Border Enforcement – Page 107 – immigrationcourtside.com

Trump Signs Border Orders, Promises To Restore Control!

https://www.washingtonpost.com/politics/trump-pledges-to-start-work-on-border-wall-within-months/2017/01/25/dddae6ee-e31e-11e6-ba11-63c4b4fb5a63_story.html?hpid=hp_rhp-top-table-main_immigration-2pm%3Ahomepage%2Fstory&utm_term=.a28fc29fd921

Breaking news from today’s Washington Post:

“President Trump signed a pair of executive actions Wednesday to begin ramping up immigration enforcement, including a new border wall with Mexico, vowing that construction on his chief campaign pledge would begin in months.

In an appearance at the Department of Homeland Security, Trump kicked off the rollout of a series of directives aimed at clamping down on the estimated 11 million immigrants living illegally in the United States. Aides said more directives could come later this week, including new restrictions on refugees and immigrants from Muslim-majority countries.

The presidential directives signed Wednesday aim to create more detention centers, add more federal border control agents and withhold federal funds to cities that do not comply with federal immigration laws, Trump aides said.

“We are going to restore the rule of law in the United States,” Trump said, addressing DHS employees after signing the orders. “Beginning today the United State gets control of its borders.”

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Toward the end of the story, there might be good news for at least some so-called “Dreamers.” Press Secretary Sean Spicer said that President Trump recognized the humanitarian issues at stake here and was developing his solution.

PWS

01/25/17

Quartz Media Reporter Ana Campoy “Nails” The Obama Administration’s Failed Southern Border Strategy — “We like to advertise ourselves as a beacon of liberty and justice; it’s time we acted that way.” (Quoting Me)

THE LAW IS THE LAW
The US doesn’t have an immigration problem—it has a refugee problem
Ana Campoy January 18, 2017

http://trac.syr.edu/whatsnew/email.170117.html

Quote boxes:

“In fact, Trump’s fixation with blocking illegal immigration from Mexico, which has plummeted in recent years, obfuscates the problem. Yes, border patrol agents are apprehending thousands of people every month along the US-Mexico line, but many of them—around half, according to Claire McCaskill, a member of the US Senate’s homeland security and governmental affairs committee—turn themselves in voluntarily asking for help. Government statistics bear this out. The number of immigrants claiming fear of persecution or torture in their home countries is on the rise, and so are the findings that those claims are credible. In order to be considered for asylum by an immigration judge, immigrants first have to go through a “credible fear” screening, in which an asylum officer determines whether the claims they are making have a “significant possibility” of holding up in court.

More than 70% of those who claimed credible fear in the 2016 fiscal year hailed from El Salvador, Honduras, and Guatemala, places beset by rampant violence.

Under US law, individuals who are found to have credible fear have the right to due process to determine the validity of their claims in the court. Whether they are Syrians escaping civil war, or El Salvadorans fleeing from criminal gangs, what they have to prove is the same: that they face persecution because of their race, religion, nationality, membership in a particular social group, or political opinion.

But US authorities don’t always take Central American immigrants’ fears seriously, studies suggest. One, released by the American Immigration Lawyers Association in 2016, found that not all border patrol agents are asking immigrants if they’re afraid to return to their country, as they are required to do. Other agents refuse to believe them, per the report, which is based on immigrant testimony documented by the group. Another 2016 analysis, by the US Commission on International Religious Freedom, a government advisory body, noted, “outright skepticism, if not hostility, toward asylum claims” by certain officers, among other practices that may be resulting in deportations of refugees with a legitimate right to stay.

A US Customs and Border Protection (CBP) spokesman said the agency “strives to treat every person we encounter with dignity and respect.” Anyone with concerns about the treatment doled out by its officers can call the agency, he added.”

. . . .

“The Obama administration’s response has already run up against the law. For example, several courts have shot down the government’s arguments and efforts to justify the detention of children and families while their cases wait to be resolved—a policy meant to convince would-be immigrants to stay home.

On Jan. 13, a coalition of immigrant rights groups filed a formal complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties accusing CBP officers of turning back people requesting asylum at ports of entry along the US-Mexico border. In what the groups called an “alarming new trend,” the officers have allegedly been telling immigrants that they can’t enter the country without a visa— contrary to US law—and referring them to Mexican immigration authorities.

Trump has framed his border policy as a choice between enforcing existing laws against illegal immigration or skirting them. But the decision facing US leaders is rather more complicated: Should the US continue providing refuge to those who are unfairly persecuted in their home countries?

If Americans are unwilling to do that, perhaps it’s time to do away with the nation’s asylum laws—and remove the famous poem at the base of the Statue of Liberty welcoming the world’s “huddled masses yearning to breathe free.”

Recently retired immigration judge Paul Wickham Schmidt put it this way: “We like to advertise ourselves as a beacon of liberty and justice; it’s time we acted that way.”

