United States Citizenship and Immigration Services (“USCIS”) – Page 57

DACA: SCOFFLAWS TRUMP & SESSIONS OUTED AGAIN — USD Judge John Bates (DC) Finds Administration’s Rationale For Terminating DACA Was Bogus – But, Gives Trumpsters 90 Days To Explain Before Restarting Program! – NAACP v. Trump!

NAACP v. Trump, U.S.D.C., D.D.C., 04-24-18 (Judge John D. Bates)

Read Judge Bates’s 60 page decision invalidating the Trump Administration’s decision to “rescind” DACA and ordering the restart of the program, but delaying the order for 90 days to give the Administration a chance to come up with a legal rationale for recision:

JugeBatesDACA

Key Quote From Judge Bates:

Executive Branch officials possess relatively unconstrained authority to enforce the law against certain violators but not others. Ordinarily, the exercise of that authority is subject to review not in a court of law, but rather in the court of public opinion: members of the public know how their elected officials have used their enforcement powers, and they can hold those officials accountable by speaking out, by petitioning their representatives, or ultimately at the ballot box. When an official claims that the law requires her to exercise her enforcement authority in a certain way, however, she excuses herself from this accountability. Moreover, if her view of the law is incorrect, she may needlessly forego the opportunity to implement appropriate enforcement priorities and also to demonstrate those priorities to the public.

Fortunately, neither Supreme Court nor D.C. Circuit precedent compels such a result. Rather, the cases are clear that courts have the authority to review an agency’s interpretation of the law if it is relied on to justify an enforcement policy, even when that interpretation concerns the lawful scope of the agency’s enforcement discretion. See Chaney, 470 U.S. at 832–33; OSG, 132 F.3d at 812; Crowley, 37 F.3d at 676–77. Under this rule, an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.

Here, the Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision. And although the government suggests that DACA’s rescission was also predicated on the Department’s assessment of litigation risk, this consideration is insufficiently distinct from the agency’s legal judgment to alter the reviewability analysis. It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action. For these reasons, DACA’s rescission was unlawful and must be set aside.

For the reasons given above, then, the Court will vacate the Department’s September 5, 2017 decision to rescind the DACA program. The Court will stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful. The Court will also deny the government’s motion to dismiss for lack of subject-matter jurisdiction, its motion to dismiss plaintiffs’ APA claims on reviewability grounds, and its motion to dismiss plaintiffs’ substantive APA claim; grant the government’s motion to dismiss plaintiffs’ procedural APA claim, the NAACP plaintiffs’ RFA claim, and plaintiffs’ information-sharing claim; and defer ruling on the government’s motion to dismiss plaintiffs’ remaining constitutional claims.

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So, who “won” under Judge Bate’s order? The plaintiffs won a smashing victory on all the significant legal issues. And, Judge Bates appears prepared to not only halt the termination of DACA for those already approved under the program, as other courts have done, but also to order the DHS to resume accepting new applications for those who meet the DACA criteria.

On the flip side, nothing happens for the next 90 days while the DHS searches for a rationale for terminating DACA. I think that’s going to be hard to develop. But, you never know.

This case follows a disturbingly familiar pattern. Trump, Sessions, & Co. institute actions against immigrants based on bias, racism, xenophobia, and campaign promises. They are promptly rejected by the courts as illegal.

Then, the Administration goes “to the drawing board” (they never seriously considered the law in the first place) in an attempt to come up with a legal rationale (usually a fairly obvious pretext) for their original actions.

That’s why it’s so infuriating to hear an intellectually dishonest scofflaw like Jeff Sessions constantly pontificating about a “rule of law” that actually represents only his own distorted and biased view of the law — likely drawn up for him by one of the restrictionist or White Nationalist groups he likes to hang around with.

Of course, even if Judge Bates eventually rules against the Administration, there no doubt will be an appeal to the DC Circuit. But, without a further stay pending appeal (which seems unlikely given the Supreme Court’s declination to give one in other DACA litigation) DACA would be restarted while the case is working its way through the lower courts, perhaps to the Supremes.

The Administration could easily have avoided this mess by agreeing to a “clean” DACA bill. They likely could even have gotten some “Wall” funding and other enforcement enhancements (short of more unneeded agents or more inhumane and unnecessary detention) thrown in with the deal. But, Trump blew the chance.

So now the fate of DACA is likely to be tied up in the Federal Courts for the indefinite future.

PWS

04-24-18

PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”

https://projects.propublica.org/asylum/#how-asylum-works

Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.

The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.

The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.

The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.

But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.

When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.

Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.

But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”

Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.

“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”

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Read the narrative and play the interactive “Waiting Game” at the above link!

Getting refuge often depends on getting the right:

Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.

If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.

I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”

Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.

Hope YOU get protected, not rejected!

PWS

04-23-18

TAL @ CNN: Documents Obtained Under FOIA Lend Support To Widely Held View That Trump Administration’s Decision To End Haitian TPS Driven By Bias Not Facts!

DHS decision to end Haitian immigrant protections questioned

By: Tal Kopan, CNN

Newly released internal documents are raising questions about the Trump administration’s decision to end protections for tens of thousands of Haitian immigrants — and whether the argument that the protections were no longer merited was valid.

Under President Donald Trump, the Department of Homeland Security has been aggressive in ending a number of temporary protected status designations that have been on the books, in some cases, for decades.

Roughly 300,000 people who have lived in the US with legal permission, most of whom have been here for upward of 15-20 years, could have their status pulled in the coming months as the protections expire. In the case of Haiti, nearly 60,000 immigrants are set to see their status expire next year.

The justification from the administration for ending the protections has been that by law, when the conditions from the original disaster that triggered the protections have improved, they must expire. DHS has been clear that it does not believe it can look at the totality of conditions in the country to factor in its decision making.

But the documents released Tuesday as part of a Freedom of Information Act lawsuit raise questions about whether DHS was accurately interpreting information in drawing those conclusions.

