"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
WATCH THE LIVESTREAM REPLAY TO LEARN MORE ABOUT THE COMPLEXITIES OF THE U.S. IMMIGRATION SYSTEM
Lutheran Immigration & Refugee Service was pleased to welcome Jeffrey S. Chase to our headquarters for a Q&A session on the structure and evolution of the U.S. immigration courts. Mr. Chase is a former Immigration judge at the Department of Justice, senior attorney at the Board of Immigration Appeals, and currently serves as a private attorney and advocate for smarter immigration policy.
AP: The rule gives the director of the Executive Office for Immigration Review the ability to issue appellate decisions in cases that haven’t been decided within an allotted timeframe. It also cements the administration’s decision to create an office of policy for the immigration courts in 2017.
AILA has confirmed that as of August 7, 2019, USCIS has stopped accepting and adjudicating deferred action applications for non-military applicants. AILA seeks examples of those impacted by this change. Please complete the survey included with this alert to submit your example. AILA Doc. No. 19082334
EOIR announced it will be opening a new immigration court on Broadway in New York City on September 9, 2019. Notice includes the new court’s location, contact information, and hours of operation. AILA Doc. No. 19082202
Joint DHS and HHS final rule amending the regulations relating to the apprehension, processing, care, custody, and release of noncitizen minors. The promulgation of this rule is intended to terminate the Flores Settlement Agreement. The rule is effective 10/22/19. (84 FR 44392, 8/23/19). AILA Doc. No. 19082200 See also Changes for a landmark agreement mean immigrant children face harsher treatment in U.S.
Miami Herald: U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on Monday stating that the agency is enhancing its adjudicators’ discretion to grant or deny work permits to foreign nationals paroled in the U.S.
SF Chronicle: The Trump administration has promoted six judges to the immigration appeals court that sets binding policy for deportation cases — all of whom have high rates of denying immigrants’ asylum claims. The six come from courts that have higher asylum-denial rates than the national average, including two from a court that has drawn complaints of unfair proceedings from immigration attorneys and advocates. A third has a long history of denying asylum to domestic violence victims, something the Justice Department has also sought to do. See also EOIR Announces Selection of Four New Assistant Chief Immigration Judges.
WNYC: Last Monday, attorney Adam Dong said he was accompanying Zhang as he gave his deposition at the office of the defense counsel near Albany. The arrest happened when they broke for lunch.
ICE announced that since mid-July 2019, U.S. and Guatemala have implemented an expeditious removal process for Guatemalan citizens. In FY2019 to date, ICE has removed 49,000 Guatemalans compared to 50,000 in FY2018, and more than 1,500 members of family units, a 50 percent increase from last year. AILA Doc. No. 19082605
LA Times: Freedom for Immigrants, which runs visitation programs in detention centers across the country, responded Thursday with a cease-and-desist letter charging that the termination is a violation of free speech and amounts to retaliation by the government in an attempt to silence one of its prominent critics. Six actors from “Orange Is the New Black” and more than 100 organizations signed a letter to acting ICE Director Matthew Albence demanding that the line be restored.
Daily Beast: Davis, a Harvard Law graduate and immigration hawk, is poised to play an important part in helping guide some of Trump’s most consequential policy moves, particularly on executive orders that are screened and closely examined by the counsel’s office. On Wednesday, the president again claimed that his administration was “seriously” looking at ending birthright citizenship, a potential executive order that would likely fall under Davis’s portfolio.
Buzzfeed: An email sent from the Justice Department to all immigration court employees this week included a link to an article posted on a white nationalist website that “directly attacks sitting immigration judges with racial and ethnically tinged slurs,” according to a letter sent by an immigration judges union and obtained by BuzzFeed News.
Reveal: The discovery of Assistant Chief Immigration Judge Daniel Daugherty’s email to judges illustrates the inner workings of one of the nation’s busiest immigration courts, days after the Department of Justice filed a petition to disband the immigration judges union.
VICE: Since President Trump took office, ICE has arrested at least 20 undocumented activists. As that figure continues to rise, advocates across the country increasingly worry they’re being targeted because of their activism — not their immigration status.
AIC: Much of this decline stems from delays in the processing of student visas. New and onerous screening procedures introduced by the Trump administration are responsible for a great deal of the added time it now takes to process a visa application.
NBC: Started almost two decades ago with a stated mission to “provide information to Chinese communities to help immigrants assimilate into American society,” The Epoch Times now wields one of the biggest social media followings of any news outlet. By the numbers, there is no bigger advocate of President Donald Trump on Facebook than The Epoch Times.
Take Care: The Solicitor General recently filed a petition for certiorari asking the Supreme Court to review a constitutional challenge to the so-called expedited removal system.
SCOTUSblog: Argument Oct 16, 2019: (1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents.
Politico: Immigration advocates filed a sweeping, first-of-its kind class action lawsuit in federal court against the Trump administration on Monday, claiming official policies and lack of oversight related to the border and immigration crisis have led to major lapses in medical and mental health care in nearly 160 detention facilities across the country.
On 8/23/19, DHS and HHS published a joint final rule to amend regulations related to the apprehension, processing, care, custody, and release of undocumented juveniles in the Federal Register. The rule is effective 10/22/19.AILA Doc. No. 19062495
DocumentedNY: Nine states filed an amicus brief on Friday in support of the Green Light Bill, which allows undocumented people to get driver’s licenses in New York. The bill has been challenged by Erie County Clerk Michael Kearns in the federal Western District of New York, arguing in a July lawsuit that Green Light NY would force him to violate federal immigration law.
Unpublished BIA decision reopens proceedings sua sponte for respondent to apply for adjustment of status in light of grant of TPS and recent reentry pursuant to grant of advance parole. Special thanks to IRAC. (Matter of Sylvestre, 12/10/18) AILA Doc. No. 19082301
Unpublished BIA decision reopens proceedings sua sponte to allow respondent to apply for adjustment of status in light of grant of TPS and recent entry pursuant to grant of advance parole. Special thanks to IRAC. (Matter of Senord, 11/29/18) AILA Doc. No. 19082001
Unpublished BIA decision holds that respondent is not inadmissible based on a conviction for which he was previously granted a waiver under former INA 212(c). Special thanks to IRAC. (Matter of Morel-Uceta, 12/14/18) AILA Doc. No. 19082302
The BIA issued a decision clarifying the “substantial and probative evidence” standard of proof necessary to bar the approval of a visa petition based on marriage fraud under INA §204(c). Matter of Singh, 27 I&N Dec. 598 (BIA 2019) AILA Doc. No. 19082317
Unpublished BIA decision upholds discretionary grant of adjustment application for respondent with three DUIs in light of more than 20 years’ residence, consistent employment, and passage of time since most recent offense. Special thanks to IRAC. (Matter of Velasquez Chavez, 12/10/18) AILA Doc. No. 19082300
Unpublished BIA decision reopens and terminates proceedings sua sponte upon finding aggravated criminal sexual abuse under 720 Ill. Comp. Stat. Ann. 5/12-16(d) not sexual abuse of a minor under Esquivel-Quintana v. Sessions. Special thanks to IRAC. (Matter of Dave, 11/29/18) AILA Doc. No. 19082000
Unpublished BIA decision rescinds in absentia order because DHS did not file NTA prior to originally scheduled hearing and respondent thus had no obligation to inform court of change of address. Special thanks to IRAC. (Matter of Abarca, 12/6/18) AILA Doc. No. 19082209
Unpublished BIA decision holds that taking or driving a motor vehicle without the consent of the owner under Minn. Stat. 609.52, subd. 2(a)(17) is not an aggravated felony theft offense. Special thanks to IRAC. (Matter of B-A-D-, 12/6/18) AILA Doc. No. 19082208
Unpublished BIA decision grants interlocutory appeal and orders change of venue from Atlanta to New York in light of location of respondent’s residence, witnesses, and attorney. Special thanks to IRAC. (Matter of S-G-P-M-, 12/3/18) AILA Doc. No. 19082207
EOIR released a policy memo on ex parte communications, and the limited circumstances in which they may be permissible. The memo also notes that allegations of misconduct raised against EOIR adjudicators by a stakeholder does not constitute an improper ex parte communication.
Björklunden enjoys a loyal following among Door County residents and visitors, as well as Lawrence University alumni, parents and friends. The Boynton Society was formed to celebrate Björklunden and to secure financial backing for its programs. Those who support the mission of Björklunden make the Lawrence University Student Seminar programs possible for over 650 students each year as well as provide opportunities for the Lawrence University Conservatory of Music to perform in Door County.
Many Boynton Society members have attended summer seminars or spent time at the lodge during their years at Lawrence. Anyone who has been to Björklunden would agree that the experience can be life changing. Boynton Society members help to make sure that visitors of all ages will be able to enjoy the treasure that awaits as they venture into the “birch forest by the water” for years to come.
Who Chairs the Boynton Society:
Jone (LU’72) & Jeff (LU’70) Riester Co-Chairs, The Boynton Society
PROGRAM NOTE: Jeff and I were in the same class at LU, attended the Lawrence Campus in Boennigheim together, overlapped at Wisconsin Law, and lived to tell about it.
Who were the Boyntons and how did they relate to Lawrence University:
The Björklunden Tradition
Björklunden* vid Sjön, Swedish for “Birch Grove by the Lake” is a 425-acre estate on the Lake Michigan shore just south of Baileys Harbor in picturesque Door County. A place of great beauty and serenity, the property includes meadows, woods, and more than a mile of unspoiled waterfront.
Björklunden was bequeathed to Lawrence University in 1963 by Donald and Winifred Boynton of Highland Park, Illinois. The Boyntons made the gift with the understanding that Björklunden would be preserved in a way that would ensure its legacy as a place of peace and contemplation. Winifred Boynton captured the enduring spirit of Björklunden when she said of her beloved summer home: “Far removed from confusion and aggression, it offers a sanctuary for all.”
Since 1980, Lawrence has sponsored a series of adult continuing-education seminars at Björklunden, interrupted only by a 1993 fire that destroyed the estate’s main lodge. In 1996, construction was completed on a new and larger facility, and the Björklunden Seminars resumed. The magnificent lodge and idyllic setting create a peaceful learning environment. Seminars address topics in the arts, music, religion, history, drama, nature, and more. Seminar participants may enjoy a relaxing week’s stay at the lodge or are welcome to commute from the area.
Throughout the academic year, groups of Lawrence students and faculty come to Björklunden for weekend seminars and retreats. Each student at Lawrence has the opportunity to attend a student seminar at Björklunden at least once during their studies. Student seminars provide the opportunity to explore exciting themes and issues and the time and the environment in which to embrace those ideas and their consequences. The magic of a Björklunden weekend is in the connection between thought and reflection. Making that connection fulfills one ideal of a liberal education.
The two-story Björklunden lodge is a magnificent 37,000 square-foot structure containing a great room, muti-purpose and seminar rooms, dining room and kitchen, as well as 22 guest rooms. The lodge accommodates a wide variety of seminars, meetings, conferences, receptions, family gatherings, musical programs and other special events and is available for use throughout the year. In addition to the main building, the Björklunden estate also includes a small wooden chapel built in a late 12-century Norwegian stave church (stavkirke) style, handcrafted by the Boyntons between 1939 and 1947.
What does the hand-crafted Boynton chapel look like today:
Boynton Chapel BjorklundenInside the Boynton Chapel BjorklundenInside the Boynton Chapel BjorklundenInside the Boynton Chapel Bjorklunden
What did I say in my Lecture:
NOTE: This written version contains “bonus material” that was cut from the live presentaton in the interests of time.