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In my view, Ana Campoy provides a remarkably clear and well-documented analysis of why the Obama Administration’s “get tough” border policies have failed, and why the Trump Administration would be wise to take a more “nuanced” approach that recognizes our obligation to provide due process and protection under our laws to individuals fleeing from the Northern Triangle.

As incoming DHS Secretary Gen. John Kelly has recognized, this problem can’t be solved just by (even more) enhanced enforcement on our end. It will require addressing the systemic problems in the sending countries of the Northern Triangle, which certainly have most of the characteristics of “failed states,” as well as working with other stable democratic nations in the Americas to fashion meaningful protections, inside or outside the asylum system, for those who are likely to face torture, death, or other types of clear human rights abuses if returned to the Northern Triangle at present.

It’s not an easy problem to solve, and there are no “silver bullets.” But, we know what doesn’t work. So, it sure seems like it would be a good idea to try different approaches (and I don’t mean repealing asylum protections as Ana, somewhat facetiously suggests near the end of her article).

PWS

01/19/17

Washington Post: U.S. & Mexican Officials Allegedly Flout U.S. Asylum Law (And International Treaties) At Southern Border!

https://www.washingtonpost.com/world/the_americas/us-border-officials-are-illegally-turning-away-asylum-seekers-critics-say/2017/01/16/f7f5c54a-c6d0-11e6-acda-59924caa2450_story.html?utm_term=.4f9b23834fc7

Joshua Partlow writes in the Washington Post:

“I am fleeing my country,” the policeman later recalled telling the guards, explaining that he had survived two attempts on his life. “I am being persecuted in a matter of life and death.”

The policeman said he was told he needed to see Mexican immigration authorities, who would put him on a waiting list to make his case to U.S. officials. But Mexican authorities refused to add him to the list, the policeman said, and he has been stuck in northern Mexico.

The Guatemalan is one of hundreds or perhaps thousands of foreigners who have been blocked in recent months from reaching U.S. asylum officials along the border, according to accounts from migrants and immigration lawyers and advocates.

The details of their cases vary. At the U.S. border crossing between Tijuana and San Diego, numerous asylum seekers from Central America and Mexico have been referred to Mexican authorities for an appointment with U.S. officials — but Mexican authorities often turn them down, according to migrants and immigration lawyers. In other places, migrants have been told by U.S. border agents that the daily quota for asylum cases has been reached or that a visa is required for asylum seekers, a statement that runs contrary to law, immigration advocates say.”

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The law is very clear: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . . .” 8 U.S.C. 1158(a).

Also, without getting too much into the particular facts, it appears that the former Guatemalan policeman described in the quote above could have a strong case for asylum under the BIA’s long-standing precedent decision Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988), finding that “former policeman” could potentially be a “particular social group” for asylum purposes.

Part of the problem here is that the U.S. does not have a meaningful “overseas refugee program” for the Northern Triangle. If the present, quite restrictive, program were expanded in both numbers and scope, and if the processing were more timely, more people would probably apply and be screened abroad, rather than coming directly to the border to apply. The U.S. could actually do Northern Triangle refugee processing in Mexico.

Additionally, the U.S. could encourage the Mexican Government to establish a program of temporary protection, similar to our “Temporary Protected Status,” so that individuals from the Northern Triangle who faced death or danger upon return could remain in Mexico even if the did not satisfy all of the technical requirements for refugee status.

Moreover, like the U.S., Mexico is a signatory to the U.N. Convention and Protocol on Refugees, but apparently has not done a particularly effective job of carrying it out. Why not work with the Mexican Government not just on law enforcement initiatives, but also on training adjudicators to provide fair hearings to individuals seeking protection under the Convention?

It might also be possible to work with other “stable” democratic governments in the Americas to share the distribution of those from the Northern Triangle who need protection.

Last, but certainly not least, as the incoming Secretary of Homeland Security, Gen. John Kelly, has suggested, it is important for a more permanent solution to work with governments in the Northern Triangle to provide stability and the rule of law in those “sending countries.”

We know that just throwing more money, personnel, walls, sensors, helicopters, detention centers, moats, etc. at the problem won’t effectively address the continuing flow of “desperate people fleeing desperate circumstances.” And, as our law provides, whether they come to our borders and turn themselves in or enter, legally or illegally, they actually have a right to seek asylum in the United States.

Isn’t it time to try some “smart strategies,” rather than just doubling down on the same old “enforcement only” approaches that have failed in the past and will continue to do so in the future?

