"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.
GW Immigration Clinic 2017 – Medium
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Looks like lots of new recruits for the “New Due Process Army.” These guys are the real “heart and soul” of today’s American law. Thanks to Professor Alberto Gonzalez for sending this in.
PWS
04/03/17
http://www.vox.com/policy-and-politics/2017/4/3/14624918/the-case-for-immigration
“George Washington set in motion a strategy so radical that it made this country the wealthiest and strongest on Earth — it made America great.
Immigration.
He embraced a vision for an open America that could almost be read today as a form of deep idealism or altruism. “America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions,” he told newly arrived Irishmen in 1783. He assured them they’d be “welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.”
But Washington’s vision wasn’t primarily about charity or helping others. It was about building the kind of country that he wanted the United States to become. Greatness would require great people. America would need more than it had.
The contemporary debate around immigration is often framed around an axis of selfishness versus generosity, with Donald Trump talking about the need to put “America first” while opponents tell heartbreaking stories of deportations and communities torn apart. A debate about how to enforce the existing law tends to supersede discussion of what the law ought to say.
All of this misses the core point. Immigration to the United States has not, historically, been an act of kindness toward strangers. It’s been a strategy for national growth and national greatness.
. . . .
Last but by no means least, while it’s certainly true that Americans care about the average well-being of American citizens, we also care about something else — greatness, for lack of a better word.
In per capita income terms, the United States has, by most measures, been overtaken by Switzerland. The Netherlands is relatively close behind, and when you consider inequality and quality of public services, the typical Dutch person may well enjoy a higher standard of living than the typical American. This kind of thing matters. But at the same time, there is a reason that when Americans feel anxiety about national decline, they tend to think of China and not Switzerland. The Netherlands is a great place to live, but it hasn’t been a great nation since the early 17th century.
Aggregates matter, in other words.
If Americans had listened to the counsel of the Know-Nothing movement in the 1850s and drastically curtailed immigration from outside of Protestant Europe, it would probably still be a rich country today. But it would be a very different kind of rich country from the one we know — one with fewer, smaller cities mainly focused on exporting agricultural goods and other natural resources to the wider world. A place more like Canada or a supersize version of New Zealand, rather than an industrial and technological powerhouse that intervened decisively in two world wars and anchored a coalition of liberal states to defeat communism.
Going forward, demographers forecast that immigration — both the people it provides directly and the children that immigrants bear and raise — is the only reason America’s working-age population isn’t declining. This is doubly true when you consider that immigrants’ work in the household and child care sectors likely serves to increase native-born Americans’ childbearing as well.
A declining working-age population, seen already in Japan and some southern European countries, poses some serious challenges to a national economy. It tends to push interest rates down to an incredibly low level, making it difficult for central banks to respond to a recession. It also makes it more difficult to sustain public sector retirement programs and elder care more generally.
There are some offsetting upsides (less strain on transportation infrastructure, for example), and, like anything else, the problems are solvable. Fundamentally, however, an America that is shrinking is a country that is going to be a lesser force in the world than an America that is growing. It’s true, of course, that an America that continues to be open to immigrants will be a progressively less white and less Christian country over time. That’s a threatening prospect to many white Christian Americans, who implicitly identify the country in ethnic and sectarian terms. But America’s formal self-definition has never been in those terms.
And for those who believe in the principles of the Declaration of Independence and the value of America’s ideals, accepting a future of decline and retreat in the name of ethnic purity should be unacceptable. That the more homogeneous America will be not just smaller and weaker but also poorer on a per capita basis only underscores what folly it would be to embrace the narrow vision. That hundreds of millions of people around the world would like to move to our shores — and that America has a long tradition of assimilating foreigners and a political mythos and civil culture that is conducive to doing so — is an enormous source of national strength.
It’s time we started to see it that way.”
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I had these same feelings about many of the “happy cases” that came through my courtroom in Arlington over the years. I was constantly impressed with the courage, dedication, determination, and under-appreciated skills of the folks who came before me. And, I felt inspired and optimistic that they had chosen, notwithstanding hardship and obstacles, to join our national community and help make America even greater. Building America, one case at a time.
PWS
04//03/17
“A couple of weeks ago, for the first time ever, I represented an undocumented worker in deportation proceedings. Or rather, I tried to. My attempts to navigate this system were not what I would call successful. Part of this may be due to the fact that, though I have been a practicing attorney for 10 years, this was my first go at immigration law. But another part of it—most of it, I’d venture—is due to the fact that the U.S. immigration system is designed to be opaque, confusing, and inequitable.