“INTO THE MAELSTROM” — UNDERSTANDING AMERICAN IMMIGRATION IN THE AGE OF TRUMP
BOYNTON SOCIETY LECTURE
LAWRNCE UNIVERSITY, BJORKLUNDEN, CAMPUS
BAILEY’S HARBOR, WISCONSIN
August 10, 2019
Greetings, and thank you so much for coming out to listen this beautiful afternoon on a topic that has consumed my post-Lawrence professional life: American Immigration.
Whether you realize it or not, immigration shapes the lives of each of us in this room. It will also determine the future of our children, grandchildren, and following generations. Will they continue to be part of a vibrant democratic republic, valuing human dignity and the rule of law? Or, will they be swept into the maelstrom as our beloved nation disintegrates into a cruel, selfish, White Nationalist kleptocracy, mocking and trampling most of the principles that we as “liberal artists” grew up holding dear.
“The Maelstrom” Bjorklunden“The Maelstrom”
Many of you have thought about this before in some form or another. Indeed, that might be why you are here this afternoon, rather than outside frolicking in the sunlight. But, for any who don’t recognize the cosmic importance of migration in today’s society, in the words of noted scholar and country music superstar Toby Keith, “It’s me, baby, with your wake-up call.”
040601-N-8861F-003 Naval Support Activity Naples, Italy (Jun. 1, 2004) – Country singer Toby Keith sings at a recent United Service Organization (USO) sponsored concert held at Naval Support Activity, Naples, support site in Gricignano. Keith, joined by rock legend Ted Nugent will also be traveling to Germany, Kosovo and the Persian Gulf during the tour. U.S. Navy photo by Photographer’s Mate 2nd Class Lenny Francioni (RELEASED)
For, make no mistake about it, civilization is undergoing an existential crisis. Western liberal democracy, the rule of law, scientific truth, humanism, and our Constitutional guarantees of Due Process of law for all are under vicious attack. Evil leaders who revel in their anti-intellectualism and pseudo-science have shrewdly harnessed and channeled the powerful cross currents of hate, bias, xenophobia, fear, resentment, greed, selfishness, anti-intellectualism, racism, and knowingly false narratives to advance their vitriolic program of White Nationalist authoritarianism, targeting directly our cherished democratic institutions. And, their jaundiced and untruthful view of American immigration is leading the way toward their dark and perverted view of America’s future.
As fellow members of the Boynton society, I assume that all of you are familiar with our beautiful chapel, painstakingly hand-constructed by Winifred Boynton and her husband Donald – a true labor of love, optimism, humanitarianism, and respect for future generations. Here are the words of Winifred Boynton:
Boynton Chapel Bjorklunden Door County, WI
During those years the chapel was in the building, the world was being torn apart by the hatred and fighting of a war and we realized the tremendous need for centers of peace and Christian love for our fellow man. . . . We found ourselves selecting moments of great joy for the large murals. And, the decision to dedicate the chapel to peace was the natural culmination. [Ruth Morton Miller, Faith Built a Chapel, Wisconsin Trails, Summer 1962, at 19, 21-22]
Donald and Winifred Boynton
If Winifred were among us today, in body as well as spirit, she would approve of the learning, humane values, and concern for our fellow man fostered through our seminars this week and this program.
For those of you who weren’t able to join us this week, here are some of the “ripped from the headlines” items that we discussed in the American Immigration and Culture Seminar led by my good friend, the amazing Jennifer Esperanza, Professor of Cultural Anthropology at Beloit College, herself a first generation American whose family came from the Philippines, and me.
Professor Jennifer Esperanza Beloit College Anthropology Department
From Sunday’s Wisconsin State Journal: “Trump’s stamp on immigration courts; recent trend in judges is former military and ICE attorneys” and “Swamped courts fast-tracking family cases: Speeding up hearings aims to prevent migrant families from setting down roots while they wait to find out whether they qualify for asylum.”
From Monday’s Los Angeles Times: “’As American as any child:” Defunct citizenship query may still lead to Latino undercount.”
From Wednesday’s El Paso Times: “Mr. President, the hatred of the El Paso shooting didn’t come from our city: When you visit today, you will see El Paso in the agony of our mourning. You will also see El Paso at its finest.”
From Thursday’s New York Times: “Climate Change Threatens the World’s Food Supply, United Nations Warns.”
From Thursday’s Huffington Post: “Children Left without Parents, Communities ‘Scared to Death’ After Massive ICE Raids.”
From Friday’s Washington Post: “The poultry industry recruited them. Now ICE raids are devastating their communities: How immigrants established vibrant communities in the rural South over a quarter century.”
And, finally, check these out from today’s Washington Post: “When they filed their asylum claim, they were told to wait in Mexico – where they say they were kidnapped;” and “ICE raids target workers, but few firms are charged;” and “Pope Francis again warns against nationalism, says recent speeches sound like ‘Hitler in 1934.’”
Just before I came to deliver this lecture, I was on the phone with Christina Goldbaum of the New York Times who is writing an article on the Administration’s efforts to “break” the Immigration Judges’ union (of which I am a retired member) which will appear tomorrow.
Christina Goldbaum Immigration Reporter NY Times
Now, this is when, “in former lives,” I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial – in other words, if I spoke too much truth. But, now that I’m retired, we can skip that part.
IMPORTANT WARNING ENTERING NO BS ZONE
Nevertheless, I do want to hold Lawrence, the Boynton Society, Mark, Alex, Kim, Jeff & Joanie, you folks, and anyone else of any importance whatsoever, harmless for my remarks this afternoon, for which I take full responsibility. No party line, no bureaucratic doublespeak, no “namby-pamby” academic platitudes, no BS. Just the truth, the whole truth, and nothing but the truth, of course as I see it, which isn’t necessarily the way everyone sees it. But, “different strokes” is, and always has been, an integral part of the “liberal arts experience” here at Lawrence.
But, that’s not all folks! Because todayis Saturday, this is Bjorklunden, and youare such a great audience, I’m giving you my absolute, unconditional, money-back guarantee that thistalk will be completely freefrom computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am the “power point” of this presentation.
Executive Summary
I will provide an overview and critique of US immigration and asylum policies from the perspective of my 46 years as a lawyer, in both the public and private sectors, public servant, senior executive, trial and appellate judge, educator, and most recently, unapologetic “rabble rouser” defending Due Process and judicial independence.
I will offer a description of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). I will describe the legal framework that applies to these distinct populations and recent developments in federal law and policy that relate to them. I will also mention some cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens.
Click this link to continue with the full version of the speech:
Three members of the fantastic Lawrence undergraduate student staff who attended the lecture told me afterward “We’re joining your ‘New Due Process Army.’” Thus, the “Brjorklunden Brigade of the NDPA” is born!
What did the Society members do after the “serious stuff” was over?
Partied, of course:
Who runs Bjorklunden?
Mark Breseman (LU ’78) Executive DirectorKim Eckstein Operations ManagerAlex Baldschun Assistant DirectorJeff Campbell Head ChefMark Franke General Maintenance MechanicLynda Pietruszka Staff Assistant/Weekend Manager
How can you join the Boynton Society or participate in future programs at Bjorklunden (you to not have to be a Lawrence University graduate, student, or otherwise affiliated with the University)?
WASHPOST: Catherine Rampell Takes The Measure Of Stephen Miller’s Neo-Nazi View Of American Immigration History – Exposing A Lifelong Hater’s Knowingly False, Misleading & Existentially Dangerous Narrative!
Catherine Rampell Opinion Columnist Washington Post
In a Post profile over the weekend, White House senior policy adviser and de facto immigration czar Stephen Miller explained why he cares so much about immigration policy:
“Immigration is an issue that affects all others,” Miller said, speaking in structured paragraphs. “Immigration affects our health-care system. Immigration affects our education system. Immigration affects our public safety, it affects our national security, it affects our economy and our financial system. It touches upon everything, but the goal is to create an immigration system that enhances the vibrancy, the unity, the togetherness and the strength of our society.”
Miller is right: Immigration does touch all those realms. Though perhaps not in quite the way he suggests.
For instance, immigration affects our health-care system in many ways — including by supplying it with talent.
In fact immigrants are overrepresented in the health industry. About 16.6 percent of the health industry is foreign-born, 13.7 percent of the U.S. population overall. A whopping 29.1 percent of physicians are foreign-born, according to a recent analysis of Census Bureau data published in the Journal of the American Medical Association. Immigrants also are overrepresented among dentists (23.7 percent); pharmacists (20.3 percent); registered nurses (16 percent); and nursing, psychiatric and home health aides (23.1 percent).
Immigration also plays an important role in our education system. International students, who generally pay full freight, have helpedkeep public universities afloat even as state legislatures have slashed their budgets. Their tuition dollars help schools cross-subsidize in-state students. Immigrants also have populated the STEM study programs that Americans show little interest in, especially at the graduate level — where many of those same immigrant students help educate American undergrads.
Here’s the share of students in a selection of STEM graduate programs who are in the United States on temporary visas, according to the National Science Foundation’s Science & Engineering Indicators 2018 report. Note that this measure likely understates the fraction of students who are foreign-born, as it does not include those who are permanent residents or naturalized citizens.
Source: National Science Foundation, National Center for Science and Engineering Statistics, special tabulations (2016), 2015 Survey of Graduate Students and Postdoctorates in Science and Engineering. (Washington Post)
As for the relationship between immigration and public safety, the data suggest you might conclude that greater immigration leads to greater public safety.
ADVERTISING
At least, a study of immigration and crime trends across 200 metropolitan areas over four decades found that “immigration is consistently linked to decreases in violent (e.g., murder) and property (e.g., burglary) crime throughout the time period.” Other studies have found a similar relationship between the two trends. We don’t know that the link is actually causal, of course, but we do have evidencethatundocumented immigrants commit (non-immigration-related) crimes at lower rates than do native-born Americans.
With respect to national security, Miller might do well to remember that immigrants serve in our military. As of 2018, there were 527,000 foreign-born veterans, according to a Migration Policy Institute analysis of Census Bureau data. About 1.9 million veterans are the U.S.-born children of immigrants.
Some of those noncitizen military members with in-demand skills were expecting that their service would expedite their naturalization process, under a program launched in 2008 called Military Accessions Vital to the National Interest. However, changes in recent years, under first the Obama administration and then under Trump, have effectively frozen that program.
What about our economy?
There’s a lot to be said about how immigrants contribute to the economy, including through high rates of entrepreneurship. For example, immigrants have started more than half of the United States’ start-up companies valued at $1 billion or more, according to a National Foundation for American Policy study. They start lots of smaller companies, too, at much higher rates than native-born Americans, according to data from the Kauffman Foundation.
Without immigration, the U.S. working-age population would be falling, which would weigh on economic growth. (Just look at Japan’s struggles). And as I’ve written elsewhere:
There’s reason to believe that new immigrants may depress wages for earlier waves of immigrants who have similar skill sets. However, recent studies suggest that immigration (both authorized and unauthorized) actually boosts labor force participation rates, productivity and wages and reduces unemployment rates for native-born American workers, whose skills these immigrants tend to complement.
But don’t these people drain the public coffers?
Immigrants, including undocumented immigrants, pay taxes — taxes that fund government benefits that in many cases they are not legally eligible to collect.
A report from the National Academies of Sciences, Engineering, and Medicine found that the net fiscal impact of first-generation immigrants, compared to otherwise similar natives, is positive at the federal level and negative at the state and local levels. That’s due mostly to the costs of educating their children. When their children grow up, though, they are “among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.” In other words, by the second generation, immigrants are net-positive for government budgets at all levels.
What about the most destitute immigrants who come here, though? Surely they’re sucking the government dry!