The documents suggest DHS contradicted its own staff assessment of Haiti when it opted to end TPS for the country, which was put in place after the devastating 2010 earthquake. The documents also include email correspondence showing Haiti’s deep concern about ending TPS for the country.

While many of the documents are redacted, the release includes a report prepared by staff about the conditions in Haiti, which was included as part of a recommendation by the director of US Citizenship and Immigration Services.

More: http://www.cnn.com/2018/04/17/politics/haiti-tps-documents-questions/index.html

And SCOTUS coverage here:http://www.cnn.com/2018/04/17/politics/supreme-court-federal-law-deportation-immigrants/index.html

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It’s no surprise that Trump Administration immigration policies are based on racial animus and White Nationalism and that they often fly in the face of known conditions in foreign countries. That’s what bias and congenital dishonesty are all about.

Haitian immigrants, who have made great contributions to the United States, have been singled out for poor treatment by past Administrations of both parties. But, they have persevered in the face of adversity both at home and abroad.

Not sure what the remedy would be here even if bias could be proved. The legislation creating TPS status makes country designations or non-designations matters committed to Executive discretion without any judicial review.

So the remedy is probably the same as for most of the Trump Administration’s unlawful and immoral acts: removal of the Administration and its GOP enablers at the ballot box. Even if that eventually happens, it’s not clear whether it will be soon enough to save Haitians in TPS status.

On the other hand, since most of the Haitians in TPS status would be entitled to full hearings before the Immigration Courts, they probably won’t be ordered out of the country any time soon. But, in some cases they could lose their authorization to work.

PWS

04-18-18

BEYOND TRUMP’S LIES & RACISM, THERE’S REAL HUMAN TRAGEDY IN HIS MISTREATMENT OF CENTRAL AMERICAN REFUGEES — America’s Election Of Known Unethical Leader Will Haunt Us For Generations To Come!

https://flipboard.com/@flipboard/-most-people-in-the-caravan-are-from-hon/f-808a52c6f5%2Fbuzzfeed.com

Karla Zabludovsky reports for BuzzFeed News:

MEXICO CITY — Two out of three people making their way through Mexico as part of a “caravan” that drew President Donald J. Trump’s ire this week have fled Honduras — part of a recent trend that has seen growing numbers of people escape the country’s exorbitant homicide rates, crippling corruption, increasing political persecution, and a floundering economy.

That is a sharp, recent rise — the number of Hondurans apprehended by US Customs and Border Control increased by 66% from Dec. 2017 to March, according to the Washington Office on Latin America, a human rights group. In February, Mexican authorities detained and deported 4,128 Hondurans, up from 2,780 the previous month. It was the highest number since November 2016.

This exodus comes at a time of extraordinary tensions even for Honduras, a country still reeling from the effects of a coup d’état in 2009. A highly contested presidential election in November drew thousands of demonstrators to the streets, where at least 22 protesters and bystanders were killed, most of them by security forces.

“Honduras is a pressure cooker in every single aspect,” said Bertha Oliva, director of the Committee for Families of the Disappeared and Detainees in Honduras. “We are seeing an unprecedented violation of human rights.”

Repression by the state has continued even months after the election, analysts say. According to Annie Bird, director of the Guatemala Human Rights Commission, government forces have been intimidating protest leaders — people have reported receiving threatening phone calls and being followed by unmarked cars.

Some in the caravan brought their politics with them, shouting slogans against Honduran President Juan Orlando Hernández, who narrowly won a second term last year and is often referred to by his initials, JOH. He has received support from former Secretary of State Hillary Clinton, former President Barack Obama, and Trump, but Hernández’s popularity at home is suffering: Many in the caravan yelled “Out with JOH!” as they set off.

The large number of Hondurans caught Trump’s attention.

“The big Caravan of People from Honduras, now coming across Mexico and heading to our “Weak Laws” Border, had better be stopped before it gets there,” Trump tweeted on Tuesday. In subsequent tweets, Trump renewed calls for his border wall and tougher immigration laws, warning about a “massive inflow of drugs and people” across the border.

Victoria Razo / AFP / Getty Images

A man holds a Honduran national flag as Central Americans -taking part in a caravan called “Migrant Viacrucis”- rest in Matias Romero, Oaxaca state, Mexico on April 2, 2018.

Conditions in Honduras were dire even before the election, with 43.6 murders per 100,000 inhabitants, 55% of the workforce underemployed, extortions to small businesses reportedly on the rise, and endemic corruption.

The Central American nation has one of the highest homicide rates in the world and was called the most dangerous country for environmental activists last year. The government’s efforts to clean up the police force were dealt a severe blow earlier this year, after the Associated Press revealed that the head of the national police had helped a cartel leader deliver nearly a ton of cocaine in 2013. And corruption is widespread: the former first lady was arrested in connection to a graft case in February.

Even the anti-corruption mission backed by the Organization of American States, known for its Spanish initials as Maccih, is languishing without a director after Juan Jiménez Mayor resigned in February, citing a lack of support by the head of the OAS.

In the meantime, Hernández has quietly cemented his power, taking control of most of the country’s institutions, including the Supreme Court, which in 2015 struck down a law forbidding presidents from seeking a second term. His administration continues to receive a portion of the $644 million appropriated by the US Congress to assist Central American governments.

Orlando Sierra / AFP / Getty Images

Left, thousands of supporters of the presidential candidate Salvador Nasralla, hold a demonstration in Tegucigalpa on Dec. 3, 2017. Right, riot police officers and army soldiers, use tear gas and a water cannon to disperse supporters of opposition candidate Salvador Nasralla during protests in Tegucigalpa, on Dec. 18, 2017.

Hondurans went to the polls on November 26 in a tense and highly polarized environment. Already distrustful, many voters were incensed after the Honduran electoral commission mysteriously stopped releasing results for 36 hours just as the opposition candidate, Salvador Nasralla, took a 5 point lead over Hernández. When it resumed, Hernández quickly overtook Nasralla.