PWS

01/17/17

Send In The Marines — Gen. Kelly Looks Like He Has The “Right Stuff” For DHS!

http://immigrationimpact.com/2017/01/11/john-kelly-said-immigration-policy-confirmation-hearing-dhs-secretary/

Maurice Belanger at Immigration Impact reports on Kelly’s immigration views:

“First, Kelly believes that much of the current migration from Central American countries has its roots in drug consumption in the U.S., which drives violence. His view is that the ultimate solution to the migration crisis, in addition to reducing American drug use, is to support governments in the region attempting to restore public safety and economic opportunity. He also stated that he believes that part of the reason migrants are coming to the U.S. is because they carry the notion that once they arrive, they will be able to stay. In his pre-hearing questionnaire, he noted that senior leaders of Central American countries told him that, “If you do not start sending them back to their country of origin quickly and in large numbers they will never stop making the trek north.”

Completely missing from the discussion however was what the U.S. should do in the meantime while addressing the violence and other factors pushing people out of Central America. As well as, what are America’s obligations to individuals arriving from the region seeking safety and security?

There was also considerable discussion of low morale among Border Patrol employees to which Kelly said that he believed “the number one thing right now would be in accordance with the law, let the people who are tasked to protect the border do their job.” However, there was no examination of assertions that Border Patrol agents are “prevented” from doing their job.

Kelly also demonstrated mixed views on enforcement of immigration law. For example, in an exchange on the issue of so-called “sanctuary cities,” Kelly said, “I understand maybe the perspective of some of the local leaders, but I do think the law is the law and I think the law has to be followed.” Yet, in another exchange with Senator Kamala Harris of California about DACA recipients and their families, Kelly said that, “I think law abiding individuals would in my mind, with limited assets to execute the law, would probably not be at the top of the list.”

However the more specific the questions got on immigration the more Kelly appeared out of his depth and unprepared to provide answers. For example, Senator Harris asked if Kelly would honor the government’s commitment not to use information collected on DACA recipients for enforcement purposes. Kelly responded that he had not been involved in “the entire development of immigration policy that is ongoing,” and only promised to “be involved in those discussions” if confirmed.

Finally, in response to a question by Michigan’s Senator Gary Peters concerning the establishment of a government database on Muslims in the U.S. Kelly responded, “I don’t agree with registering people based on ethnic or religion or anything like that.”

Over the course of the hearing, senators from both parties praised Kelly’s service to the country and he is likely to be confirmed. His views on the complicated set of laws and policies that govern our immigration system are still largely unformed. Hopefully, his need to better understand the policies in place, will translate into engagement with stakeholders concerned with immigrants and immigration.”

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From what I have heard and read, General Kelly is a highly competent, thoughtful, well-organized leader who has the ability to inspire those around him. I’ve also read that he takes human rights responsibilities very seriously, and is willing to get input from a broad range of individuals — not just “insiders.” To me, that’s exactly what DHS needs: some perspective, discipline, and mission focus.

Yes, he doesn’t have an immigration background — most Generals don’t. But at least he comes at it from a professional law enforcement and national security angle — not as an advocate of reducing legal immigration or treating undocumented individuals like criminals.

And, he has some outstanding talent to advise him on immigration matters among the executive ranks of the career public servants at DHS. Lori L. Scialabba, Deputy Director of USCIS (former Chair of the BIA and Deputy General Counsel of the “Legacy INS”) and Raphael Choi, Chief Counsel of ICE in Arlington, VA immediately come to mind as accomplished managers with “big picture” views. I’m sure there are many others who can help General Kelly formulate reasonable and effective immigration policies.

My one concern from reading this particular clip was General Kelly’s repetition of the “urban myth” that the way to stem the flow of Central American refugees is by “quick returns.” That’s been the Obama Administration policy, and well as the policy of all other Administrations when faced with border incursions. It has demonstrably failed during the Obama Administration, as it consistently has for the last four decades and will continue to do so.

That’s because it’s based on the false premise that most arrivals can, or should be, returned. In reality, however, a substantial number, probably the majority, of those coming are fleeing violence, rape, death threats, and torture, and are therefore likely to have valid claims for protection under U.S. law if the proper legal standards are fairly and at least somewhat uniformly applied (something which, sadly, does not always happen).

Consequently, they can’t be sent home, and they are going to keep coming to apply for protection they are entitled to under our laws. And, throwing them in detention isn’t going to deter them either — that’s been proved. But it will certainly run up the taxpayers’ costs while eroding both our commitment to human rights and our moral standing as a nation.

Trying to reduce the violence and improve conditions in the Northern Triangle is important. It was mentioned by Gen. Kelly, but it’s a “long haul,” not a short term, solution.

In the short run, a larger, more inclusive and realistic overseas refugee processing program in or near the Northern Triangle, combined with use of available mechanisms such as Temporary Protected Status (“TPS”) and Deferred Enforced Departure (“DED”) to grant temporary protection short of asylum are likely to be more effective in promoting orderly border enforcement without adding to the workload of the already overwhelmed Asylum Offices and Immigration Courts.

