Crime – Page 90 – immigrationcourtside.com

Hon. Lory D. Rosenberg Replies To Nolan Rappaport’s VOICE Article On “Appeal Matters”

Here’s Lory’s blog reprinted in full with her permission:

Lory D. Rosenberg on Appeal Matters
Why President Trump’s VOICE is Misplaced and Serves No One Draft Blog Entry Edit Blog Entry
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by Lrosenberg, 03-02-2017 at 09:14 PM (0 Views)

The VOICE office announced by President Trump in his SOTU speech on Tuesday night is the most disturbing, offensive, and misplaced priority he could have chosen to address the pressing need for immigration reform.

Moreover, it astonishes me how anyone with an understanding of the reality of the overwhelmingly positive immigrant contributions to our workforce, our communities, and our society as a whole could applaud such folly. It is mind-boggling that a person who purports to understand immigration law can honestly praise its introduction. Cf. N. Rappaport, Opinion Contributor, The Hill, “On immigrant crime, Trump’s right. Americans deserve more data” (3/1/17).

Establishment of such a new office panders to unsubstantiated, and in fact, soundly refuted, fears of an immigrant crime wave, and fosters public hysteria that is utterly unfounded. Are there serious crimes committed by immigrants? Yes, although very few are violent offenses. They generally involve violations of state, not federal, law, and they are duly prosecuted and punished in our courts, without regard to the perpetrator’s immigration status. Any claimed value to the victim in connecting ICE to removable aliens for “information” is pure fantasy.

Moreover, proportionately, the immigrant crime rate is minimal compare to the crimes committed by the native population in the United States. See Ewing, W and Rumbaut, R., SPECIAL REPORT The Criminalization of Immigration in the United States, http://www.americanimmigration council.org/research/criminalization-immigration-united-states. A federal program for victims of crime committed by an immigrant as opposed to a United States citizen, erroneously propagates the destructive misconception that immigrants are mostly criminals. Cf. Spenkuch, Jörg L., Understanding the Impact of Immigration on Crime, 16 American Law and Economics Review 1,177-219 (2014), https://doi.org/10.1093/aler/aht017.

As leading scholar on immigrants and crime, Professor Ruben G. Rumbaut has stated,

“It [the VOICE office] will serve further to drive up fear and to sigmatize entire immigrant populations as criminals, using rare anecdotes to publicize misleading claims, even though every research study over many decades shows exactly the opposite: immigrants, including the undocumented, have the lowest crime (both violent and property crimes) and the lowest incarceration rates in the US.”

What is more, the policy changes anticipated since President Trump’s inauguration may dismantle much needed agency resources that support implementation of critical humanitarian and domestic violence efforts, such as VAWA and other critical programs that have been part of DHS’s portfolio. Those are the most important victim support resources that are needed. Information collection and communication can be achieved easily and made available to victims, policymakers, and scholars alike through accurate agency reporting.

There are more than adequate local police programs, as well as private and faith-based programs, available to victims of all crime in their communities. That is where victims will find the information and restitution they may seek. One would think an administration that seeks to reduce the the federal bureaucracy and rely upon the states to address all but those problems that demand federal intervention would shrink from imposing a duplicative and unnecessary venture that is likely to offer little more than one night of celebrity in a television audience.

Trump’s self-indulgent VOICE office paints a target on the backs of honorable, hard-working immigrants – and others who look like immigrants – in our population. He may derive satisfaction from the publicity of such a pointless gesture, but the office’s establishment does nothing to reform a deeply broken system that victimizes immigrants and citizens alike each day that nothing is done to reform it.

c.2017 Lory D. Rosenberg

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PWS

03/02/17

K.O.D.????? — Trump Has “Total Confidence” In Sessions — Few Politicos Survive This!

https://www.washingtonpost.com/powerpost/top-gop-lawmaker-calls-on-sessions-to-recuse-himself-from-russia-investigation/2017/03/02/148c07ac-ff46-11e6-8ebe-6e0dbe4f2bca_story.html?hpid=hp_rhp-top-table-main_gopreax-840a:homepage/story&utm_term=.f405f64e008f

From the WashPost:

“President Trump said Thursday that he has “total” confidence in Attorney General Jeff Sessions, who has come under fire for not disclosing his contacts with the Russian ambassador during the 2016 presidential campaign.

Speaking aboard the aircraft carrier USS Gerald Ford in Newport News, Va., Trump told reporters that he was not aware of Sessions’s contact with the Russian ambassador. Trump also said that Sessions “probably” testified truthfully during his confirmation hearing last month before the Senate Judiciary Committee.

Asked whether Sessions should recuse himself, Trump added: “I don’t think so.”

Several top Republican lawmakers have said that Sessions should recuse himself from ongoing investigations into Russian interference in the 2016 election, including potential contacts between Trump campaign officials and associates and Russian officials.

The Washington Post reported Wednesday that Sessions met twice with Russian Ambassador Sergey Kislyak in 2016. When asked a direct question during his confirmation hearing in January about whether he had any contact with Russian officials, Sessions said no.
The meetings occurred during the height of concerns about Russian interference in the U.S. election and at a time when Sessions was chairman of the Senate Armed Services Committee, as well as a top Trump surrogate and adviser.

Democratic leaders called on Sessions to resign, and several said he had perjured himself in his confirmation hearing. The swift response among some Republicans, although more muted, signaled increasing concern about the potential political fallout.”

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As far as I can figure out, few people outside the Trump family have as much standing with the President as Jeff Sessions. Ordinarily, that spells JOB SECURITY. But, more often than not, “inside the Beltway,” once the “Boss” has to make the “full confidence” (or “total confidence”) public statement, the handwriting is already on the wall. Remember President George W. Bush and “Brownie, you’re doing a heck of a job?”

And, according to former Bush II Administration Ethics Chief Richard W. Painter, it’s already time for Sessions to go. If nothing else, he’s fast becoming the problem rather than the solution, even from the Administration’s standpoint.