Violent protests ensued, with people defying a 10-day curfew declared by the government, which deployed the military and police to the streets. According to the United Nations High Commissioner for Human Rights in Honduras, at least 23 people were killed and at least 60 were injured during the following weeks.

Two days after the election, the State Department certified that the Honduran government had been combating corruption and supporting human rights, a requirement for the US to continue sending it millions of dollars worth of aid.

But a report by the United Nations’ office said that the use of live bullets by security forces “raise serious concerns about the use of excessive lethal force and may amount to extra-judicial killings.”

“The level of desperation has risen since the election,” said Dana Frank, professor of history at the University of California, Santa Cruz. “All signs indicate that the situation is only going to worsen politically, economically, on the human rights front.”

It is unclear whether the post-electoral crisis will push more Hondurans than usual to emigrate this spring, when migrants usually undertake the trek. But despite a clampdown on immigration, Honduran migrants’ are increasingly looking to settle in Mexico, rather than continue on to the US. Last year, 4,272 Hondurans requested asylum in Mexico, up from 1,560 in 2015.

In July, about 86,000 Hondurans living in the US could be forced to leave if their Temporary Protected Status is not renewed. (In January, the Trump administration announced it was ending the program for 200,000 Salvadorans in the country.)

Honduras would struggle to absorb the return of thousands of people and the economy would suffer from the decrease in remittances likely to follow — possibly pushing another wave of Honduras toward the US.

“I call it a self-inflicted wound,” said Eric Olson, deputy director of the Latin America program at the Woodrow Wilson International Center for Scholars in Washington.

“You could create further instability, which leads to further migration.” ■

We can diminish ourselves as a nation, but that won’t stop human migration.

PWS

04-06-18

TRUMP ADMINISTRATION’S UNWARRANTED ATTACK ON OUR CHILDREN IS AN ATTACK ON AMERICAN VALUES!

https://www.washingtonpost.com/opinions/do-we-really-want-16-million-children-without-parents/2018/03/29/46d78b6a-335b-11e8-94fa-32d48460b955_story.html?utm_term=.5602ef577586

Former Delaware Governor Jack Markell in the Washington Post:

Jack Markell, a trustee of the Annie E. Casey Foundation, was governor of Delaware from 2009 to 2017.

Reading recent stories about U.S. citizens being forcibly separated from their undocumented parents reminds me of a visit I made to South Africa in 1985.

During that trip, I spent several days with the Black Sash in Johannesburg and Cape Town. This group of white women had formed 30 years earlier to protest legislation designed to remove voting rights of “coloured” South Africans. Over time, the Black Sash evolved from protest to advocacy, and by the time of my visit, it had grown to thousands of women who volunteered their time to help black and mixed-race South Africans deal with the horrendous laws and regulations of apartheid.

Among the most painful of the system’s effects was the destruction of families. Meeting with the Black Sash volunteers, I saw teenagers who had been removed from their families and black families forced to move from Johannesburg to a far-off rural “homeland” where they had no relatives.

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Now, in our own country, the Trump administration is preparing to threaten the well-being of 16 million U.S. citizens who live with their immigrant parents.

That’s right. Sixteen million U.S.-born children under 18 would be on the receiving end of a series of new proposals from President Trump’s team that could make it more difficult for parents to stay in the United States legally — and, even if they remained here, would reduce the likelihood that those parents would avail themselves of the services designed to keep their children healthy.

The proposals are embodied in changes to the “public charge” regulations, which limit the cost to the government of caring for immigrants. This concept has been in the law for decades. The difference with these proposals is that they would allow officials to include nutrition, health and other programs among the benefits that can be used to define an immigrant as being too dependent on public aid. That means immigrants availing themselves of those benefits — even for their children who are U.S. citizens — could be barred from obtaining a new visa or becoming a lawful permanent resident.

So, not surprisingly, an increasing number of immigrants are no longer enrolling their citizen children in government-sponsored health-care programs or feeding them with groceries purchased with food stamps. (Almost half of all immigrant-headed households with children buy food with the assistance of the government.)

Our country has historically made sure that a safety net will prevent our most vulnerable children from going hungry or without health care. These proposed changes reflect a betrayal of our core values.

Administration officials claim that they are proposing these changes in order to protect taxpayers. This argument is — at best — penny-wise and pound-foolish. Hungry and unhealthy children are more likely to be chronically dependent on government services and less likely to find good jobs and pay taxes.

Even without the rules being put into effect, we’re seeing massive negative consequences for many of these children. The advocacy group CLASP recently released research that reveals how the combination of fear caused by possible separation from parents and increased economic uncertainty has increased toxic stress among children from families who have members with different immigration statuses.

While these rules have not yet taken effect, once they are introduced, they could become the law of the land within a few months. In the meantime, once the regulations are posted for public comment, it’s critical for those who care about fiscal prudence as well as those who believe that it’s important to help keep our citizen children with their families to act. They must protest on behalf of these vulnerable children and on behalf of our core American values.

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Yup, an Administration of liars and child abusers is about as low as it can go. But, that’s what we have until 2020 and perhaps longer if decent Americans don’t wake up,.get motivated, and vote Trump and his corrupt GOP enablers and fellow travelers out of office!

Harm to the most vulnerable among us is harm to all!

PWS

04-02-18

HERE’S AN INFO PACKED “TRIPLE HEADER” FROM TAL @ CNN: Trump Administration Moves To Undermine American Values On Three Fronts: Detention Of Pregnant Women, Targeting U.S. Citizen Children In Need, & Extreme Vetting!

http://www.cnn.com/2018/03/29/politics/ice-immigration-pregnant-women/index.html

ICE rolls back pregnant detainee release policy

By Tal Kopan, CNN

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.

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http://www.cnn.com/2018/03/29/politics/immigrants-rejected-government-benefits/index.html

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.

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https://www.cnn.com/2018/03/29/politics/immigrants-social-media-information/index.html

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.

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The Administration’s war on immigrants, America, and American values continues!