We’re not going to be able to stop desperate individuals from coming without committing large scale violations of both domestic law and international treaty obligations. But, we should be able to manage the flow so that the “bad guys” get screened out and returned while the others can remain temporarily without going into the asylum system while we’re trying to sort out and improve the situation in the Northern Triangle. Perhaps, we also could reach agreements with other stable democracies in the Western Hemispheres to share the protection burden and distribute the flow. It’s not an easy problem, and there are no easy or great solutions.

I know these aren’t then “quick fixes” or “silver bullet” solutions that folks want to hear about. They also won’t satisfy those who want to shut to doors to migration.

But, four decades of working on “quick fixes” from all sides — law enforcement, private sector, and judicial — tells me that we need a better, more practical, and more humane approach. To just keep repeating the same failing policies over and over and expecting them to achieve success is, well, just plain . . . .

PWS

01/12/17

Mexico Searches For Equilibrium With New Administration!

https://www.washingtonpost.com/world/the_americas/top-mexican-official-warns-of-a-new-era-in-relations-with-the-us-under-trump/2017/01/09/71658602-8bed-47c4-9ebe-7bd04d5dd631_story.html

“In his speech Monday, Videgaray asserted Mexico’s importance to the United States and vowed to defend his country’s sovereignty. As examples of the benefits of trade and immigration, he cited the close relationship between auto plants in Mexico and Michigan, Mexican companies that have invested in Dallas, and the key role played by Mexican workers in the milk industry in Wisconsin.

Trump has criticized American companies for moving factory jobs to Mexico, and threatened to impose a “border tax” on firms that make products there bound for U.S. markets. Ford recently announced that it had canceled plans for a $1.6 billion plant in Hermosillo, Mexico, after Trump’s repeated criticism of Ford and other companies. The Mexican government is concerned that it will lose manufacturing jobs due to measures proposed by Trump.

“We are going to negotiate with great self-confidence; without fear, knowing the economic, social and political importance that Mexico has for the United States, and we are going to negotiate with intelligence and common sense,” Videgaray added.

He said he wanted to make it clear that “these millions of Mexicans who have emigrated to look for work are not as they have been described — criminals — but they are productive people who represent in the majority of cases the best of Mexico.”

PWS

01/09/17

David Leopold Warns About Possible Five-Point Attack On Immigrants By Attorney General Sessions

http://www.huffingtonpost.com/entry/five-chilling-ways-senator-jeff-sessions-could-attack-immigrants-as-attorney-general_us_5870022ce4b099cdb0fd2ef7

“As the nation’s top lawyer, head of the immigration court, and civil rights officer, Jeff Sessions would have access to multiple tools to harm immigrants and undermine due process. Given his rhetoric and record as a United States Senator, as well as his association with anti-immigrant extremists, there is every reason to believe he would use all of them.

Here are five ways Sessions could attempt to undermine immigrants and immigration policy if confirmed as Attorney General:

Impose his radical, anti-immigrant ideology on decisions by the federal immigration courts;

Expand the number of immigrants who are deported even though they qualify for a green card or asylum;

Reduce access to legal counsel and information about immigrants’ legal rights;

Criminalize immigrants by bringing trumped up charges against ordinary workers; and

Strong arm state and local police to become Trump deportation agents

Of course, any attempt Sessions would make to undermine civil and due process rights will be met by strong litigation from the outside. But the U.S. Senate should block his confirmation from the start, as Senator Sessions is highly unqualified for this position and has showed a profound disregard for civil and human rights.”

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Sorry, David, but Jeff Sessions has the votes to be confirmed as the next Attorney General. Those who don’t like that can rant, but that’s not going to change the reality that Donald Trump won the Presidential election and the Republicans firmly control both Houses of Congress.

When you lose elections at the national and state levels, like the Democrats did, you end up with next to no leverage on appointments or policies unless you can reach across the aisle and strike a chord with at least some Republicans. Right now, it appears that all Republican Senators, and probably a few Democrats, ewill vote for Senator Sessions’s confirmation. Whatever his pros and cons, Senator Sessions appears to have had the wisdom to be polite and cordial to his colleagues and to occasionally reach across the aisle on issues of common interest. Rightly or wrongly, that seems to count for a lot when current or former Senators come up for confirmation to Executive Branch positions.

So barring a “bombshell” next week, and I must say his record has been “flyspecked” — regardless of what he put in the Judiciary Committee questionnaire — that’s unlikely. For better or worse, Senator Session’s views on a wide variety of subjects and his conduct as a public servant over many decades are a matter of public record. Nothing in that record seems to have given pause to any of his Republican Senate colleagues.

That being said, it woulds be nice to think that upon hearing some of the criticisms, Jeff Sessions will reflect on the huge differences between being a Senator from Alabama, the Attorney General of Alabama, and a U.S. Attorney for Alabama, and the wider responsibilities of being the chief law enforcement official, legal adviser, and litigator representing all of the People of the United States, not just the Trump Administration.