Under most circumstances, I would not wade into this kind of thing at all. I’m primarily a civil rights lawyer, and immigration is a highly specialized area of law with a unique set of risks awaiting unwary practitioners. I would not, for example, take someone’s bankruptcy case or file adoption papers. I would refer those to lawyers with experience in those areas. But the crisis of unrepresented detainees is too big and too pressing to leave to the few organizations and individual practitioners with expertise in immigration law. One recent study found that only about 14 percent of detainees have representation. That’s out of nearly 300,000 cases in the immigration courts every year.*
If I killed someone on the street in broad daylight, I‘d be entitled to an attorney. But those summoned before the immigration courts, including infants who have been brought here by their parents, have no right to counsel. They can hire immigration lawyers, but only if they can pay for them. Most of them can’t, and volunteer lawyers are scarce. So children, parents, and grandparents are locked up for months, sometimes years, waiting for a day in court. When they show up in front of a judge, they do so alone and terrified. Those who don’t speak English are provided an interpreter who tells them what’s being said, but no one is there to tell them what’s really happening.
Undocumented people who live here in Louisville and southern Indiana are driven 90 minutes to the jail in Boone County, Kentucky. There, they are placed in the general population with locals who have actually been accused of crimes. That’s where my client, who was assigned to me by an overburdened immigration firm, was taken after he was scooped up by Immigration and Customs Enforcement in the parking lot of his apartment building.
Entering the United States, even without proper documentation, is not a criminal offense. The only “crime” my client committed is trying to get his family away from the drug cartels that overtook his Central American village. Unlike many who come here fleeing crippling poverty, he and his family were getting along fairly well in their home country. A little success, it turns out, can make you a target for violent extortionists. His wife, who fled the exact same situation in the exact same place, was apparently catalogued as an asylum-seeker, but her husband was not.
The Kentucky facility doesn’t allow a phone call, even for an attorney, without an appointment. Requests to call your client must be made by fax. Sometimes the jail will call you to say your 2 p.m. time slot has been changed to 6 p.m., and sometimes you won’t get any notification at all. The visitation restrictions for families are no more accommodating. Visitation amounts to 45 minutes a week, tops. If my client’s wife, daughter, or grandkids want to visit him, they have to drive 90 minutes and hope for the best.
. . . .
What happened to my client and his family wasn’t anomalous. It wasn’t even unusual. It happens all over the country, every single day. Part of what makes our immigration system so reprehensible is that it’s so easy to ignore. Most of us don’t ever have to deal with it in any meaningful way or even think about it. But stop and consider that this practice of moving detainees from place to place randomly, with no notice given to their families or their attorneys, is indescribably cruel. Stop and consider that locking up human beings in jail for months to coerce them into submission is maddeningly unjust. And then consider the possibility that the whole system is not just dysfunctional, but utterly diabolical.
Further consider that the practice of breaking up families and making people disappear into black holes is the result of a set of loosely defined policy goals that are in no way based on reality. There’s no real evidence to support the notion that undocumented immigrants are any more dangerous than anyone else, or that they “steal” jobs from Americans, or that they do anything but contribute to the economy overall. There is no policy reason for inflicting this misery on people. It’s just cruel.
Lest anyone think this is just more liberal railing against the Trump administration, this system pre-dates the orange guy. The Obama administration sucked more than three million people into the lungs of this administrative monster and spit them out all over the world. Having seen up close what this system does to families, it’s hard to forgive that, especially when you consider that American trade policies contributed to the collapse of Latin America. But hell, we’re all complicit in this. We let it happen every day.
I’m going to suggest something I have never suggested to any working person: If you are part of this machine—if you are a guard, an agent, a janitor, or anything in between—quit. Walk off your job. Right now. You’ve got bills to pay? A family to support? I get it. So do the people who come here looking for a better existence. The system you are contributing to is preposterously evil. It separates mothers from their children. It kills innocent people. It exists only to make easy punching bags out of those damned by their circumstances, some of whom have already lived through unspeakable horrors.
For everyone else: If you’ve never thought about your tacit support for this system, start thinking about it. Start resisting it. Start demanding its abolition. A Kafkaesque bureaucracy needs participants, both willing and unwilling. We have the power to dismantle it.”