PWS

03-30-18

NPR: Sessions Out To Destroy US Immigration Court System — “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!”

https://www.npr.org/2018/03/29/597863489/sessions-want-to-overrule-judges-who-put-deportation-cases-on-hold

Joel Rose reports for NPR:

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!

PWS

03-30-18

BIA IN FANTASYLAND: Evidence Continues To Mount That BIA’s Deference To Border Statements In Matter of J-C-H-F- Was a Flight of Fantasy That No Reasonable Fact Finder Would Have Reached – How You Can Fight Back Against This Blatant Perversion Of Justice!

http://immigrationimpact.com/2018/03/26/uscis-records-abusing-asylum-seekers/

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.

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

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.”

Due Process Forever!

PWS

03-28-17

TRUMPSTERS’ WHITE NATIONALIST IMMIGRATION POLICIES HURT SENIORS: No, There Was No Legal Requirement To Terminate TPS — It Was Just A Combination Of Disingenuousness, Stupidity, Racism, & Plain Cruelty!

https://www.washingtonpost.com/national/health-science/as-trump-targets-immigrants-elderly-and-others-brace-to-lose-caregivers/2018/03/24/72d5a0d0-2d3e-11e8-8ad6-fbc50284fce8_story.html

Melissa Bailey reports for Kaiser Health News in the Washing gton Post:

BOSTON — The two women have been together since 2011, a 96-year-old originally from Italy and a Haitian immigrant who has helped her remain in her home — giving her showers, changing her clothes, taking her to her favorite parks and discount grocery stores.

“Hello, bella,” Nirva greets Isolina Dicenso, using the Italian word for “beautiful.”

“Hi, baby,” Dicenso replies.

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But changes to federal immigration policy are putting both at risk. Haitian caregivers like Nirva, who got temporary permission to stay in the United States after the 2010 earthquake destroyed much of their homeland, now face a July 22, 2019 deadline for returning. If they and tens of thousands of other immigrants with similar jobs and tenuous legal status are forced to leave the country, Americans living with disabilities, serious illness or, like Dicenso, the frailties of old age could find themselves with few options besides nursing homes.

And many of those facilities could themselves be caught short of staff, at a time when more of the country’s aging baby boom generation could need care.

The situation reflects the crosscurrents that often roil immigration debates, with a central question being how many Americans are willing to fill the arduous, low-pay positions that immigrants often work. The expected fallout offers a glimpse into how such policy changes under President Trump will affect older Americans nationwide, especially those in large cities.

Some 59,000 Haitians live in the United States under temporary protected status (TPS), a humanitarian program that has given them permission to live and work in this country since the earthquake. Many are nursing assistants, home health aides and personal care attendants — the trio of jobs that often defines direct-care workers.

The Trump administration decided last November to curtail that protection, saying the island no longer faced the same adverse conditions and giving the immigrants until mid-2019 to leave or face deportation. In Boston, the city with the nation’s third-highest Haitian population, the action has prompted panic from TPS holders and pleas from health-care agencies that rely on their labor.

The decision “will have a devastating impact on the ability of skilled nursing facilities to provide quality care to frail and disabled residents,” Tara Gregorio, president of the Massachusetts Senior Care Association, warned in a letter published late last year in the Boston Globe. Nursing facilities in the state, which already are grappling with a shortage of several thousand workers, employ about 4,300 Haitians, according to Gregorio.

Nationwide, 1 in 4 direct-care workers are immigrants, said Robert Espinoza, vice president of policy at the New York-based Paraprofessional Healthcare Institute.

It’s not clear how many of those workers rely on the TPS program, but the Institute calculates that there are 34,600 who are non-U.S. citizens from Haiti, Nicaragua (for which TPS will end in January), El Salvador (in September 2019) and Honduras (in July, unless the Trump administration decides to renew protected status for individuals from this country). TPS decisions cannot legally take economic considerations into account, a Department of Homeland Security official said.

In addition, another 11,000 workers come from countries affected by Trump’s travel ban, primarily from Somalia and Iran, and about 69,800 are non-U.S. citizens from Mexico, according to the Institute.

Even immigrants with secure legal status may be affected when family members are deported, Espinoza noted: Under Trump, noncriminal immigration arrests have doubled. The “totality of the anti-immigrant climate” threatens the stability of the workforce — and “the ability of older people and people with disabilities to access home health care,” he said.

The Federation for American Immigration Reform, which supports more restrictive immigration policies, disputes such dire scenarios. Since three-quarters of direct-care workers are U.S. citizens, spokesman David Ray argues, then “these are clearly not ‘jobs that Americans won’t do.’ ” He does the math this way: The country has 6.7 million unemployed people, and if the health-care industry can’t find enough workers to replace those who lose TPS and other protected statuses, “then it needs to take a hard look at its recruiting practices and compensation packages.”

Yet nursing homes in Massachusetts are already losing immigrant workers who have left the country in fear, because of the White House’s immigration proposals and public remarks , according to Gregorio. Nationally, thousands of Haitians have fled to Canada.

“What people don’t seem to understand is that people from other countries really are the backbone of long-term care,” said Sister Jacquelyn McCarthy, chief executive of Bethany Health Care Center in Framingham, Mass., which runs a nursing home with 170 patients. She has eight Haitian and Salvadoran workers with TPS, mostly certified nursing assistants, who show up reliably for 4:30 a.m. shifts and never call out sick, she said. She already has six CNA vacancies and can’t afford to lose more, she said.

“There aren’t people to replace them if they should all be deported,” McCarthy said.

Nirva, who asked that she be identified only by her first name, works 70 hours a week taking care of senior citizens, sick and disabled patients. She started working as a CNA shortly after she arrived in Boston in March 2010 with her two sons.

She said she chose this work because of her harrowing experience in the earthquake, which destroyed her home and killed hundreds of thousands, including her cousin and nephew. After the disaster, she walked 15 miles with her sister, a nurse, to a Red Cross station to try to help survivors. When she got there, she recounted, the guards wouldn’t let her in because she wasn’t a nurse.