David is, of course, correct to focus on Attorney General Session’s vast authority over immigration. He will control a huge and critically important U.S. Immigration Court System currently sporting a backlog of more than one-half million cases and suffering from chronically inadequate judicial administration and lack of basic technology like e-filing. While there certainly is an interrelationship among civil rights, human rights, and due process in the Immigration Courts, there is every reason to believe that Attorney General Session’s biggest impact will be in the field of immigration.

If things go as David predicts, then the battle over fundamental fairness and due process in immigration policy and the Immigration Courts is likely to be fought out in the Article III Federal Courts, which, unlike the Immigration Courts, aren’t under Executive control. That will have some drawbacks for everyone, but particularly for the Trump Administration.

And, if Sessions is wise, he’ll look back at what happened when the Bush Administration tried to promote a “rubber stamp” approach to justice and due process in the Immigration Courts. The U.S. Courts of Appeals were outraged at the patent lack of due process and fundamental fairness as “not quite ready for prime time” cases were “streamlined” and thrown into the Courts of Appeals for review with glaring factual errors and remarkable legal defects. Not totally incidentally, this also dramatically increased their workload, with judicial review of immigration matters occupying a majority of the docket in several prominent circuits.

As a result, cases were returned to the Board of Immigration Appeals, who then returned them to the Immigration Courts for “re-dos,” in droves. The Courts of Appeals lost faith in the Executive’s ability to run a fundamentally fair, high quality Immigration Court System, and basically placed the Immigration Courts into “judicial receivership” until things stabilized at least somewhat. The waste and abuse of taxpayer dollars caused by this “haste makes waste” approach was beyond contemplation and, for a time, threatened to paralyze the entire American justice system.

Additionally, it would be a huge mistake for the Trump Administration to view the Bush Administration’s Immigration Court debacle as the product of “bleeding heart liberal appellate judges” appointed by President Bill Clinton. The criticism from Article III Judges cut across political lines. Two of the most outspoken judicial critics of the Bush Administration’s handling of the U.S. Immigration Courts were Republican appointees: then Chief Judge John M. Walker, Jr. of the Second Circuit and Judge Richard Posner of the Seventh Circuit. Indeed, Judge Walker is a cousin of former President George H.W. Bush.

Obviously, those who favor greater immigration enforcement won the election and are going to have a chance to try out their policies. But, “enhanced enforcement” is likely to be effective only if we have a fair, impartial, and totally due process oriented Immigration Court System.

In other words, the Immigration Courts must be a “level playing field” with judges who, in the words of Chief Justice Roberts, play the role of “impartial umpires” between those seeking to stay in our country and those seeking to remove them. Results from such a due-process oriented system would be more likely to inspire confidence from the U.S. Courts of Appeals, thereby increasing the stature of the Immigration Courts and their ability to achieve final resolutions at the initial, and most cost-efficient, level of our justice system. Due process and fairness in the Immigration Court System should be a nonpartisan common interest no matter where one stands on other aspects of the “immigration debate.”

We are about to find out what Attorney General Jeff Sessions has in mind for the U.S. Immigration Courts and the rest of the U.S. justice system. I’m hoping for the best, but preparing to assert the essential constitutional requirement for due process in the Immigration Courts if, as David predicts, it comes under attack.

Due Process Forever!

PWS

01/07/16

Guess Who’s Going To Pay For That “Great Wall?” — Surprise: We Are, As Reported By CNN! — President Elect Trump blames “Dishonest Media!”

http://www.cnn.com/2017/01/05/politics/border-wall-house-republicans-donald-trump-taxpayers/index.html

“Washington (CNN)President-elect Donald Trump’s transition team has signaled to congressional Republican leaders that his preference is to fund the border wall through the appropriations process as soon as April, according to House Republican officials.

The move would break a key campaign promise when Trump repeatedly said he would force Mexico to pay for the construction of the wall along the border, though in October, Trump suggested for the first time that Mexico would reimburse the US for the cost of the wall.
Trump defended that proposal Friday morning in a tweet, saying the move to use congressional appropriations was because of speed.

“The dishonest media does not report that any money spent on building the Great Wall (for sake of speed), will be paid back by Mexico later!” Trump tweeted Friday.”

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President Elect Trump promises that he will negotiate “full reimbursement” from Mexico at a later date. Don’t hold your breath. Yeah, as the President Elect notes, we’re Mexico’s biggest trading partner; but, Mexico is also one of our biggest. As a fast developing economy, I’m guessing that lots of other countries would be willing to do business with Mexico on favorable terms if the climate in the U.S. gets too stormy.

