United States Citizenship and Immigration Services (“USCIS”) – Page 65

DR. NO? — DHS Appoints Restrictionist To “Ombudsman” Position!

https://thinkprogress.org/uscis-ombudsman-877d18a67d97

Dan Kowalski at LexisNexsis Immigration Community forwards the following item from Think Progress:

“The U.S. Department of Homeland Security is set to announce the appointment of a controversial former leader of an anti-immigrant policy center to be its ombudsman for U.S. Citizenship and Immigration Services (USCIS) on Monday, according to two sources aware of the news.

Between 2005 and 2015, Julie Kirchner worked first as its director of government relations then as executive director at the Federation for American Immigration Reform (FAIR), an organization founded by an alleged white nationalist who advocates for stricter immigration. During her time at FAIR, the organization proposed efforts to end birthright citizenshipand reduce legal immigration levels. She left FAIR in 2015 to become an immigration adviser on then-presidential candidate Donald Trump’s campaign.

Immigrant advocates are worried Kirchner’s role as ombudsman will give her direct access to include or exclude stakeholders with an immigration nexus who may shape her formal recommendations based on how the agency should exercise authority over policy implementation.

“The appointment of Kirchner to the position of CIS ombudsman is extremely troubling when you consider the fact that she spent 10 years working for FAIR, a group founded on racist principals that has spent decades demonizing and vilifying immigrants,” Heidi Beirich, the director of SPLC’s Intelligence Project, told ThinkProgress in an email.

USCIS public affairs officer Katie Tichacek told ThinkProgress the agency “does not comment on potential personnel announcements. The two people who confirmed information of Kirchner’s appointment were one current DHS employee and one former DHS employee.

Congress created the role of the USCIS ombudsman under the Homeland Security Act of 2002 as an “impartial and independent perspective” to the agency housed within DHS, according to a DHS agency website. Among tasks like meeting with external stakeholders, ombudsman are responsible for resolving problems with pending immigration cases, sharing feedback on emerging trends in migration patterns, and issuing formal recommendations and proposals to address concerns. They cannot make or change USCIS decisions.

In her 2016 annual report to Congress, former USCIS Ombudsman Maria M. Odom said engaging with external stakeholders was “integral to our full understanding of the issues and their impact on the USCIS customer.”

January Contreras, a former USCIS ombudsman between 2009 and 2012 described her role as a DHS “watchdog.” She now works as the CEO of Arizona Legal Women and Youth’s Services (ALWAYS), which provides pro bono legal services for trafficking survivors and young people.

During her time, Contreras met with a wide variety of people that spanned the immigration spectrum, including human resource and vice presidents looking to expand high-tech visas, undocumented immigrants, and former refugees who pointed out which processes they had trouble with.

“[The role] is someone who is listening outside the DHS bubble,” Contreras told ThinkProgress Friday. “My job, when I was the ombudsman, was to listen to people who were dissatisfied at what was going on at the DHS. Sometimes people would bring complaints, sometimes they would bring ideas, sometimes they were long-simmering issues and sometimes they were rather new issues.”

The Southern Poverty Law Center (SPLC) has labeled FAIR as a hate group, pointing to a series of racist memos written by the organization’s founder John Tanton warning of a “Latin onslaught.” In the past, Tanton and other supporters promoted radical population control measures like sterilizing Third World women and making wider use of an abortion pill. FAIR has received $1.5 million from the pro-eugenics organization Pioneer Fund. Tanton also founded NumbersUSA and the Center for Immigration Studies (CIS), two organizations that consulted Trump or senior administration officials during his campaign.

“At the end of the day, the ombudsman is still accountable to Congress to improve services, not restrict services,” Contreras said. “So in fact if there’s an ombudsman in place interested only in restricting immigration I hope that Congress will have some conversations, whether privately or publicly, to make sure they’re doing the job they’re hired to do.”

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Wishful thinking on Contreras’s part, I’m afraid. With the GOP firmly in control of the political branches of Government, and Secretary Kelly proving to be a “shill” for Sessions and the restrictionists, I wouldn’t bet on any meaningful oversight of the Ombudsman position.

Quite to the contrary, I expect the Ombudsman to become an extension of the VOICE program for “victims of crime” or, perhaps, a conduit for anonymous “tips” on how to locate individuals who potentially are removable from the U.S.

