riots” resulted in 465 arrests, hundreds of injuries and one death. When the smoke cleared, Martin Luther King Jr. visited New York and encouraged black residents to demonstrate peacefully. But Alcindor, like many black youths, had grown impatient with King’s pleas for nonviolence and began questioning the direction of the civil rights movement. That summer, writing for the Harlem Youth Action Project newspaper, he interviewed black citizens who were tired of segregated schools, dilapidated housing, employment discrimination and wanton police violence.
The Harlem uprising fueled his anger toward white America and convinced him more than ever that he had to turn his rage into action. “Right then and there, I knew who I was, who I had to be,” he said a few years later. “I was going to be black rage personified, Black Power in the flesh.” Silence was no longer an option. In the future, he vowed, he would speak his mind.
. . . .
A few days after UCLA beat Dayton for the national title, the NCAA’s National Basketball Committee banned the dunk. The committee argued that too many players got injured stuffing the ball through the hoop or trying to block a player attacking the basket. Coaches were concerned, too, about players breaking backboards and bending rims. Curiously, the committee also claimed, “There is no defense against the dunk, which upsets the balance between offense and defense.” But the truth was that Alcindor threatened the sport’s competitive balance. He upset the balance between offense and defense.
Immediately, critics deemed the dunk ban the “Alcindor rule.” In a time of white backlash against black advancement, the UCLA star interpreted the rule through the lens of race. He could not help but feel like the lily-white committee had targeted him. “To me the new ‘no-dunk’ rule smacks a little of discrimination,” he told the Chicago Defender. “When you look at it … most of the people who dunk are black athletes.
. . . .
Not even the dunk ban could stop Alcindor from dominating the game. In fact, the new restriction made him even better. It forced him to expand his offensive arsenal and develop a devastating signature move: the “skyhook.”
He made it look so easy. With the cool confidence of Miles Davis, Alcindor transformed his game. The skyhook became an innovative expression of individuality and empowerment, a reflection of his intelligence and creativity, an active mind that could see the ball falling through the net like a raindrop the moment the leather sphere touched his fingertips. Over and over again, he pivoted toward the basket, extended his arm toward the sky and gracefully flipped the ball over the outstretched arms of any player who dared to guard him. “Of all the weapons in sports,” Sports Illustrated’s Gary Smith wrote of his skyhook, “none has ever been more dependable or unstoppable, less vulnerable to time, than that little stride, turn, hop and flick from far above his head.”
CLEVELAND, 1967
On June 4, 1967, at 105-15 Euclid Ave. in Cleveland, a collection of some of the top black athletes in the country met with — and eventually held a news conference in support of — world heavyweight boxing champion Muhammad Ali (front row, second from left), about Ali’s refusal to be drafted into the U.S. Army in 1967. News conference shows (front row) Bill Russell, Boston Celtics; Ali; Jim Brown and Lew Alcindor. Back row (left to right): Carl Stokes, Democratic state representative; Walter Beach, Cleveland Browns; Bobby Mitchell, Washington Redskins; Sid Williams, Cleveland Browns; Curtis McClinton, Kansas City Chiefs; Willie Davis, Green Bay Packers; Jim Shorter, former Brown; and John Wooten, Cleveland Browns.
BETTMAN/GETTY IMAGES
Alcindor refused to let the white world define him as a basketball player and as a man. He no longer considered himself a “Negro.” He was black and proud. As he became more politically self-aware, he identified with the most successful, outspoken black professional athletes in America: Muhammad Ali, Bill Russell and Jim Brown. He admired their political activism and their courage to confront white supremacy.
. . . .
Alcindor suddenly found himself at the center of a national controversy. Critics called him a disgrace, unpatriotic and much worse. If he did not play for the U.S. Olympic team, then UCLA should revoke his scholarship, they charged. Many white Americans opposed the boycott because they believed that sports were meritocratic and immune to racism. But their objections also revealed discomfort with assertive black athletes who challenged the power structure of American sports, a plantation culture that valued black bodies more than black minds. New York Times columnist Arthur Daley couldn’t imagine Alcindor thinking for himself and suggested that Edwards was exploiting the UCLA star’s fame for personal gain. “I think that charge is sheer idiocy,” Edwards told the San Jose Mercury News. “How can you manipulate anybody like Lew Alcindor?”
But Alcindor was his own man, and his revolt emanated from the deep history of African-American activism and the burgeoning Black Power movement on campus. What the sports establishment failed to recognize was that his experience in Harlem, his identification with Malcolm X and his connection to Ali had transformed the way he viewed protest, patriotism and American sports. How could he stay silent while police brutality, poverty and prejudice afflicted the black community? How could anyone expect him to represent the United States when the moment he confronted the nation’s racism bigots deluged him with hate mail and death threats? How could they expect him to love America when America didn’t love him back?
NEW YORK, 1968
Kareem Abdul-Jabbar, then Lew Alcindor, sits on the bench at the UCLA-Holy Cross game at Madison Square Garden in New York City in 1968.
BARTON SILVERMAN/NEW YORK TIMES CO./GETTY IMAGES
Alcindor had made up his mind. He wouldn’t play for the USA. Although the boycott movement lacked widespread support and ultimately stalled, he and his UCLA teammates Mike Warren and Lucius Allen refused to attend the Olympic trials. His explanation, however, complicated his image as a Black Power hero. Alcindor said that if he participated, then he would miss class and delay his graduation, which was true, but only part of his rationale. He also told a reporter from Life magazine that he and his UCLA teammates “don’t want to get caught in the middle of anything.” He had principles, but discussing them publicly only brought more stress. It was much easier to distance himself from Edwards and the OPHR.
“Yeah, I live here, but it’s not really my country.”
In the summer of 1968, he worked for Operation Sports Rescue, a youth program in New York City. Leading basketball clinics, Alcindor mentored African-American and Puerto Rican youths, encouraging them to get an education. In July, he appeared on NBC’s Today show to promote the program. Co-host Joe Garagiola, a former professional baseball player, began the interview by asking Alcindor why he refused to play in the Olympics. During a heated exchange, Alcindor said, “Yeah, I live here, but it’s not really my country.” Then Garagiola retorted, “Well, then, there’s only one solution, maybe you should move.” It was a common reply among white Americans who demanded accommodation and gratitude from black athletes — a refrain that still exists today.
Alcindor’s comments echoed Malcolm X, who said, “Being born here in America doesn’t make you an American.” If black people were Americans, he argued, then they wouldn’t need civil rights legislation or constitutional amendments for protection. Alcindor recognized that while he was fortunate because of his basketball ability, he couldn’t celebrate his privileged status as long as racial inequality persisted. Only when black citizens enjoyed true freedom could he call America his country.
Although we remember the 1968 Olympics for John Carlos and Tommie Smith’s demonstration on the victory stand, Alcindor was the most famous athlete who avoided the games. More than any other college basketball player, he defined his times, proving also that black athletes could speak their minds and win. No one could tell him to shut up and dribble.
Professor is the Julius C. “Bud” Shaw Professor of Sports, Society, and Technology and an Assistant Professor of History at Georgia Tech. His research focuses on the history of sports and American culture. He is an author whose books include “The Sons of Westwood: John Wooden, UCLA, and the Dynasty That Changed College Basketball,” which explores the emergence of college basketball as a national pastime and the political conflicts in college athletics during the 1960s and 1970s.
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Read Professor Smith’s full article at the link. Not only is Kareem one of the greatest basketball players ever, but he has established himself as an informed, articulate, and committed social commentator. I never saw Kareem play in person during his days with the Milwaukee Bucks. But, Cathy and I once were fortunate enough to see him “live” as a contestant on “Celebrity Jeopardy” at DAR Constitution Hall in Washington DC, ironically a venue where he once would not have been welcome.
WASHINGTON (The Borowitz Report)—Calling it a “medical mystery of the first order,” scientists are baffled by the ability of Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan to stand upright without the benefit of spines.
Doctors at the University of Minnesota Medical School, who have been studying the skeletal structures of both Republicans for months, believe that their ability to stand, walk, and even break into a brisk trot when confronted by reporters’ questions is “virtually inexplicable.”
“The fact that they can do these things without the aid of spines makes McConnell and Ryan anomalies in the animal kingdom,” said Dr. Davis Logsdon. “According to everything medical science teaches us, their bodies should be collapsing to the ground in two heaps.”
As the Minnesota scientists have struggled to solve the medical conundrum presented by the two invertebrate leaders, one theory that has gained traction is what Logsdon calls “the startled-deer hypothesis.”
“Just as a deer freezes in the headlights of a car and briefly appears statue-like, we believe that Ryan and McConnell’s bodies may retain their rigid structure out of terror alone,” he said. “In other words, fear is performing the function that a spine performs in other people.”
Calling it “just a theory,” Logsdon said that the anatomies of McConnell and Ryan require further study, and that there was growing public support for both men to be dissected.