PWS

01/06/16

Will Workplace Immigration Raids Return Under Trump Administration?

http://www.nytimes.com/2017/01/02/us/illegal-immigrants-raids-deportation.html?mabReward=A4&recp=0&action=click&pgtype=Homepage&region=CColumn&module=Recommendation&src=rechp&WT.nav=RecEngine&_r=0

“But as President-elect Donald J. Trump prepares to take office and promises to swiftly deport two million to three million undocumented immigrants who have committed crimes, bipartisan experts say they expect a return of the raids that rounded up thousands of workers at carwashes, meatpacking plants, fruit suppliers and their homes during the Bush years.

“If Trump seriously wants to step up dramatically the number of arrests, detentions and removals, I think he has to do workplace raids,” said Michael J. Wishnie, a professor at Yale Law School who represents detainees in civil rights cases.

Since the election, Mr. Trump has suggested that he plans to focus on deporting criminals. “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers,” he told CBS News in November. “We’re getting them out of our country.”

But Mr. Trump’s advisers have said that to promptly reach his target number of deportations, the definition of who is a criminal would need to be broadened. In July 2015, the Migration Policy Institute, a bipartisan think tank, estimated that of the roughly 11 million immigrants living in the United States illegally, 820,000 had criminal records — a definition Mr. Obama mostly adhered to during his second term, evicting some 530,000 immigrants convicted of crimes since 2013.

Mr. Trump would need to expand the basket to include immigrants living in the United States illegally who have been charged but not convicted of crimes, those who have overstayed visas, those who have committed minor misdemeanors like traffic infractions, and those suspected of being gang members or drug dealers.

Targeting workers for immigration-related offenses, such as using a forged or stolen Social Security number or driver’s license, produced a significant uptick in deportations under Mr. Bush. But the practice was widely criticized for splitting up families, gutting businesses that relied on immigrant labor and taking aim at people who went to work every day, rather than dangerous criminals.”

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There is no statutory or other widely accepted definition of a “criminal alien.” As shown by this article in the NY Times, it could be narrow — covering only those who are actually removable from the United States by virtue of their crimes — or broad — covering anyone who has ever had contact with the criminal justice system and is potentially removable, regardless of whether there was a conviction or whether the crime itself is the ground for removal. For example, “driving with an expired license” is not a ground for removal. But, an undocumented individual arrested for “driving without a license” could be referred by the state or local authorities to the DHS to be placed in removal proceedings before a U.S. Immigration Judge. If the Immigration Judge finds that such an individual has no legal status in the United States, and that individual cannot establish that she or he is entitled to some type of relief from removal, the Immigration Judge must enter an order of removal, regardless of the circumstances of the arrest or the overall equities of the case.

PWS

01/04/17

The Numbers Are In — DHS FY 2016 Enforcement Stats Confirm that Obama Administration is #1 In Removals!

http://immigrationimpact.com/2017/01/04/deportation-numbers-2016/

Joshua Breisblatt writes on Immigration Impact:

“Last week, the Department of Homeland Security (DHS) issued its Fiscal Year (FY) 2016 immigration enforcement data which, coupled with the previous years’ totals under the Obama Administration, show that the total number of removals from FY 2009 to FY 2016 totaled more than 2.7 million. Simply stated, President Obama has deported more people than any other president in U.S. history.

However, underneath those numbers belie some important lessons about the changing dynamics of who is showing up at the U.S. border and how a November 2014 enforcement priorities memo shaped the number of people deported from the interior of the nation.

. . . .

This means, more would-be-asylees are arriving at the U.S. border, rather than economic migrants as in years’ past. Yet, many are being denied asylum or put through expedited deportation processes, both unworthy of the nation’s commitment to protect those in need.

Also of note, the number of individuals picked up and deported from the interior of the country is on the decline, likely due to the 2014 enforcement priorities memo that sought to avoid deporting individuals who posed no threat and have strong economic and community ties in the U.S.”

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How much enforcement is enough? Never enough, according to some. Others disagree and think we’re going way overboard. As the Trump Administration is probably going to find out, “immigration enforcement” is more often than not a “can’t win” political proposition.

PWS

01/04/17

Is Trump’s Plan To Remove 3 Million “Criminal Aliens” Achievable?

https://www.washingtonpost.com/opinions/why-trumps-plan-to-deport-criminal-noncitizens-wont-work/2017/01/03/b68a3018-c627-11e6-85b5-76616a33048d_story.html?utm_term=.4810f9c58fbd

“No,” says Professor and Immigration Practitioner Kari Hong of Boston College Law School in this op-ed in the Washington Post:

“If Trump truly wants to focus on drug dealers, terrorists, murderers and rapists, he should call on Congress to restore immigration law’s focus on those whom prosecutors and criminal judges determined were dangerous in the first place — people who were sentenced to five years or more in prison. That’s what the law used to be, before it was changed in 1996 to cover many more crimes.