PWS

04-30-17

SUPREMES: “Chiefie” Incredulous At DOJ Position in Natz Case!

http://m.dailykos.com/stories/2017/4/27/1656715/–Oh-come-on-Supreme-Court-justices-incredulous-at-Justice-Department-immigration-argument?detail=emaildkre&link_id=1&can_id=aaabbf957f39adda3c39dd02432b2ad6&source=email-oh-come-on-supreme-court-justices-incredulous-at-justice-department-immigration-argument-2&email_referrer=oh-come-on-supreme-court-justices-incredulous-at-justice-department-immigration-argument-2___205999&email_subject=north-carolina-woman-voted-illegally-for-trump-but-wont-be-charged-for-compassionate-reasons

Laura Clawson writes at the Daily Kos:

“It, uh, doesn’t sound like the Trump-Sessions Justice Department is going to prevail in its argument to the U.S. Supreme Court that citizenship can be revoked over any misstatement or failure to disclose at all, however minor, that a person included (or didn’t include) on their citizenship application. Yes, Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg were all vocally skeptical. But there was also this, from Chief Justice John Roberts:

“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” the chief justice said, adding that he had not been caught.

The form that people seeking American citizenship must complete, he added, asks whether the applicant had ever committed a criminal offense, however minor, even if there was no arrest.

“If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all’?” Chief Justice Roberts asked.

Robert A. Parker, a Justice Department lawyer, said the offense had to be disclosed. Chief Justice Roberts seemed shocked. “Oh, come on,” he said.

It sounds an awful lot like the Trump regime is looking for the right to revoke any naturalized person’s citizenship at any time, while creating an enormous new hoop for people seeking citizenship to jump through. Can you remember every single thing you’ve ever done?

Divna Maslenjak, the woman whose case prompted this exchange, could still face legal problems, since she had claimed that her husband had avoided military conscription in Bosnia when really he served in a unit that committed war crimes. But whatever the specific result for Maslenjak, it doesn’t seem likely that the Trump regime is going to get the far-ranging power it was effectively seeking:

Roberts added that it might not be a constitutional problem, but “it is certainly a problem of prosecutorial abuse.” Given the wide range of questions on the naturalization form, he observed, the government’s position would mean that government officials would have “the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn’t put in something like that.” “And then the government can decide,” Roberts warned, “we are going to denaturalize you for reasons other than what might appear on your naturalization form, or we’re not.” For Roberts, giving that “extraordinary power, which essentially is unlimited power,” to the government would be “troublesome.”

Welcome to the Donald Trump presidency, Mr. Chief Justice.”

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For many years (at least as long as I’ve been in DC — since 1973) the DOJ, and in particular the Solicitor General’s Office, has occupied a position of unusual respect and credibility with the Supremes. Indeed, the Solicitor General is sometimes referred to as the “10th Justice” because the Supremes often defer to his or her judgment on whether a case merits certiorari.

But, with Jeff “Gonzo Apocalypto” Sessions at the helm, I wouldn’t be surprised to see the DOJ lose its vaunted reputation and be treated with the same degree of skepticism that other litigants face from the Supremes.

To be fair, however, the DOJ’s “boneheaded” position in Maslenjak originated in the Obama Administration which also, thanks in no small way to its tone deaf handling of many immigration cases (particularly those involving crimes) also “wore out its welcome,” so to speak, with the Supremes.

Perhaps, it’s just the general arrogance with which the Executive Branch and the DOJ have functioned over the last several Administrations of both parties. And, Congress, largely as a result of the GOP and its Tea Party wing, turning into “Bakuninists”– promoting anarchy and achieving almost nothing of value since the enactment of Obamacare, has not helped stem the tide of Executive overreach.

PWS

04-29-17

Supremes Engage On Naturalization Issue!

https://www.washingtonpost.com/politics/courts_law/supreme-court-fears-giving-government-too-much-power-to-revoke-naturalization/2017/04/26/13b7814e-2aac-11e7-be51-b3fc6ff7faee_story.html?utm_term=.6a9daea75352

Robert Barnes writes in the Washington Post:

“Chief Justice John G. Roberts Jr. said Wednesday he had grave worries about “prosecutorial abuse” if even a minor lie in the application process means the government can later strip a naturalized immigrant of her citizenship.

As the issues of immigration and deportation take center stage under the Trump administration, Roberts and other Supreme Court justices seemed hesitant to give the government unfettered power to remove naturalized citizens from the country.

The case involved a Bosnian native, Divna Maslenjak, who was criminally prosecuted for lying on her application about her husband’s military service. She was deported by the Obama administration, which held the broad view that any misrepresentation — whether relevant or not — was enough to give the government the right to consider revocation.