A federal judge issued a nationwide order temporarily preventing the government from blocking access to abortion services and counseling for teens detained in immigration custody, saying current administration policy and practices probably are unconstitutional.
The order came in a case brought last fall on behalf of a Central American girl in a government-funded shelter that set off a national debate over the constitutional rights of such undocumented teens to terminate their pregnancies.
The late Friday ruling, by U.S. District Judge Tanya S. Chutkan of Washington, allowed the case to proceed as a class action on behalf of any other teens who have crossed the border illegally and while in federal custody may want to seek abortion services. In filings, the U.S. government acknowledged there were at least 420 pregnant unaccompanied minors in custody in 2017, including 18 who requested abortions.
The Trump administration has refused to “facilitate” such procedures for pregnant teenagers traveling alone on the grounds that they had the option to voluntarily return to their home countries or to find private sponsors in the United States to assist them in obtaining procedures.
The policy position marked a departure from that of the Obama administration, whose Office of Refugee Resettlement did not block immigrants in U.S. custody from having abortions at their own expense, and paid for services for teens in cases of rape, incest or a threat to the woman’s life.
In her 28-page opinion, Chutkan, a 2014 Obama appointee, said the change in policy posed irreparable harm to pregnant teens, writing that “ORR’s absolute veto nullifies a UC’s right to make her own reproductive choices,” referring to unaccompanied children.
“The court concludes that ORR’s policies and practices infringe on female UC’s constitutional rights by effectively prohibiting them from ‘making the ultimate decision’ on whether or not to continue their pregnancy prior to viability — a quintessential undue burden,” the judge wrote.
A Justice Department spokesman did not immediately comment on the ruling.
The American Civil Liberties Union, representing the teens, expressed relief at the court action.
“The Trump administration’s cruel policy of blocking young immigrant women in federal custody from accessing abortion is a blatant abuse of power,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “With today’s rulings, we are one step closer to ending this extreme policy once and for all and securing justice for all of these young women.”
In all, four pregnant teens in custody have asked Chutkan to force the administration to stop blocking access to abortion services. The initial case involving the teen in Texas is still pending in the Supreme Court after the Justice Department took the unusual step of asking the justices to consider disciplining the teen’s lawyers.
Abortion rights advocates and some Democrats in Congress have called for the firing of E. Scott Lloyd, the head of the refugee resettlement office within the Department of Health and Human Services. Court records show that Lloyd has personally intervened to try to block abortion services.
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Read the full article at the above link.
Hard to figure out why guys like E. Scott Lloyd and Jeff Sessions shouldn’t be both 1) fired, and 2) held personally liable under Bivens for knowing and intentional violations of constitutional rights.
U.S. Department of Justice Office of the Attorney General
The Attorney General denied the request of the Department of Homeland Security that the Attorney General suspend the briefing schedules and clarify the question presented, and he granted, in part, both parties’ request for an extension of the deadline for submitting briefs in this case.
BEFORE THE ATTORNEY GENERAL
On March 7, 2018, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), I directed the Board of Immigration Appeals (“Board”) to refer its decision in this case to me for review. To assist in my review, I invited the parties to submit briefs not exceeding 15,000 words in length and interested amici to submit briefs not exceeding 9,000 words in length. I directed that the parties file briefs on or before April 6, 2018, that amici file briefs on or before April 13, 2018, and that the parties file any reply briefs on or before April 20, 2018.
On March 14, 2018, the respondent filed a request for an extension of the deadline for submitting briefs from April 6, 2018, to May 18, 2018. On March 16, 2018, the Department of Homeland Security (“DHS”) submitted a motion containing three requests: (1) that I suspend the briefing schedules to permit the Board to rule on the Immigration Judge’s August 18, 2017, certification order; (2) that I clarify the question presented in this case; and (3) that I extend the deadline for submitting opening briefs to May 18, 2018. The respondent subsequently filed a response requesting that I grant the same relief.
This Order addresses all pending requests from the parties.
I. DHS’s Request To Suspend the Briefing Schedules
DHS’s request to suspend the briefing schedules until the Board acts on the Immigration Judge’s certification request is denied. DHS suggests that this case “does not appear to be in the best posture for the Attorney General’s review,” because the Board has not yet acted on the Immigration Judge’s attempt, on remand from the Board, to certify the case back to the Board. See DHS’s Mot. on Cert. to the Att’y Gen. at 2 (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)).
The certification from the Immigration Judge pending before the Board does not require the suspension of briefing because the case is not properly pending before the Board. The Immigration Judge did not act within his authority, as delineated by the controlling regulations, when he purported to certify the matter. The Immigration Judge noted in his order that an “Immigration Judge may certify to the [Board] any case arising from a decision rendered in removal proceedings.” Order of Certification at 4, (Aug. 18, 2017) (emphasis added) (citing 8 C.F.R. § 1003.1(b)(3), (c)). The regulations also provide that an “Immigration Judge or Service officer may certify a case only after an initial decision has been made and before an appeal has been taken.” 8 C.F.R. § 1003.7 (2017).
Here, the Immigration Judge did not issue any “decision” on remand that he could certify to the Board. The Board’s December 2016 decision sustained the respondent’s appeal of the Immigration Judge’s initial decision and remanded the case to the Immigration Judge “for the purpose of allowing [DHS] the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).” Matter of A-B- at 4 (BIA Dec. 8, 2016). Under 8 C.F.R. § 1003.47(h) (2017), the Immigration Judge on remand was directed to “enter an order granting or denying the immigration relief sought” after considering the “results of the identity, law enforcement, or security investigations.” “If new information is presented, the immigration judge may hold a further hearing if necessary to consider any legal or factual issues . . . .” Id.
In this matter, DHS informed the Immigration Judge that the respondent’s background checks were clear. See Order of Certification at 1. Given the scope of the Board’s remand and the requirements of the regulations, the Immigration Judge was obliged to issue a decision granting or denying the relief sought. If the Immigration Judge thought intervening changes in the law directed a different outcome, he may have had the authority to hold a hearing, consider those legal issues, and make a decision on those issues. Cf. 8 C.F.R. § 1003.47(h). Instead, the Immigration Judge sought to “certify” the Board’s decision back to the Board, essentially requesting that the Board reconsider its legal and factual findings. That procedural maneuver does not fall within the scope of the Immigration Judge’s authority upon remand. Nor does it fall within the regulations’ requirements that cases may be certified when they arise from “[d]ecisions of Immigration Judges in removal proceedings,” id. § 1003.1(b)(3); see also id. § 1003.1(c), and that an Immigration Judge “may certify a case only after an initial decision has been made and before an appeal has been taken,” id. § 1003.7. Because the Immigration Judge failed to issue a decision on remand, the Immigration Judge’s attempt to certify the case back to the Board was procedurally
defective and therefore does not affect my consideration of the December 16, 2016, Board decision.
Furthermore, the present case is distinguishable from Accardi, because, here, the Board rendered a decision on the merits, consistent with the applicable regulations. It is that December 8, 2016, decision that I directed the Board to refer to me for my review. See Matter of A-B-, 27 I&N Dec. 227, 227 (A.G. 2018) (directing the Board “to refer this case to me for review of its decision” (emphasis added)). The Board issued that decision “exercis[ing] its own judgment” and free from any perception of interference from the Attorney General. Accardi, 347 U.S. at 266. My certification of that decision for review complies with all applicable regulations. See 8 C.F.R. § 1003.1(h)(1)(i) (“The Board shall refer to the Attorney General for review of its decision all cases that . . . [t]he Attorney General directs Board to refer to him.” (emphasis added)). It is therefore unnecessary to suspend the briefing schedule pending a new decision of the Board.
II. DHS’s Request To Clarify the Question Presented
I deny DHS’s request to clarify the question presented. In my March 7, 2018, order, I requested briefing on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, 27 I&N Dec. at 227. Although “there is no entitlement to briefing when a matter is certified for Attorney General review,” Matter of Silva-Trevino, A.G. Order No. 3034-2009 (Jan. 15, 2009), I nevertheless invited the parties and interested amici “to submit briefs on points relevant to the disposition of this case” to assist my review. Matter of A-B-, 27 I&N Dec. at 227. As the Immigration Judge observed in his effort to certify the case, several Federal Article III courts have recently questioned whether victims of private violence may qualify for asylum under section 208(b)(1)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2012), based on their claim that they were persecuted because of their membership in a particular social group. If being a victim of private criminal activity qualifies a petitioner as a member of a cognizable “particular social group,” under the statute, the briefs should identify such situations. If such situations do not exist, the briefs should explain why not.
