NOLAN & I PRESENT CONTRASTING VIEWS ON THE SOUTHERN BORDER!

http://thehill.com/opinion/immigration/383305-border-security-weaknesses-more-serious-than-so-called-caravan

Nolan writes in The Hill:

Despite political spin to the contrary, the border is not secure, and the hearing highlighted problems which are preventing DHS from securing it.

The National Immigration Forum submitted a statement claiming that U.S. border policies have been effective, but that claim was contradicted by testimony from the director of the Texas Department of Public Safety (DPS), Colonel Steven McCraw.

According to McCraw, the federal government did not respond to numerous requests from Texas Governor Greg Abbott to provide the Border Patrol with the resources it needs to secure the border, so Texas has had to provide the necessary assistance at its own expense.

Texas deployed State Troopers, Special Agents, and Texas Rangers to the border to conduct around-the-clock ground, marine, and air operations. Then, three years later, it deployed 500 State Troopers, tactical marine boats, aircraft and detection technology assets, and the Texas National Guard to the border.

But illegal crossings and smuggling continued and crime in the border region continued to rise.

. . . . .

Credible fear determinations have increased from 5,000 in 2009 to 94,000 in 2016, and due apparently to misapplication of asylum law, a credible fear was found in 88 percent of the cases.

Also, the William Wilberforce Trafficking Victims Reauthorization Protection Act (TVPRA) has been used to require placement with the Office of Refugee Resettlement instead of removal proceedings for the 200,000 unaccompanied alien children (UACs) who have come to America from Central America since 2013. But most of them are not trafficking victims.

According to the White House, most UACs fail to appear at their hearings and many who do and are found deportable do not comply with their deportation orders. Only 3.5 percent of them are removed from the U.S.

It is apparent from this testimony that the border is not secure and that the measures being taken to secure it are not likely to be effective.

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Go on over to The Hill at the link to read Nolan’s complete article.

Nolan an I agree on one important point: Jeff Session’s announcement of “Immigration Judge quotas” will not help solve the Immigration Court backlog phenomenon.

However, I wouldn’t assume as Nolan apparently does, that the Texas DPS is a better source of information than the National immigration Forum. Nor, would I make the assumption that an 88% approval rate for credible fear screening represents a “misapplication of the law.” Based on my experience with credible fear reviews in Immigration Court, that number of positive determinations seems perfectly reasonable. Moreover, on the life or death question of asylum, the system should always error on the side of giving the individual a full hearing on a protection claim rather than denying the claim with no day in court.

Now, it’s my turn.

• According to a 2016 study by the American Immigration Council (“AIC”) using EOIR’s own data, represented children appear for their hearings about 95% of the time. https://www.justice.gov/eoir/file/852516/download
  • As this AIC report points out, most of the reasons for non-appearance relate to defects in the DHS/EOIR notice system. Moreover, even when children understand the system, they are usually dependent on the actions of others like guardians to actually appear in Immigration Court. It’s highly unlikely that many children make an intentional decision not to appear.
  • I was not assigned to the so-called “Priority Juvenile Docket.” But, I did plenty of juvenile cases during my 13-year tenure at the Arlington Immigration Court. In my experience, the overwhelming majority of juveniles appeared as scheduled. When represented, the appearance rate was close to 100% as suggested by the AIC report.
  • Of the minority who didn’t appear, most eventually had their cases reopened based on defective notice or extraordinary circumstances beyond their control.
• According to a 2016 ABA Study, approximately 73% of represented juveniles achieved some relief in Immigration Court, as opposed to 15% of unrepresented juveniles. https://www.americanbar.org/content/dam/aba/administrative/immigration/uacstatement.authcheckdam.pdf
  • Many of those denied asylum actually had legitimate fears of harm upon return, but did not fit the overly restrictive “refugee” definition developed by the BIA with the apparent purpose of limiting Northern Triangle protection.
  • Juveniles often were able to obtain relief through means other than asylum such as Special Immigrant Juvenile (“SIJ”) status, “U” nonimmigrant status for victims of crime, “T” nonimmigrant status for trafficking victims, and Convention Against Torture (“CAT”) withholding.
• As these reports suggest, a better approach to Southern Border arrivals would involve:
  • Insuring that counsel represents all asylum applicants.
  • Improving the quality and accuracy of hearing notices served by DHS & EOIR.
  • Expanding the asylum definition to be more generous and to conform to UNHCR interpretations.
  • Allowing all asylum applicants to have an initial non-adversarial application before the Asylum Office to take pressure off of the Immigration Courts.
  • Initiating a realistic legalization program for long-term undocumented residents of the US that would take the majority of the “non-criminal” cases off the Immigration Court docket, thus allowing the Courts to re-establish a reasonable 12-18 month completion cycle for non-detained cases.
  • Re-establishing “in country” refugee processing programs in the Northern Triangle and making them more timely and expansive so as to reduce the pressure to apply for asylum at our Southern Border.
  • Creating other forms of temporary protection for those with legitimate fears of return who fall outside the legal definitions for protection.
  • Working closely with the UNHCR, Mexico, and other Western Hemisphere countries to 1) address the conditions in the Northern Triangle driving the refugee flow, and 2) sharing the distribution of Western Hemisphere refugees equitably.

• We know for sure from over four decades of consistent failure what DOESN’T WORK:
  • “Militarization” of the border;
  • Increased detention, criminal prosecution, and other ineffective “deterrents;”
  • Reducing or truncating rights of asylum seekers;
  • Endless “reprioritization” of Immigration Court dockets.
• Yet, these are the very types of failed programs that the Trump Administration is mindlessly pushing.
• Why not try something smart and humane, rather than repeating past expensive, ineffective, and inhumane mistakes over and over?

PWS

04-16-18