“It is troublesome to give that extraordinary power, which, essentially, is unlimited power, at least in most cases, to the government,” Roberts said. Because it would be easy in almost all cases to find some falsehood, the chief justice said, “the government will have the opportunity to denaturalize anyone they want.”

Roberts, who regularly warns about the discretionary power of prosecutors, and Justice Anthony M. Kennedy added a moment of drama to a lively hearing that was the Supreme Court’s last scheduled oral argument of the term.

They were not persuaded by Justice Department lawyer Robert A. Parker’s assertion that other safeguards are built into the system and that government lawyers had little reason to search through the millions of files of naturalized citizens to find trivial reasons to prosecute. Even denaturalization, Parker said, only returns a person to the status of lawful permanent resident and allows reapplication.

. . . .

Some justices noted that the statute does not specifically require that. “It seems like, linguistically, we have to do some somersaults to get where you want to go,” said Justice Neil M. Gorsuch, who testified during his recent confirmation hearings about sticking closely to the text of statutes.

And Justice Ruth Bader Ginsburg said Maslenjak’s misrepresentations appeared directly relevant to her application. She lied about what her husband was doing in Bosnia, Ginsburg said. “Under what circumstances would that be immaterial?”

. . . .

The case is Maslenjak v. United States.”

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PWS

04-26-17

Haitians Next Target Of Trump’s Xenophobic Cruelty? — USCIS “Tanks” On TPS Extension — Haitian Country Conditions No Better, But U.S. Political Conditions Have “Changed!”

https://www.washingtonpost.com/opinions/the-united-states-may-be-about-to-inflict-a-massive-hardship-on-haiti/2017/04/22/a0741cb2-26ad-11e7-bb9d-8cd6118e1409_story.html

From the Washington Post on Sunday, April 23:

“By Editorial Board April 22

POVERTY IN Haiti, by far the most destitute country in the Americas, is so extreme that it defies most Americans’ imaginations. Nearly 60 percent of Haitians live on less than $2.42 per day; a quarter of Haitians scratch out a living on half that amount. That the United States would intentionally inflict a sudden, massive and unsustainable hardship on such a country — one already reeling from a series of natural and man-made disasters — defies common sense, morality and American principles. Yet that is exactly what Homeland Security Secretary John F. Kelly is now considering.

Incredibly, an agency under Mr. Kelly’s purview has recommended that some 50,000 Haitians now living legally in the United States be expelled en masse next January. If Mr. Kelly approves the expulsion, it would be a travesty. It would, at a stroke, compound the humanitarian suffering in a nation of 10.4 million already reeling from a huge earthquake in 2010, an ongoing cholera epidemic that is the world’s worst and a devastating hurricane that swept the island only last fall.

The recommendation from U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security, involves Haitians who have lived in the United States since the 2010 earthquake and have been allowed to remain legally since then on humanitarian grounds, under a series of 18-month renewals.

Now, the agency proposes to revoke the “temporary protected status,” or TPS, under which those Haitians live and work in the United States, a move that would trigger an exodus into a country ill-equipped to absorb them. It would also sever a major source of income on which several hundred thousand Haitians depend — namely, cash sent back to the island by their relatives working in the United States.

In December, the same immigration agency now urging expulsion issued a report saying that the horrendous conditions that prompted the TPS designation in 2010 persist, including a housing shortage, the cholera epidemic, scanty medical care, food insecurity and economic wreckage.

Haiti’s fundamental economic situation is unchanged since that report. The effects of Hurricane Matthew, a Category 4 storm when it hit Haiti last October, were particularly devastating, leading to catastrophic losses to agriculture, livestock, fishing and hospitals in rural areas, plus nearly 4,000 schools damaged or destroyed, according to the World Bank. The value of those losses is estimated at $1.9 billion, more than a fifth of Haiti’s gross domestic product; the storm left more than a million Haitians in need of humanitarian aid.http://wp.me/p8eeJm-Jz

In addition to Haitians, citizens of a dozen other war-torn, poverty-stricken and disaster-struck countries living in the United States have been granted temporary protective status, including El Salvador and Nicaragua, both of which are richer than Haiti. For the United States, the hemisphere’s richest country, to saddle Haiti, the poorest, with what would amount to a staggering new burden would be cruel and gratuitous. It may also be self-defeating. It’s hardly unthinkable that a sudden infusion of 50,000 jobless people could trigger instability in a nation with a long history of upheavals that often washed up on U.S. shores. Food for thought, Mr. Kelly.”