DHS requests clarification on the ground that “this question has already been answered, at least in part, by the Board and its prior precedent.” Board precedent, however, does not bind my ultimate decision in this matter. See section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2012) (providing that “determination and ruling by the Attorney General with respect to all
questions of law shall be controlling”). The parties and interested amici may brief any relevant issues in this case—including the interplay between any relevant Board precedent and the question presented—but I encourage them to answer the legal question presented.
III. The Parties’ Requests for an Extension of the Deadline for Submitting Briefs
I grant, in part, both parties’ request for an extension of the deadline for submitting briefs in this case. The parties’ briefs shall be filed on or before April 20, 2018. Briefs from interested amici shall be filed on or before April 27, 2018. Reply briefs from the parties shall be filed on or before May 4, 2018. No further requests for extensions of the deadlines from the parties or interested amici shall be granted.
In support of respondent’s request for an extension, she asserted that “an extension of the briefing deadline is warranted because [r]espondent intends to submit additional evidence with her brief in support of her claim,” including the possibility that she might obtain new evidence from El Salvador. Resp’t Request for Extension of Briefing Deadline at 4 (Mar. 14, 2018). Although I retain “full decision-making authority under the immigration statutes,” Matter of A-H-, 23 I&N Dec. 774, 779 n.4 (A.G. 2005), I requested briefing on a purely legal question to assist my review of this case, and I encourage the parties to focus their briefing on that question. Further factual development may be appropriate in the event the case is remanded, but the opportunity to gather additional factual evidence is not a basis for my decision to extend the briefing deadline.
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Back in law school, we were taught that court jurisdiction existed to decide “cases or controversies.” Not so in the US Immigration Court in the “Age of Sessions.”
The latest outrageous “certified” decision by Attorney General Jeff “Gonzo Apocalyoto” Sessions shows that he has abused his power by intervening in a case where neither party sought his intervention and where both parties essentially consider the law to be settled by prior BIA precedents. Indeed, the DHS is basically asking Sessions not to intervene in a case that it lost before the BIA and instead let the BIA deal with the issue. Remarkably, though, Sessions treats DHS with the same arrogant and biased dismissiveness that he treats migrants and private lawyers.
Even the DHS (to its credit) appears to be appalled by Sessions’s unwarranted and unneeded interference in the quasi-judicial process before the US Immigration Courts. Apparently, the DHS understands (as Gonzo apparently does not or will not) that the destruction of the credibility and integrity of the Immigration Courts will also hurt their enforcement efforts by making US Courts of Appeals more skeptical of the validity of final orders of removal entered by the BIA! Indeed, it was similar concerns by enforcement officials in the “Legacy INS” during the Reagan Administration that led to the removal of the Immigration Judges from the INS and creation of EOIR as a separate, non-enforcement, agency within the DOJ in the first place.
Although Sessions in his latest decision in Matter of A-B– basically concedes that the Immigration Judge should have followed the BIA’s instructions and granted the respondent’s asylum application, he nevertheless is misusing the case as a “vehicle” for a reexamination of fundamental, well-established principles of asylum law that neither party requested. Talk about abuse of authority!
Sessions has been on the wrong side of legal history on an astounding range of legal issues throughout his sorry career. Yet, having been rebuffed on most of his extremist views by his colleagues of both parties in the Senate and by the courts, he is now using his “captive court system” — the U.S. Immigration Courts — to interfere with the fair administration of justice and to impose his self-styled, White Nationalist inspired rules that no party has requested. Seldom has there been such a clear abuse of the American legal system. Yet, to date he is getting away with it!
This is precisely the type of improper use of the arcane “certification authority” that my colleague Judge Jeffrey Chase discussed in his article reprinted in the previous post. When and where will this mockery of justice end?
The recent flurry of case certifications by Attorney General Jeff Sessions (he has certified four BIA decisions to himself since January) raises the question of the continued appropriateness of the practice. Certification allows a political appointee who heads an enforcement agency, and is subject to the policy agenda of the administration he or she serves, absolute authority to overrule or completely rewrite the decisions of an ostensibly neutral and independent tribunal comprised of judges possessing greater subject matter expertise.
The issue has only become a matter of legitimate concern under the two most recent Republican administrations. In her eight years as Attorney General during the Clinton Administration, Janet Reno decided a total of three cases pursuant to certification. Under the Obama administration, AGs Loretta Lynch and Eric Holder decided a comparable number of cases (four). The number is artificially inflated by the fact that two of those consisted of Holder vacating late-term decisions by his predecessor, Michael Mukasey. In one of the vacated decisions, Mukasey’s reasoning had been rejected by five separate U.S. circuit courts of appeal.
In contrast, during the eight year administration of George W. Bush, his three Attorneys General issued 16 precedent decisions through the certification process. Sessions so far seems to be on a similar pace.
One of Bush’s AGs, Alberto Gonzales, co-authored an article in 2016 defending the use of certification.1 As part of his argument, Gonzales traced the history of the practice to the BIA’s origins as an advisory-only panel in the Department of Labor in the 1920s and 30s. When the Board was transferred to the Department of Justice in 1940, it was provided only limited decision-making authority, but was required to refer to the AG certain categories of cases, including those “in which a dissent has been recorded” or where “a question of difficulty is involved.”
I will add that the early appointees to the BIA were career bureaucrats with no prior expertise or experience in the field of immigration law. To me, such history seems to provide no real justification for the continued practice. The BIA has for decades enjoyed the authority to independently decide a broad class of cases. It’s members all come to the Board with far more expertise and experience in the field of immigration law than the AG possesses (although since the 2003 purge by then-AG John Ashcroft, its make-up is far more conservative). Furthermore, whereas in the past, it was the BIA itself, and later, the Commissioner of INS, requesting certification, at present, the AG is handpicking the cases and certifying them to himself, sometimes in order to decide an issue that wasn’t part of the decision below.
Law Professor Margaret H. Taylor has noted that the practice of AG certification “might be seen as objectionable because it conflicts with a core value of our legal system: that disputes are resolved by an impartial adjudicator who has no interest in the outcome.”2 Taylor further points out that many such decisions were issued in the final days of an AG’s term, meaning that the AG “refers a controversial issue to himself and renders a decision upending agency precedent on his way out the door.”3
In an article calling for the implementation of procedural safeguards on the AG’s certification power, the author accurately notes that the practice of “agency head review” is common and non-controversial.4 However, Professor Stephen Legomsky has pointed out that the strongest arguments for agency head review – inter-decisional consistency, and agency control (by politically-accountable officials) over policy – don’t translate well to the process of deciding asylum applications, for example.5 This harks back to a point I made in an earlier article – that immigration judges (including BIA Board member) are the only judges in the otherwise enforcement-minded Department of Justice, and that the Department has never really grasped the concept of independent decision-makers existing under its jurisdiction.
Legomsky pointed out in the same article that the BIA, as an appellate authority, “can yield the same consistency as agency head review” through the issuance of en banc decisions; adding that the AG could require the Board to decide certain cases en banc.6 Interestingly, the BIA has given up the use of en banc decisions in recent years. It has not decided a precedent decision en banc even in cases of major import, or following remands from the AG or circuit courts.
Sessions’ use of certification thus far is unique in his redetermination of what the case he chooses is even about. In Matter of Castro-Tum, the DHS appealed an immigration judge’s decision to administratively close proceedings in which an unaccompanied minor did not appear on the grounds that it had met its burden of establishing proper notice of the hearing on the minor respondent. The BIA actually agreed with DHS and remanded the matter. However, Sessions has now turned the case into a referendum on whether any IJ or the BIA has the legal authority to administratively close any case, an argument that was never raised below. In Matter of A-B-, an immigration judge, in defiance of the BIA’s order to grant asylum on remand, refused to calendar the case for a hearing for an excessive length of time, and then disobeyed the Board’s order by denying asylum again for spurious reasons. Somehow, Sessions decided to certify this case to decide whether anyone seeking asylum based on membership in a particular social group relating to being a victim of private criminal activity merits such relief. His ultimate decision could curtail asylum eligibility for victims of domestic violence, members of the LGBTQ community, targets of gang violence, and victims of human trafficking.
Furthermore, two of the cases certified by Sessions involve tools of docket management, i.e. administrative closure and continuances. As immigration judges are the only judges within the Department, and as the BIA has set out uniform procedures for the proper use of these tools, how can the AG justify his need to weigh in on these issues, which clearly do not involve the need for intra-department consistency (as no other component of the department employs such tools), or for control by a politically-accountable official to ensure the coherent expression of agency policy?
Once again, the solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Notes:
Alberto Gonzales and Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L.Rev. 841 (2016).
Margaret H. Taylor, Midnight Agency Adjudication: Attorney General Review of Board of Immigration Appeals Decisions, 102 Iowa L. Rev. 18 (2016).
Id.
Laura S. Trice, Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, 85 N.Y.U. L. Rev. 1766 (2010).
Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan. L. Rev. 413, 458 (2007).