Painter sees parallels with the situation of former Nixon Attorney General Richard Kleindienst who eventually pleaded guilty to misdemeanor “failure to provide accurate information,” resulting in a reprimand from the Arizona State Bar. But, at least he didn’t get convicted of a felony and do time in Federal Prison like his predecessor, Attorney General John Mitchell (although Mitchell had left the position by the time he committed his felony).

And, remember, this is an Administration that at the urging of extreme restrictionists like Sessions, Bannon, and Miller is trying to convince the American public that any foreign national who is even accused of a crime (even if not convicted) is a “bad hombre” deserving detention and removal.

We’ll see how this all plays out. President Trump greatly appreciates loyalty. But, this might be one that even Jeff Sessions can’t survive.

Here is the link to Painter’s op-ed in the New York Times:

https://www.nytimes.com/2017/03/02/opinion/jeff-sessions-needs-to-go.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=1

PWS

03/02/17

WALTER PINCUS IN THE NEW YORK REVIEW OF BOOKS: The Coming Immigration Court Disaster!

http://www.nybooks.com/daily/2017/03/01/trump-us-immigration-waiting-for-chaos/?utm_medium=email&utm_campaign=NYR Dennett immigration reform Chopin&utm_content=NYR Dennett immigration reform Chopin+CID_c0a3091a06cff6ddbb541b093215f280&utm_source=Newsletter&utm_term=US Immigration Waiting for Chaos

“One thing however is clear. Trump’s recent efforts to use blunt executive power to close our borders and prepare the way for deporting large numbers of undocumented immigrants are confronting far-reaching problems. Not only is there opposition from federal judges, the business sector, civil liberties groups, and others. There is also a major roadblock from another quarter: our already broken system of immigration laws and immigration courts.

The nation’s immigration laws needed repair long before Trump came to office. Even without the measures taken by the new administration, immigration courts face a backlog of hundreds of thousands of cases, while the existing detention system is plagued, not just by arbitrary arrests, but also by deep problems in the way immigrant detainees are handled by our courts, one aspect of which is the subject of a Supreme Court challenge.

But will the potential Trump excesses—driven by the president’s fear mongering about immigrant crimes and the alleged potential for terrorists to pose as refugees—be enough to light a fire under a Republican-led Congress that has for years balked at immigration reform?

. . . .

For better or worse—and it may turn out to be worse if Congress continues to refuse to act—the Trump administration’s determination to enforce current laws has pushed long-standing inequities in immigration justice onto the front pages.

Take the matter of those immigration judges, who now number some three hundred and are scheduled to grow substantially under the Trump administration. In April 2013, the National Association of Immigration Judges issued a scathing report pleading for omnibus immigration reform. Describing the morale of the immigration judge corps as “plummeting,” the report found that “the Immigration Courts’ caseload is spiraling out of control, dramatically outpacing the judicial resources available and making a complete gridlock of the current system a disturbing and foreseeable probability.”

The judges also noted that, “as a component of the DOJ [Department of Justice], the Immigration Courts remain housed in an executive agency with a prosecutorial mission that is frequently at odds with the goal of impartial adjudication.” For example, the judges are appointed by the Attorney General and “subject to non-transparent performance review and disciplinary processes as DOJ employees.” As a result, “they can be subjected to personal discipline for not meeting the administrative priorities of their supervisors and are frequently placed in the untenable position of having to choose between risking their livelihood and exercising their independent decision-making authority when deciding continuances”—the postponement of a hearing or trial.

The immigration judges writing this complaint were working under the Obama administration Justice Department, with Eric Holder as attorney general. What will their situation be like with Attorney General Jeff Sessions, a believer in tighter immigration controls, as their boss?

As it is now, an immigration judge’s job is exhausting. They carry an average load of 1,500 cases, but have minimal staff support. In the 2013 report, the immigration judges noted that they have no bailiffs, no court reporters, and only one quarter of the time of a single judicial law clerk. The backlog of immigration cases in the United States now stands at roughly 542,000. Most important, the immigration judges claim some 85 percent of detained immigrants appearing before them are unrepresented by counsel.

Meanwhile, another pending lawsuit highlights a different long-running problem concerning our nation’s immigration judges. In June 2013, the American Immigration Lawyers Association, along with Public Citizen and the American Immigration Council (AIC) filed a case in federal district court in Washington, D.C., seeking documents that would disclose whether the federal government adequately investigated and resolved misconduct complaints against immigration judges.

Such complaints have been widespread enough that the Justice Department reports annually on the number. In fiscal 2014, the latest figures published, there were 115 complaints lodged against 66 immigration judges. Although 77 were listed as resolved, the outcomes are not described.”

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This timely article was brought to my attention by my good friend and former colleague retired U.s. Immigration Judge (NY) Sarah Burr. Walter Pincus is a highly respected national security reporter. He’s not by any means an “immigration guru.”

As I have pointed out in previous blogs and articles, this problem is real! In the absence of sensible, bipartisan immigration reform by Congress, which must include establishing an independent immigration judiciary, our entire Federal Justice System is at risk of massive failure.

Why? Because even now, immigration review cases are one of the largest, if not the largest, components of the civil dockets of the U.S. Courts of Appeals. As due process in the Immigration Courts and the BIA (the “Appellate Division” of the U.S. Immigration Courts) deteriorates under excruciating pressure from the Administration, more and more of those ordered removed will take their cases to the U.S. Courts of Appeals. That’s potentially hundreds of thousands of additional cases. It won’t be long before the Courts of Appeals won’t have time for anything else but immigration review.

In my view, that’s likely to provoke two responses from the Article III Courts. First, the Circuits will start imposing their own minimum due process and legal sufficiency requirements on the Immigration Courts. But, since there are eleven different Circuits now reviewing immigration petitions, that’s likely to result in a hodgepodge of different criteria applicable in different parts of the country. And, the Supremes have neither the time nor ability to quickly resolve all Circuit conflicts.