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This is what happens in a politicized bureaucracy. Folks with their jobs on the line are afraid to speak truth or the truth is being suppressed by politicos. Is Gen. Kelly going to stand up for human values?

If TPS for Haitians is revoked, there would undoubtedly be a “grace period” for them to leave the U.S. voluntarily. Thereafter, they would be subject to Removal Proceedings. But, for those who do not have outstanding orders of removal, the prospects would be similar to what I have described if protections for “Dreamers” were rescinded.http://wp.me/p8eeJm-Jz

Most would go to the end of a line in the U.S. Immigration Courts stretching off for years into the future. But, lack of the work authorization that accompanies TPS status could be a problem for both the individuals and their U.S. employers.

PWS

04-23-17

WashPost: H-1B Review Part Of EO On Jobs To Be Signed In Badgerland On Tuesday!

https://www.washingtonpost.com/news/wonk/wp/2017/04/17/after-a-series-of-flip-flops-trump-prepares-to-deliver-on-a-key-campaign-pledge/?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.505868d54ef2

Tracy Jan and Max Ehrenfreund report:

“President Trump plans to sign an executive order in Wisconsin on Tuesday that the White House says will make it harder for tech companies to replace American workers with cheaper foreign labor, and will strengthen rules barring foreign contractors from bidding on government projects, according to senior administration officials.

The officials, in a background call with reporters, said Trump will direct the Departments of Labor, Justice, State and Homeland Security to crack down on fraud and abuse in guest-worker programs by issuing new immigration rules.

The president will also direct the Department of Commerce to review federal procurement rules and trade agreements with a view to putting American firms at an advantage when it comes to winning contracts.

The officials pitched the twin directives as benefiting working- and middle-class Americans who have suffered for too long under unfair trade and immigration rules.

“This is the policy that ensures no one gets left behind in America anymore — that we protect our industry from unfair competition, favor the products produced by our fellow citizens and make certain that when jobs open those jobs are given to American workers first,” the White House said in a statement.

It was not immediately clear how much the administration could accomplish without cooperation from Congress.

“Sweeping changes are going to require congressional action,” said Lynden Melmed, an immigration attorney who had served as U.S. Citizenship and Immigration Services chief counsel within the Department of Homeland Security under President George W. Bush.

However, industry experts said Trump’s executive order was a good first step to protecting the U.S. defense industrial base, and U.S. firms that do business with the federal government.

“It’s one of the few presidential exertions in recent time, that holds out the hope of saving U.S. industrial jobs,” said Loren Thompson, a defense industry consultant and the chief operating officer of the Lexington Institute in Arlington.”

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PWS

04-18-17

THE HILL: N. Rappaport Says Time For Congress To Pull The Plug On Troubled EB-5 Investor Program

http://thehill.com/blogs/pundits-blog/immigration/328386-congress-pull-fraud-laden-visa-program-for-mostly-chinese

Nolan concludes:

“So, should the EB-5 program be terminated?

Yes, Congress has had more than 25 years to fix the EB-5 program. There is not going to be a legislative “fix.” The only viable alternative is to terminate it and start over.

I have a few suggestions for the new investment program. It should:

Raise the investment amounts;
Establish more detailed statutory requirements for regional centers;
Require Chinese investors to establish that they have permission from the Chinese government to remove enough money from China to meet the investment requirement;
Provide for input from the states on designating Targeted Employment Areas but have the designations made by the federal government;
Establish guidelines for making the “Targeted Employment Area” designations which eliminate the current gerrymandering process and ensure that the investment money goes where it is supposed to go; and
Include measures to eliminate fraud from the program.

Some lawmakers have given up already. Rep. Steve King (R-Iowa) and Sen. Dianne Feinstein (D-Calif.) introduced bills to terminate the EB-5 program. These members have the right idea. It is time to put an end to a failing, faulty program and implement immigration policies that actually yield the intended result.”

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

PWS

04/12/17

Applicants For Immigration Benefits Busted — Will This Become the Norm?

https://www.washingtonpost.com/news/post-nation/wp/2017/04/06/they-met-with-immigration-officers-to-apply-for-legal-residency-only-to-be-arrested-by-ice/?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.eebb0333a5d5

Kristine Phillips resorts in the Washington Post:

“Leandro Arriaga has been in the United States illegally since 2001.