The Trump administration will no longer seek to automatically release pregnant immigrants from detention — a move in line with the overall efforts by the administration to hold far more immigrants in custody than its predecessors.
The change in policy was sent by Immigrations and Customs Enforcement to Congress on Thursday morning and obtained by CNN.
According to the new directive, immigration officers will no longer default to trying to release pregnant women who fall into immigration custody, either because they are undocumented or otherwise subject to deportation. The Obama administration policy urged officers to presume a pregnant woman could be released except for extreme circumstances.
But a FAQ sent with the directive makes clear that ICE is not going to detain all pregnant immigrants. The policy will require a case-by-case evaluation, the FAQ explains, and will keep in custody “only those whose detention is necessary to effectuate removal, as well as those deemed a flight risk or danger to the community.”
ICE will also lean towards releasing pregnant women if they are in their third trimester, and will also make an effort for detention facilities to provide services to pregnant women and parents.
The move follows controversial efforts by the Department of Health and Human Services to keep unaccompanied minor immigrants in custody rather than releasing them to obtain abortions, a policy that has been the subject of intense litigation.
White House reviewing plan to restrict immigrants’ use of government programs
By: Tal Kopan, CNN
The White House is reviewing a proposal that could penalize immigrants who use certain government programs, the Department of Homeland Security confirmed Thursday.
The proposed rule change would substantially expand the type of benefits that could be considered as grounds to reject any immigrants’ application to extend their stay in the US or become a permanent resident and eventually a citizen.
The move continues efforts by the Trump administration to overhaul the US immigration system and the changes could have the effect of substantially tipping the scales in favor of high-income immigrants — all without requiring an act of Congress. The changes could amount to an effective income test of immigrants to the US, critics say.
The expansion would going forward include programs like children’s health insurance, tax credits and some forms of Medicaid as black marks against immigrants seeking to change their status to stay.
By including benefits used by family members of the immigrants, the proposal could also apply to benefits being used by US citizens, who may be the spouse or child of the immigrant applying for status
DHS spokesman Tyler Houlton said the proposed rule had been sent to the White House Office of Management and Budget — the final step of the approval process before it’s released.
Houlton would not comment on the specifics of the proposal, but did said that DHS is “committed to enforcing existing immigration law … and part of that is respecting taxpayer dollars.”
CNN first reported on the changes as they were in development last month. The Washington Post obtained a more recent version of the proposal on Wednesday.
Why the change matters
US law authorizes authorities to reject immigrants if they are likely to become a “public charge” — or dependent on government.
Since the 1990s, that has meant that immigrants shouldn’t use so-called “cash benefits,” but a large number of programs were exempt from consideration.
But the new rule would include programs such as some forms of Medicaid, the Children’s Health Insurance Program, food stamps, subsidized health care under Obamacare and the Earned Income Tax Credit, according to the latest draft obtained by the Post.
In one change from the earlier draft obtained by CNN, educational programs that benefit children, including Head Start, will not be included under the administration’s plan. Programs like veteran’s benefits that individuals earn would also be excluded.
The rule would not explicitly prohibit immigrants or their families from accepting the benefits. Rather, it authorizes the officers who evaluate their applications for things like green cards and residency visas to count the use of these programs against the immigrant, and gives them authority to deny the immigrants visas on these grounds — even if the program was used by a family member.
The decision sets up a difficult scenario for immigrants who hope to stay in the US. If they accept any public benefits — or their family members do — they could potentially be denied future abilities to stay. That includes decisions about whether to use health insurance subsidies for them or their children, or tax credits they qualify for otherwise.
Immigrants are no more likely to qualify for these programs than the native US population, according to tables included in the documents, the Post reported. There is no substantial difference in the rate between the two groups — in some cases foreign-born residents are slightly more likely to use a program, but in some cases the native-born population is, according to the tabulations.
US to require immigrants to turn over social media handles
By Tal Kopan, CNN
The Trump administration plans to require immigrants applying to come to the United States to submit five years of social media history, it announced Thursday, setting up a potential scouring of their Twitter and Facebook histories.
The move follows the administration’s emphasis on “extreme vetting” of would-be immigrants to the US, and is an extension of efforts by the previous administration to more closely scrutinize social media after the San Bernardino terrorist attack.
According to notices submitted by the State Department on Thursday, set for formal publication on Friday, the government plans to require nearly all visa applicants to the US to submit five years of social media handles for specific platforms identified by the government — and with an option to list handles for other platforms not explicitly required.
The administration expects the move to affect nearly 15 million would-be immigrants to the United States, according to the documents. That would include applicants for legal permanent residency. There are exemptions for diplomatic and official visas, the State Department said.
The decision will not take effect immediately — the publication of the planned change to visa applications on Friday will start a 60-day clock for the public to comment on the move.
The potential scouring of social media postings by potential immigrants is sure to rankle privacy and civil liberties advocates, who have been vocal in opposing such moves going back to efforts by the Obama administration to collect such information on a more selective and voluntary basis.
Critics complain the moves, amid broader efforts by the administration, are not only invasive on privacy grounds, but also effectively limit legal immigration to the US by slowing the process down, making it more burdensome and making it more difficult to be accepted for a visa.
Federal authorities argue the moves are necessary for national security.
In addition to requiring the five years of social media history, the application will also ask for previous telephone numbers, email addresses, prior immigration violations and any family history of involvement in terrorist activities, according to the notice.
Since its early days, the administration has been telegraphing a desire to more closely dig through the backgrounds and social media histories of foreign travelers, but Thursday’s move is the first time that it will formally require virtually all applicants to come to the US to disclose that information.
After the San Bernardino terrorist attack in 2015, greater attention was placed on immigrants’ social media use, when it was revealed that one of the attackers had advocated jihad in posts on a private social media account under a pseudonym that authorities did not find before allowing her to come to the US.
The move by the Trump administration stops short of requiring passwords or access to those social media accounts, although then-Homeland Security Secretary John Kelly suggested last year that it was being considered.
The administration has been pursuing “extreme vetting” of foreigners as a centerpiece of its immigration and national security policy, including through the contentious travel ban that remains the subject of heavy litigation.
Judge Stephen Reinhardt, the liberal face of the 9th U.S. Circuit Court of Appeals, died Thursday afternoon, a court spokesman said. He was 87.
The spokesman said Reinhardt died of a heart attack during a visit to a dermatologist in Los Angeles.
“All of us here at the 9th Circuit are shocked and deeply saddened by Judge Reinhardt’s death,” 9th Circuit Chief Judge Sidney R. Thomas said. “We have lost a wonderful colleague and friend.”
Thomas called Reinhardt “deeply principled, fiercely passionate about the law and fearless in his decisions.”
“He will be remembered as one of the giants of the federal bench. He had a great life that ended much too soon,” Thomas said.
Reinhardt, an appointee of former President Carter, was dubbed the “liberal lion” of the federal circuit courts.
His rulings in favor of criminal defendants, minorities and immigrants were often overturned by the more conservative U.S. Supreme Court.
Many lawyers have joked that Reinhardt’s name on a ruling was probably enough to get the attention of the conservatives on the Supreme Court. In 1996, after Reinhardt was reversed several times by the Supreme Court, The Times asked him if he was upset.
“Not in the slightest!” he boomed. “If they want to take away rights, that’s their privilege. But I’m not going to help them do it.”
No matter how many reversals he endured, Reinhardt used the bench to try to help the underdog. Just a few months ago, he called The Times to read a reporter a letter from a woman who had just been released from prison and who wanted to thank him for ruling in her favor.
“He was a giant not just on the 9th Circuit but within the law,” UC Berkeley law school Dean Erwin Chemerinsky said. “He also was a judge with a particular vision of the law, based on enforcing the Constitution to protect people.”
Reinhardt joined another judge in ruling that the words “under God” in the Pledge of Allegiance were unconstitutional, a decision that was later overturned.
He wrote a ruling that said laws prohibiting physician-assisted suicide were unconstitutional and another that overturned California’s previous ban on same-sex marriage.
Reinhardt also lamented Supreme Court rulings that limited judges’ ability to overturn convictions and sentences on habeas corpus and complained about the flaws in death penalty cases.
He was among the federal judges who decided that overcrowding in California’s prison system was unconstitutional.
“His view was to decide cases as he believed the law required, not to predict what the Supreme Court would do,” Chemerinsky said. “He was unapologetic about that.”
Conservatives often railed against Reinhardt, calling him lawless. They accused him of never voting to uphold a death sentence. Reinhardt, asked about that, said he was not sure.
He was particularly close to former 9th Circuit Judge Alex Kozinski, considered a conservative with libertarian views. They were dubbed the “odd couple.”
When Kozinski retired under pressure in December in response to sexual harassment allegations, Reinhardt bemoaned the departure. He said he kept a photograph of Kozinski planting a kiss on his cheek in his chambers.
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Read Dolan’s complete obit on Judge Reinhardt at the above link.