Instead of penalizing immigrants for minor crimes, immigration law needs to separate contributing immigrants from their non-contributing peers. Those who pay taxes, have children born in the United States, serve in the military, work in jobs American citizens will not take or help those around them need a path to legalization. Those who cause more harm than good should be deported. Restoring proportionality and common sense to immigration law would certainly help make America great again.”

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Go over to ImmigrationProf Blog and the Washington Post at the above link and get the whole story.

PWS

01/04/17

Family Detention, Raids, Expediting Cases Fail To Deter Scared Central Americans!

https://www.washingtonpost.com/world/national-security/central-americans-continue-to-surge-across-us-border-new-dhs-figures-show/2016/12/30/ed28c0aa-cec7-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.077ef694fd73

“Immigration advocates have repeatedly criticized the Obama administration for its increased reliance on detention facilities, particularly for Central American families, who they argue should be treated as refugees fleeing violent home countries rather than as priorities for deportation.

They also say that the growing number of apprehended migrants on the border, as reflected in the new Homeland Security figures, indicate that home raids and detentions of families from Central America isn’t working as a deterrent.”

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

The “enforcement only” approach to forced migration from Central America has been an extraordinarily expensive total failure. But, the misguided attempt to “prioritize” cases of families seeking refuge from violence has been a major contributing factor in creating docket disfunction (“Aimless Docket Reshuffling”) in the United States Immigration Courts. And, as a result, cases ready for trial that should have been heard as scheduled in Immigration Court have been “orbited” to the end of the docket where it is doubtful they ever will be reached. When political officials, who don’t understand the Immigration Court and are not committed to its due process mission, order the rearrangement of existing dockets without input from the trial judges, lawyers, court administrators, and members of the public who are most affected, only bad things can happen. And, they have!

PWS

12/31/16

Deportations Down in 2016 — Focus on Criminals in the Interior is Key — But, Some Question Gov’s Broad Concept of “Criminal”

http://www.huffingtonpost.com/entry/barack-obama-deportations-2016_us_58668157e4b0eb5864890a03?section=us_politics

“DHS officials themselves say the falling interior deportation numbers reflect the Obama administration’s policy of focusing their efforts on removing people with criminal histories.

Virtually all of the people deported from within the interior of the United States ― 92 percent ― had been convicted of a crime that put them within one of ICE’s top three priorities for removal.

But ICE’s top priority removal category includes people convicted of the offenses of illegal entry and reentry ― non-violent crimes that don’t distinguish them much from other undocumented immigrants. DHS officials did not immediately provide a breakdown of the criminal offenses deportees had been convicted of.

The number of deportations has also dropped in recent years partly because the number of people trying to enter the country has plummeted. Border Patrol apprehended about 408,900 people in the 2016 fiscal year, which is generally considered an indicator of how many people attempted to enter without authorization. In 2000, agents picked up nearly 1.7 million people trying to cross the border illegally.

A growing share of those who do cross illegally into the United States are Central Americans, who often seek asylum or other humanitarian relief. Their cases can take years to wind their way through backlogged immigration courts and do not result in swift deportations. In 2016, border agents apprehended more Central Americans than they did Mexicans, a switch that happened for the first time in 2014.”

PWS

12/30/16

Writing In “The Hill,” BIA and Congressional Staff Vet Nolan Rappaport Says Trump Must Combine Legalization With Interior Enforcement to Succeed

http://thehill.com/blogs/pundits-blog/immigration/311994-thanks-to-obamas-immigration-legacy-trump-inherits-our-home

“As of the end of Nov. 2016, the average wait time for a hearing was 678 days. President-elect Trump will have to reduce the population of undocumented immigrants to a manageable level with a very large legalization program before he will be able to address the home free magnet.

Also, so long as immigrants who want to come here illegally think that they will be safe from deportation once they have reached the interior, they will find a way to get past any wall that he builds to protect our border.”

Nolan’s thoughtful article gives a great summary of the prosecutorial discretion (“PD”) programs put into effect by the Obama Administration. Although Nolan is is OK with the concept of PD, he believes that by formalizing and publicizing the PD program, the Obama Administration has given a “home free” signal to undocumented migrants who reach the interior of our country. Nolan believes that this acts as both a magnet for undocumented immigration and a barrier to effective immigration reform legislation.

I agree with Nolan that removal of most of those with cases backlogged on the Immigration Court dockets will prove impractical. I also agree with him that the huge backlogs and lengthy waiting times for hearings have robbed the Immigration Court system of credibilty. But, with due respect, I tend to doubt that addressing “the home free magnet” is the primary answer to a workable system.

First, I think that human migration is an historic phenomenon driven primarily by forces in sending countries which we do not control. Addressing the “root causes” of these problems has proved elusive. Efforts to provide assistance through foreign governments have been largely unsuccessful because of endemic corruption and lack of the necessary infrastructure. Efforts administered by the State Department and USAID within foreign countries have shown some promise, as described in one of my earlier blogs (12/26/16). Yet, to date, they appear to be too labor intensive and too limited in the number of individuals who can be reached to have a major effect on migration patterns.