He stayed despite a deportation order and over the past 16 years has made a living fixing and remodeling homes. He also started a family. But the father of four had grown tired of “living in the shadows,” his attorney said.

So last week, he went to a U.S. Citizenship and Immigration Services (USCIS) office for his marriage petition interview — the first step to legalize his presence in the United States through his wife, a naturalized citizen. The process, called an I-130 visa petition, is a common way for foreigners to gain legal residency through their relatives or spouses.

But Arriaga was arrested that day, along with four others who also showed up at the USCIS office in Lawrence, Mass. All five have deportation orders, according to the U.S. Immigration and Customs Enforcement, or ICE.”

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Are such incidents merely anecdotal, or do they represent a clear change in policy? Maybe the effect is the same. If migrants believe that visiting DHS field offices to apply for immigration benefits will put them at risk, they will stop doing it, regardless of what the “actual policy” might be.

I’d be interested in any comments from readers about what you are seeing or hearing in your areas.

PWS

04/06/17

WashPost: Administration Warns Employers Not To Use H-1B Program To “Dis” U.S. Workers!

https://www.washingtonpost.com/politics/us-tells-companies-not-to-overlook-qualified-americans/2017/04/04/87fa4e06-1909-11e7-8598-9a99da559f9e_story.html?utm_term=.fe6b3da5783c

Sadie Gurman reports for the AP:

“WASHINGTON — The Trump administration has issued a stern warning to U.S. companies as they begin applying for coveted skilled-worker visas, cautioning that it would investigate and prosecute those who overlook qualified American workers for jobs.

The message came on the opening day of applications for American employers seeking visas known as H-1B, which are used mostly by technology companies to bring in programmers and other specialized workers from other countries.

“U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims,” Tom Wheeler, acting head of the Justice Department’s Civil Rights Division, said in a statement.

The Obama administration sued companies for violating the Immigration and Nationality Act’s anti-discrimination provisions, including businesses that favored foreigners over U.S. workers. But Monday’s warning in a news release at the start of the visa process appeared to be a first-of-its kind signal to employers not to put American workers at a disadvantage.

U.S. Citizenship and Immigration Services also announced that it would step up its reviews of employers that use H-1B visas, saying “too many American workers who are qualified, willing and deserving to work in these fields have been ignored or unfairly disadvantaged.”

The statements were the latest indication that even legal immigration will be scrutinized under the Trump administration.”

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Interesting that Jeff Sessions and the DOJ’s Civil Rights Division are getting so involved in the H-1B program. Normally, H-1B enforcement would be a matter for the DHS, the U.S. Department of Labor, and the Office of Special Counsel for Unfair Immigration-Related Employment Practices at the DOJ. But, I suppose without any voting rights or police abuse cases to investigate, the Civil Rights Division will have some time on its hands for taking on some new immigration enforcement responsibilities.

Another thought. Rather than battling the Administration over the H-1B program and threatening to move tech operations to Canada and elsewhere if their demands are not met, why don’t U.S. tech companies and Democrats “think outside the box.”

Why not make areas of the “Rust Belt” with willing workers and high unemployment the new “Silicon Valley East?” Use H-1Bs to re-train U.S. workers for permanent jobs in technology. Build new offices or refurbish abandoned plants. Establish training programs with local community colleges and technical colleges. Fund some opioid addiction treatment programs to get capable workers off of drugs and into jobs where they have some future. Support regional airports in “the hinterlands” that Trump is trying to shut down.

Trump seems only vaguely interested in addressing the real problems of unemployed and underemployed workers. If he actually does succeed in so-called “health care reform,” (that is transferring money from the needy to the rich) their situation will become immeasurably worse. Futile grandstanding like relaxing environmental controls for an “ain’t gonna happen” revival of the coal industry, appointing Gov. Chris “The Bridge” Christie to a form a new governmental committee on opioid addiction, or having Jeff Sessions divert the Civil Rights Division into H-1B investigations aren’t serious attempts to address the issues.

But, so far, the Dems and the leaders of the tech industry have been largely MIA on practical solutions to these problems that Trump seems unlikely to address in any realistic manner. So, while the Dems are tilting at the “Gorsuch Windmill,” which I can guarantee you isn’t a concern for most “Dems turned Trump voters” in the Rust Belt, the opportunity for real leadership, genuine concern for U.S. workers, and demonstrated problem solving is going by the boards. Maybe that’s how Donald Trump became President with 46.4% of the vote.

Just proving once again the Trump might not have to act presidential or accomplish much of positive value to be a two-term President. And, as he has already shown, he can do that relatively easily even if he never attains the approval of the majority of Americans.