Nope.
An internal government report commissioned by Trump found that refugees brought in $63 billion more in tax revenue over the past decade than they cost the government. Finding those results inconvenient, the administration suppressed them, though they were ultimately leaked to the New York Times last year.
So by all means, Miller, please remind the public that immigration has consequences for the broad policy landscape. But remembering the directionality of those consequences seems pretty important, too.
Thanks, Catherine, for setting the record straight!
Catherine’s wonderful article would have fit well within the readings for the Bjorklunden Seminar that Professor Jenn Esperanza and I did earlier this month. Basically, those who oppose and demean immigrants have forgotten that we are all immigrants, we are all very similar, and without immigrants there would be no America.
No, our country isn’t “full” by any means and no, the “quality” of recent immigrants hasn’t “dropped off.” If anything, we are more dependent on the skills, hard work, and loyalty (sometimes hard to fathom, considering how they are treated) of recent immigrants, both documented and undocumented, than at any time in our history since the founding.
Unlike Miller, “Cooch Cooch,” Pence, Trump himself, and the other political hacks charged with making immigration policy these days, I actually spent years dealing face to face with migrants of all types, races, religions, backgrounds, and situations in performing my duties as a U.S. Immigration Judge. Contrary to the false narratives promoted by the “Millers of the world,” most of them wanted just three things 1) the chance to live a relatively safe and stable life; 2) an opportunity to use their skills to support themselves and others; and 3) a better future for their children.
That’s largely what I wanted out of life and accurately describes the aspirations of probably 90%+ of the people I have known as I move into my seventh decade of life.
I don’t know what entitles folks like Trump, Miller, and their followers to demean and dehumanize the contributions of other humans who are just as, or in many cases more, worthy as they are – simply because they didn’t have the same fortune of birth or circumstances.
Undoubtedly, there is somewhere out there a point at which admitting larger numbers of refugees and other types of immigrants would be counterproductive, at least for our country, if not for the migrants themselves. Even then, there might still be moral and religious arguments for helping our fellow men even when it ceases to demonstrably benefit our economy and our society.
But, the factual and moral bankruptcy of the “case for fewer immigrants” put forth by Trump, Miller, and the White Nationalists shows that whatever that “magic number’” might be, it’s multiples of the number of legal immigrants we are admitting at present. That’s why Trump, Miller, and the White Nationalists don’t want to have the real national dialogue that we should be engaging in: How do we expand our current refugee and legal immigrant admission systems to more realistically reflect the market forces that cause migration, and how do we as a country put ourselves in the best position to benefit from the ongoing phenomenon of human migration?
The longer we screw around with and are diverted by the racist myths of the Trumps and Millers, the longer it will take us to get around to the hard work of addressing immigration issues in a smart, humane, and realistic way that benefits the immigrants, our country, and humanity as a whole.
BJORKLUNDEN REPORT, PART I: “American Immigration: A Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issues Dominating Our National Dialogue”
I had the pleasure of co-teaching this course with my good friend Professor Jennifer Esperanza of the Beloit College Anthropology Department. The venue was Lawrence University’s amazing Northern Campus, known as Bjorklunden, on the wildly beautiful shores of Lake Michigan in Door County, Wisconsin, from August 4-9, 2019. This was a “derivative” of an immigration component of a summer session of Jenn’s class for undergraduates at Beloit. This time we had a group of 15 enthusiastic, well-informed post graduate students from a variety of professional backgrounds.
Here’s what we set out to achieve:
Class Description:
All Americans are products of immigration. Even Native Americans were massively affected by the waves of European, involuntary African-American, Asian, and Hispanic migration. Are we a nation of immigrants or a nation that fears immigration? Should we welcome refugees or shun them as potential terrorists? Do we favor family members or workers? Rocket scientists or maids and landscapers? Build a wall or a welcome center? Get behind some of the divisive rhetoric and enter the dialogue in this participatory class that will give you a chance to “learn and do” in a group setting. Be part of a team designing and explaining your own immigration system.
Class Objectives:
_Understand how we got here;
_Understand current U.S. immigration system and how it is supposed to work;
_Learn more about the various lived experiences of immigrants and refugees through their personal stories and ethnographic accounts
_Develop tools to become a participant in the ongoing debate about the future of American immigration;
_Get to know a great group of people, enjoy Door County, and have some fun in and out of class
Here are our “five major themes:”
Day 1: An Introduction to Immigration (From the Top Down and the Bottom Up)
Highlight: Getting the “immigration histories” of the participants
Day 2: Labor Migration: Push/Pull Factors
Highlight: Stories and examples of the “hard-work culture” created by various groups of hard-working immigrants to the U.S. both documented and undocumented with a particular emphasis on the culture created by Hispanic restaurant workers
Day 3: “Making Home”
Highlight: Watching and discussing NPR broadcast on German immigrants in rural Wisconsin which related directly to the family histories of many of us in the class (including me)
My coverage of the entirety of refugee history and modern U.S. refugee and asylum laws in 70 minutes (favorite student comment/compliment: “I expected this to be deadly, but it wasn’t.”)
Day 5: Contemporary Issues: The Future of Immigration, Refuges, & Asylum
Highlight: The class presentations of the famous (or infamous) “Mother Hen v. Dick’s Last Resort” “Build Your Own Refugee System” Exercise
Here’s the complete Course Outline (although admittedly we varied from this when necessary):
Jenn and I thank you for joining us. We’ve had our “Last Supper” and our “Final Breakfast” here at beautiful Bjorklunden. That means that our time together is ending.
In five days, we have completed a journey that began on Monday with hunter-gatherers in Africa thousands of years ago, and ends inside today’s headlines about ripping apart families in Mississippi and trying to develop better approaches to refugees: individuals who are an integral part of the human migration story as old as man, and who will not be stopped by walls, prison cells, removals, or cruel, inhuman, and degrading treatment or rhetoric from our so-called “leaders.” On the way, we wound through our own rich immigration heritages and personal stories about how migration issues continue to shape our lives, including, of course, bringing this wonderful group together in the first place.
Jenn shared with you some very personal stories about her own family’s recent immigration experiences and how it shaped, and continues to mold her own life and future. I introduced you, at least briefly, to a key part of my own life, the U.S. Immigration Court, the retail level of our immigration system, where “the rubber meets the road” and where the maliciously incompetent actions of unqualified politicos have created “Aimless Docket Reshuffling” and made a bad joke out of the precious Constitutional right to Due Process under law for all in the U.S. regardless of status or means of arrival.
Our lively class discussions have not been “merely academic,” but real and practical. We have discussed real life scenarios literally “ripped from today’s headlines,” involving real people and real human dilemmas, including the challenges facing those whose job it is to ensure that justice is served. Although this class is done, the learning, the intense human drama, and the “living theater” of American immigration will continue.
Jenn and I have enjoyed working with all of you over this week. The past five days have certainly been a high point for us this summer.
We have communicated our shared values of fairness, scholarship, timeliness, respect, and teamwork! And, we hope that our ability to bond and bridge generational, age, academic, gender, professional, cultural, and geographic gaps to bring you this learning experience has served as a “living example” of how those shared values play out in “real life.”
For me and others like me, our “time on the stage” is winding down. Others, like Jenn and Chuck, are still very much engaged in the production. Still others, like Mary’s inspiring grandchildren, Jenn’s boys, and my eight grandchildren, are “waiting in the wings” to take the stage and assume their full roles in the ongoing drama of human history.
Our hope and challenge for each of you is that no matter where you are in the process of lifelong learning and doing, you will reach your full potential as informed, caring, and compassionate human beings, and that you will continue to strive to make our world a better place! We also hope that something that you have learned in this class will make a positive difference in your life or the life of someone you care about.
Thanks again for inviting us into your lives, engaging, participating, and sharing. Journey forth safely, good luck, and may you do great things in all phases of life!
Here’s our “Class Photo” taken on the deck outside the Lakeside Seminar Room where we met:
Left to right: Steve Handrich, Judge Charlie Schudson, Nancy Behrens, Mary Poulson, Jeff Riester (fellow LU ’70), Chuck Meissner, Genie Meissner, Chuck Demler (LU ’11, Associate Director of Major and Planned Giving), Greta Rogers, Me, Professor Jennifer Esperanza (Beloit College), Renee Boldt, Susan Youngblood, Chris Coles, Cynthia Liddle, Fred Wileman (my cousin), Mary Miech
Here are some shots of Bjorklunden:
Bjorklunden — A Different WorldBjorklunden LodgeLooking South Along Lake Michigan ShoreExploring the Ice Age With “Naturalist Jane”AM on Lake Michigan Looking North Toward Bailey’s HarborMoon Over Lake MichiganLooking East
And, this is Jenn and me conducting our “exit session” @ the Door County Brewing Co. in Bailey’s Harbor:
“Oh, the beauty of exam-free teaching!”
Thanks again to Mark Breseman (LU ’78), Executive Director; Kim Eckstein, Operations Manager; Alex Baldschun, Assistant Director; Jeff Campbell, Head Chef; Mark Franks, General Maintenance Mechanic; Lynda Pietruszka, Staff Assistant/Weekend Program Manager, and, of course, the amazing, brilliant, personable, and talented LU student staff at Bjorklunden for taking care of our every need and making everything work.
The student staff basically runs the place from an operational standpoint. While many universities brag about their hotel and hospitality management programs, as far as I could see the student staff at Lawrence was getting great “hands on” experience and training in hospitality management from the ground up. How do I know? Well, in the “corporate phase” of my career, I represented some of the largest international hotels and hospitality corporations in the world. The “hands on” training that these students were getting appeared to be very comparable to those of well-known hotel management programs and just the type of skills that major hotel chains are always looking for in their executives and managers.
Special thanks to Alex and Kim, for emergency copying and technical services; to Kim for showing me the only “Level 2” Electric Vehicle Charger in Bailey’s Harbor (I’ve recommended that as a proudly eco-friendly institution Lawrence install Level 2 EV Chargers and dedicated plugs for Level 1 EV Chargers in convenient locations on both the Appleton and Northern Campuses); to Jeff for giving me tasty vegan options for every meal; and to Lynda and Mark Franks for their general cheerfulness and “can do” attitude. I also appreciate the student staff who resided on my corridor for putting up with my constant whistling.
I thank Chuck Demler for getting me involved in the Bjorklunden teaching program. I am indebted to Jeff Riester for not sharing his recollections (if any) of our time together as undergraduates at Lawrence with particular reference to our two terms at the Lawrence Overseas Campus then located in Boennigheim, Germany.
Finally, thanks to my good friend and professional teaching colleague Professor Jenn Esperanza of Beloit College (who also happens to be “best buds” with my daughter Anna and her husband Daniel, a fellow Professor at Beloit College) for undertaking this adventure together and being willing to share so much of her very moving and relatively recent personal experiences with immigration and being part of the “American success story.” Jenn and I appreciated the enthusiastic participation of all the members of our group and their signing up for our class.
This paper critiques US immigration and asylum policies from perspective of the author’s 46 years as a public servant. It also offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations, as well as recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens. It makes the following asylum reform proposals, relying (mostly) on existing laws designed to address situations of larger-scale migration:
The Department of Homeland Security (DHS) and, in particular, US Citizenship and Immigration Services (USCIS) should send far more Asylum Officers to conduct credible fear interviews at the border.
Law firms, pro bono attorneys, and charitable legal agencies should attempt to represent all arriving migrants before both the Asylum Office and the Immigration Courts.
USCIS Asylum Officers should be permitted to grant temporary withholding of removal under the Convention Against Torture (CAT) to applicants likely to face torture if returned to their countries of origin.