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As noted in Canon’s article, immigration detention originated long before the Trump Administration. The Obama Administration certainly wasn’t afraid to use detention as an attempted deterrent to asylum seekers. Additionally, the Obama administration essentially argued for “eternal detention” pending final determinations in Removal Proceedings in a case that is currently pending decision before the Supremes. Jennings v. Rodriguez, see previous blog here: http://wp.me/p8eeJm-kp. The often prolonged detention of women and children asylum seekers from the Northern Triangle by the Obama Administration will go down as one of the darker chapters in American human rights history.
Unfortunately, however, we haven’t hit bottom yet. The Trump Administration’s plans for enhanced immigration enforcement will certainly involve even more widespread use of immigration detention as a tool of deterrence, coercion, and denial of due process, with all of the additional human abuses that is likely to engender.
One qualification/explanation of Canon’s statement that: “Entering the United States, even without proper documentation, is not a criminal offense.” In fact, it usually is. Under 8 U.S.C. 1325, “improper entry by an alien” is a misdemeanor, although often not prosecuted. A second conviction is a felony.
An individual without documentation who appears at a U.S. port of entry ands applies for asylum would not be committing a criminal offense. But, according to a number of recent media accounts, such individuals currently are being sent back to Mexico and told to await “an appointment.”
Additionally, the Trump Administration has indicated that it would like to develop a process to return non-Mexican asylum seekers to Mexico while they are awaiting hearings in U.S. Immigration Court. So far, the Mexican government has indicated that it would not agree to such a program.
PWS
04/03/17
Radley Balko reports in an op-ed in the Washington Post:
“Here’s the latest from the Trump administration on civil liberties and criminal justice:
U.S. Immigration and Customs Enforcement appears to be attempting to end public monitoring of immigration detention centers.
In the battle for control of President Trump’s drug policy, it’s shaping up to be good cop New Jersey Gov. Chris Christie (treatment) against bad cop Attorney General Jeff Sessions (enforcement).
When he isn’t brokering Middle East peace, ending opioid addiction and streamlining the federal bureaucracy, Jared Kushner will apparently be handling criminal justice reform.
Democrats in some states are pushing back against Trump’s immigration crackdown by trying to prevent local law enforcement from sharing immigration information with federal officials.
More “bad hombres” — a single dad brought here at age 8 who has raised his daughter by himself for the last 14 years has just been deported over a 17-year-old marijuana possession charge.
Jeff Sessions gave a speech in St. Louis Friday. He said Ferguson has become the “emblem of the tense relationship between law enforcement and the communities we serve.” He also said that cops are “unfairly maligned,” and blamed “viral videos.” He made no mention of the area’s aggressive fines and predatory municipal courts that are such a huge part of the problem.
Other recent ICE and immigration actions: Five Massachusetts immigrants, at least three of whom were there for green card interviews, were arrested when they showed up for appointments at a U.S. Citizenship and Immigration Services office this week. In Portland, Ore., three ‘dreamers’ have been arrested. In Chicago, ICE agents broke into a home and shot someone who may have been the father of the man they were looking for. And in Indiana, a Trump voter feels betrayed after her husband is taken into custody and scheduled for deportation.
The Trump administration boycotted the Inter-American Commission on Human Rights conference earlier this month. It’s the first time in at least 20 years that the U.S. government not shown up to the event.
Finally, the man Trump just appointed assistant secretary for health technology at the Department of Health and Human Services has some interesting opinions. Among them, “Not all Goths are drug addicts, but a high percentage experiment with all types of drugs, including hallucinogens,” and “when kids cross the line into pot use, they are crossing the line, figuratively and literally, toward a life of illegal drug use and probable addiction.” He also thinks women who view pornography at a young age may suffer from “a phobia to male genitalia,” and thinks there’s a strong links between drug addicts and people who get tattoos.
Trump again floats the idea of changing libel laws, this time so that truth is no longer a defense in lawsuits against public figures. But he also doesn’t appear to understand how libel laws actually work.”
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Go to the original article at the above link to get links to more in depth reporting on each of these reported incidents.
Trying to block monitoring of immigration detention centers is a particularly nice touch. Given some of the grim reports about conditions, particularly in much-criticized privately-run detention centers which appear to be near and dear to Sessions, I can see why DHS and DOJ don’t want anyone to know what’s really going on. But, I wouldn’t be surprised if by the end of the Trump Administration the entire immigration detention system will be under some sort of court-appointed monitor.
Sadly, some more folks are probably going to have to die in immigration detention before we get to that point.