PWS

04/04/17

“Come Together” — A Great New 1-Min. Video From The GW Immigration Clinic All-Stars! — “Why We Are Motivated To Work for Immigrants!”

GW Immigration Clinic 2017 – Medium

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Looks like lots of new recruits for the “New Due Process Army.” These guys are the real “heart and soul” of today’s American law. Thanks to Professor Alberto Gonzalez for sending this in.

PWS

04/03/17

Huge Win For TPS In 9th Circuit — Court Blasts DHS’s “Rube Goldberg” Interpretation — Allows Adjustment Of Status — Ramirez v. Brown

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/31/14-35633.pdf

“And the government’s interpretation is inconsistent with the TPS statute’s purpose because its interpretation completely ignores that TPS recipients are allowed to stay in the United States pursuant to that status and instead subjects them to a Rube Goldberg-like procedure under a different statute in order to become “admitted.” According to the government, an alien in Ramirez’s position who wishes to adjust his status would first need to apply for and obtain a waiver of his unlawful presence, which he could pursue from within the United States. See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Assuming that Ramirez demonstrates “extreme hardship” to his U.S. citizen wife and the waiver is granted, see 8 U.S.C. § 1182(a)(9)(B)(v), he would then need to exit the United States to seek an immigrant visa through processing at a U.S. embassy or consulate in another country. Such processing usually takes place in the alien’s home country—in this case, the country that the Attorney General has deemed unsafe— though it can occur in another country with approval from the Department of State and the third country. See 22 C.F.R. § 42.61(a). If he obtains the visa, Ramirez could then return to the United States to request admission as a lawful

permanent resident. To be sure, other nonimmigrants must leave the country to adjust their status, see 8 U.S.C. § 1255(i), but the invocation of these procedures in other circumstances does not undercut the clear language of the TPS statute on the “admitted” issue, and the convoluted nature of the government’s proposal underscores its unnatural fit with the overall statutory structure.

In short, § 1254a(f)(4) provides that a TPS recipient is considered “inspected and admitted” under §1255(a). Accordingly, under §§ 1254a(f)(4) and 1255, Ramirez, who has been granted TPS, is eligible for adjustment of status because he also meets the other requirements set forth in § 1255(a). USCIS’s decision to deny Ramirez’s application on the ground that he was not “admitted” was legally flawed, and the district court properly granted summary judgment to Ramirez and remanded the case to USCIS for further proceedings.”

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Although the 9th Circuit’s decision makes sense to me, and is consistent with a previous ruling by the 6th Circuit, the court notes that the 11th Circuit agreed with the DHS position. Consequently, there is a “circuit split,” and this issue probably will have to be resolved by the Supremes at some future point.

I had this argument come up before me in the Arlington Immigration Court. After conducting a full oral argument, I ruled, as the 9th Circuit did, in favor of the respondent’s eligibility to adjust. While the DHS “reserved” appeal, I do not believe that appeal was ever filed.

One of the things I loved about being a trial judge was the ability to hear “oral argument” from the attorneys in every merits case where there was an actual dispute.

PWS

04-01-17

IMMIGRATION IMPACT: Katie Shepard Explains How New USCIS Lesson Plans Are Likely To Harm Asylum Seekers!

http://immigrationimpact.com/2017/02/28/changes-may-keep-asylum-seekers-getting-day-court/

“Effective February 27, 2017, new changes to the asylum screening process could lead to an increased number of deportations of asylum-seekers who fear persecution upon return to their home country.

On February 13, 2017, U.S. Citizenship and Immigration Services (USCIS) revised its Asylum Division Officer Training Course (ADOTC) lesson plans on how to assess an asylum seeker’s credible and reasonable fear of persecution or torture. The lesson plans were revised to be consistent with the January 25, 2017 Executive Order on border security and immigration enforcement and provide guidelines to the asylum officers when conducting credible fear interviews (for those at the border or port of entry who were never previously deported) and reasonable fear interviews (for those who were previously order deported but who later seek asylum).

The changes to the lesson plans are significant and may cause the denial rate to skyrocket, in which case thousands of asylum seekers would be wrongfully denied a meaningful day in court . Not only does the new guidance provide asylum officers with greater discretion to deny an applicant for reasons which may be out of the applicant’s control, but the applicant will essentially be forced to undergo a full asylum hearing with none of the safeguards in place to ensure a meaningful opportunity to present a claim for relief.”