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My friend and former BIA colleague Judge Lory Diana Rosenberg added this heartfelt tribute:
I am heartbroken to learn of Judge Reinhardt’s dying. Just knowing he was alive and participating in our courts gave me deep hope that justice would prevail, at least in some quarters. I am so fortunate to have known him and to have spent a tiny bit of time with him and his wife at an international meeting years ago. He is a giant among judges. I will miss him.
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Here’s an excerpt from my favorite Judge Reinhardt concurring opinion in Magna-Ortiz v. Sessions:
The government’s insistence on expelling a good man from the country in which he has lived for the past 28 years deprives his children of their right to be with their father, his wife of her right to be with her husband, and our country of a productive and responsible member of our community. Magana Ortiz, who first entered the United States at 15, is now 43 years old, and during his almost three decades here has raised a family and built a successful life. All of his children, ages 12, 14, and 20, were born in this country and are American citizens, as is his wife. His eldest daughter currently attends the University of Hawaii, and he is paying for her education.
. . .
President Trump has claimed that his immigration policies would target the “bad hombres.” The government’s decision to remove Magana Ortiz shows that even the “good hombres” are not safe.3 Magana Ortiz is by all accounts a pillar of his community and a devoted father and husband. It is difficult to see how the government’s decision to expel him is consistent with the President’s promise of an immigration system with “a lot of heart.” I find no such compassion in the government’s choice to deport Magana Ortiz.
We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.
2 The family’s right to occupy their home will terminate upon Magana Ortiz’s removal.
3 On January 25, 2017, the President signed a series of executive orders dismantling the system of priorities that had previously guided Immigration and Customs Enforcement and Border Patrol in determining whom to deport. The orders also gave far greater authority to individual agents and officers, who are now removing non-citizens simply because they are here illegally, regardless of whether they have committed any offense. In light of the breadth of these orders and the lack of any apparent limit on agents’ discretion, the undocumented must now choose between going to work, school, hospitals, and even court, and the risk of being seized. See James Queally, ICE Agents Make Arrests at Courthouses, L.A. Times, March 16, 2017.
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I must say that I had the same feelings as Judge Reinhardt on a number of occasions in my judicial career, although I never expressed them as eloquently as he did.
The wastefulness and futility of spending Government time, money, and authority removing fine people who were making remarkable contributions to our country, our economy, and our society certainly was apparent at the Immigration Court level. That this Administration has cynically chosen to aggravate this inhumane and quite frankly stupid situation rather than to attempt to fix it is most disheartening as is the fact that by placing them and retaining them in power we all become complicit in their bias and injustice! Harm to the most vulnerable among us is harm to all!
You can read the 9th Circuit’s complete decision in Magana Ortiz v. Sessions including Judge Reinhardt’s concurrence at this link:
The Trump administration has been trying to ramp up deportations of immigrants in the country illegally. But one thing has been standing in its way: Immigration judges often put these cases on hold.
Now Attorney General Jeff Sessions is considering overruling the judges.
One practice that is particularly infuriating to Sessions and other immigration hard-liners is called administrative closure. It allows judges to put deportation proceedings on hold indefinitely.
“Basically they have legalized the person who was coming to court, because they were illegally in the country,” Sessions said during a speech in December.
Sessions is using his authority over the immigration court system to review a number of judicial decisions. If he overturns those decisions, thousands of other cases could be affected. In this way, he is expected to end administrative closure, or scale it back.
The attorney general may also limit when judges can grant continuances and who qualifies for asylum in the United States.
This could reshape the nation’s immigration courts, which are overseen by the Justice Department, and make them move faster. Sessions says he is trying to clear a massive backlog of cases that is clogging the docket.
But critics say he is weighing changes that would threaten the due process rights of immigrants, and the integrity of immigration courts.
“What he wants is an immigration court system which is rapid, and leads to lots of deportations,” said Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law.
“It’s really just an unprecedented move by the attorney general to change the way the whole system works,” she said.
It’s rare for an attorney general to exercise this power, but Sessions has done it four times in the past three months.
Separately, for the first time, the Justice Department is setting quotas for immigration judges, pushing them to resolve cases quickly in order to meet performance standards.
It’s not just immigration lawyers who are worried about the effect of any changes. The union that represents immigration judges is concerned, too.
“A lot of what they are doing raises very serious concerns about the integrity of the system,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “judges are supposed to be free from these external pressures.”
The attorney general insists he’s trying to make sure that judges are deciding cases “fairly and efficiently.” And says he is trying to clear a backlog of nearly 700,000 cases.
That is in addition to the hundreds of thousands of cases in administrative closure. Nearly 200,000 immigration cases have been put on hold in this way in the past five years alone.
“Far and away, administrative closure was being abused,” said Cheryl David, a former immigration judge who is now a fellow at the Center for Immigration Studies, which advocates for lower levels of immigration.
He says many of those cases should have ended in deportation. “But rather than actually going through that process, the Obama administration simply administratively closed them. And took them off the docket to be forgotten,” he said.
Sessions has chosen to personally review the case of an undocumented immigrant named Reynaldo Castro-Tum who didn’t show up for his removal hearing. The judge wondered whether the man ever got the notice to appear in court and put his deportation proceedings on hold.
In a legal filing in January, Sessions asked whether judges have the authority to order administrative closure and under what circumstances.
Immigration lawyers and judges say there are legitimate reasons to administratively close a case. For instance, some immigrants are waiting for a final decision on visa or green card applications.
There is a backlog for those applications, too. They’re granted by U.S. Citizenship and Immigration Services, which is separate from immigration court. And that can take months, if not years.
Immigration lawyers and judges are worried that undocumented immigrants could be deported in the meantime.
“You know this is not the private sector where you pay extra money and you can get it done in two days,” said Cheryl David, an immigration lawyer in New York.
David represents hundreds of undocumented immigrants who are facing deportation. She often asks judges to put the proceedings on hold.
“It gives our clients some wiggle room to try and move forward on applications,” she said. “These are human beings, they’re not files.”
Immigration lawyers say these changes could affect immigrants across the country.
Brenda DeLeon has applied for a special visa for crime victims who are undocumented. She says her boyfriend beat her up, and she went to the police.
She came to the U.S. illegally from El Salvador in 2015, fleeing gang violence, and settled in North Carolina.
“If I go back, then my life is in danger,” DeLeon said through a translator. “And not only mine, but my children’s lives too.”
For now, a judge has put DeLeon’s deportation case on hold while she waits for an answer on her visa application.
Get the full audio version from NPR at the above link.
Haste makes waste! Gimmicks to cut corners, deny due process, and cover up the Administration’s own incompetent and politically driven mal-administration of the Immigration Courts is likely to cause an adverse reaction by the “real courts” — the Article III Courts of Appeals — who ultimately have to “sign off” on the railroading of individuals back to potentially deadly situations.
I also have some comments on this article.
In Castro-Tum, on appeal the BIA panel corrected the Immigration Judge’s error in administratively closing the case. Consequently, there was no valid reason for the Attorney General’s “certification” and using the case for a wide ranging inquiry into administrative closing that was almost completely divorced from the facts of Castro-Tum.
I also question Judge Arthur’s unsupported assertion that “Far and away administrative closing was being abused.”
According to TRAC Immigration, administrative closing of cases as an exercise of “prosecutorial discretion” by the DHS Assistant Chief Counsel accounted for a mere 6.7% of total administrative closings during the four-year period ending in FY 2015.
In Arlington where I sat, administrative closing by the Assistant Chief Counsel was a very rigorous process that required the respondent to document good conduct, length of residence, family ties, employment, school records, payment of taxes, community involvement, and other equities and contributions to the U.S. With 10 to 11 million so-called “undocumented” individuals in the U.S., removing such individuals, who were actually contributing to their communities, would have been a complete waste of time and limited resources.
The largest number of administrative closings in Arlington probably resulted from individuals in Immigration Court who:
Had been granted DACA status by USCIS;
Had been granted TPS by USCIS;
Had approved “U” nonimmigrant visas as “victims of crime,” but were waiting for the allocation of a visa number by the USCIS;
Had visa petitions or other applications that could ultimately have qualified them for permanent legal immigration pending adjudication by the USCIS.
Contrary to Judge Arthur’s claim, the foregoing types of cases either had legitimate claims for relief that could only be granted by or with some action by the USCIS, or, as in the case of TPS and DACA, the individuals were not then removable. Administrative closing of such cases was not an “abuse,” but rather eminently reasonable.
Moreover, individuals whose applications or petitions ultimately were denied by the USCIS, or who violated the terms under which the case had been closed by failing to appear for a scheduled interview or being picked up for a criminal offense were restored to the Immigration Court’s “active docket” upon motion of the DHS.