PWS
04-02-17
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/31/14-35633.pdf
“And the government’s interpretation is inconsistent with the TPS statute’s purpose because its interpretation completely ignores that TPS recipients are allowed to stay in the United States pursuant to that status and instead subjects them to a Rube Goldberg-like procedure under a different statute in order to become “admitted.” According to the government, an alien in Ramirez’s position who wishes to adjust his status would first need to apply for and obtain a waiver of his unlawful presence, which he could pursue from within the United States. See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Assuming that Ramirez demonstrates “extreme hardship” to his U.S. citizen wife and the waiver is granted, see 8 U.S.C. § 1182(a)(9)(B)(v), he would then need to exit the United States to seek an immigrant visa through processing at a U.S. embassy or consulate in another country. Such processing usually takes place in the alien’s home country—in this case, the country that the Attorney General has deemed unsafe— though it can occur in another country with approval from the Department of State and the third country. See 22 C.F.R. § 42.61(a). If he obtains the visa, Ramirez could then return to the United States to request admission as a lawful
permanent resident. To be sure, other nonimmigrants must leave the country to adjust their status, see 8 U.S.C. § 1255(i), but the invocation of these procedures in other circumstances does not undercut the clear language of the TPS statute on the “admitted” issue, and the convoluted nature of the government’s proposal underscores its unnatural fit with the overall statutory structure.
In short, § 1254a(f)(4) provides that a TPS recipient is considered “inspected and admitted” under §1255(a). Accordingly, under §§ 1254a(f)(4) and 1255, Ramirez, who has been granted TPS, is eligible for adjustment of status because he also meets the other requirements set forth in § 1255(a). USCIS’s decision to deny Ramirez’s application on the ground that he was not “admitted” was legally flawed, and the district court properly granted summary judgment to Ramirez and remanded the case to USCIS for further proceedings.”
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Although the 9th Circuit’s decision makes sense to me, and is consistent with a previous ruling by the 6th Circuit, the court notes that the 11th Circuit agreed with the DHS position. Consequently, there is a “circuit split,” and this issue probably will have to be resolved by the Supremes at some future point.
I had this argument come up before me in the Arlington Immigration Court. After conducting a full oral argument, I ruled, as the 9th Circuit did, in favor of the respondent’s eligibility to adjust. While the DHS “reserved” appeal, I do not believe that appeal was ever filed.
One of the things I loved about being a trial judge was the ability to hear “oral argument” from the attorneys in every merits case where there was an actual dispute.
PWS
04-01-17
David Nakamura and Matt Zapotosky report in the Washington Post:
“The Justice Department is seeking to play a more muscular role in the Trump administration’s immigration enforcement strategy, a move that is alarming immigrant rights advocates who fear Attorney General Jeff Sessions’s hard-line ideology could give Justice too much clout in determining policy.
To highlight the department’s expanding role, Sessions is considering making his first trip to the southern border in mid-April to Nogales, Ariz., a busy border crossing region that features a major patrol station and already has miles of fencing and walls designed to keep out illegal immigrants from Mexico. Aides emphasized that his itinerary is still being developed and the stop in Nogales — which would come as Sessions travels to a conference of state police officials from around the country 200 miles away in Litchfield Park — is still tentative.
If he follows through, the border visit would come at a time when President Trump is asking Congress for billions of dollars to begin construction on a longer and larger wall between the United States and Mexico, a central campaign promise.
In recent weeks, Sessions has taken steps to increase his department’s focus on immigration.
. . . .
But legal experts said Sessions could significantly restructure the Justice Department by ramping up the number of immigration judges sent to the border to speed up hearings and by pursuing more criminal prosecutions against immigrants in the United States beyond those associated with drug cartels and human smugglers that past administrations have focused on.
The Sessions Justice Department also could move to strip some protections from undocumented immigrants, such as how much time they have to find a lawyer; more robustly defend DHS enforcement policies that are challenged in court; and use the Office of the Special Counsel to aggressively prevent employers from discriminating against American workers by hiring undocumented workers, said Leon Fresco, a former deputy assistant attorney general in the Obama administration.
“I think they will be incredibly active,” said Fresco, who helped draft the 2013 immigration bill while serving as an aide to Sen. Charles E. Schumer (D-N.Y.). The only thing that could slow Sessions, he added, was “finding enough individuals with expertise and the willingness to speed these issues along.”