Immigration Judges should put the asylum claims of those granted CAT withholding on the “back burner” — thus keeping these cases from clogging the Immigration Courts — while working with the UNHCR and other counties in the Hemisphere on more durable solutions for those fleeing the Northern Triangle states of Central America.
Individuals found to have a “credible fear” should be released on minimal bonds and be allowed to move to locations where they will be represented by pro bono lawyers.
Asylum Officers should be vested with the authority to grant asylum in the first instance, thus keeping more asylum cases out of Immigration Court.
If the Administration wants to prioritize the cases of recent arrivals, it should do so without creating more docket reshuffling, inefficiencies, and longer backlogs
My long-time friend Don Kerwin, Executive Director of CMS, has been a “Lt. General of the New Due Process Army” since long before there even was a “New Due Process Army” (“NDPA”). Talk about someone who has spent his entire career increasing human understanding and making the world a better place! Don is a great role model and example for newer members of the NDPA, proving that one can make a difference, as well as a living, in our world by doing great things and good works! Not surprisingly, Don’s career achievements and contributions bear great resemblance to those of our mutual friend, the late Juan Osuna.
So, when Don asked me to consider turning some of my past speeches about our immigration system and how it should work into an article to honor Juan, I couldn’t say no. But, I never would have gotten it “across the finish line” without Don’s inspiration, encouragement, editing, and significant substantive suggestions for improvement, as well as that of the talented peer reviewers and editorial staff of JMHS. Like most achievements in life, it truly was a “team effort” for which I thank all involved.
Those of you who might have attended my Boynton Society Lecture last Saturday, August 10, at the beautiful and inspiring Bjorklunden Campus of Lawrence University on the shores of Lake Michigan at Bailey’s Harbor, WI, will see that portions of this article were “reconverted” and incorporated into that speech.
Also, those who might have taken the class “American Immigration, a Cultural, Legal, and Anthropological Approach” at the Bjorklunden Seminar Series the previous week, co-taught by my friend Professor Jenn Esperanza of The Beloit College Anthropology Department, and me had the then-unpublished manuscript in their course materials, and will no doubt recognize many of the themes that Jenn and I stressed during that week.
Perhaps the only “comment that really mattered” was passed on to me by Don shortly after this article was released. It was from Juan’s wife, the also amazing and inspiring Wendy Young, President of Kids In Need of Defense (“KIND”):“Juan would be truly honored.”
Donald M. Kerwin Executive Director Center for Migration StudiesJuan P. Osuna (1963-2017) Judge, Executive, Scholar, Teacher, Defender of Due ProcessWendy Young President, Kids In Need of Defense (“KIND”)Me
Angelina Jolie Actress, Writer, Human Rights Advocate
Angelina Jolie writes in Time:
Angelina Jolie: The Crisis We Face at the Border Does Not Require Us to Choose Between Security and Humanity
Angelina Jolie
Jolie, a TIME contributing editor, is an Academy Award–winning actor and Special Envoy of the U.N. High Commissioner for Refugees
We Americans have been confronted by devastating images from our southern border and increasingly polarized views on how to address this untenable situation.
At times I wonder if we are retreating from the ideal of America as a country founded by and for brave, bold, freedom-seeking rebels, and becoming instead inward-looking and fearful.
I suspect many of us will refuse to retreat. We grew up in this beautiful, free country, in all its diversity. We know nothing good ever came of fear, and that our own history — including the shameful mistreatment of Native Americans — should incline us to humility and respect when considering the question of migration.
I’m not a lawyer, an asylum seeker, or one of the people working every day to protect our borders and run our immigration system. But I work with the UN Refugee Agency, which operates in 134 countries to protect and support many of the over 70 million people displaced by conflict and persecution.
We in America are starting to experience on our borders some of the pressures other nations have faced for years: countries like Turkey, Uganda and Sudan, which host 6 million refugees between them. Or Lebanon, where every sixth person is a refugee. Or Colombia, which is hosting over 1 million Venezuelans in a country slightly less than twice the size of Texas. There are lessons — and warnings — we can derive from the global refugee situation.
The first is that this is about more than just one border. Unless we address the factors forcing people to move, from war to economic desperation to climate change, we will face ever-growing human displacement. If you don’t address these problems at their source, you will always have people at your borders. People fleeing out of desperation will brave any obstacle in front of them.
Second, countries producing the migration or refugee flow have the greatest responsibility to take measures to protect their citizens and address the insecurity, corruption and violence causing people to flee. But assisting them with that task is in our interest. Former senior military figures urge the restoration of U.S. aid to Honduras, Guatemala and El Salvador, arguing that helping to build the rule of law, respect for human rights and stability is the only way to create alternatives to migration. The UN Refugee Agency is calling for an urgent summit of governments in the Americas to address the displacement crisis. These seem logical, overdue steps. Our development assistance to other countries is not a bargaining chip, it is an investment in our long-term security. Showing leadership and working with other countries is a measure of strength, not a sign of weakness.
Third, we have a vital interest in upholding international laws and standards on asylum and protection. It is troubling to see our country backing away from these, while expecting other countries, who are hosting millions of refugees and asylum seekers, to adhere to a stricter code. If we go down this path, we risk a race to the bottom and far greater chaos. An international rules-based system brings order. Breaking international standards only encourages more rule-breaking.
Fourth, the legal experts I meet suggest there are ways of making the immigration system function much more effectively, fairly and humanely. For instance, by resourcing the immigration courts to address the enormous backlog of cases built up over years. They argue this would help enable prompt determination of who legally qualifies for protection and who does not, and at the same time disincentivize anyone inclined to misuse the asylum system for economic or other reasons. The American Bar Association and other legal scholars and associations are calling for immigration court to be made independent and free from external influence, so that cases can be fairly, efficiently and impartially decided under the law.
There are also proven models of working with legal firms to provide pro-bono legal assistance to unaccompanied children in the immigration system without increasing the burden on the U.S. taxpayer. Expanding these kinds of initiative would help to ensure that vulnerable children don’t have to represent themselves in court, and improve the effectiveness, fairness and speed of immigration proceedings. Approximately 65% of children in the U.S. immigration system still face court without an attorney.
We all want our borders to be secure and our laws to be upheld, but it is not true that we face a choice between security and our humanity: between sealing our country off and turning our back to the world on the one hand, or having open borders on the other. The best way of protecting our security is by upholding our values and addressing the roots of this crisis. We can be fearless, generous and open-minded in seeking solutions.
TIME Ideas hosts the world’s leading voices, providing commentary on events in news, society, and culture. We welcome outside contributions. Opinions expressed do not necessarily reflect the views of TIME editors.
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Wow! Great thoughts on how caring people might actually help to constructively address human migration issues rather than cruelly making them worse through “malicious incompetence.”
It’s painfully clear that we have the wrong “celebrity” leading our nation. But, Jolie wasn’t on the ballot (not will she be). Nevertheless, in a saner and more law-abiding Government, there should be a place for ideas and leadership from Jolie and others like her.
HISTORICAL NOTE: If my memory serves me correctly, Angelina Jolie once appeared before my esteemed retired colleague U.S. Immigration Judge M. Christopher Grant, as an expert witness in an asylum case before the Arlington Immigration Court.
CNN: Monday’s opinion does not bar all family-based claims, but unless an immediate family has “greater societal import,” it is “unlikely” to qualify for asylum, according to the Justice Department.
DHS notice expanding the categories of persons designated eligible for expedited removal. The notice, including the new designation, is effective on 7/23/19. Comments may be submitted on or before 9/23/19. (84 FR 35409, 7/23/19) AILA Doc. No. 19072200. See also CLINIC’s Expansion of Expedited Removal FAQs.
Vox: On Friday afternoon, the US and Guatemala signed an agreement that will direct Central American migrants who pass through Guatemala hoping to seek asylum in the United States to first apply for protection in Guatemala instead. Those who travel to the US without applying for asylum in Guatemala could be removed by US border officials to that country.
USCIS instructed asylum officers to consider whether it would have been “possible” for asylum seekers to relocate within their countries to avoid persecution rather than flee to the United States, even though the appropriate legal standard is whether such relocation would have been “reasonable.” AILA Doc. No. 19072603
TRAC found that very few asylum seekers forced to remain in Mexico under the Migration Protection Protocols (MPP) have been able to secure representation for their immigration court proceedings. Of the total of 1,155 MPP cases decided, only 14 (just 1.2 percent) were represented. AILA Doc. No. 19072990
CBS: The bill’s supporters pushed to suspend the rules of House and pass the bill before lawmakers left for their August recess. The maneuver, usually reserved for non-controversial bills, required the support of two-thirds of the House, meaning at least 55 Republicans would have needed to break ranks and vote for the measure. The move failed after only 37 Republican lawmakers joined the 230 Democrats voting in favor.
NY Daily News: The General Services Administration, which manages federal buildings, confirmed six new immigration courtrooms are under construction at 290 Broadway. The building is also home to offices for the Environmental Protection Agency and the Internal Revenue Service.
Slate: Ted Lieu: Sofi is not a criminal or a national security threat to the United States as a 3-year-old, correct? Hastings: I don’t know the background in this case, sir.
NBC: An 18-year-old U.S. citizen who was held as an undocumented immigrant for more than three weeks in conditions he called “inhumane” says U.S. officials never apologized for wrongfully detaining him.
TimesUnion: This time last year, Albany County jail held hundreds of immigrants detained after crossing the southern U.S. border, joining a handful picked up locally.
The Attorney General found that the BIA improperly recognized the respondent’s father’s immediate family as a particular social group. Decision notes that all cases inconsistent with this opinion are abrogated. Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) AILA Doc. No. 19072902
U.S. District Judge Jon Tigar issued an order enjoining the government from implementing the 7/16/19 DHS and DOJ joint interim final rule on asylum, pending final judgment or further order of the Court. (East Bay Sanctuary Covenant, et al. v. Barr, et al., 7/24/19) AILA Doc. No. 19071800
In an oral ruling, the district court judge denied the plaintiffs’ motion for a temporary restraining order enjoining the implementation of the interim final rule issued by the Trump administration on 7/16/19. (CAIR Coalition, et al. v. Trump, et al., 7/24/19) AILA Doc. No. 19071802
WaPo: A split Supreme Court said Friday night that the Trump administration could proceed with its plan to use $2.5 billion in Pentagon funds to build part of the president’s wall project along the southern border.
The court granted in part the petition for review, finding that substantial evidence did not support the BIA’s decision to deny the Nepali petitioner’s asylum application, because the government did not rebut the presumption of a well-founded fear of persecution. (Dahal v. Barr, 7/18/19) AILA Doc. No. 19072302
The court granted the petition for review, concluding that Virginia’s statute prohibiting participation in criminal gang activity does not categorically qualify as a crime involving moral turpitude (CIMT) for purposes of INA §237(a)(2)(A)(i). (Rodriguez Cabrera v. Barr, 7/19/19) AILA Doc. No. 19072303
The court held that the IJ did not violate petitioner’s due process rights by failing to adhere to the procedural safeguards that were put in place after his competency hearing, finding that there was no variance that would amount to due process violations. (Pierre-Paul v. Barr, 7/18/19) AILA Doc. No. 19072304
Where the Mexican petitioner claimed she feared persecution as the mother of a cartel member’s child, the court held there was nothing in the record that required BIA to conclude that she had experienced past persecution or reasonably feared future persecution. (N.Y.C.C. v. Barr, 7/19/19) AILA Doc. No. 19072305
The en banc court held that, in the context of eligibility for cancellation of removal, a petitioner’s state law conviction does not bar relief where the record is ambiguous as to whether the conviction constitutes a disqualifying predicate offense. (Marinelarena v. Barr, 7/18/19) AILA Doc. No. 19072307
The court held that the BIA erred in finding that the petitioner had failed to show prejudice from his prior attorney’s ineffective assistance with respect to deferral of removal under the Convention Against Torture (CAT) and relief under former INA §212(c). (Flores v. Barr, 7/18/19) AILA Doc. No. 19072306
The BIA dismissed the appeal, finding that immigration judges (IJs) have the authority to deny applications for temporary protected status (TPS) in the exercise of discretion. Matter of D-A-C- 27 I&N Dec. 575 (BIA 2019) AILA Doc. No. 19072663
Hill: The 9th Circuit Court of Appeals on Monday ruled against the Trump administration’s policy allowing for the indefinite detention of certain asylum-seekers, saying a lower court ruling temporarily blocking it can remain in place. See also DHS Interim Guidance on Parole.