Second, many, if not all Courts of Appeals, are likely to return the problem to the DOJ by remanding thousands of cases to the Immigration Courts for “re-dos” under fundamentally fair procedures. Obviously, that will be a massive waste of time and resources for both the Article III Courts and the Immigration Courts. It’s much better to do it right in the first place. “Haste makes waste.”

No matter where one stands in the immigration debate, due process and independent decision making in the U.S. Immigration Courts should be a matter of bipartisan concern and cooperation. After all, we are a constitutional republic, and due process is one of the key concepts of our constitutional system.

PWS

03/02/17

Despite Softer Tone, Not Everyone “Sold” On Trump’s Vision, Particularly As It Relates to Immigration!

http://www.huffingtonpost.com/entry/donald-trump-policies-joint-session_us_58b6e282e4b0780bac2f010b?

Igor Bobic , Amanda Terkel , Kate Sheppard write in HuffPost:

“Yet many key assertions Trump made were patently false. America is neither crime-infested nor still mired in a recession, as he portrayed. Moreover, some of his bold rhetoric on issues like the environment, immigration, civil rights, women’s rights and child care are directly undercut by the policies he has pursued or promised to pursue since taking office on Jan. 20.

Immigration Reform
Trump welcomed the idea of compromise on immigration reform, calling on Democrats and Republicans to “work together to achieve an outcome that has eluded our country for decades.” Prior to the speech, he even told reporters that he wanted a bill that could grant legal status to millions of undocumented immigrants living in the U.S.

Despite his call for compromise, however, Trump has directed his administration to enforce the nation’s immigration laws more aggressively. The policy, which he dubbed a “military operation,” has given immigration officials the freedom to target not only serious criminals, as Trump has promised, but also undocumented immigrants with misdemeanors and some with no criminal history at all. And he still has plans to build a “great” wall on the U.S.-Mexico border, which Democrats and even some Republicans in Congress strongly oppose.

“At one point, he mentioned that he was targeting and criminalizing immigrants, but at the same time, he’s saying we need to unite?” asked Roque Pech, a beneficiary of former President Barack Obama’s Deferred Action for Childhood Arrivals program, which grants temporary deportation relief to certain young undocumented immigrants who came to the U.S. as children.

Pech, who attended the event as a guest of Rep. Nanette Barragan (D-Calif.), said Trump’s immigration talk made no sense: “I felt like multiple times he was contradicting himself. That was one of the clearer examples.”

Matthew Cooper, writing in Newsweek, was also blunt in his assessment:

“Yet no one listening to the nearly hour-long address would think Trump had mellowed his nationalist agenda. His decision to create an office at the Justice Department focused on crime caused by illegal immigrants elicited groans from Democrats in the chamber. Just as President Barack Obama once held up DREAMers—immigrants who arrived illegally as children and went on to lead productive lives—Trump pointed to families gathered in the House of Representatives who had lost family members to crimes perpetrated by undocumented immigrants. Trump showed no signs of softening his stance on immigration, save for not invoking his usual promise to have Mexico pay for the wall. If anything he went further, by suggesting that the current immigration system should be overhauled and based on “merit,” however that’s defined. Despite news reports earlier on Tuesday that he might be open to some kind of immigration reform allowing 11 million undocumented migrants to stay in the U.S., there was no indication of that kind of softening in his address. Instead he invoked the frightening image of immigrants driving down wages and raising havoc. “Lawless chaos,” he called it. The solution, he said: “We must restore integrity and the rule of law to our borders.” By applauding Jamiel Shaw, the African-American man whose son was killed by an undocumented immigrant, Trump made his case for getting tough on the border and did so in a way that would help insulate him against charges of racism.”

http://www.newsweek.com/trump-congress-speech-immigration-paul-ryan-obamacare-trade-crime-562365

And, according to the Washington Post’s “Fact Checkers,” Glenn Kessler and Michelle Ye Hee Lee, striking a more “Presidential tone,” Trump continues to pile up erroneous statements at an impressive rate:

“An address to Congress is such an important speech that presidents generally are careful not to stretch the truth. The “16 words” in George W. Bush’s 2003 State of the Union address that falsely claimed Iraq’s Saddam Hussein sought uranium from Africa led to significant turmoil in the administration, including the criminal conviction of a top aide.

President Trump’s maiden address to Congress was notable because it was filled with numerous inaccuracies. In fact, many of the president’s false claims are old favorites that he trots out on a regular, almost daily basis. Here’s a roundup of 13 of the more notable claims, in the order in which the president made them.

. . . .

“We’ve defended the borders of other nations, while leaving our own borders wide open, for anyone to cross — and for drugs to pour in at a now unprecedented rate.”

The data are mixed on the amount of drugs coming through the borders. The amount of marijuana seized at the border continues to decline — probably a reflection of drug use in the United States, as more states legalize marijuana for medical or recreational use. In fiscal 2016, 1.3 million pounds of marijuana were seized, down from 1.5 million the year before, and lower than the peak of nearly 4 million pounds in 2009, according to Customs and Border Protection data. The amount of cocaine seized at the borders overall in fiscal 2016 (5,473 pounds) was roughly half the amount seized the previous year (11,220 pounds).

But the amount of heroin and methamphetamine seized has increased in recent years. In fiscal year 2016, CBP seized 9,062 pounds of heroin (compared to 8,282 in fiscal 2015) and 8,224 pounds of methamphetamine (compared to 6,443 pounds in fiscal 2015).

Meanwhile, illegal immigration flows across the Southern border in fiscal 2015 were at the lowest levels since 1972, except for in 2011. The apprehensions in fiscal 2016 (408,870) exceeded fiscal 2015 (331,333), but still indicate an overall decline since their peak in 2000 (1.6 million).

. . . .

“As we speak, we are removing gang members, drug dealers and criminals that threaten our communities and prey on our citizens. Bad ones are going out as I speak and as I have promised throughout the campaign.”