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Read Katie’s complete analysis at the link. You should also look at Dree Collopy’s short video on the changes which I previously posted.

http://wp.me/p8eeJm-qx

If this carries over into Immigration Court where unsuccessful applicants can seek “expedited review,” it would mean that “credible fear reviews” could become more time consuming.

I was usually able to complete them in a few minutes using the Asylum Officer’s notes and asking a few questions. I found that the overwhelming number of those denied had “credible fear,” and probably at least half of those cases eventually resulted in relief. However, over the last year of my career I was primarily on the non-detained docket, so I only did “credible fears” when I was on detail to a detention center or the system was backed up.

As an Immigration Judge, I did not use the USCIS lesson plans. But, I did rely on the Asylum Officer’s notes for a basic understanding of the claim. I then usually asked a few questions to verify that the notes accurately reflected the claim and that nothing relevant had been omitted.

PWS

03/03/17

AILA TV: In Less Than 5 Minutes, Superstar Attorney Dree Collopy Tells You Everything You Need To Know About The Revised USCIS Guidance On Credible/Reasonable Fear — Must Watch TV!

Here’s the You-Tube link.

https://www.youtube.com/watch?v=CgVJkysse2Y

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Great job by Dree!

Bottom Line: Under pressure from the Trump Administration, USCIS is tilting the system against (largely unrepresented) asylum applicants from the Northern Triangle. The only questions are 1) whether the Immigration Courts will follow suit, and 2) if so, whether the Article III Courts will blow or swallow (as they have done so far in the credible/reasonable fear context) the whistle on due process for the most vulnerable.

A good introduction to reality for anyone who believes that conscientious career civil servants will be able to persevere in the face of the Trump Administration’s all-out assault on due process and fundamental fairness.

DHS Issues New Training Materials For Credible Fear Determinations — Complete Text Here!

Release lesson plans

credible fear lesson plan

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These were forwarded by Nolan Rappaport. Nolan believes that these guidelines will “raise the bar” substantially for asylum claimants to pass through the credible fear process.

On initial review, I’d be hard pressed to say there was anything “legally erroneous” about these lesson plans. However, they did seem highly “legalistic.”

I have done numerous “credible fear reviews” in my judicial career and found that the determinations were more “holistic” than “legalistic.” Most of the folks I reviewed had credible, legitimate fears that arguably came within the legal definitions of persecution and/or torture particularly if the individual could fully develop the claims with the help of a lawyer.

I did not always retain jurisdiction over the cases once they were allowed into the Individual Hearing system Of the cases the came back to me, I estimate that at least half of the individuals succeeded in getting some form of protection at the Immigration Court level.

Read the lesson plans here and decide for yourself!

PWS

02/27/17

BREAKING: DHS Releases Final Border Enforcement Memos — Get “Fact Sheet” & All The Links You Need Here!

Fact Sheet: Executive Order: Border Security and Immigration Enforcement Improvements | Homeland Sec

Highlights (sorry about the formatting — like a true “EOIR Vet” I did the best I could under the circumstances):

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Enforcing the law. Under this executive order, with extremely limited exceptions, DHS will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to enforcement proceedings, up to and including removal from the United States. The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crimes, beginning with those convicted of a criminal offense.

Establishing policies regarding the apprehension and detention of aliens. U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) will release aliens from custody only under limited circumstances, such as when removing them from the country, when an alien obtains an order granting relief by statute, when it is determined that the alien is a U.S. citizen, legal permanent resident, refugee, or asylee, or that the alien holds another protected status, when an arriving alien has been found to have a credible fear of persecution or torture and the alien satisfactorily establishes his identity and that he is not a security or flight risk, or when otherwise required to do so by statute or order by a competent judicial or administrative authority.

Hiring more CBP agents and officers. CBP will immediately begin the process of hiring 5,000 additional Border Patrol agents, as well as 500 Air & Marine agents and officers, while ensuring consistency in training and standards.

Identifying and quantifying sources of aid to Mexico. The President has directed the heads of all executive departments to identify and quantify all sources of direct and indirect federal aid or assistance to the government of Mexico. DHS will identify all sources of aid for each of the last five fiscal years.

Expansion of the 287(g) program in the border region. Section 287(g) of the INA authorizes written agreements with a state or political subdivision to authorize qualified officers or employees to perform the functions of an immigration officer. Empowering state and local law enforcement agencies to assist in the enforcement of federal immigration law is critical to an effective enforcement strategy, and CBP and ICE will work with interested and eligible jurisdictions.