“So, when I came here — I feel, people’s life is very important,” she said. But at first, caring for elderly patients was difficult. “At the beginning, it was very tough for me,” she acknowledged, especially “when I have to clean their incontinence. . . . Some of them, they have dementia, they are fighting. They insult you. You have to be very compassionate to do this job.”

Nirva, 46, works with a soft voice, a bubbling laugh and disarming modesty. She says her faith in God — and a need to pay the bills to support her sons, now in high school and college — help her get through each week.

She started caring for Dicenso in her Boston home as the older woman recovered from surgery in 2011. With support from Nirva, another in-home aide and her daughter, Dicenso has been able to continue living alone. She now sees Nirva once a week for walks, lunch outings and shopping runs. The two have grown close, bonding in part over their Catholic faith. At home, Dicenso proudly displays a bedspread that Nirva gave her, emblazoned with the word LOVE.

Nirva also fills three shifts a week at a chiropractor’s office as a medical assistant. Five nights a week, she does an overnight shift at a Boston rehabilitation center.

The Trump administration’s immigration restrictions may exacerbate a serious shortage of direct-care workers, warns Paul Osterman, a professor at the Massachusetts Institute of Technology’s Sloan School of Management. He forecasts a national shortfall of 151,000 workers by 2030 and of 355,000 workers by 2040. If immigrants lose their work permits, the gap would widen further.

“People aren’t going to be able to have quality care,” he said. “They’re not going to be able to stay at home.”

Angelina Di Pietro, Dicenso’s daughter, worries about who could help her mother if Nirva can’t. “There’s not a lot of people in this country who would take care of the elderly,” she said. “Taking care of the elderly is a hard job.”

“Nirva, pray to God they let you stay,” said Dicenso, sitting in her living-room armchair after a long walk and ravioli lunch. “What would I do without you?”

Kaiser Health News (KHN) is a nonprofit news service covering health issues. It is an editorially independent program of the Kaiser Family Foundation that is not affiliated with Kaiser Permanente.

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

Restrictionist myths:

Health care workers are unskilled;
At virtually 100% employment, there are other American workers to take these jobs;
There wasn’t a rational basis for continuing Haitian TPS;
There is a legal prohibition on taking humanitarian factors and US interests into account in making discretionary, unreviewable TPS determinations;
That legal requirements are a factor in the actions of the Trump Administration (the most lawless and dishonest Administration in US history).

What will happen when xenophobes like David Ray of FAIR need help in their old age? Will they will get the benefit of the qualified, compassionate care that they would deny the rest of us? Or, will they be cared for by “anybody off the street” as they propose for others?

PWS

03-24-18

NEW AG CERTIFICATION: SESSIONS CONTINUES ALL OUT ATTACK ON FAIRNESS FOR IMMIGRANTS IN IMMIGRATION COURT — Continuances To Apply For “Collateral Relief” Before USCIS Latest Target — Matter of L-A-B-R- et al., 27 I&N Dec. 245 (A.G. 2018)!

https://www.justice.gov/eoir/page/file/1045661/download

Cite as 27 I&N Dec. 245 (A.G. 2018) Interim Decision #3921

Matter of L-A-B-R- et al., Respondents

Decided by Attorney General March 22, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l (h)(1)(i) (2017), I direct the Board of Immigration Appeals to refer these cases to me for review of its decisions. The Board’s decisions in these matters are automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of these cases, including the following question:

An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to “grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application”). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 17, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 24, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before May 2, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

245

Cite as 27 I&N Dec. 245 (A.G. 2018) Interim Decision #3921

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

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

Bad news for truth, justice, and the American way!

PWS

03-22-18

Michelle Brané in WASHPOST: “Separating refugee children from their parents is cruel”

https://www.washingtonpost.com/opinions/separating-refugee-children-from-their-parents-is-cruel/2018/03/18/d3e6b286-293f-11e8-a227-fd2b009466bc_story.html

March 18

I was glad to see the March 12 editorial “Torn asunder seeking asylum,” which called attention to the horrific practice of separating families seeking asylum. I can offer broader context to the issue of family separation. The Women’s Refugee Commission’s Migrant Rights and Justice Program has been monitoring this issue for many years.Primarily, the mother and child in the editorial should never have been separated. The increasingly common practice of separating asylum-seeker children from their parents is often done for no reason other than to deter the family from seeking protection. The Department of Homeland Security has publicly stated deterrence as the intended outcome, and its suggestion now that it is doing so to protect children is misleading and shameful.This is outrageous, as well as cruel, costly and illegal. What’s more, this practice is increasing. My organization is aware of hundreds of similar cases. We hope that Homeland Security’s decision to release the mother, and reunite her with her child, represents a move away from this practice and back toward respect for parents’ and children’s right to seek asylum.

Michelle Brané, Washington

The writer is director of the
Migrant Rights and Justice Program at the Women’s Refugee Commission

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

Well said, Michelle!

Compare the intelligence, humanity, and comprehensive knowledge of a “True American Hero” like Michelle with some of the ignorant, biased, immoral, and mean-spirited rantings of those who pass for “leaders” of our country these days. We have put the wrong people in power; but, there’s still time to correct the mistake before it’s too late!

PWS

03-21-18

DACA: IS THE ADMINISTRATION ON THE VERGE OF ANOTHER BIG COURT DEFEAT? — US District Judge Bates Signals He Might Order Restart Of Program!

https://www.washingtonpost.com/local/public-safety/federal-judge-in-dc-weighs-ordering-administration-to-restart-dreamers-program/2018/03/14/883b5178-27a7-11e8-bc72-077aa4dab9ef_story.html?utm_term=.b70de8a39e92

Spencer Hsu reports in the Washington Post:

“A federal judge said Wednesday that he is considering ordering the Trump administration to restart the “dreamers” program and accept new applications for protection from deportation by undocumented immigrants brought here as children.