There are almost 700,000 cases now on the Immigration Courts’ docket — representing many years of work even if there were no new filings and new judges were added. Moreover, the cases are continuing to be filed in a haphazard manner with neither judgement nor restraint by an irresponsible Administration which is allowing DHS Enforcement to “go Gonzo.” To this existing mess, Sessions and Arthur propose adding hundreds of thousands of previously administratively closed cases, most of which shouldn’t have been on the docket in the first place.
So, if they had their way, we’d be up over one million cases in Immigration Court without any transparent, rational plan for adjudicating them fairly and in conformity with due process at any time in the foreseeable future. Sure sounds like fraud, waste, and abuse of the system by Sessions and DHS to me. All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ. We need this reform sooner, rather than later!
For all of the attention that we pay to our constitutional rights, we devote stunningly little attention to the more legalistic — but no less important — topic of how those rights are enforced. And as a largely unnoticed rulinglast week by the full United States Court of Appeals for the Fifth Circuit demonstrates, the Supreme Court has quietly made it all but impossible for most victims of constitutional violations by the federal government to obtain relief.
Not only is this development antithetical to the core purpose of having an independent judiciary, but it will almost certainly lead to more unconstitutional conduct by even the most well-meaning federal officers, who, in most cases, no longer have to seriously worry about the specter of judicial review.
Image
Maria Guadalupe Guereca’s son was shot dead in Mexico near the border by a patrol agent on the U.S. side.CreditYuri Cortez/Agence France-Presse — Getty Images
The case that the New Orleans-based federal appeals court ruled on involved the fatal cross-border shooting of an unarmed 15-year-old Mexican national on Mexican soil by a United States Border Patrol agent standing on American soil. The family of the victim, Sergio Hernández, sued the responsible agent, Jesus Mesa, claiming that the shooting was unprovoked and violated the teenager’s rights under the Fourth and Fifth Amendments. Whether the Constitution protects a foreign national standing on foreign soil in a case like this is an interesting and still-open question. But rather than resolving that issue, the Court of Appeals held, by a 13-2 vote, that it didn’t matter; even if the shooting violated clearly established constitutional rights, the majority concluded, the federal courts should not recognize a remedy of damages for fear of intruding upon the legislative and executive branches of government.
. . . .
That’s a troubling conclusion, because government officers like Agent Mesa will have less of a reason to worry about the constitutional rights of those with whom they interact. But at a deeper level, our constitutional rights aren’t worth all that much if there’s no mechanism for enforcing them. One can only hope that sometime soon the Supreme Court comes to its senses and agrees.
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Go on over to the NYT at the link for the full op-ed.
I decried the Fifth Circuit’s dereliction of duty in a recent blog focusing on the much more persuasively reasoned and powerful dissent by Judge Edward Prado. But, only one of his other 14 black-robed Ivory Towerists were willing to join Judge Prado, step up to the plate, and defend our constitutional rights. What kind of folks and jurists are getting these lifetime sinecures just to avoid controversy and not to stand up for what’s right?
Yup. Today it’s just some Mexican kid (who also happened to be a human being and someone’s son) who was shot by the Border Patrol. But, tomorrow it might be your son or daughter or you yourself whose rights are violated. And, who is going to step up and vindicate your constitutional rights? Certainly not the 13 judges of the Fifth Circuit majority in Hernandez v. Mesa who looked for and found ways to avoid their collective duty to uphold our Constitution.
Joshua Matz is a constitutional lawyer based in the District. He is also the publisher of the legal analysis blog Take Care.
President Trump is hard at work making animus the law of the land. Justice Department lawyers revealed his latest effort Friday night, announcing a revised plan to exclude nearly all transgender soldiers from the armed forces.
As many commentators haveobserved, the reasoning offered to support Trump’s policy is riddled with empirical errors and anti-trans stereotypes. It comes nowhere close to disproving the comprehensive study in 2016 that recommended allowing transgender people to serve openly. Like so many other missives from this White House, it makes only a token effort to conceal the disdain and disgust that underlie it.
Trump’s original “transgender ban” was blocked byfourfederal courts. After two of those rulings were affirmed on appeal, the administration decided against seeking Supreme Court review. It’s therefore safe to assume that Trump’s latest order will not go into effect unless it survives constitutional challenges.
And in thinking about that litigation, it’s hard to escape a feeling of deja vu. A little more than 14 months into Trump’s presidency, a pattern has emerged in cases challenging some of his most despicable decisions.
. . . .
It remains to be seen when and where these arguments will succeed. As a logical matter, there must be some limits. Evidence that Trump originally acted with impermissible motives cannot (and should not) permanently preclude him from making policy.
But that isn’t the situation we confront. Trump has made no effort whatsoever to dispel or deny the aura of animus that envelops so many of his orders. To the contrary, he and his advisers have leaned into the hate. With each passing day, it spreads like a poison.
We thus live in a strange new world, where bigots serve openly and soldiers are forced into closets.
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Go on over to the WashPost at the link for the complete article.
The problem, as noted by Matz, is that our system isn’t designed to deal with unremitting hate and bias from it’s most active, and supposedly most responsible, litigant, the U.S. Government. Usually, after a few “warning shots across the bow,” the Executive gets the picture and changes strategies.
But, led by White Nationalists like Trump and Sessions, this Administration simply “doubles down” on thinly disguised hate and bias motivated policies. At some point, the Article III courts are likely to become both frustrated and exhausted. By continuing to “knock down” bias-based policies and actions, the Article IIIs become part of the political fray, which makes them uncomfortable. Perhaps at that point, they will just start giving Trump & Co. “free passes.” Indeed, some Federal Courts, including perhaps the Supremes, already appear prepared to “punt” on the daily dose of legally questionable and indecent legal positions spewed forth by this Administration.
AARON REICHLIN-MELNICK writes in Immigration Impact:
As thousands of Central American families arrived at the U.S.-Mexico border asking for asylum in 2014, human rights organizations raised alarms about asylum seekers’ treatment by Customs and Border Protection officials. But these organizations were not the only ones expressing concern—asylum officers within U.S. Citizenship and Immigration Services also raised alarms about CBP misbehavior.
A new Freedom of Information Act lawsuit hopes to reveal how asylum officials’ repeated concerns about CBP officer misconduct were left unaddressed. The lawsuit, filed by Human Rights Watch and Nixon Peabody LLP, seeks information about such misbehavior, including hundreds of reports that CBP failed to properly screen asylum seekers.
This lawsuit comes after Human Rights Watch, along with the American Immigration Council, filed a FOIA request asking for records of complaints made by officers in USCIS’s Asylum Division. The lawsuit asks USCIS to turn over all records of complaints about CBP misconduct from 2006 to 2015, arguing that the agency violated FOIA by failing to provide requested key documents following the original request. These documents included a spreadsheet where asylum officers purportedly documented hundreds of instances of “problematic Border Patrol practices.”
CBP officers at ports of entry and along the U.S. border are generally the first to encounter newly arriving asylum seekers. When asylum seekers express a fear of returning to their home country to a CBP officer, the officer is required to refer them to an asylum officer with USCIS for an interview. The asylum officer decides whether the asylum seeker has a “credible fear” of persecution, a determination which allows the asylum seeker to pursue an asylum case in immigration court.
Because these credible fear interviews occur after an asylum seeker has already been processed by CBP officers at the border or ports of entry, asylum officers are able to ask about any encounters with CBP. The limited records USCIS offered in response to the FOIA show that asylum officers often had serious concerns about the behavior of its sister agency.
The documents produced to date demonstrate how grave the problem is:
One email from an asylum officer to a supervisor expresses a belief that there are “significant issues in how some Border Patrol officers are screening individuals.”
A second email discusses an incident where “CBP mocked a transgender woman for hours and refused to record her fear” of returning to her home country. These internal reports of CBP abuse match the reports of many asylum seekers who encountered abuse at the hands of CBP officers during the same time period.
A third email from an asylum officer expressed concerns that an asylum seeker was coerced into withdrawing his request for asylum, with the officer writing that: “What is especially disturbing about this is that … the record indicates that [the asylum seeker] has been subjected to harassment, intimidation, and physical mistreatment by CBP upon his recent entry into the United States, and this mistreatment. . . affected his decision to dissolve his case.”
Records of CBP’s mistreatment of asylum seekers is especially important as the numbers of asylum-seekers at the border continue to rise. Last year, groups sued CBP, alleging a pattern or practice of unlawfully turning away asylum seekers who arrived at ports of entry and requested asylum. In light of CBP’s own inadequate complaint system, this new lawsuit could substantiate the many reports of the agency’s misconduct.
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Both Judge Jeffrey Chase and I have “roasted” in prior blogs the BIA’s disingenuous and “clearly erroneous greenlighting” of Border Patrol statements in Matter of J-C-H-F, 27 I&N Dec. 211 (BIA 2018). Quite contrary to the BIA’s unjustified “head in the sand” presumption of regularity given these flawed statements, there is clear public evidence, compiled over more than a decade, that such statements should be considered “presumptively unreliable.”