Commissioning a comprehensive study of border security. DHS will conduct a comprehensive study of the security of the southern border (air, land, and maritime) to identify vulnerabilities and provide recommendations to enhance border security. This will include all aspects of the current border security environment, including the availability of federal and state resources to develop and implement an effective border security strategy that will achieve complete operational control of the border.

Constructing and funding a border wall. DHS will immediately identify and allocate all sources of available funding for the planning, design, construction, and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, and develop requirements for total ownership cost of this project.

Expanding expedited removal. The DHS Secretary has the authority to apply expedited removal provisions to aliens who have not been admitted or paroled into the United States, who are inadmissible, and who have been continuously physically present in the United States for the two-year period immediately prior to the determination of their inadmissibility, so that such aliens are immediately removed unless the alien is an unaccompanied minor, intends to apply for asylum or has a fear of persecution or torture in their home country, or claims to have lawful immigration status. To date, expedited removal has been exercised only for aliens encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the United States by sea other than at a port of entry. The Department will publish in the Federal Register a new Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(a)(iii) of the Immigration and Nationality Act that expands the category of aliens

subject to expedited removal to the extent the DHS Secretary determines is appropriate, and CBP and ICE are directed to conform the use of expedited removal procedures to the designations made in this notice upon its publication.

Returning aliens to contiguous countries. When aliens apprehended do not pose a risk of a subsequent illegal entry, returning them to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings, saves DHS detention and adjudication resources for other priority aliens. CBP and ICE personnel shall, to the extent lawful, appropriate and reasonably practicable, return such aliens to such territories pending their hearings.

Enhancing Asylum Referrals and Credible Fear Determinations. U.S. Citizenship and Immigration Services (USCIS) officers will conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination. USCIS will also increase the operational capacity of the Fraud Detection and National Security Directorate.

Allocating resources and personnel to the southern border for detention of aliens and adjudication of claims. CBP and ICE will allocate available resources to expand detention capabilities and capacities at or near the border with Mexico to the greatest extent practicable. CBP will focus on short-term detention of 72 hours or less; ICE will focus on all other detention capabilities.

Properly using parole authority. Parole into the United States will be used sparingly and only in cases where, after careful consideration of the circumstances, parole is needed because of demonstrated urgent humanitarian reasons or significant public benefit.

Notwithstanding other more general implementation guidance, and pending further review by the Secretary and further guidance from the Director of ICE, the ICE policy directive with respect to parole for certain arriving aliens found to have a credible fear of persecution or torture shall remain in full force and effect.

Processing and treatment of unaccompanied alien minors encountered at the border. CBP, ICE, and USCIS will establish standardized review procedures to confirm that alien children who are initially determined to be unaccompanied alien children continue to fall within the statutory definition when being considered for the legal protections afforded to such children as they go through the removal process.

Putting into place accountability measures to protect alien children from exploitation and prevent abuses of immigration laws. The smuggling or trafficking of alien children into the United States puts those children at grave risk of violence and sexual exploitation. CBP and ICE will ensure the proper enforcement of our immigration laws against those who facilitate such smuggling or trafficking.

Prioritizing criminal prosecutions for immigration offenses committed at the border. To counter the ongoing threat to the security of the southern border, the directors of the Joint Task Forces- West, -East, and -Investigations, as well as the ICE-led Border Enforcement Security Task Forces (BESTs), are directed to plan and implement enhanced counter- network operations directed at disrupting transnational criminal organizations, focused on those involved in human smuggling.

Public Reporting of Border Apprehensions Data. In order to promote transparency, CBP and ICE will develop a standardized method for public reporting of

statistical data regarding aliens apprehended at or near the border for violating the immigration law.”

Full copy of the Fact sheet at the above link.

Link to previous “Memos Blog” here: http://immigrationcourtside.com/2017/02/18/breaking-washpost-dhs-memos-detail-ramped-up-enforcement-key-provisions-15000-more-agents-more-detention-expanded-expedited-removal-return-to-mexico-pending-hearings-target-u-s-parents-of/

Link to DHS Website giving helpful links to all relevant documents here:

https://www.dhs.gov/executive-orders-protecting-homeland

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No matter what one thinks about the substance, this time around, the DHS has done an outstanding job of providing a “one stop” web page collecting links to all the relevant DHS documents and explanations. And, it’s very defendable even for a “non-immigration-guru.”

PWS

02/21/17

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.”

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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

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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

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