DHS notice expanding the categories of persons designated eligible for expedited removal. The notice, including the new designation, is effective on 7/23/19. Comments may be submitted on or before 9/23/19. (84 FR 35409, 7/23/19) AILA Doc. No. 19072200
Guardian: In a complaint filed in Los Angeles federal court on Tuesday against Customs and Border Protection (CBP) and the FBI, the American Civil Liberties Union (ACLU) alleges that the US government surveilled three not-for-profit organizers, who were included in a secret US database of more than 50 activists and journalists that was leaked earlier this year.
WBUR reports on a federal court case that will center on whether ICE has the right to deport immigrants for past crimes despite a state pardon. AILA Board member Heather Prendergast said Connecticut is not the only state where a board grants pardons, and in other states, ICE honors them. AILA Doc. No. 19072363
James Keegan of Cicero, Illinois, was sentenced to 10 years in federal prison for operating a fraudulent immigration service business that defrauded hundreds of undocumented immigrants. Keegan ran the scheme during a nine-month period in 2017, and falsely claimed that he was a former DHS attorney. AILA Doc. No. 19072662
EOIR released statistics on the number of initial receipts of complaints against immigration judges from FY2009 through the third quarter of FY2019. AILA Doc. No. 18102935
EOIR has released statistics on initial receipts, initial case completions, and initial case completion decisions for family units in select courts—Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco—for the period of 9/24/18 to 7/19/19. AILA Doc. No. 19062134
EOIR released statistics on credible fear review and reasonable fear review decisions, from FY2008 through the second quarter of FY2019, as of 3/31/19. AILA Doc. No. 18052340
Reuters obtained guidance given to immigration judges (IJs) on docketing of family unit cases that directs them to schedule the initial hearing in family unit cases within 30 days. AILA Doc. No. 19072660
Reuters obtained the Memorandum of Understanding (MOU) Regarding the Implementation of New Performance Measures for Immigration Judges (IJs) between EOIR and the NAIJ, which includes FAQs on IJ case quotas and defines a status docket, among other things. AILA Doc. No. 19072661
Pacific Standard: Each year, the federal government deports thousands of prisoners who enter the Institutional Hearing Program, but it won’t reveal critical information about its operations.
WaPo: The Trump administration is threatening to impose hundreds of thousands of dollars in civil penalties on immigrants who disobey deportation orders by seeking refuge in churches or elsewhere in the United States, federal officials said.
EOIR released statistics on the percentage of individuals making credible fear claims that are granted asylum. During the second quarter of FY2019 (through 3/31/19), IJs granted asylum to only 13 out of 100 credible fear claimants. AILA Doc. No. 19070532
WaPo: U.S. Customs and Border Protection was aware of the inflammatory Facebook page where alleged Border Patrol agents posted racist, sexist and violent images — and the agency has investigated posts from the group on at least one occasion, an official said. See also CBP Releases Statement on Private Facebook Group Activity.
Daily News: Santiago, who crossed into the United States in 2004, and was hit with an order of deportation after missing a San Antonio court appearance, was busted by federal immigration agents outside Queens Family Court. She was moved to Louisiana last week as her deportation appeared imminent, but lawyers with the New York Legal Assistance Group fought successfully to keep her in the U.S.
NPR: The Justice Department statement came in a court filing released Wednesday. Assistant Attorney General Jody Hunt said, “We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census.”
HRW: Human Rights Watch found that the program, named the “Migrant Protection Protocols” (MPP) by the US government but known colloquially as “Remain in Mexico,” has thus far had serious rights consequences for returned asylum seekers. We found that the returns program is expelling asylum seekers to ill-prepared, dangerous Mexican border cities where they face high if not insurmountable barriers to receiving due process on their asylum claims.
WaPo: A cache of records shared with The Washington Post reveals that agents are scanning millions of Americans’ faces without their knowledge or consent. [Note from Green Light NY: Most importantly, our legislation strictly prohibits disclosure of applicant photos by the DMV without lawful court order, judicial warrant, or subpoena. This means, for example, that if there is an active criminal investigation of an individual, their records could be disclosed to law enforcement… but ICE could not simply conduct a mass search of our DMV photos.]
AIC: The Trump administration’s indiscriminate, aggressive enforcement approach has created new categories of individuals who are more vulnerable to U.S. Immigration and Customs Enforcement encounters, arrest, and potential deportation.
A district court issued an order in Padilla, ordering the government to give certain detained asylum seekers a bond hearing within seven days of their request and requires
the government to justify continued detention in each case. AILA Doc. No. 19070333
FR: This final rule sets forth the Department’s longstanding position that the regulations providing for an affirmance without opinion (AWO), a single-member opinion, or a three-member panel opinion are not intended to create any substantive right to a particular manner of review or decision. The final rule also clarifies that the BIA is presumed to have considered all of the parties’ relevant issues and claims of error on appeal regardless of the type of the BIA’s decision, and that the parties are obligated to raise issues and exhaust claims of error before the BIA.
The U.S. Supreme Court upheld the doctrine of Auer deference, under which courts should defer to an agency’s reasonable reading of its own genuinely ambiguous regulations, but limited Auer’s scope in varied and critical ways. (Kisor v. Wilkie, 6/26/19) AILA Doc. No. 19070230
The administration published a rule which would authorize the attorney general (AG) “to singlehandedly designate Board of Immigration Appeals decisions as precedent—and do so literally overnight, bypassing the necessary legal procedures and without any checks and balances.” AILA Doc. No. 19070236
IRAP: The lawsuit challenges new rules imposed by the Trump Administration that make it far more difficult for asylum seekers to pass their “credible fear interviews.” The interviews, which are conducted by asylum officials to determine whether an asylum seeker has a credible fear of persecution if returned to their home country, represent a life or death scenario for many of those who enter the U.S. in order to reach safety.
A federal judge blocked ICE from making civil immigration arrests inside Massachusetts courthouses, preventing ICE “from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse.” AILA Doc. No. 19070531
The court found that the evidence demonstrated a reasonable probability that, had the lawful permanent resident (LPR) appellant known the true and certain extent of the immigration consequences of his guilty plea, he would have refused it. (United States v. Carrillo Murillo, 6/24/19) AILA Doc. No. 19070234
The court held that, when viewed as an inclusive whole, the government was substantially justified in denying Convention Against Torture protection to petitioners, and the petitioners were ineligible for an Equal Access to Justice Act (EAJA) award. (W.M.V.C. v. Barr, 6/7/19, amended 6/28/19) AILA Doc. No. 19061800
DHS OIG issued an alert after finding dangerous overcrowding at four of the five Border Patrol facilities visited and prolonged detention at all five facilities visited in the Rio Grande Valley. Among other things, the report notes that over 1,500 detainees had been held for more than 10 days. AILA Doc. No. 19070502
ICE announced that 37 Cambodian nationals were repatriated in accordance with their final removal orders. ICE noted that removals to Cambodia increased 279 percent from FY2017 to FY2018 and that there are approximately 1,900 Cambodian nationals in the United States with final orders of removal. AILA Doc. No. 19070500
DOS announced that Interim President Juan Guaido extended the validity of Venezuelan passports for an additional five years past their printed date of expiration and the U.S. recognized this extension for visa issuance and other consular purposes. AILA Doc. No. 19070330
EOIR final rule to amend the regulations regarding the administrative review procedures of the BIA. The rule is effective 9/3/19. (84 FR 31463, 7/2/19) AILA Doc. No. 19070192
HHS (Department of Health and Human Services) notice of intent to issue up to $300,800,000 of funding for up to 1,300 temporary shelter beds to keep unaccompanied children in custody at Carrizo Springs, Texas. (84 FR 31323, 7/1/19) AILA Doc. No. 19070193
USCIS announced it will automatically extend parole, and employment authorization if applicable, for certain residents of the Commonwealth of the Northern Mariana Islands (CNMI) due to the Northern Mariana Islands Long-Term Legal Residents Relief Act. AILA Doc. No. 19070194
ABA: Statistics compiled by the ABA Journal suggest that as misdemeanor unlawful entry prosecutions rose between 2017 and 2018 in the five federal districts along the southwest border, federal prosecutions for nonmarijuana drug offenses dropped. That’s while apprehensions of people crossing between official ports of entry reached a 17-year low in fiscal 2017, and U.S. Customs and Border Protection drug seizure statistics were largely up, suggesting no lack of referrals.
NYT: “People don’t flee their homes because they want to,” President Nayib Bukele said. “They flee their homes because they feel they have to… It is our fault.”
DocumentedNY: The New York City Area of Responsibility had the third largest increase of ICE arrests in jails and prisons in the nation between 2016 and 2018. In the Buffalo Area of Responsibility, the at-large arrest rate grew about 123 percent, the second highest jump in the country after Philadelphia.
Representing “The Roundtable”: Judge Polly Webber, Judge Jeffrey S. Chase, Judge Lory D. Rosenberg, Judge Cecelia Espenoza, Judge Sue Roy, Judge Carol KIng
AILA Presents the Roundtable of Former Immigration Judges with the 2019 Advocacy Award
WASHINGTON, DC – The American Immigration Lawyers Association (AILA) will recognize the Roundtable of Former Immigration Judges, with the 2019 Advocacy Award for outstanding efforts in support of AILA’s advocacy agenda. The roundtable will accept the award this week during AILA’s Annual Conference in Orlando, FL.
The Round Table of Former Immigration Judges was formed in June 2017 when seven former Immigration Judges and BIA Members united for an amicus brief in Matter of Negusie. In the two years since, the group has grown to more than 30 members, dedicated to the principle of due process for all. Its members have served as amici in 14 cases before six different circuit courts, the Attorney General, and the BIA. The group has made its voice heard repeatedly in support of the rights of victims of domestic violence to asylum protection, and has also lent its arguments to the issue of children’s need for counsel in removal proceedings, the impact of remote detention in limiting access to counsel, and the case against indefinite detention of immigrants. The Round Table of Former Immigration Judges has submitted written testimony to Congress and has released numerous press statements. Its individual members regularly participate in teaching, training, and press events.
Cite as AILA Doc. No. 19062032.
And here are Judge Chase’s “acceptance remarks” in behalf of our entire group:
Thank you; we are humbled and honored to receive this award. Due to the time constraints on our speeches, I don’t have time to either name all of the members of our group, or to thank all those to whom thanks is due. So I will do that in a blog post.
In terms of advocacy, we are all advocates – everyone in this room, all AILA members. The past experience of our group as former judges gives us more of a platform. But it is a special group, in that so many have chosen to spend their post-government careers or their retirement actively fighting to make a difference in these trying times.
In fighting to make that difference, we must all speak for those who have no voice, and must serve as the conscience in a time of amoral government actions. Those whom we advocate for had the courage and strength to not only escape tragedy and make their way to this country, but once here, to continue to fight for their legal rights against a government that makes no secret of its disdain for their existence. We owe it to them to use our knowledge and skills to aid them in this fight.