In addition to addressing the elements of the bogus “test” enunciated by the BIA in J-C-H-F- what should advocates do to fight this type of clearly biased, largely “fact free,” unwarranted pro-DHS decision-making by the BIA?
First, as Jeffrey and I have pointed out, get the publicly available reports of the U.S. Commission on International Religious Freedom (“USCIRF”) which show that glaring errors in accuracy and reliability raised as long ago as 2006 remained unaddressed as of 2016.
Second, use the additional materials cited in the above article to show how DHS has suppressed its own internal documents establishing the unreliability of the Border Patrol statements.
Third, get in touch with Human Rights Watch and the American Immigration Council to see if any additional FOIA materials have been made available which establish unreliability.
Fourth, ask someone from Human Rights Watch about a database I have heard they are establishing to provide “hard evidence” to challenge the reliability of Border Patrol statements.
In the “Age of Sessions,” I wouldn’t hold my breath for the “captive” BIA to recede from its travesty in J-C-H-F-. That’s why it’s critically important for advocates to do a great job of “setting the record straight” in the Courts of Appeals.
But, to do that, evidence challenging the Border Patrol statements must be offered at the trial stage before the Immigration Judge. Documenting and exposing the BIA’s disingenuous decision-making will also undermine the BIA’s overall credibility before the Courts of Appeals and perhaps eventually lead to a reversal of the unjustified “Chevron deference” the Board currently receives.
Today’s Board masquerades as a deliberative “expert tribunal” that neither publicly deliberates nor possesses any obvious expertise — a situation aggravated because nobody who works for the biased White Nationalist xenophobe Jeff Sessions can legitimately be considered “unbiased” or “impartial” when it comes to adjudication of migrants rights. Don’t forget, even if the BIA rules in the respondent’s favor, something that happens less and less these days, each an every BIA decision is subject to an inappropriate “certification and reversal” process by Sessions that he has shown little hesitation in invoking recently.
How can a respondent receive a “fair hearing” from a “court” where the Government’s leading enforcement figure holds all the cards? Obviously, he or she can’t! You can help make a record that eventually should force the “Article III’s” to shut down this “caricature of American justice.”
Of the untold number of stupid things that have come out of Donald Trump’s mouth, making a strong case for the stupidest was his claim, as he announced his candidacy for president, that he would build a wall on the southern border of the country and make the “criminals” and “rapists” in Mexico pay for it. So dumb was this declaration that even Trump eventually realized he would have to tweak it, probably around the time that Mexico’s president, Enrique Peña Nieto, said there was no way in hell he would fund the project. From there, Mr. Art of the Deal changed his story to taxpayers will put up the money initially, but Mexico will pay us back;which later became Mexico will pay for the wall through import tariffs; which quickly changed to Mexico will pay for the wall indirectly through NAFTA,” which morphed, earlier this month, into the wall will pay for itself. And now, the president has landed on a new idea: make the military pay for it.
Trump has privately been making the case that the Pentagon should use some of the $700 billion it received as part of last week’s spending bill to fund his vanity project, The Washington Postreported Tuesday. After mentioning it to several advisers last week, Trump reportedly floated the idea by House Speaker Paul Ryan in a meeting on Wednesday at the White House, to which Ryan “offered little reaction.” During another meeting, this one with senior aides, Trump apparently whined about how much money the Department of Defense was getting, noting that surely the Pentagon could afford to part with a few (or, say, 67) billion dollars. According to reporters Josh Dawsey and Mike DeBonis, President Temper Tantrum has had a hard time watching TV lately—heretofore his only solace in this cruel world—due to criticism of the spending deal he signed last week, and the fear that his base could sour on him without any wall progress. (The fact that he allegedly had an affair with a porn star, whom he subsequently paid off to stay quiet, is obviously a plus for them.) Currently, just $641 million is earmarked for new fencing, and it can only be used on “operationally effective designs that were already deployed last May,” meaning that unless something changes, the prototypes Trump recently visited in California will be just for show.
Of course, as everyone but the president seems to understand, it’s highly unlikely that the Pentagon would divert funds from the military to finance the wall, which experts say won’t actually stop the flow of illegal immigration at all, and which would require Congressional votes that Trump obviously doesn’t have. Not only will Democrats take a hard pass military spending paying for his fence, but Pentagon officials, per White House advisers, “may also blanch at the possibility.” In a statement to the Post,Minority Leader Chuck Schumer made his feelings pretty clear. “First Mexico was supposed to pay for it, then U.S. taxpayers, and now our men and women in uniform? This would be a blatant misuse of military funds and tied up in court for years. Secretary [James] Mattis ought not bother and instead use the money to help our troops, rather than advance the president’s political fantasies,” he said.
That virtually no one is going for the idea hasn’t stopped Trump from floating it in his preferred venue of choice. Over the weekend he suggested on Twitter that the military should scrounge up the money for national security reasons:
The national security argument might hold a bit more water if the Trump administration hadn’t targeted traditional border security measures for for cuts or delays in funding that experts say “[pose] a serious threat to border security.” (Those experts also say that the The Wall will largely useless “unless it’s 35,000 feet high.”) Meanwhile, at the White House, good soldier Sarah Sanders on Tuesday told reporters that the administration “still has plans to look for potential ways” for Mexico to pay for the wall.
Anyway, stay tuned for next week when Trump privately presses for the Department of Veterans Affairs to quit being so stingy and pony up the dough. How much money do they really need to treat PTSD?
Team Trump has a special treat in store for the bank industry
It’s the appointment of Jelena McWilliams at the F.D.I.C., which will result in a trifecta of deregulation-happy officials atop the nation’s banking regulators, per The Wall Street Journal:
When that happens, the F.D.I.C., the Federal Reserve and Office of the Comptroller of the Currency will be able to move ahead on a number of the Trump administration’s policy priorities, such as adjusting capital and liquidity requirements, easing restrictions on short-term consumer loans and relaxing the 2010 Dodd-Frank financial law’s proprietary trading ban, the Volcker rule.
Ms. McWilliam’s arrival likely will coincide with the completion of a bill in Congress aimed at easing crisis-era banking regulations, another catalyst for changes to the financial rule book.
Isaac Boltansky, the policy research director at Compass Point Research & Trading LLC, told W.S.J.that, “With Congress likely to pass the only financial deregulatory bill for the near future, it will be the alphabet soup of new regulators who decide the tone and tenor of the new deregulatory agenda.” #MAGA!
Wilbur Ross does the G.O.P. a solid
Overriding the advice of career officials who warned that adding a question to the 2020 census about citizenship will lead to fewer responses from people worried about deportation, Ross decided on Monday to just go for it, writing in a memo he had “determined that reinstatement of a citizenship question on the 2020 decennial census questionnaire is necessary to provide complete and accurate census block level data” (the last time the citizenship question was on the census was in 1950). That’s an interesting argument, given that the very reason census officials didn’t want to reinstate the question is a fear that it will lead to lower response rates. Which may be all part of the plan:
Critics of the change and experts in the Census Bureau itself have said that, amid a fiery immigration debate, the inclusion of a citizenship question could prompt immigrants who are in the country illegally not to respond. That would result in a severe undercount of the population—and, in turn, faulty data for government agencies and outside groups that rely on the census. The effects would also bleed into the redistricting of the House and state legislatures in the next decade.
Others argued that an undercount in regions with high immigrant populations would lead not only to unreliable data but also to unfair redistricting, to the benefit of Republicans.
More threatening essentially to break or evade the law from our “Con-Man-In-Chief.” “Normalizing” this erratic, “Third World Dictator” conduct doesn’t make it “normal” or “acceptable.” It reflects on the folks willing to enable and apologize for Trump (although apology is something he never does, no matter how egregious his lies or misconduct.)
Ironically, Trump likely could have had “His Wall” funded if he had been willing to support a bipartisan “Dreamer Compromise” just a few weeks ago.
Progressives, states and civil rights advocates are preparing a flurry of legal challenges to the Trump administration’s decision to add a question about citizenship to the next census, saying the move will penalize immigrants and threaten civil rights.
The late Monday move from the Commerce Department, which it said came in response a request by the Justice Department, would restore a question about citizenship that has not appeared on the census since the 1950s. The administration said the data was necessary to enforce the 1965 Voting Rights Act.
The state of California immediately challenged the plan in federal court.
California Attorney General Xavier Becerra and Secretary of State Alex Padilla trashed the move as anti-immigrant.
“The citizenship question is the latest attempt by President Trump to stoke the fires of anti-immigrant hostility,” Padilla said in a statement. “Now, in one fell swoop, the US Commerce Department has ignored its own protocols and years of preparation in a concerted effort to suppress a fair and accurate census count from our diverse communities. The administration’s claim that it is simply seeking to protect voting rights is not only laughable, but contemptible.”