Trump is referring to the recent arrests of undocumented immigrants convicted of crimes, or the “bad ones.” Trump takes credit for fulfilling his campaign promise of cracking down on illegal immigration, but these arrests are routine. Immigration and Customs Enforcement has always targeted dangerous criminals in enforcement priorities. The recent arrests, however, did include people who would not have fallen under narrowed enforcement priorities under Obama.

Still, 25 percent of the arrests that grabbed headlines in early February were of people who had lesser charges and noncriminal convictions. According to anecdotes of recent arrests, undocumented people with traffic violations were subject to arrest. They are not the “bad ones,” such as drug dealers or gang members, that he describes.

“By finally enforcing our immigration laws we will raise wages, help the unemployed, save billions and billions of dollars and make our communities safer for everyone.”

Trump exaggerates the impact of illegal immigration on crime, taxpayer money and jobs.

Extensive research shows noncitizens are not more prone to criminality than U.S.-born citizens. The vast majority of unauthorized immigrants are not criminal aliens or aggravated felons.

Trump appears to reference the cost of illegal immigration from the Federation for American Immigration Reform, which supports lower levels of legal and illegal immigration. According to the group, the annual cost of illegal immigration at the federal, state and local levels amounted to about $113 billion as of 2013.
The scene as President Trump delivers his first address to a joint session of Congress
View Photos The president returned to familiar themes from his campaign in his speech to Congress, promising to reduce regulations and taxes, combat terrorism, crack down on illegal immigration and replace the Affordable Care Act.
But this calculation makes assumptions that are not necessarily tied to illegal immigration, like enrollment in English proficiency classes. The enrollment number doesn’t tell you anything about the actual citizenship status of students (i.e., they could be native-born children of undocumented immigrants, raised in a non-English-speaking home).
In general, economists have found that immigration overall results in a net positive to the U.S. economy. There are slight negative effects, which are felt most strongly by less-educated and low-skilled workers. Illegal immigration, in particular, tends to affect less-educated and low-skilled American workers the most — groups disproportionately consisting of black men and recently arrived less-educated legal immigrants.

The U.S. Commission on Civil Rights 2010 report found that illegal immigration has tended to depress wages and employment particularly for black men. But factors other than illegal immigration contribute to black unemployment, the report found, including the high school dropout rate and low job-retention rates.

. . . .

“Jamiel’s 17-year-old son was viciously murdered by an illegal immigrant gang member, who had just been released from prison. Jamiel Shaw Jr. was an incredible young man, with unlimited potential who was getting ready to go to college where he would have excelled as a great quarterback. But he never got the chance. His father, who is in the audience tonight, has become a good friend of mine.”

Trump likes to use anecdotes as evidence for associating violent crimes with illegal immigration, telling stories of victims of homicide by undocumented immigrants. He brought family members of those killed by illegal immigrants as his guests for Tuesday night’s speech. He often talks about the death of Jamiel Shaw Jr., a 17-year-old football star who was killed in 2008 by a gang member who was in the country illegally.

Clearly, stories like this exist. But the vast majority of unauthorized immigrants do not fit Trump’s description of aggravated felons, whose crimes include murder. U.S. Sentencing Commission data show homicides are a small percentage of the crimes committed by noncitizens, whether they are in the United States illegally or not.

The Congressional Research Service found that the vast majority of unauthorized immigrants do not fit in the category of aggravated felons, whose crimes include murder, drug trafficking or illegal trafficking of firearms.”

https://www.washingtonpost.com/news/fact-checker/wp/2017/02/28/fact-checking-president-trumps-address-to-congress/?utm_term=.dc2c2a6b69c0&wpisrc=nl_daily202&wpmm=1

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PWS

03/02/17

THE HILL: Nolan Rappaport Gives Thumbs Up To President Trump’s “VOICE” Program

http://thehill.com/blogs/pundits-blog/immigration/321859-trumps-mostly-wrong-about-immigrant-crime-but-gets-1-thing

Nolan writes in The Hill:

“The VOICE office will create a programmatic liaison between ICE and victims of crimes committed by removable aliens. The objective is to facilitate engagement with the victims and their families to ensure, to the extent permitted by law, that they are provided with information about the offender, including the offender’s immigration status and custody status.
Secretary Kelly funds this program by ordering the director of ICE to reallocate the resources currently used to advocate on behalf of undocumented aliens (except to comply with a judicial order) to the new VOICE Office, and to terminate outreach and advocacy services to undocumented aliens immediately.

VOICE is not a completely new idea. ICE established a Victim Assistance Program in 2008, but it has worked primarily with victims of human trafficking.

A Huffington Post contributor says, “Let’s call this what it is: VOICE is racist government propaganda.” He claims that VOICE will embroil the media and the public in a constant debate about the merits of immigration in the United States.

Even if the contributor is right about President Trump’s intention in creating this program, and I do not think he is, I applaud the president’s attempt to help crime victims.

Moreover, I believe that the public is entitled to more information about crimes committed by immigrants, particularly the ones who are here in violation of our immigration laws. Then, we will be able to let the facts speak for themselves.”

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Nolan informs me that his article made “The Hill’s Top Five Hit Parade.” Congratulations to Nolan, and many thanks for his timely and highly readable scholarship on immigration and politics.

Note that to fund VOICE, DHS will terminate all outreach programs aimed at assisting undocumented individuals involved in various DHS processes.

PWS

03/01/17

Dean Kevin Johnson Summarizes Today’s SCt Argument In Esquivel-Quintana v. Sessions For SCOTUS Blog — Issue: Sexual Abuse Of A Minor!

http://www.scotusblog.com/2017/02/argument-analysis-justices-divided-meaning-sexual-abuse-minor-removal-purposes/#more-252948/

“The question before the Supreme Court is whether Esquivel-Quintana’s conviction constitutes an “aggravated felony” as “sexual abuse of a minor” under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency’s reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.

. . . . .