Such a ruling by U.S. District Judge John D. Bates in Washington would go further than federal district judges in California and New York have when they issued nationwide injunctions blocking the government’s plan to rescind the Deferred Action for Childhood Arrivals program, or DACA, this month.

The injunctions, issued after lawsuits by several states and organizations, require the Department of Homeland Security to continue to accept DACA renewal requests from about 800,000 people in the program but not to process new applications.

Bates spoke near the end of a two-hour-long hearing Wednesday on two lawsuits seeking to overturn the administration’s ending of DACA in cases brought by the NAACP, Microsoft, Princeton University and a student.

The judge’s remarks came as White House officials told key Republican leaders that President Trump is open to cutting a deal in an upcoming spending bill to protect the dreamers in exchange for border-wall funding.

[Trump is open to short-term DACA deal, White House tells GOP leaders]

No appellate court has reviewed the earlier court decisions, and the Supreme Court last month declined to enter the national controversy for now when it turned down a Trump administration request to immediately consider the decisions.

[Supreme Court declines to enter controversy over ‘dreamers’]

In Washington on Wednesday, Bates appeared skeptical of Justice Department arguments that he dismiss the lawsuits because immigration authorities have discretion and do not need a court review when it comes to deciding to halt a “non-enforcement” policy.

Bates said, “You have been unsuccessful in three other courts with this argument, correct?”

“Yes, your honor,” Justice Department trial attorney Brinton Lucas replied.

A federal judge in San Francisco ruled in January that challengers to the administration probably were correct in their contention that ending DACA violated the Administrative Procedure Act, because it is arbitrary and capricious. A federal judge in Brooklyn reached a similar finding in February. Both judges issued injunctions.

[With three months left in medical school, her career may be slipping away]

Justice Department trial attorney Kathryn Davis told Bates that the administration ended the program because of the threat of legal challenges from a coalition of states led by Texas and a belief that the program created in the Obama administration could not be successfully defended in court.

Noting that explanation, Bates then asked why the change was presented to the government as a policy shift and not a legal conclusion by the Homeland Security and Justice departments. Bates questioned that legal conclusion given a 2014 Justice Department decision.

Noting the Washington court’s expertise in federal regulatory law, Bates sounded skeptical about whether issuing another nationwide injunction would be appropriate.

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Rather, Bates said it might be better to strike down or vacate DHS’s attempt to end the program — which would oblige the government to continue to accept new DACA applications while the administration decides whether to try again to cancel DACA but with a fuller justification for the change in position.

Davis, the Justice attorney in court, opposed taking that course of action, saying it would create “undue chaos.”

Lindsay C. Harrison and Joseph M. Sellers, the plaintiff’s attorneys, said allowing new applications would not be disruptive because it would simply restore the status quo.”

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

The Administration’s legal problems here start, not surprisingly, with AG Jeff Sessions.

Sessions told then Acting DHS Secretary Elaine Duke that the Obama Administration’s DACA program “an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Without any meaningful legal analysis, he summarily concluded that the program inevitably would be successfully challenged in Federal Court by some of his White Nationalist cronies serving as state Attorneys General.

The problem is that the DACA program had never been invalidated on legal grounds. The Fifth Circuit’s order invalidating the different although somewhat related “DAPA Program” was affirmed without opinion by an “equally divided Supreme Court” (a decision having no precedential effect).

There certainly was a strong legal basis for defending DACA that was totally ignored by Sessions. This includes a lengthy DOJ Office of Legal Counsel memorandum prepared during the Obama Administration that certainly was more thoughtful and thorough than the “Sessions letter.” Indeed, even the single U.S. District Judge who upheld the Administration’s DACA termination found that the legal issue was one upon which reasonable minds could differ.

So, basically, Sessions was arguing that the Federal Courts should hold that the Executive Branch is legally without authority to exercise so-called “prosecutorial discretion” in immigration cases. That’s facially absurd as a legal proposition, and a stunningly dumb argument for an Executive Branch official to make. This Administration, like all others, exercises large-scale “prosecutorial discretion” daily. How many actions is Scottie “Make Me AG If You Don’t Fire Me First” Pruitt at EPA taking to enforce existing environmental laws and regulations? How’s Ol’ Gonzo himself doing on enforcing those Civil Rights laws to protect minorities? How about the enforcement of those ethics laws applicable to Cabinet members and other Trump politicos?

Realizing the problem, it appears that in defending the Administration’s actions the DOJ lawyers “subtly switched” their argument to say that the Administration had “discretion” to terminate the DACA program. That’s actually a better argument than the one Sessions made to Duke. After all, if the Obama Administration had essentially unreviewable prosecutorial discretion to institute DACA, why can’t the Trump Administration exercise the same prosecutorial discretion negatively to terminate the program?

But, that position also raises some big problems.

First, it requires the Administration to admit, at least inferentially, that DACA was a proper exercise of prosecutorial discretion by the Obama Administration. That’s hard for them to do, since Sessions’s position was based on a bogus White Nationalist political argument and Trump campaign rhetoric that DACA was “unconstitutional” rather than on any careful objective analysis of the law (something that as far as I can tell, Jeff Sessions has never engaged in during his public career).
Second, it ignores the facts of the case. The “Sessions letter” to Duke did not purport to be based on a different “policy determination” regarding DACA. Rather it contained typical unsupported disingenuous Sessions’ pontificating about the law and his duty to uphold it. This is a joke on its face from probably the most “lawless” Attorney General since John Mitchell.
Third, no Federal Court to date has found that this exercise of prosecutorial discretion is totally unreviewable. And, given that almost everybody in America except Jeff Sessions has acknowledged the merit of the “Dreamers” as a group, it’s doubtful that the Administration could come up with even a “minimally rational” reason for terminating the program.

Several weeks ago, Judge Roger Titus of the US District Court in Maryland basically “tossed the Administration a lifeline.” He effectively “re-jiggered” the facts to find that the Sessions letter combined with Duke’s reaction constituted a “reasonable discretionary determination” to terminate DACA in light of the possible legal difficulties it might face in court.