In conclusion, I will quote the response of one of our group members who isn’t here tonight upon learning of this award: “It’s nice to be recognized. Now let’s get back to work.”
Thank you all again.
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Congrats to all of my 30+ wonderful colleagues in “The Roundtable.” It’s an honor to be part of this group. Also, many, many thanks to all of the firms and individual lawyers who have provided hundreds of hours of pro bono assistance to us so that we could have a “voice.” It’s been a real team effort!
WaPo: With days to prepare, a top state official said he expects a fivefold increase in the number of migrants who will be sent to Juarez as a result of the expansion of the Trump administration’s Migrant Protection Protocols.
WaPo: The strategy, which will apply only to applications for permanent residency — also known as green cards — or U.S. citizenship, probably will be a welcome respite to immigrant communities in cities such as St. Paul, Minn., where some applicants wait up to two years to become citizens. Immigrants in other places could see the process lengthen.
The Conversation: As current anti-immigrant policies diminish the supply of migrant workers (both documented and undocumented), farmers are not able to find the labor they need. So, in states such as Arizona, Idaho and Washington that grow labor-intensive crops like onions, apples and tomatoes, prison systems have responded by leasing convicts to growers desperate for workers.
NYT: Men, women, and children from central Africa — mostly from the Democratic Republic of Congo and Angola — are showing up at the United States’ southwest border after embarking on a dangerous, monthslong journey. Their arrival at the border and at two cities more than 2,100 miles apart — San Antonio and Portland, Maine — has surprised and puzzled immigration authorities and overwhelmed local officials and nonprofit groups.
TIME: Fort Sill, an 150-year-old installation once used as an internment camp for Japanese-Americans during World War II, has been selected to detain 1,400 children until they can be given to an adult relative, according to the U.S. Department of Health and Human Services.
Daily Beast: Former Virginia attorney general Ken Cuccinelli’s long-rumored role as a top coordinator of the Department of Homeland Security immigration policy finally has an official title. According to an email sent to staff at U.S. Citizenship and Immigration Services on Monday, the longtime border hawk has been named acting director of the agency, whose 19,000 employees orchestrate the country’s immigration and naturalization system. See also High Turnover Roils Trump’s Immigration-Policy Ranks and GOP mutters, gently, as Trump sidesteps Senate for top aides.
USCIS provided notice to the class in R.F.M., et al., v. Nielsen, et al. The class involves Special Immigrant Juveniles with applications based on a New York Family Court Special Findings Order issued between their 18th and 21st birthdays. Notice includes next steps. AILA Doc. No. 19061400. See also Legal Aid’s R.F.M. v. Nielsen website.
IDP: has put out a legal alert on the BIA’s new decision in Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019), and why it should not affect the Second Circuit precedent set by Harbin and Hylton. Included are some arguments that could be used to rebut DHS should they try to argue otherwise (please let us know if they do raise this decision and what IJs are deciding).
Fed Defenders: On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a).
RollingStone: In the days before he allegedly struck a 23-year-old undocumented Guatemalan man with a government-issued Ford F-150, Border Patrol agent Matthew Bowen sent a text to a fellow agent. In the exchange, which federal prosecutors now claim offers “insight into his view of the aliens he apprehends,” Bowen railed against unauthorized migrants who’d thrown rocks at a colleague as “mindless murdering savages” and “disgusting subhuman shit unworthy of being kindling for a fire.”
Chase: So in summary, Andrade Jaso is inconsistent with all of the AG’s precedent decisions under this administration, and with binding regulations. And yet, a three Board Member panel had no reservations (there wasn’t any dissent) in issuing this decision. Why? Because it prevents the only group of people who actually want to be in proceedings from having the chance to apply for legal status.
AP: federal appeals court in Washington ruled Friday against a Trump administration policy it described as a “blanket ban” preventing immigrant teens in government custody from getting abortions, and it kept in place an order blocking the policy.
NPR: The courts have yet to issue their final word on whether the Trump administration can add a citizenship question to the 2020 census. But starting Thursday, the Census Bureau is asking about a quarter-million households in the U.S. to fill out questionnaires that include the question, “Is this person a citizen of the United States?”
USCIS: As part of USCIS’ implementation of this memorandum, USCIS officers will now be required to remind individuals at their adjustment of status interviews of their sponsors’ responsibilities under existing law and regulations. Our officers must remind applicants and sponsors that the Affidavit of Support is a legal and enforceable contract between the sponsor and the federal government. The sponsor must be willing and able to financially support the intending immigrant as outlined by law and regulations (see INA 213A and 8 CFR 213a). If the sponsored immigrant receives any federal means-tested public benefits, the sponsor will be expected to reimburse the benefits-granting agency for every dollar of benefits received by the immigrant.
CLINIC: The memo, titled “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children” and signed by Asylum Division Chief John Lafferty, reverses a 2013 policy, often referred to as the “Kim memo.” Under the Kim memo, USCIS took jurisdiction over asylum applications filed by applicants who had previously been determined by Immigration and Customs Enforcement or Customs and Border Protection to be “unaccompanied alien children” (UC).
The U.S. and Mexican governments proclaimed their commitment to address the increase in migrants moving from Central America, including the deployment of the Mexican National Guard to the southern border and the expansion of Migrant Protection Protocols across the entire southern border. AILA Doc. No. 19061197
ImmProf: While bold immigration proposals continue to be in the news, a lesser noticed regulatory planning document provides info on the timeline and implementation details of known policies. An analysis of the regulatory agenda shows that the administration plans to spend the next year implementing the public charge rule that denies green cards and visas to those who take public benefits and reforming employment visa programs to eliminate work authorization for H1-B spouses.
EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!
Courtside: Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions. Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan.” See also American Bar Association Says Immigration Courts Are ‘On The Brink Of Collapse’.
Reuters obtained a memo with updated procedures for asylum applications filed by unaccompanied alien children (UACs), modifying 5/28/13 guidance. This guidance is effective 30 calendar days after 5/31/19 and applies to any USCIS decision issued on or after the effective date. AILA Doc. No. 19060771
WaPo: The Trump administration’s new immigration enforcement chief said Tuesday that he is preparing to increase arrests and deportations of migrant families living illegally in the U.S. interior, promising the kind of more aggressive approach the White House has been seeking. See also Border Patrol searches have increased on Greyhound, other buses far from border.
WaPo: On the same day the White House heralded veterans on the 75th anniversary of D-Day, a federal watchdog said the government had violated its own rules on deporting former service members — and immigration authorities have no idea how many they have removed.
Salon: The State Department announced this week a major change to the Diversity Immigrant Visa Program, which Trump has repeatedly maligned. The first new rule requires applicants to already have a passport at the time of application. The second mandates that any typographical error on the application results in immediate, unappealable disqualification.
Sunlight Foundation: In answer to our first question— who initiated the removal? — the records turned over under FOIA show that USCIS’ training materials, which had been public for years, were in fact removed at the explicit direction of the Asylum Division’s top official. Even as that official, John Lafferty, acknowledged that the materials were of significant public interest, correspondence shows he rebuffed his own staff’s suggestion to archive them.
NBC: The deaths of three ICE detainees since April, along with the release of several internal and watchdog reports documenting dismal conditions at ICE detention centers, have prompted an outcry from advocates who say the Trump administration is pushing growing numbers of immigrants into a detention system ill-equipped to care for them. See also HHS to house thousands of unaccompanied minor migrants on military bases and at Texas facility.
NYT: A growing number of asylum seekers have found that the journey to the Continent is safer and cheaper than paying smugglers to get them through Mexico.
IOM and UNHCR: The number of Venezuelans leaving their country has reached four million, IOM, the International Organization for Migration, and UNHCR, the UN Refugee Agency, announced today. Globally, Venezuelans are one of the single largest population groups displaced from their country.
QNS: The legislation [would] ensure that conditions for immigrants in New York State county jails comply with legal detention standards. In addition, the law will also limit the expansion of detention facilities in the state unless approved by the legislature.
Politico: A fast-track asylum regulation is currently under review at the White House budget office, according to a related regulatory website.
The regulation — titled “Asylum Eligibility and Procedural Modifications” — would be implemented as an interim final rule, which means it would take effect upon publication in the Federal Register.
WaPo: But it is unlikely that the Senate will consider the bill: McConnell and other Senate Republican leaders made no mention of the bill at their weekly news conference Tuesday afternoon.
From the listservs: If you get calls from family trying to locate someone who was just detained, keep in mind that if they were detained crossing the border then there is a high probability that they are not with ICE, but with the U.S. Marshal Service with pending illegal entry charges. This became much more common over the past year with Zero Tolerance and its implementation through Operation Streamline. So they won’t appear on the ICE Locator. Unfortunately, they will often not appear on BOP’s website either because USMS detainees that are in contract facilities don’t show on the website. One trick is to check on PACER (www.pacer.gov worth getting an account), which will confirm if have a pending criminal 1325 or 1326 case, and will also have their defense atty name.
In a one-sentence order, the U.S. Supreme Court denied the Trump administration’s motion to expedite consideration of the petition for a writ of certiorari. (DHS, et al. v. Casa de Maryland, et al., 6/3/19) AILA Doc. No. 18030734
LexisNexis: “The BIA reversed [an IJ in] Salt Lake City in a detained withholding / CAT case (client is in Tacoma, WA in withholding only proceedings) on the grounds that my client had suffered past persecution at the hands of local [Mexican] police on account of his imputed nationality as a U.S. citizen.”
Gothamist: The civil rights lawsuit, which was filed this week in federal District Court by Legal Services NYC, raises serious questions about the DOE’s commitment to serving a significant demographic in the New York City public school system, that of non-native English-speaking parents.
The GAO responded to a letter sent by 82 members of the House, accepting their request to work within the scope of its authority to review several issues regarding the current backlog of immigration cases managed by USCIS. AILA Doc. No. 19060334
AILA issued a practice alert on EOIR’s policy memo, No Dark Courtrooms, effective Wednesday, 5/1/19. This memo formalizes EOIR’s policy of “no dark courtrooms” and directs “OCIJ managers to ensure…that all blocks of available immigration court time are being utilized for scheduling cases.” AILA Doc. No. 19052970
On 5/31/19, the DOS updated its immigrant and nonimmigrant visa application forms to request additional information, including social media identifiers, from most U.S. visa applicants worldwide. AILA Doc. No. 19060671
DHS OIG issued a report after it conducted inspections of four detention facilities and found violations of ICE’s National Detention Standards, including “immediate risks or egregious violations of detention standards in Adelanto, VA, and Essex County, NJ….” AILA Doc. No. 19060601
USCIS Updates Fee Payment System Used in New York Field Offices
USCIS: U.S. Citizenship and Immigration Services (USCIS) has expanded the fee payment system used in field offices across the country, including the New York, Brooklyn, Long Island, and Queens offices. The improvements, implemented in New York in April, will fully replace the older system on Friday, June 7. Note that after that date, applicants will no longer be able to pay by money order or a cashier’s check at the New York, Brooklyn, Long Island, and Queens offices.
RESOURCES
· Mexican Tarjetas de Visitante por Razones Humanitarias and Firm Resettlement: A Practice Advisory for Advocates (attached)
· Practice Advisory on the SIJS litigation for applicants between the ages of 18-21 (attached)
Buzzfeed: The Trump administration is considering a proposal that would bar asylum for those who transit through a third country, a potential major escalation in the administration’s attempts to deter asylum-seekers, according to sources close to the administration.