In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana’s crime constituted “sexual abuse of a minor” under the immigration laws. The justices’ questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.”

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PWS

02/27/17

NYT: Is The Trump Administration Creating A “New Underground” In America?

https://www.nytimes.com/2017/02/23/world/trump-migrants-deportation.html?mwrsm=Email&_r=0&mtrref=undefined

MAX FISHER and AMANDA TAUB report:

“New deportation rules proposed by the Trump administration risk creating an American underclass with parallels to others around the world: slum residents in India, guest workers in oil-rich Persian Gulf states and internal migrant workers in China.

Those groups provide a cautionary tale for what could happen if the 11 million undocumented immigrants in the United States, as well as their family members, are forced deep into the shadows.

Stuck in a gray zone outside the legal system, they are vulnerable to exploitation, including wage theft and sex trafficking. Because they are denied formal protections or services, informal alternatives take their place — creating an ideal space for corruption, gangs and other forms of criminality.

The result is often the precise opposite of what the administration is seeking: not a cohesive society but a fragmented one, not less crime but more, and, rather than ending undocumented immigration, deepening the secrecy that makes it difficult to manage.”

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Read the full article at the link.

PWS

02/26/17

Nolan Rappaport Comments On Expansion of Expedited Removal In “The Hill”

http://thehill.com/blogs/pundits-blog/immigration/321102-what-expedited-removal-really-means-for-illegal-immigrants-in

Nolan writes:

“Knowing that an alien in the United States who is charged with being deportable has a statutory right to a hearing before an immigration judge and that there is a backlog crisis in our immigration courts, I predicted that President Donald Trump would not be able to deport millions of undocumented immigrants.

Since then, the backlog has gotten even higher. As of the end of January 2017, it was 542,411 cases and the average wait time for a hearing was almost 700 days.

Even if the immigration judges did not receive any additional cases, it would take them more than two-and-a-half years to catch up.

But President Trump has finessed his way around this problem by implementing a little-known expedited removal provision in his executive order (EO), “Border Security and Immigration Enforcement Improvements.” The provision is section 235(b)(1)(A)(iii)(II) of the Immigration and Nationality Act (INA).

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established expedited removal proceedings to deal with fraud and willful misrepresentations at ports of entry and to stop aliens with bogus asylum claims from being admitted for asylum hearings before an immigration judge. Many of them absconded instead of appearing at their hearings.
Under expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissible and may be removed without a hearing before an immigration judge. Aliens subject to expedited removal must be detained until they are removed and normally may only be released due to a medical emergency.”

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I agree with Nolan that the intent of the Trump Executive Order is to reduce the number of individuals who will be entitled to “full” removal hearings before an Immigration Judge. But, even if the Administration applies expedited removal in its broadest permissible form under the statute — to individuals who have been in the U.S. for less than two years, the vast majority of individuals in the U.S. without documentation will still be entitled to hearings in U.S. Immigration Court.

First, for a number of reasons, and quite contrary to the Trump Administration’s alarmist rhetoric, illegal entries have been declining over recent years. The overwhelming number of the estimated 11 million undocumented migrants in the U.S have been here at least two years and would therefore be entitled to full hearings.

The estimated number of undocumented migrants in the United States has actually dropped by one million, from approximately 12 million around 2007 to approximately 11 million today. And, although neither the Trump Administration nor most Republican legislators are willing to admit it, at least some of the credit belongs to the Obama Administration for increased border enforcement.

Moreover, the bulk of the undocumented arrivals over the past several years have been children, women, and families fleeing violence and corruption in the Northern Triangle of Central America. Most turn themselves in to the authorities at the border or shortly after crossing the border and seek asylum. The majority of those have been determined to have a “credible fear” of persecution and therefore have already been placed in removal proceedings.

As Nolan points out in his article, individuals who have not applied for asylum within one year of entry are prima facie barred from seeking asylum. However, there are exceptions to this rule for those who can demonstrate fundamentally changed circumstances or extraordinary circumstances directly related to the delay in filing.

Perhaps even more significantly, the one year bar does not apply to claims for protection under the withholding of removal provisions of the Immigration and Nationality Act, nor does it apply to claims under the Convention Against Torture. Other forms of relief under the Act also remain available to individuals who failed to timely file for asylum.

Additionally, even where an individual is subject to “expedited removal” she or he is still be entitled to a full removal hearing before an Immigration Judge if a DHS Asylum Officer finds that such individual has a “credible fear” of persecution.

As Nolan also points out, even where an Asylum Officer finds “no credible fear,” an individual may seek review by an Immigration Judge. Such reviews should take precedence over other types of detained hearings. Consequently, a dramatic increase in “credible fear” denials could well result in Immigration judges spending more time on such hearings and therefore having less time to conduct actual individual hearings on removability and relief.

While to date, the Article III Courts have seemed to accept the statutory limitations on their ability to review expedited removal and credible fear determinations, the Administration’s attempt to “ratchet up” summary removals is almost certainly going to draw more sophisticated constitutional challenges to the process from the advocacy community. And if, as is likely, the Administration “pushes the envelope” by attempting to remove individuals on an expedited basis without giving them a fair chance to obtain evidence that they have been present for two or more years, the Article III Courts are at some point likely to intervene to force at least some procedural due process into the system.

Consequently, notwithstanding efforts by the Trump Administration to circumvent the Immigration Court process, the new enforcement initiatives are still likely to put more than enough new cases before the Immigration Courts to crush an already overwhelmed system.