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Prior to the creation of the Department of Homeland Security (“DHS”), the Attorney General had responsibility for nearly all aspects of domestic immigration enforcement and adjudication. Most of those functions were reassigned to the DHS, leaving the AG responsible primarily for the Immigration Courts (through the Executive Office for Immigration Review – “EOIR”) and for conducting immigration litigation in the Article III Federal Courts (through the Office of Immigration Litigation — “OIL”).
Apparently, Attorney General Sessions finds these legal roles too “passive” for his enforcement-oriented outlook. Sensing a vacuum because of his closeness to the President and DHS Secretary Kelly’s relative inexperience in immigration issues, Sessions now seeks to make, rather than just defend or adjudicate, immigration policy.
What does this say about the chances that Sessions will promote a fair and impartial administrative hearing system through the U.S. Immigration Courts and the Board of Immigration Appeals over which he exercises ultimate control.
PWS
03/31/17
Like many of us, Bruce has witnessed first-hand the patent unfairness of requiring individuals to represent themselves in U.S. Immigration Court. In this L.A. Times op-ed he urges Los Angeles to follow the City of New York’s fine example in providing effective pro bono legal representation to those whose lives and futures are on the line in Immigration Court:
“In December, Mayor Eric Garcetti announced the creation of a $10 million fund to provide lawyers to immigrants facing deportation. But the parameters of the program are still being determined. In order to be effective, the program needs to be implemented soon and expanded quickly.
For defendants in deportation proceedings, the stakes can be life or death, since some face torture or worse upon returning to their home countries. This is why a fellow immigration judge, Dana Marks, once said that deportation cases are “death penalty cases heard in traffic court settings.” Many other defendants face permanent separation from their families.
Yet immigrants who cannot afford a lawyer must argue against government prosecutors. More often than not, this includes immigrants who are detained — that is, jailed — while their cases move through the courts. Detention almost always means loss of income, while lawyers cost more than the majority of immigrants can afford. A person who speaks little or no English must gather information from police officers or medical experts, submit written declarations in English or find evidence to support their asylum claims, all without access to the Internet or to affordable phone calls. There are an estimated 3,700 immigrants in detention across the greater L.A. area, according to the mayor’s office.
With one side at such a great disadvantage, it becomes much harder for judges to apply the law in a just manner, increasing the risk of flawed decisions. Especially in cases where defendants are detained, a day in court without a lawyer isn’t a day in court at all. A recent study found that detained immigrants who are represented by an attorney are five times more likely to win their cases than immigrants without representation.
A court system without lawyers is not merely unjust — it is also inefficient and wasteful. Without adequate legal representation for immigrants, judges can’t spend their time making decisions. Instead, they must constantly explain the legal process, reschedule cases and answer questions. In some instances, judges issue decisions only to cover the same ground again if the defendant is lucky enough to find a lawyer and get the case re-heard.
All this waste results in a heavily backlogged immigration court system, and nowhere more so than in California, where almost 100,000 cases are waiting to be decided. In San Francisco, for instance, an immigrant in court today will have his next hearing over two years from now.
. . . .
After 17 years on the bench, I’m troubled to see a wave of new raids that are sure to clog the dockets for years to come. But I also see an opportunity for local leaders to take a stand and provide immigrant communities with the fair and responsive representation they deserve.”
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Bruce makes an important point that many outside observers miss. In addition to being inherently unfair, hearings involving unrepresented individuals are tremendously inefficient. That is, if the Immigration Judge takes to time to provide at least some semblance of due process.
Aspects of the hearing system that lawyers understand have to be explained in detail, in simplified language, through an interpreter to the unrepresented respondent.
Because there is no lawyer to question the respondent, and it would be inappropriate to rely on the DHS lawyer to present the respondent’s case, the Immigration Judge effectively becomes the respondent’s “substitute attorney” — an impossible conflict of interest. I usually conducted the examination of an unrepresented respondent using a format similar to that I used for client intake interviews in private practice. It takes time to do a fair and thorough job.
Dictating a decision in an unrepresented detained case is a long, painstaking process. Where an attorney is involved, and the interpreter is with me in court, which is the norm, the attorney normally “waives” a verbatim contemporaneous interpretation in favor of a short summary and a promise to fully explain my ruling to the client afterwards.
But, with no attorney, I must stop every few sentences for the interpreter to do a “serial interpretation” to the respondent on televideo. The “simultaneous interpretation” system is not currently designed to work with the televideo system.