WaPo: The White House plans to begin levying the import penalties on June 10 and ratchet the penalties higher if the migrant flow isn’t halted. Trump said he would remove the tariffs only if all illegal migration across the border ceased, though other White House officials said they would be looking only for Mexico to take major action. See also White House Releases Statement from President Trump Regarding Emergency Measures to Address the Border Crisis.
BIA: An Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.
Vermont Service Center (VSC) no longer entertains requests for supervisory review
VSC: Generally speaking, the Vermont Service Center (VSC) no longer entertains requests for supervisory review of requests for evidence (RFEs), via this email hotline or any other method. If your client disagrees with the RFE or believes that the requested evidence has already been submitted, they may wish to indicate this in their response to the RFE. They may also wish to resubmit the requested evidence. Any information submitted will be reviewed by the adjudicating officer.
U.S. News: President Donald Trump on Thursday signed a memorandum that will direct federal agencies to enforce a longstanding rule requiring the sponsors of legal immigrants to reimburse the government for any public benefits the immigrant uses, such as Medicaid and food stamps.
AIC: Immigration and Customs Enforcement officials regularly place detained immigrants into prolonged solitary confinement, despite findings that such confinement is a form of torture.
NYT: Visa applicants to the United States are required to submit any information about social media accounts they have used in the past five years under a State Department policy that started on Friday.
NYT: Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats.
Politico: The Trump administration plans to launch a new panel to offer “fresh thinking” on international human rights and “natural law,” a move some activists fear is aimed at narrowing protections for women and members of the LGBT community.
USA Today: The Transportation Security Administration is preparing to send up to 400 workers to the southern border to assist with the rising number of Central American migrants, but officials say the move shouldn’t affect air travel as the summer travel season gets underway.
WaPo: The Department of Homeland Security personnel will work as “advisers” to Guatemala’s national police and migration authorities, and they will aim to disrupt and interdict human smuggling operations, the officials said, speaking on the condition of anonymity to describe a plan that has not been made public. U.S. authorities hope that the effort will cut off popular routes to the United States and deter migrants from beginning their journeys north through Mexico.
Gothamist: Hundreds of immigrants detained at the southern border have been transferred to jails in the New York City area in the last few weeks, as the Trump administration takes unprecedented steps to manage a growing number of migrants seeking entry to the United States.
NYT: The Trump administration’s crackdown on unauthorized immigration has resulted in the prosecution of tens of thousands of people entering the country illegally. But new data suggests that the government has not prioritized the prosecution of employers, whose jobs represent the biggest lure for those crossing the southern border to reach the United States.
ImmProf: The Trump Administration is seeking Supreme Court review of a Fourth Circuit decision rejecting the administration’s attempt to rescind DACA. Here is the cert petition. In addition, the Supreme Court has granted cert in Hernandez v. Mesa, which asks whether the family of a Mexican teen killed by a U.S. Border Patrol agent in a cross-border shooting can sue the officer for damages (case page at this link).
The AG invites amici on whether judicial alteration of a criminal conviction or sentence should be taken into consideration in determining the immigration consequences of the conviction. Comments due by 7/12/19. Matter of Thomas and Matter of Thompson, 27 I&N Dec. 556 (A.G. 2019) AILA Doc. No. 19052900
NorthJersey: The daughter of a man who died while in immigration custody filed a wrongful death lawsuit Thursday against Hudson County and its jail, where he was held before he died of internal bleeding at a local hospital.
An Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.
Unpublished BIA decision vacates denial of continuance where IJ did not make preliminary determination whether respondent was prima facie eligible for U visa. Special thanks to IRAC. (Matter of Gomez-Alfaro, 7/31/18) AILA Doc. No. 19052995
Unpublished BIA decision holds that an administratively entered judgment of guilt due to the respondent’s failure to appear in court does not qualify as a conviction for immigration purposes. Special thanks to IRAC. (Matter of Davies, 7/30/18) AILA Doc. No. 19052895
In an unpublished BIA decision, the BIA affirmed the Immigration Judge’s decision to terminate removal proceedings, finding that the crime of fraud under $5,000, in violation of section 380(1)(b) of the Criminal Code of Canada is not a CIMT. Courtesy of Richard Hanus. AILA Doc. No. 19052834
Unpublished BIA decision reopens and terminates proceedings sua sponte in light of holding in United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), that assault under Wash. Rev. Stat. 9A.36.021 is not a crime of violence. Special thanks to IRAC. (Matter of Ibrahim, 8/7/18) AILA Doc. No. 19052896
Unpublished BIA decision holds that making false statement to firearms dealer under 18 USC §924(a)(1)(A) is a not a firearms offense because it applies to dealers who falsify their own records. Special thanks to IRAC. (Matter of Lopez, 8/17/18) AILA Doc. No. 19053135
Unpublished BIA decision holds that online solicitation of a minor under Tex. Penal Code 33.021 is not aggravated felony sexual abuse of a minor or attempted sexual abuse of a minor because it does not require a victim under 16 years of age. Special thanks to IRAC. (Matter of Adeeko, 8/14/18) AILA Doc. No. 19053132
BIA: Vacates order rescinding LPR status because respondent was not given opportunity to cross-examine ex-spouse or USCIS officer who took her statement
The court found that the petitioner, a citizen of Ireland who had entered the United States as a child and had overstayed his visa, was not entitled to a presumption of prejudice, and that he could not make a particularized showing of prejudice. (O’Riordan v. Barr, 5/22/19) AILA Doc. No. 19052831
The court vacated the district court’s dismissal of the plaintiffs’ complaint alleging that the defendants’ failure to engage in discharge planning for the plaintiffs’ serious medical needs prior to release violated their substantive due process rights. (Charles v. Orange County, 5/24/19) AILA Doc. No. 19053130
The court held that the BIA had disregarded and distorted significant portions of the record when it found that the petitioner had failed to establish that the Salvadoran government was unwilling or unable to protect her from persecution. (Orellana v. Barr, 5/23/19) AILA Doc. No. 19052832
The court held that substantial evidence supported the BIA’s determination that petitioner, who had been a police officer in Honduras, had failed to show a nexus between the alleged persecution he suffered and his membership in a particular social group. (Martinez Manzanares v. Barr, 5/24/19) AILA Doc. No. 19052833
The court held that DHS’s failure to include the time and date of the petitioner’s hearing in the Notice to Appear (NTA) was a failure to follow a claim-processing rule, not a jurisdictional flaw, and that petitioner did not timely object to DHS’s misstep. (Ortiz-Santiago v. Barr, 5/20/19) AILA Doc. No. 19052803
The court held that a Notice to Appear (NTA) that is defective under Pereira v. Sessions cannot be cured by a subsequent Notice of Hearing, and therefore does not terminate the residence period required for cancellation of removal. (Lorenzo Lopez v. Barr, 5/22/19) AILA Doc. No. 19052872
The court held that petitioner had failed to show that his 1997 parole constituted an “admission in any status,” and thus found he had not obtained the requisite seven years of continuous residency in the United States to be eligible for cancellation of removal. (Alanniz v. Barr, 5/20/19) AILA Doc. No. 19052871
The district court held that USCIS’s policy of declining to naturalize Military Accessions Vital to the National Interest (MAVNI) applicants until the Defense Department and the Army had determined they were suitable for service violated the Administrative Procedure Act. (Nio v. DHS, 5/22/19) AILA Doc. No. 19052839
CBP announced the creation of a new Border Patrol Processing Coordinator position designed to perform administrative tasks related to the intake and processing of individuals apprehended by Border Patrol agents and brought back to stations. AILA Doc. No. 19052837
USCIS will close its international offices, starting with Ciudad Juarez, Mexico and Manila in the Philippines. All offices, including the main district offices for the separate regions, are scheduled to close by March 10, 2020. Watch this page as AILA tracks which offices are closed. AILA Doc. No. 19053131
One of the earliest stories I heard as a child was that my immigrant great-great-grandfather worked out West on the first transcontinental railroad. Yuan Son, along with tens of thousands of other Chinese workers, blasted tunnels, carved footholds and laid grade at death-defying heights through the most arduous parts of the Sierra Nevada, miraculously making it out alive. I envisioned him tough and swashbuckling — a cross between my tall, bartender grandfather, who often told me these stories while smoking a Marlboro in our home in Queens, and Yosemite Sam.
My great-great-grandfather and his fellow laborers toiled around the clock in rotating shifts, handling explosive nitroglycerine, blasting through miles of granite, hauling tons of rock and dirt, even in upwards of 30 feet of snow. They endured brutal working conditions we would consider unconscionable today to complete the most difficult sections through the Sierra Nevada — the same terrain that stopped the ill-fated Donner Party in its tracks — and finally out to Nevada and Utah’s blistering desert heat. They were paid less and worked longer hours than their Irish or American counterparts, and they had to provide their own food and accommodations. Although some claimed it could never be done, Yuan Son and other Chinese workers completed the task in record time.
It wasn’t until, as an adult, I traveled to Promontory Summit, Utah, and saw the site of the railroad’s completion with my own eyes that I realized the true weight of this legacy. The railroad is a complicated affair for Chinese American descendants like me: The greatest U.S. engineering feat of the 19th century may have physically unified the country when it was finished in 1869, but this new network of rail also brought scores of white workers to the West, many of whom grew resentful when they saw Chinese holding down jobs they considered rightfully theirs. Not 15 years after the completion of the railroad, this ire, coupled with a severe economic depression, helped usher in the Chinese Exclusion Act — the country’s first major federal law that limited immigration based on race, class and nationality — setting the tone for future wide-reaching restrictive immigration policies.
My great-great grandfather was a teenager when he arrived in California, a mere boy, one of upwards of 20,000 Chinese, mainly from the Pearl River Delta area (in Guangdong province), who made up the majority of the Central Pacific Railroad workforce. He, like most of the others, was raised in a poor farming family, in a country that had been hammered by drought, famine, Western colonialism, warlordism and one of the bloodiest civil wars of the 19th century — conditions that would look familiar to many refugees and migrants today. So when the opportunity arose to feed his family by working for a railroad an ocean away, he took it.
As a schoolgirl, I scanned the official photograph that came to symbolize the railroad’s completion — engineers shaking hands, flocks of laborers posing for the camera, the champagne toast, a carefully choreographed scene — more than 100 years later, searching for faces like my great-great-grandfather’s. Only white faces stared back. Chinese workers were written out of this triumphant American story.
Their contributions were already being erased when Chinese Exclusion was enacted, and soon followed by a tsunami of anti-Chinese violence that swept across much of the West — lynchings, expulsions, boycotts of Chinese businesses, politicians jumping on the bandwagon. Nativism was as popular and potent then as it is today. Yuan Son, now an entrepreneurial shop owner, had happily settled in Idaho, where, after the railroad’s completion, Chinese made up close to 30 percent of the population. Although he had been living in the country for almost 30 years, one day he was forced out of his home at gunpoint by a band of masked vigilantes.
Despite these hardships, Yuan Son resettled back into life in China and surprisingly spoke of the work he had done on the railroad with great pride. He even taught my grandfather his first words in English: “Central Pacific,” “Southern Pacific” and “Union Pacific.” My chain-smoking grandfather repeated these names back to me through his ringing Cantonese intonations, in our home half a world away, as if he were a conductor calling out stations.
As the Trump administration attempts to rally support for ever more stringent immigration policies, I can’t help reflecting on railroad pioneers like Yuan Son. These men risked their lives hammering and detonating gunpowder, surviving avalanches and extreme conditions — engaging in the kind of backbreaking, chisel-to-granite “bone-work” that others refused to do. I am confronted by this complicated history, even as some wave patriotic flags amid cries to “make America great again.” One hundred and fifty years ago, my grandfather’s grandfather did help make this nation great, along with scores of his countrymen. It didn’t stop him from getting booted out, decades later, simply for being Chinese.