PWS

02/26/16

Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)

https://www.buzzfeed.com/zoetillman/backlogged-immigration-courts-pose-problems-for-trumps-plans?utm_term=.pokrzE6BW#.wcMKevdYG

Zoe Tillman reports:

“ARLINGTON, Va. — In a small, windowless courtroom on the second floor of an office building, Judge Rodger Harris heard a string of bond requests on Tuesday morning from immigrants held in jail as they faced deportation.
The detainees appeared by video from detention facilities elsewhere in the state. Harris, an immigration judge since 2007, used a remote control to move the camera around in his courtroom so the detainees could see their lawyers appearing in-person before the judge, if they had one. The lawyers spoke about their clients’ family ties, job history, and forthcoming asylum petitions, and downplayed any previous criminal record.
In cases where Harris agreed to set bond — the amounts ranged from $8,000 to $20,000 — he had the same message for the detainees: if they paid bond and were set free until their next court date, it would mean a delay in their case. Hearings set for March or April would be pushed back until at least the summer, he said.
But a couple of months is nothing compared to timelines that some immigration cases are on now. Judges and lawyers interviewed by BuzzFeed News described hearings scheduled four, five, or even six years out. Already facing a crushing caseload, immigration judges are bracing for more strain as the Trump administration pushes ahead with an aggressive ramp-up of immigration enforcement with no public commitment so far to aid backlogged courts.
Immigration courts, despite their name, are actually an arm of the US Department of Justice. The DOJ seal — with the Latin motto “qui pro domina justitia sequitur,” which roughly translates to, “who prosecutes on behalf of justice” — hung on the wall behind Harris in his courtroom in Virginia. Lawyers from the US Department of Homeland Security prosecute cases. Rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.
As of the end of January, there were more than 540,000 cases pending in immigration courts. President Trump signed executive orders in late January that expanded immigration enforcement priorities and called for thousands of additional enforcement officers and border patrol officers. But the orders are largely silent on immigration courts, where there are dozens of vacant judgeships. And beyond filling the vacancies, the union of immigration judges says more judges are needed to handle the caseload, as well as more space, technological upgrades, and other resources.
Homeland Security Secretary John Kelly acknowledged the immigration court backlog in a memorandum released this week that provided new details about how the department would carry out Trump’s orders. Kelly lamented the “unacceptable delay” in immigration court cases that allowed individuals who illegally entered the United States to remain here for years.
The administration hasn’t announced plans to increase the number of immigration judges or to provide more funding and resources. It also isn’t clear yet if immigration judges and court staff are exempt from a government-wide hiring freeze that Trump signed shortly after he took office. There are 73 vacancies in immigration courts, out of 374 judgeships authorized by Congress.
“Everybody’s pretty stressed,” said Paul Schmidt, who retired as an immigration judge in June. “How are you going to throw more cases into a court with 530,000 pending cases? It isn’t going to work.”

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

Zoe Tillman provides a well-reaserched and accurate description of the dire situation of justice in the U.S. Immigration Courts and the poorly conceived and uncoordinated enforcement initiatives of the Trump Administration. Sadly, lives and futures of “real life human beings” are at stake here.

Here’s a “shout out” to my good friend and former colleague Judge Rodger Harris who always does a great job of providing due process and justice on the highly stressful Televideo detained docket at the U.S. Immigration Court in Arlington, VA. Thanks for all you do for our system of justice and the cause of due process, Judge Harris.

PWS

02/24/17

Michele Waslin, Immigration Impact: Trump Administration Ditches “Common Sense Priorities” In Adopting a Max Enforcement Program!

http://immigrationimpact.com/2017/02/15/trump-immigration-enforcement-policies/

“The Trump administration is quickly unraveling the last administration’s efforts to prioritize those for deportation who pose a serious threat over those who don’t. The new administration is ignoring priorities that were put into place by the Obama Administration as a way to manage limited law enforcement resources. The priorities recognized that there is a finite budget available for immigration enforcement, thus making prioritization important. The approach now being pursued by the Trump Administration casts a wide net and will result in an aggressive and unforgiving approach to immigration enforcement moving forward.

The most significant indications of this shift came through the “Enhancing Public Safety in the Interior of the U.S.” executive order, issued January 25, 2017, which prioritizes for deportation those noncitizens who:

Have been convicted of any criminal offense;
Have been charged with any criminal offense;
Have committed acts that constitute a chargeable criminal offense;
Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency;
Have abused any program related to the receipt of public benefits;
Are subject to a final order of removal but have not departed;
Otherwise pose a risk to public safety or national security.
In addition, unauthorized immigrants with no criminal history will likely fit under the third bullet because entering without inspection is a chargeable criminal offense (illegal entry or re-entry). And since the executive order states that many immigrants without immigration status or who overstayed their visas are a risk to public safety and national security, it appears the final bullet is a catch-all category for many others. In other words, the president has “prioritized” everyone, which means in reality he’s prioritized no one, making everyone a target for enforcement. Furthermore, legal immigrants—even green card holders–who are convicted of aggravated felonies or crimes of moral turpitude could also be subject to deportation.

Yet despite the more aggressive approach, it is still unclear from where the resources to identify, arrest, detain, and deport all of these individuals will come. For example, the U.S. is already over-capacity in detention, and immigration courts are seriously backlogged.

In the past, the government has stated that budget realities make it impossible to remove everyone who is in the country without authorization or who is otherwise deportable. This meant the agency had to set priorities and focus on a subset of deportable immigrants.

The Obama administration released a series of memos designed to prioritize those who pose a threat to public safety and national security and other categories of individuals.”

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

The Obama Administration made a total mess out of the already stressed U.S. Immigration Court dockets by unwisely and unnecessarily “prioritizing” cases of recently arrived unaccompanied children, women, and families fleeing violence and corruption in the Northern Triangle.

Nevertheless, thorough programs such as DACA, stateside processing, closing cases with possible relief pending before USCIS, and frequent wise use of prosecutorial discretion (“PD”) in “clean” cases with difficult legal issues but strong humanitarian factors, the Obama Administration was the first Administration I have seen make progress on developing a system that could eventually have helped “rationalize” Immigration Court dockets. If freed from politicized and unrealistic “priorities” from above, this eventually could have allowed the courts to focus on cases that really needed to be litigated, as is the case with almost all other high-volume court systems.