Former Obama administration Attorney General Eric Holder also blasted the move and said his organization, which focuses on voting enfranchisement and redistricting, would also pursue litigation against what he called an “irresponsible decision.”
Holder said contrary to the rationale presented by the Justice Department, Holder said he and other modern-era attorneys general were “perfectly” able to handle those legal matters without such a question on the Census.
“The addition of a citizenship question to the census questionnaire is a direct attack on our representative democracy,” Holder said in a statement. “Make no mistake — this decision is motivated purely by politics. In deciding to add this question without even testing its effects, the administration is departing from decades of census policy and ignoring the warnings of census experts.”
Critics of the move say that including such a question on a government survey will scare non-citizens and vulnerable immigrant communities into under-reporting. By undercounting these populations, they argue, there will be a major impact that follows on voting and federal funds.
Because the once-a-decade census is used to determine congressional and political districts and to dole out federal resources, an undercount in heavily immigrant areas could substantially impact certain states and major cities and potentially their representation at the federal level.
The question has not been on the full census since the 1950s, but does appear on the yearly American Community Survey administered by the Census Bureau to give a fuller picture of life in America and the population.
The Commerce Department said the decision came after a “thorough review” of the request from the Justice Department. The priority, Commerce said, was “obtaining complete and accurate data.”
“Having citizenship data at the census block level will permit more effective enforcement of the VRA, and Secretary Ross determined that obtaining complete and accurate information to meet this legitimate government purpose outweighed the limited potential adverse impacts,” the statement said.
Becerra and his state have been central to virtually every legal challenge of the Trump administration on issues ranging from immigration, to the environment, to health care. The Justice Department has also sued California over its so-called sanctuary policies to protect immigrants.
More challenges could soon follow.
Wendy Weiser, director of the Brennan Center’s Democracy Program, a nonprofit that works on issues of justice and civil rights, said the question had no place in the Census.
“Our Constitution requires a complete and accurate count of everyone living in the country, no matter her or his citizenship status. The administration’s decision to add a citizenship question is at best a dramatic misstep, and at worst a politically-motivated move that will undermine a fair and accurate census,” Weiser said. “This question is a dangerous move that could lead to a serious skewing of the final census results, which would have a deleterious effect on our system of representative democracy. We urge the administration to reconsider.”
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The idea that the Justice Department under Jeff Sessions wants this information to enforce the Voting Rights Act (“VRA”) is preposterous on its face! So far, the only interest that Sessions and his crew at the DOJ have shown in the VRA is to insure that White GOP voters are enfranchised and that African-Americans and other minorities are disenfranchised.
Because all individuals in a congressional district are entitled to representation, regardless of citizenship status or other legal status, promoting an undercount (which is what the Administration obviously intends) will work to the disadvantage of those districts with large populations of immigrants, whether legal or illegal.
Stay tuned. There probably are many more similar suits to come, and “Tal is on the ball” to keep us completely informed.
Sessions has certified another BIA decision to himself. This time, he is looking at what constitutes ‘good cause’ to grant a continuance for a collateral matter to be adjudicated.” (Note that the AIC Practice Advisory on Motions for a Continuance has already been updated to address this.)
Tampa Bay Times: Here’s how the Immigrant Protection Plan works: Once an immigrant is arrested, their loved one can contact the program’s 24-hour hotline to contact a lawyer who will be assigned to the case… Several documents, including the lawyer’s notice of appearance and a motion for a bond hearing, will have already been completed and are ready to be filed.…. Clients also receive a laminated card with guidance on how to interact with ICE agents…. The program also identifies possible forms of relief. Clients fill out questionnaires every 60 days that the firm uses to evaluate whether a new solution, either a policy change or personal circumstance, has emerged in their case.
Union-Tribune: Two videos of the arrest went viral several days later after a teacher of one of the daughters shared them on Facebook. After videos surfaced, Border Patrol said that agents targeted Morales-Luna “for being in the country illegally” and also said the agency suspected her of recruiting drivers for a transnational smuggling organization in East County.
USCIS: U.S. Citizenship and Immigration Services (USCIS) today launched a pilot to test a redesigned processing times webpage that displays the data for all forms in an easier-to-read format and also tests a new way of collecting data and calculating the processing times for some forms.
AIC: The lawsuit alleges that Defendants’ policy: Violates the Immigration and Nationality Act (INA) and Administrative Procedure Act (APA) because it refuses to recognize that TPS holders have been “inspected and admitted” for the purposes of adjudicating adjustment of status applications; and Causes Defendants to fail to perform a non-discretionary duty (finding that TPS holders have been inspected and admitted when adjudicating adjustment of status applications). Moreno v. Nielsen, 1:18-cv-01135 (E.D.N.Y., Feb. 22, 2018)
Unpublished BIA decision remands record because Mam-speaking respondent did not understand proceedings conducted through a Spanish interpreter. Special thanks to IRAC. (Matter of Ambrosio-Domingo, 5/12/17) AILA Doc. No. 18032231
The court held that the district court’s failure to inform the defendant of the potential immigration consequences of his guilty plea was not harmless error. The court vacated the judgment of the district court and remanded. (U.S. v. Gonzales, 3/13/18) AILA Doc. No. 18032000
The court held that the BIA erred by retroactively applying the standard announced in Matter of Diaz-Lizarraga for larceny crimes involving moral turpitude to the petitioner’s case and remanded the case to the BIA. (Obeya v. Sessions, 3/8/18) AILA Doc. No. 18031900
The court denied the petition for review, finding that the petitioner did not meet his burden in establishing that he would be subject to future persecution or torture, and that he was thus not entitled to withholding of removal or relief under the CAT. (Cruz-Martinez v. Sessions, 3/14/18) AILA Doc. No. 18031931
The court dismissed the petition for review, finding that it lacked jurisdiction to review the question of whether the petitioner had waived her appeal rights. (Melesio-Rodriguez v. Sessions, 3/7/18) AILA Doc. No. 18031935
The court granted the petition for review of the denial of asylum and withholding of removal, finding that because neither the IJ nor the BIA made an explicit adverse credibility determination, the court was required to accept the petitioner’s testimony as true. (Dai v. Sessions, 3/8/18) AILA Doc. No. 18031938
Relying on its recent decision in Cintron v. Attorney General, the court held that the petitioner’s conviction for trafficking in cocaine under Fla. Stat. §893.135(1)(b)1.c was not an aggravated felony and remanded the case to the BIA. (Ulloa Francisco v. Attorney General, 3/12/18) AILA Doc. No. 18031940
In an unpublished opinion, the court remanded the case to the BIA, holding that the government did not meet its burden to show that the Chinese Christian petitioner could relocate within China to avoid persecution. Courtesy of Henry Zhang. (Shi v. Attorney General, 3/15/18) AILA Doc. No. 18032160
In an unpublished decision, the IJ granted the respondent’s application for asylum, finding he established that he suffered persecution on account of his perceived LGBTI identity and the Guatemalan government is unable to control his persecutors. Courtesy of Brian Blackford. AILA Doc. No. 18032232
ICE announced that Alejando Gurany-Navarro, of El Paso, Texas was sentenced in U.S. District Court to three years in prison and three years of supervised release for his scheme to defraud individuals seeking immigration benefits, by claiming he could provide legal status for a fee. AILA Doc. No. 18032032
The National Labor Relations Board ruled that SOS International, under contract with DOJ to provides the vast majority of interpreters in immigration courts nationally, illegally retaliated against some of the interpreters for organizing and must offer them reinstatement and back pay. AILA Doc. No. 18032132
The White House released a fact sheet with President Trump’s critiques of sanctuary cities. AILA Doc. No. 18032238
ACTIONS
Tahirih Justice Center: Organizational Sign-on Letter re Matter of A-B-: We ask that your organization sign the letterby March 30 to help us ensure that DHS files a brief that is consistent with its prior positions. The text of the letter can be reviewed here. As you know, the Attorney General has certified the case Matter of A-B- to himself and is now reconsidering key elements of asylum law. It appears that the AG may seek to do away with asylum protection for survivors of domestic violence. However, because of the way the question is framed in the certification notice, it is possible that asylum based on persecution such as female genital mutilation/cutting and trafficking, and asylum based on persecution on grounds such as religion and sexual orientation could also be severely limited by this decision. Also, Please take action by signing and sharing this Change.org petition.
ProPublica: Have You Seen ICE or Border Patrol in Your Community?ProPublica and Univision News want to learn more about where ICE and CBP are conducting operations, and how they are affecting you. Has an immigration enforcement action impacted you or someone you know
6/20/18 Leadership and Advocacy Training (LAT)intended for emerging advocates from Southeast Asian American and ally communities to learn how to advocate effectively for policy change – Apply by February 28
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.