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Like it or not, supporting Trump means “buying in” to his noxiously false “Whitebread” vision of America’s past and future. It is also to disingenuously decline to recognize our true immigrant heritage and the overwhelming contributions of immigrants of color, enslaved Americans, immigrant women, and native Americans in making America great.
Sadly, the Chinese weren’t the only ones “airbrushed out” of the triumphant picture of the Transcontinental Railroad’s completion. Blacks, women, and Native Americans also made major contributions while suffering disproportionately; yet, they also received little or no appreciation or recognition.
Here’s a “differently take” on the ‘golden spike ceremony.:”
There are several dead links after a DOS website redesign. But the reports are still available. It’s also worth checking out the EOIR country conditions research index.
NPR: The plan would prioritize merit-based immigration, limiting the number of people who could get green cards by seeking asylum or based on family ties. But it would keep immigration levels static, neither increasing or decreasing the number of people allowed to legally enter the U.S. each year.
NYT: Last year, fewer immigrants applied for [U] visas — the first annual decline since 2007 — in what law enforcement officials and lawyers called a sign that immigrants were growing wary of helping the police and prosecutors.
WaPo: An attempt by President Trump’s senior adviser Stephen Miller to engineer a new shake-up at the Department of Homeland Security was blocked this week by Kevin McAleenan, the department’s acting secretary, who said he might leave his post unless the situation improved and he was given more control over his agency, administration officials said. See also Before Trump’s purge at DHS, top officials challenged plan for mass family arrests.
WaPo: “E-Verify is going to be possibly a part of it,” Trump replied. “The one problem is E-Verify is so tough that in some cases, like farmers, they’re not — they’re not equipped for E-Verify. I mean, I’d say that’s against Republicans. A lot of the Republicans say you go through an E-Verify.”
On May 13, 2019, the National Association of Immigration Judges (NAIJ) responded to EOIR’s Myths vs. Fact memo issued on May 8, 2019. Their response outlines key assertions made in the EOIR memo that “mischaracterize or misrepresent the facts.” AILA Doc. No. 19051334
In March of 2019, the Social Security Administration (SSA) began mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on wage and tax statement (Form W-2) that do not match its records. AILA Doc. No. 19051500
NBC: A government review of how journalists, attorneys, immigration advocates, and activists were monitored and tracked by U.S. border agencies confirms the Mexican government had a major role in the controversial tracking program.
CNN: DHS ran the DNA pilot program to help identify and prosecute individuals posing as families in an effort to target human smuggling. The Rapid DNA testing, as it’s known, involves a cheek swab and can, on average, provide results in about 90 minutes.
Coixes of NYC: Only weeks before the city will announce how its $92 billion budget for fiscal year 2020 will be allocated, pro-immigrant groups are clamoring for more resources for vital programs that support vulnerable communities.
Newsday: A new bill that has picked up key support in the State Legislature would make it a misdemeanor for an employer to report the “suspected citizenship or immigration status” of an employee to federal authorities.
Tuscon: The statements were made in a text message sent by Agent Matthew Bowen, 39, who is accused of knocking down a Guatemalan man with his Border Patrol vehicle on Dec. 3, 2017, and then lying in a report about the incident, according to documents filed in U.S. District Court in Tucson.
LA Times: He knew Trump planned to get tough on immigration — building a wall and deporting drug dealers, rapists and killers. He never imagined anyone would consider his sweet stay-at-home wife a “bad hombre.”
Nola: Mexico’s statistics institute estimated this month that the U.S.-born population in this country has reached 799,000 – a roughly fourfold increase since 1990. And that is probably an undercount. The U.S. Embassy in Mexico City estimates the real number at 1.5 million or more.
Quartz: More than 544,000 immigrants became US citizens in the first three quarters of fiscal year 2018, overall a 15% increase from the same period a year ago, according to the latest data from the US Department of Homeland Security. The largest year-to-year increase occurred in the first quarter of 2018, however there was a slight decrease in the third quarter. See also Immigrant soldiers now denied US citizenship at higher rate than civilians.
The government filed a memo in support of its motion to dismiss, along with declarations from Cynthia Crosby, Deputy Chief Clerk for the BIA, and Joseph Schaaf, the Supervisory Attorney Advisor who manages EOIR’s FOIA Unit. (NYLAG v. BIA, 5/3/19) AILA Doc. No. 18102232
ACLU: The American Civil Liberties Union of Texas and the ACLU Border Rights Center filed an administrative complaint concerning the mistreatment of migrants detained at Rio Grande Valley Border Patrol facilities.
The court denied the petition for review, finding that the petitioner’s conviction for conspiracy in the second degree to commit a felony—namely, murder in the second degree—under New York law constitutes an aggravated felony. (Santana-Felix v. Barr, 5/9/19) AILA Doc. No. 19051638
The court affirmed the BIA’s order denying the petitioners’ applications for asylum and withholding of removal, finding that the BIA did not err by refusing to consider the petitioners’ reformulated particular social group (PSG) on appeal. (Cantarero-Lagos, et al., v. Barr, 5/6/19) AILA Doc. No. 19051637
The court dismissed the petition for review, holding that, under the plain language of 8 USC §1231(a)(5), it lacked jurisdiction to review the petitioner’s underlying 2005 removal order in the context of his reinstatement proceedings. (Villa v. Barr, 5/9/19) AILA Doc. No. 19051642
ICE announced that 50 people are in law enforcement custody after a federal grand jury returned a 206-count indictment criminally charging 96 people for their alleged roles in a large-scale marriage fraud scheme. AILA Doc. No. 19051432
DHS OIG issued a report on CLAIMS3, its electronic system of record, and found that USCIS has not implemented an effective process to track adjudicative decisions and ensure data integrity, noting that USCIS cannot reliably track decisions back to the officer responsible for those decisions. AILA Doc. No. 15051671
AILA updated its practice alert with a summary of engagement with the NBC on this issue. In early May 2019, the NBC confirmed that their Interim Case Management System (ICMS) Team will review the issue and take action to address it if necessary. AILA Doc. No. 18102905
DHS notice of the re-establishment of a matching program between USCIS and the New York Department of Labor to verify the immigration status of non-U.S. citizens who apply for federal unemployment benefits. Comments are due 6/17/19. (84 FR 22510, 5/17/19) AILA Doc. No. 19051771
Albany, NY Jurisdiction Change Details
USCIS: Applicant cases from the zip codes in the following counties will be permanently realigned from the New York City, NY Field Office to the Albany, NY Field Office: Ulster, Dutchess, Sullivan, Orange, and Putnam. This permanent change will go into effect on Monday, May 27, 2019 and will apply to all immigration benefit types adjudicated in the field office, including naturalization applications and adjustment of status (green card) applications and petitions. The Albany, NY Field Office is located at 1086 Troy-Schenectady Road in Latham, N.Y.
Newark, NJ Temporary Caseload Shift
USCIS: A portion of application cases filed by applicants from Kings and Richmond counties, which are usually adjudicated at the Brooklyn, NY Field Office, will be temporarily realigned to the Newark, NJ Field Office. This temporary change will occur in June 2019. The caseload shift to Newark, NJ applies ONLY to naturalization applications (Form N-400 – Application for Naturalization). Applicants will complete their naturalization interview and civics test at the Newark, NJ Field Office on 970 Broad Street in Newark.
Immigration Court Closures
EOIR: The immigration judge conference will be taking place on June 19th and 20th this year. Hearings on those dates will be rescheduled.
Louise Radnofsky and Natalie Andrews report for the WSJ:
WASHINGTON—President Trump will make a fresh bid Thursday to remake U.S. immigration policy, propos-ing an expansion of skills-based visas offset by new restrictions on family members’ immigration—a proposal likely to ignite a dispute over issues that divide political parties and the country.
Mr. Trump is set to unveil an immigration plan devised in part by son-in-law and senior adviser Jared Kushner that incorpo-rates several ideas that have been gaining currency in Republican circles.
Chief among them: a bill crafted by conservative Republicans that would establish a visa system prioritizing immigrants based on criteria such as education, English-language ability and high-paying job offers.
The proposal also would eliminate the diversity-visa lottery long derided by Mr. Trump as well as immigra-tion routes for family members such as siblings. Moreover, it would limit the number of refugees offered permanent residency to 50,000 a year.
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Those with WSJ access can read the complete article at the link.
More Trump “smoke and mirrors.” No, it isn’t about “diversity” as one Trump toady falsely claims. Trump eliminates the current diversity visas.
It’s largely about the (likely false) assumption by Trump and others in the GOP that they have cleverly defined “merit” in a restrictive way that will bring in more white, English-speaking, highly-educated individuals from Europe, Canada, Australia, New Zealand, etc. and fewer Africans, Hispanics, Haitians, and Syrians, etc.
Contrary to nativist expectations when the basic current system was enacted in 1965, “immigrants of color” have dramatically increased their share of legal immigration over the past half-century. That has led to a diverse, talented, innovative, dynamic, successful yet “less white” America. According to nativist stereotypes, dumping on family members and refugees and increasing skill, educational, and English-language requirements will result in a “whiter” (that is “more meritorious”) immigrant population going forward.
However, like the nativists of 1965, Trump and his nativists might be surprised by the likely results of their own stereotypical assumptions. Actually, English-speaking immigrants from Africa, Haiti, the Middle East, Mexico, and Venezuela are among the highest skilled and best educated.
Of course, Trump’s elitist proposal also ignores that some of our greatest needs for immigrants pertain to important, but less glamorous, occupations for which neither education nor instant English language skills are a requirement. To keep our economy moving, we actually need more qualified roofers, construction workers, agricultural workers, child care workers, health assistants, security guards, janitors, landscapers, and convenience store operators than we do rocket scientists.
And, no, Tom Cotton and David Purdue, there aren’t enough “American workers” available to fill all these positions, even at greatly increased wages (which, incidentally, your fat cat GOP business supporters have no intention of paying anyway)! How high would the wages have to be to make guys like Cotton and Purdue give up their legislative sinecures (where they do nothing except show up for a few judicial votes on far right candidates scheduled by McConnell) and lay roofs correctly in 100-degree heat?
Rather than working against market forces to artificially restrict the labor supply, those wanting to improve wages and working conditions for American workers should favor higher minimum wages, aggressive enforcement of wage and hour and OSHA laws, and more unions. But, the GOP hates all of those real solutions.
The proposal also ignores “Dreamers,” which is sure to be a sore point with the Democrats. On the other side, it fails to sharply (and mindlessly) slash overall legal immigration levels as demanded by GOP nativists. While this proposal does not directly target children or dump on refugees from the Northern Triangle based on race and nationality, the ever slimier Trump sycophant Lindsey Graham has introduced a bill that promises to do both.
Beyond the purely humanitarian considerations, refugees make huge contributions to our economy and society. So, why would we want to screw them over? Family immigrants arrive not only with skills, but with a “leg up”on adjustment and assimilation. So, why would we want to dump on them?
For the most part, this looks more like a Trump campaign backgrounder or a diversion from his endless stream of lies, unethical behavior, and downright stupid actions that are a constant threat to our national security. What it doesn’t look like is a serious bipartisan proposal to give America the robust, expanded, more realistic, market responsive legal immigration, asylum, and refugee systems we need to secure our borders from real dangers (which doesn’t include most asylum seekers and would-be workers) and move America forward in the 21st century. Without regime change and a sea change that would break the GOP’s minority hold on Congress through the Senate, immigration is likely to remain a mess.