Additionally, I doubt that migration will be controlled without legislative changes and expansion of our legal immigration system to better match supply with demand. Currently, the demand for immigration by U.S. citizen and lawfully resident families, U.S. employers, and displaced or threatened individuals in foreign countries far exceeds the supply of available visas. Continued immigration is a reality and, in fact, a necessity for our nation’s prosperity. Until there is a better balance between supply and demand, individuals will, as Nolan suggests, continue to breach any walls or interdiction systems that we can construct. And, differing from Nolan, history shows that they also will evade interior enforcement efforts which, in any event, will prove to be costly, ineffective, disruptive, and unacceptable from a civil liberties standpoint.

Yes, I know this isn’t what folks, particularly those “outside the Beltway,” want to hear. But, the fact that my message might be unpopular in today’s climate doesn’t necessarily mean that I’m wrong.

Immigration is a complicated issue that will require thoughtful, creative, cooperative, and human-oriented solutions. Merely doubling down on enforcement, whether popular or not, will not give us control over human migration.

On an historical note, I greatly appreciate Nolan’s citation and link to the July 15, 1976 memorandum on prosecutorial discretion from INS General Counsel Sam Bernsen to Commissioner Chapman, which I wrote. Go to the link and check out the initials at the end. Oh, for the “good old days” of “real” carbon copies!

PWS 12/28/16

From Huffington Post: Here Is What Life (For those Lucky Enough to Survive) is Like in Rivera Hernandez, Honduras, One of the Most Dangerous Places in the World, Where the U.S. State Department and the USAID Are Working to Reduce Migration Push Forces At Their Roots — How Dangerous Is The Gang Violence That Forces Families to Flee to the US? — Check Out This Quote (Not For the Squeamish)!

http://www.huffingtonpost.com/entry/honduras-gang-violence-teenagers_us_585d6274e4b0d9a59458288d

“It’s Christmas week in Rivera Hernandez, a place that’s been described as one of the most dangerous neighborhoods in the world. How dangerous? About two weeks ago, and not that far from this street party, a young woman’s seminude body was found underneath a tree ― just her body. The 18-year-old’s head was resting on a branch a few feet above her corpse. The neighborhood consensus, whispered quietly, is that this latest horror was most likely a message from one of the five gangs that have divided much of Rivera Hernandez into fiefdoms.”

No wonder families are making the dangerous journey to seek asylum in the U.S. And, not surprisingly, they aren’t “deterred” by walls, fences, detention centers, asylum denials, removals, or the dangers of the journey. Not to mention that individuals fleeing for their lives have a right under U.S. and international law to seek asylum at our borders or within the U.S.

I had plenty of situations involving fears of this type of grotesque harm, in Central America and elsewhere, come before me at the Arlington Immigration Court and the BIA. Yes, it would be great if there were more efforts like the State Department/USAID programs described here to solve the root causes of migration and create incentives for individuals to remain in, and prosper, in their home countries. But, that’s going to take a much larger investment than we’ve made to date.

PWS

12/25/16

Is President Elect Trump Causing a “New Border Surge?”

http://www.wsj.com/articles/central-americans-surge-at-border-before-trump-takes-over-1482489047

This article from the Wall Street Journal suggests that the election of Donald Trump is helping fuel a new “border surge” of migrants anxious to get here before the “border closes.” While I’m sure that Trump’s election has had some effect “in the margins,” particularly as a marketing tool for human smugglers, I tend to doubt that the election has had a major impact. It’s fairly normal for law enforcement and policy officials to overestimate the effect of government policies and under-weigh the root causes of most human migration — conditions in foreign nations that are largely beyond our national control.

Take, for example, the Mariel Cuban Boatlift. While many attributed the cause to President Jimmy Carter’s famous (or infamous) “welcome them with open arms statement,” what actually fueled the migration was Fidel Castro’s unileateral decision to open the Cuban port of Mariel to northbound boats. I was working at the “Legacy INS” at that time. We seized boats (enough to start dozens of marinas), fined owners and operators, opened detention camps for new arrivals, recruited “Temporary Immigration Judges” to handle increased deportations and asylum claims, and instituted criminal prosecutions. But, the flow went on, largely unabated, until Castro decided to close the port of Mariel.

“‘It’s a humanitarian crisis, a drug crisis, a security crisis. We’re going to have to deal with that issue immediately,’ said a member of Mr. Trump’s transition team.” I think that’s correct — migration and border enforcement are complex issues usually with a large humanitarian component. Such problems are unlikely to be solved by building more walls and fences, installing more sensors, hiring more Border Patrol agents, or opening new detention centers.

PWS

12/25/16

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