By contrast, the Trump Administration seems intent on “torquing” the Immigration Court system until it breaks apart. Even the Obama Administration used an overly broad concept of “criminal alien.” They included too many individuals who, while technically removable under the law, were doing useful things in the community and presented no real threat to the safety or security of the U.S.

Certainly the Trump Administration could have focused on those whose removals should be prioritized by “fine tuning” the Obama enforcement priorities. Instead, they have embarked on an expensive and ill-planned “mission impossible” to make everybody a priority (and, hence, nobody a priority) without any regard to the capacity or the best uses of court time and resources within our judicial system.

Additionally, the Trump Administration seems to be going out of its way to “disempower” those who are closest to the problem and are actually in the best position to determine which cases should be prosecuted: the local Offices of Chief Counsel of the DHS (the “immigration equivalent” of the U.S. Attorney). In Arlington, the Office of Chief Counsel was well-respected by all and had an excellent grasp of how to make the justice system work for all involved. Their main problem, like that of the Immigration Courts, was unrealistic priorities and directives imposed on them by political officials “up the chain.”

Sadly, the Trump Administration seems determined not to build on those things that have been successful in the past and instead to embark on a new “blunderbuss” approach to immigration enforcement that is almost guaranteed to get tied up with both legal challenges and practical impossibilities.

PWS

02/19/17

BREAKING: WashPost: DHS Memos Detail Ramped Up Enforcement — Key Provisions: 15,000 More Agents, More Detention, Expanded Expedited Removal, Return To Mexico Pending Hearings, Target U.S. Parents Of Smuggled Kids, More Use Of Locals To Enforce Immigration Laws, PD Restricted, More IJ Televideo To Border, More Scrutiny of Credible Fear — Border Patrol Union Happy — DACA Remains (For Now) — David Nakamura Reports — Read Memos Here!

https://www.washingtonpost.com/politics/memos-signed-by-dhs-secretary-describe-sweeping-new-guidelines-for-deporting-illegal-immigrants/2017/02/18/7538c072-f62c-11e6-8d72-263470bf0401_story.html?hpid=hp_rhp-top-table-main_dhs815pm%3Ahomepage%2Fstory&utm_term=.bcdb7a1851e0

“Homeland Security Secretary John F. Kelly has signed sweeping new guidelines that empower federal authorities to more aggressively detain and deport illegal immigrants inside the United States and at the border.

In a pair of memos, Kelly offered more detail on plans for the agency to hire thousands of additional enforcement agents, expand the pool of immigrants who are prioritized for removal, speed up deportation hearings and enlist local law enforcement to help make arrests.

The new directives would supersede nearly all of those issued under previous administrations, Kelly said, including measures from President Barack Obama aimed at focusing deportations exclusively on hardened criminals and those with terrorist ties.

. . . .

The memos don’t overturn one important directive from the Obama administration: a program called Deferred Action for Childhood Arrivals that has provided work permits to more than 750,000 immigrants who came to the country illegally as children.”

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

Here are the two memos signed by Secretary Kelly (thanks to Professor Alberto Benitez):

http://www.mcclatchydc.com/news/politics-government/white-house/article133607784.ece/BINARY/DHS%20enforcement%20of%20immigration%20laws

http://www.mcclatchydc.com/news/politics-government/white-house/article133607789.ece/BINARY/DHS implementation border security policies

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

Looks like everything is a “priority,” almost everyone will be detained, and DHS Assistant Chief Counsel won’t be offering PD or other negotiated “deals” except in extraordinary situations.

It’s not even clear from this whether the ACCs will still have authority to “waive appeal” in cases where the DHS loses. If not, that means that the BIA could also be overwhelmed with marginal DHS appeals.

While one of the memos notes the 534,000 Immigration Court backlog, there is a total disconnect in putting all these new priorities into Immigration Court without any plan for dealing with the 534,000 already there. (Most folks already here arrived at least two years ago, so even the greater use of expedited removal will leave hundreds of thousands of potential new filings for the Immigration Courts.)

When everything is a priority, nothing is a priority! Looks to me like another ill-conceived, “built to fail,” scheme. Over time, these plans are likely to be taken apart by the Article III Courts, bit by bit, piece by piece, until we have total chaos in the immigration enforcement system. Haste makes waste.

PWS

02/18/17

Opinion: Cato’s Jonathan Blanks On How Trump’s Immigration Policies Endanger Safety & Why “Sanctuary Cities” Are Right To Resist

https://www.washingtonpost.com/opinions/how-enforcing-trumps-immigration-actions-could-hurt-public-safety/2017/02/17/3644da9c-f553-11e6-b9c9-e83fce42fb61_story.html

Blanks writes in the Washington Post:

“Last week, federal immigration officials seized an unauthorized immigrant at an El Paso courthouse where she had been seeking a protective order against an alleged domestic abuser. The judge who oversees the court that issued the protective order expressed dismay that such a seizure took place when the person was seeking protection from violence, and perhaps acting on a tip provided by the alleged abuser himself.

President Trump has said his proposed actions to stiffen immigration enforcement are in the interests of public safety, but seizures such as the one in El Paso and the proposed revitalization of the 287(g) program that deputizes local law enforcement to enforce federal immigration law make the public less safe and interfere with local policing priorities.

Certainly, immigration enforcement falls within the federal government’s prerogative, regardless of one’s opinion on current immigration laws. However, that does not make every single enforcement action wise or justifiable. Moreover, the respect for federalism — the recognition of state and local governments’ priorities over the whims of Washington — has long been a mantra of small-government Republicans. Yet, it is hard to think of a larger and more dangerous federal intrusion into local affairs than undermining local law enforcement.

. . . .

The federal government has the authority to enforce its immigration laws, but it should do so with discretion and in a way that aligns with the public trust. Likewise, local law enforcement should be free to protect the communities they serve in line with each community’s best interests. Taking law enforcement actions against people seeking protection is dangerous and irresponsible. Threatening those most vulnerable to crime is anathema to improving public safety.”