The only problem with Judge Titus’s ruling is that’s not what Sessions and Duke actually did. We should also remember that even in upholding the Administration, Judge Titus basically found that the Administration had probably chosen the least palatable of the policy choices available to it. Hardly a “ringing endorsement,” despite the “favorable spin” put on the ruling by the DOJ.

So, stay tuned! But, don’t be shocked if Judge Bates hands the Administration another DACA defeat — this time one with potentially larger impact since it would require the Administration to allow new DACA registrations, not just adjudicate renewals of existing ones.

PWS

03-16-18

DARA LIND @ VOX NEWS: Is More DACA Litigation On the Way As DHS “Slow Walks” Adjudication of New Applications Filed Before Cutoff?

https://www.vox.com/policy-and-politics/2018/3/1/17066606/daca-apply-statistics-backlog

Lind writes:

In September, when the Trump administration announced that it was winding down the Deferred Action for Childhood Arrivals (DACA) program that protected young unauthorized immigrants who came to the US as children from deportation, tens of thousands of immigrants were waiting to hear back about DACA applications they’d already submitted.

Many of them are still waiting.

According to new statistics from US Citizenship and Immigration Services, at least 20,000 immigrants who applied for the program before the September announcement are still awaiting approval for their applications.

That means that 20,000 or so immigrants have had to live in fear of deportation, and haven’t been able to get a job in the US legally, since September 5, 2017 — when the administration announced no new DACA applications would be accepted — even though they applied for DACA before the cutoff.

The precise number isn’t entirely clear. One USCIS report says there were “approximately” 21,950 initial DACA requests pending as of the end of January; another says there were 25,513. (USCIS was asked for comment Wednesday but was unable to provide it before publication.)

But what’s clear is that the overwhelming majority of those immigrants submitted their applications back when DACA was still in full effect — and have been waiting anxiously to hear back from the government as the program’s future has been called into doubt.

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Read Dara’s complete article at the link. USCIS has plenty of time to send out mindless requests for additional information on what used to be routine business visa petitions, but not enough time and resources to adjudicate these requests? Gimme a break! The “Administration of Scofflaws” does virtually nothing without a court order.

Thanks to Roxanne Lea Fantl of Richmond, VA for alerting me to this item!

PWS

03-12-18

WNYC’S BETH FERTIG FERRETS OUT FOOLISHNESS BEHIND THE SESSIONS/DHS ATTACK ON ADMINISTRATIVE CLOSING AND PROSECUTORIAL DISCRETION – I’m Quoted and Pictured!

https://www.wnyc.org/story/trump-administration-reviewing-thousands-deportation-cases-once-put-pause

Beth reports:

“Last year, a young mother who came to the U.S. illegally from Mexico as a child thought she’d essentially won her fight against deportation.

Twenty-four year old Jenny isn’t eligible for DACA, or Deferred Action for Childhood Arrivals. She was in the midst of immigration court proceedings when she told her attorney that she was a victim of domestic violence, which is why WNYC agreed not to use her real name.

In May, Jenny reported her boyfriend to police for allegedly beating and trying to choke her. That action suddenly changed the course of her immigration case.

Jenny was able to apply for what’s called a U visa that would allow her to stay in the U.S. It’s for immigrant victims of crime who cooperate with law enforecement.

The waiting list for a U visa is about three years. But because Jenny met the criteria, and got the Brooklyn District Attorney’s office to sign off on her documents, the immigration judge agreed to put her cause on hold. The legal term for this is administrative closure. The government would no longer seek to deport her while she waited for her special visa.

But a month later, Immigration and Customs Enforcement (ICE) asked the same judge to recalender Jenny’s case and put it back on the docket — meaning she’d have to fight against deportation all over again.

The reason? ICE wrote that Jenny’s U visa was “speculative” and “not available within a reasonable period of time.” The agency said three years was too long to wait — even though they’re controlled by another governmental agency, U.S. Citizenship and Immigration Services (both are within the Department of Homeland Security). ICE said she could wait for her U visa while in Mexico.

The agency also noted that Jenny had been convicted of petit larceny when she was 18. Though it’s not considered a crime that could lead to an immigrant’s removal, it brought her to ICE’s attention a few years ago, and her unlawful presence in the U.S. triggered the deportation proceedings.

For Jenny, the about face was extremely upsetting after suffering domestic abuse and moving into a women’s shelter. “I seek help and I’m still kind of being, you know, bullied,” she said.

Her attorney, Kendal Nystedt of the immigrant rights group Make the Road New York, said ICE seemed to mischaracterize immigration law and said its arguments “were also insulting given the humanity of my client.”

The judge apparently agreed. Late last year, in a one page memo, he denied the government’s request and let Jenny remain in the U.S. But data obtained by WNYC shows that Jenny wasn’t the only immigrant who thought they could stay, only to have the government give their case a second look.

In Fiscal Year 2017, ICE asked to recalendar almost 9400 cases that were administratively closed, or put on pause. That’s an increase of almost 74 percent from the year before President Trump took office. In response, it appears immigration judges may be applying more scrutiny to the government’s requests. They granted 85 percent of those motions to put the cases back on their dockets in 2017, compared to 96 percent in 2016.

When asked why the government is revisiting more cases, ICE spokewoman Jennifer Elzea said the agency generally reviews cases that were administratively closed “to see if the basis for prosecutorial discretion is still appropriate.”

But it’s clear this legal strategy also lets the Trump administration try to deport more immigrants. Former immigration judge Andrew Arthur said there’s a good reason. “Under the Obama Administration, administrative closure was treated as a form of amnesty,” he explained.

Arthur is a fellow with the Center for Immigration Studies, a think tank that supports more restrictive immigration policies. Without commenting on Jenny’s situation he said some cases that were administratively closed involved immigrants who may never qualify for whatever benefit they thought they were likely to receive. But he said the previous administration didn’t act because there were “not deemed a priority for removal.”