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

PWS

02/18/17

Like It Or Not, Trio Of Cases Now Before The Supremes Will Affect Trump Administration’s Enforcement Program — Issues Involve Long-Term Detention & Liability Of Government Officials

http://www.huffingtonpost.com/entry/scotus-trump-immigrants_us_58a70e9be4b037d17d271444?tdoe77ccqm362bj4i

Lawrence Hurley reports in HuffPost:

“The U.S. Supreme Court will decide three cases in coming months that could help or hinder President Donald Trump’s efforts to ramp up border security and accelerate deportations of those in the country illegally.

The three cases, which reached the court before Democratic President Barack Obama left office, all deal broadly with the degree to which non-citizens can assert rights under the U.S. Constitution. They come at a time when the court is one justice short and divided along ideological lines, with four conservatives and four liberals.

The justices will issue rulings before the end of June against the backdrop of high-profile litigation challenging the lawfulness of Trump’s controversial travel ban on people traveling from seven predominantly Muslim countries.

The most pertinent of the three cases in terms of Republican Trump administration priorities involves whether immigrants in custody for deportation proceedings have the right to a hearing to request their release when their cases are not promptly adjudicated.

The long-running class action litigation, brought by the American Civil Liberties Union (ACLU) on behalf of thousands of immigrants detained for more than six months, includes both immigrants apprehended at the border when seeking illegal entry into the United States and legal permanent residents in deportation proceedings because they were convicted of crimes. The case also could affect long-term U.S. residents who entered the country illegally and have subsequently been detained.

The Trump administration has said it wants to end the release of immigrants facing deportation and speed up the process for ejecting them from the country. A decision in the case requiring additional court hearings could have very direct implications for the administration’s plans, said ACLU lawyer Ahilan Arulananthan, especially since immigration courts currently have a backlog of more than 500,000cases.

The ACLU estimates that up to 8,000 immigrants nationwide at any given time have been held for at least six months. A U.S. Immigration and Customs Enforcement official was unable to immediately confirm data on length of detention but said that in fiscal year 2016, the average daily count of detainees was just under 35,000.

“If Trump wants to put more people in deportation but does not increase the number of immigration judges, then people are going to have to wait longer and longer to get a hearing,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

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

I would think that nominating a Solicitor General to be in charge of all Federal litigation, particularly at the Supreme Court level, would be a very high priority for President Trump.

PWS

02-17-17

Keeping It In Perspective: Trump Administration’s Arrest Of 680 Undocumented Immigrants In One Week Was About “Business As Usual” During Obama’s 1st Year

https://www.nytimes.com/interactive/2017/02/16/us/politics/immigration-arrests-trump.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news

JUGAL K. PATEL, ALICIA PARLAPIANO, HAEYOUN PARK and SARAH ALMUKHTAR report in the NYT:

Last week, United States Immigration and Customs Enforcement officials arrested more than 680 people in at least 12 states, shown below, stoking fears that the Trump administration is increasing the arrests and deportations of undocumented immigrants.

But a comparison of last week’s arrests and similar ones during the first four years of the Obama presidency show that the recent level of enforcement activity is not unprecedented.

It is unclear, however, if the numbers are an actual increase in enforcement, because information on operations in only 12 states was disclosed.”

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

Read the full article with analysis, charts, and maps.

PWS

02/16/17

Immigration Raids Net 680

https://www.washingtonpost.com/national/immigration-authorities-arrested-680-people-in-raids-last-week/2017/02/13/3659da74-f232-11e6-8d72-263470bf0401_story.html?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.87f8b6f9b6cb

According to the Washington Post:

“Immigration authorities last week arrested 680 people who were in the United States illegally, Homeland Security Secretary John F. Kelly said in a statement Monday.

The raids in at least a dozen states, which marked the Trump administration’s first large-scale crackdown on people living in the United States illegally, set off a wave of panic and protest in immigrant communities over the weekend and sparked questions from immigration advocates as to whether the arrestees posed legitimate threats to public safety.

DHS, which overseas U.S. Immigration and Customs Enforcement (ICE), said Monday that approximately 75 percent of those arrested were “criminal aliens,” including some who had been convicted of crimes such as homicide, sexual assault of a minor and drug trafficking.

Asked to provide further clarification, a DHS official confirmed that the term “criminal aliens” includes anyone who had entered the United States illegally or overstayed or violated the terms of a visa. There are an estimated 11 million people in the United States who fit that profile.

ICE declined to provide the names and locations of those who were detained in the raids, nor would the agency say how many of the 680 people had committed serious crimes.

Field offices in Los Angeles, San Antonio, Chicago, Atlanta and New York City released a total of 15 examples of people ICE took into custody last week, including one who was a “self-admitted MS-13 gang member” and one who was wanted for murder and attempted murder in Mexico. Seven had prior convictions for sexual assault or for lewd or indecent acts with a child, and three, including the gang member, had convictions for drug trafficking or distribution.

ICE carried out the arrests in New York, California, Illinois, Texas, Missouri, Kansas, Georgia, North Carolina, South Carolina, Kentucky, Indiana and Wisconsin. Of those, about a quarter had no prior convictions.

ICE has characterized the raids as routine, but immigrant rights groups said the actions were out of the ordinary and that most of those swept up were not dangerous. They said ICE also handled the detentions — which activists described as playing out in homes, on the side of the road and outside workplaces — differently from how the agency had in the latter years of the Obama administration, and accused the government of sowing fear among the immigrant community.

“This is not normal,” Sulma Arias, field director for the Center for Community Change, said in a teleconference with reporters Monday, calling it a “horrific overreach that will destroy families and undermine the American Dream for thousands.”

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

There still seems to be confusion as to whether these were “business as usual” by DHS or the result of the Trump Administration’s Executive Orders cracking down on so-called “criminal aliens.” Perhaps, it doesn’t really make any difference. Whatever it’s called, it’s the “new normal.”

PWS

02/13/17

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