In other words, he Obama administration had made criminals the top priority for removal, letting too many others remain.

Retired immigration judge Paul Wickham Schmidt

Beth Fertig/WNYC

Another former immigration judge said that Obama era policy made sense, however. Paul Wickham Schmidt granted administrative closures when he worked in the Arlington, Virginia court.

“An example of a type of case that gets closed quite a bit are cases of individuals who have relatives petitioning for them. And there’s a big backlog of petitions,” Schmidt explained. “So rather than continuing the case time after time, sometimes for years, judges were saying ‘look I’m going to take this case off the docket.'”

He said this management strategy was necessary. The immigration courts have a backlog of 670,000 thousand pending cases. “You’re not even going to complete 670,000 cases probably within my lifetime. You’ve got to decide which cases really belong at the front of the line and which cases you’re not going to prioritize,” he said. “Wasting time in immigration court just doesn’t make sense.”

Despite concerns about further burdening an immigration court system that’s already bursting at the seems, Attorney General Jeff Sessions is considering a much more dramatic step than simply seeking to recalendar the 9400 cases that were reviewed last year. He’s looking into recalendaring all cases that were administratively closed – and there are estimates there could 350,000 of them.”

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Go to the link to hear the audio from WNYC!

Putting cases like “Jenny’s” back on the already overcrowded dockets is cruel, counterproductive, and wasteful of judicial time. She’s established the qualifications for a U visa, for Pete’s sake. There really isn’t any “uncertainty” — if she stays out of trouble with the law, she’ll get a U visa when her number comes up. No reason on earth for her to “occupy space” on the Immigration Court’s docket.

If she were unwise enough to get into legal trouble before then (seldom happens, in my experience), then that would be the time to 1) revoke her U visa approval, and 2) put her back on the docket. With dockets stretching out for years, why would an Immigration Judge do anything other than keep putting a case like Jenny’s at the end of the docket until her “U number” is reached?

Just because somebody is “removable” doesn’t mean that it makes any sense to put them on already overcrowded Immigration Court dockets. That’s particularly true of an individual who meets the requirements for a legal status (albeit one that because of the arcane structure of the Federal Regulations, an Immigration Judge can’t actually grant).

It’s analogous to the local prosecutor jamming a judge’s docket with jaywalking, littering, and unleashed dog cases so that there isn’t time to hear felony rape and robbery cases! No other law enforcement agency in America that I’m aware of operates without any real prosecution priorities the way Sessions and the DHS are trying to do in this Administration.

And, of course, one large class of “Administratively Closed” cases involves those who had their DACA applications approved by USCIS after Removal Proceedings had been initiated. What would be the point of putting such cases “back on the docket” if DACA were actually terminated?

Even the DHS claims that “Dreamer” cases would not be an “enforcement priority.” (Although, during the Trump Administration such claims by DHS have often proved to be “not credible.”) Therefore, it would literally be years before they could be heard. And many of them have strong cases for other forms of immigration relief such as Cancellation of Removal. I want to believe that the fate of the Dreamers will be resolved long before then.

PWS

03-07-18

NEW SCHOLARSHIP FROM PROFESSOR RUTH ELLEN WASEM, LBJ SCHOOL @ UT TAKES ON PROBLEMS OF 21ST CENTURY IMMIGRATION GOVERNANCE — “Immigration is not a program to be administered; rather, it is a phenomenon to be managed.”

Immigration Governance for the Twenty-First

Ruth Ellen Wasem The University of Texas at Austin

6 Journal on Migration and Human Security 97 (2018)

KEY QUOTE:

Even with fragmented governance and strained resources, the US immigration system has enjoyed successes. Each year, approximately one million foreign nationals legally become permanent residents in the United States. In FY 2015 and FY 2016, the Bureau of Consular Affairs issued over 10 million visas each year to foreign nationals coming to the United States as nonimmigrants (i.e., for a temporary purpose and a temporary period of time) and over half a million visas to LPRs (Bureau of Consular Affairs 2017). CBP admitted almost 77 million foreign nationals as nonimmigrant admissions to the United States in FY 2015 (Office of Immigration Statistics 2016). That year, DOL processed 711,820 employer applications for 1,580,778 positions for temporary and permanent labor certifications Immigration Governance for the Twenty-First Century 117 (Office of Foreign Labor Certification 2016). In FY 2015, there were 730,259 LPRs who became US citizens. That same year, the United States admitted 69,920 refugees, and USCIS approved 26,124 asylees. DHS apprehended 462,388 foreign nationals and deported 444,431 foreign nationals in FY 2015. Another 253,509 foreign nationals were denied entry, and 129,122 foreign nationals returned home without a formal order of removal (Office of Immigration Statistics 2016). In FY 2016, EOIR judges received 328,122 cases and completed 273,390, including those of 8,726 foreign nationals who were granted asylum (EOIR 2017). Considerable credit is due to the people carrying out immigration-related responsibilities across the federal government.

Immigration is not a program to be administered; rather, it is a phenomenon to be managed. While there are limits to how much one government can control migration, the building blocks in Figure 3 offer a reasonable set of priorities. Effective immigration governance, coupled with laws and policies that incorporate the national interests, is key to maintaining a robust sovereign nation.

Get the entire article, which I highly recommend, at this link:

Wasem,ImmigrationGovernance21st Century

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Words of wisdom, to be sure. If only our policy makers had the same degree of understanding.

Today, we operate on an illusion that a few folks sitting in Washington, D.C. can “pull all the strings” to seal borders, override market forces, ignore international conditions and agreements, change behavior in foreign countries, and dominate forces of human migration that have been at work since before all of us were born and will continue long after we’re all gone. It’s a toxic mix of arrogance and ignorance that will leave immigration and refugee policy in tatters for years to come.

I can only hope that there are those out there in the upcoming generations who will bring to the immigration phenomenon practical scholarship, reason, humanity, fairness, and better ideas on management of our laws for the benefit of our country and humanity as a whole.

PWS

03-07-18

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