Appeals by the losing side are fairly common in detained unrepresented cases. When both sides have attorneys, I just say a few words reminding them about how strictly the BIA enforces filing deadlines.
But, when an unrepresented respondent is involved, I have to give a short “how to seminar” in the art of filing an appeal with a fee waiver in a timely manner. Occasionally, the detention center doesn’t even have the correct appeal and waiver forms available, so I have to note that “officer promised to serve forms” while attaching an “insurance copy” to my “minute order” (which itself might not actually get to the detained respondent until weeks after the hearing — halfway through the 30 day appeal period).
Also, Bruce accurately points out that if the respondent finally is able to find a pro bono lawyer during the appeal process, the chances of a remand for further development of the record before the Immigration Judge are significant.
Although claiming to be supportive of the role of pro bono counsel in Immigration Court, and providing some support to some programs, overall the U.S. Immigration Court is “user unfriendly” to the pro bono community. In all Administrations, artificial political prioritization of cases driven by the Department of Justice and decisions to “kowtow” to DHS enforcement by placing so-called “courts”‘ within out of the way detention centers (rather than insisting, as true independent court system would, that detention centers be located in the vicinity of already established courts, where there is an established immigration bar and family support is often available) actively undermine both access to, and effective participation by, pro bono attorneys.
It’s sad but clear that the current Administration has “no time” for due process for migrants. They appear to have every intention of taking an already out of control, user unfriendly court system and making it even worse.
Only the Article IIII Courts stand between this Administration and their apparent goal of a “deportation express” with “no station stops” for due process. And, the only way that vulnerable migrants are going to be able to get into, and draw the attention of, the Article III Courts is by being well-represented by attorneys every step of the way.
That’s why it is critically important for Los Angeles and other cities who value their immigrant communities to heed Bruce’s call for the establishment of pro bono programs. Otherwise, the due process travesty being planned by this Administration will go forward unabated and become an indelible stain on American legal, political, and Constitutional history.
Other than that, I have no strong views on the subject.
PWS
03/31/17
http://www.wsj.com/graphics/border-wall/
Stephanie Stamm, Renée Rigdon, and Dudley Althaus put together this outstanding illustrated article about the border wall, giving you a real life picture of what’s there now and where the most entries occur:
“President Donald Trump has promised to build a wall along the 2,000-mile U.S. border with Mexico, a project that would total $21 billion, according to an internal Department of Homeland Security estimate. Only about 650 miles of the border have some sort of fencing today, and adding to that is complicated by geography, politics, land-ownership issues and funding.
Here’s a breakdown of which Southwest border-patrol sectors have the most apprehensions—defined as an arrest of removable aliens—versus the most or least amount of fencing. It is important to note that border security is defined by more than fencing. According to Homeland Security, manpower, communication, lights and technology all aid physical barriers.
. . . .
This stretch of the border is where most migrants—including large numbers of Central Americans and other non-Mexicans—have been crossing. In many cases, people are turning themselves over to Border Patrol agents.”
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The last sentence of the above quote is worthy of some consideration. Contrary to popular notions that folks are trying to evade detection and “lose” themselves in the U.S. many, perhaps the majority, of the individuals fleeing the “Northern Triangle” of Central America turn themselves in to the Border Portal or at ports of entry and seek asylum.
I think that it is unlikely that increased detention, summary proceedings, and sophomoric warnings about the dangers of the journey (anyone seriously think that folks south of the border don’t understand the danger — come on man!) will in the long run deter those fleeing to save their lives.
However, it is possible that we eventually could convince refugees that we will mistreat them or not fairly hear their claims. In that case, they are likely to stop turning themselves in and simply invoke “self help refuge” by evading apprehension and losing themselves in the vastness of America — similar to what those crossing the border illegally have been doing for the most of the four decades that I have been involved with immigration enforcement, policy, and adjudication.
Human migration, border control. law enforcement, and refugee/asylum policy are extremely complex subjects. So far, the Trump Administration has chosen to address them in simplistic, one-dimensional ways that, to various degrees, have failed in the past and are likely to continue to do so.
PWS
03/30/17
https://www.wsj.com/articles/americas-growing-labor-shortage-1490829265
“President Trump approved the Keystone XL pipeline on Friday, and good for him, but will there be enough workers to build it? That’s a serious question. Many American employers, especially in construction and agriculture, are facing labor shortages that would be exacerbated by restrictionist immigration policies.
Demographic trends coupled with a skills mismatch have resulted in a frustrating economic paradox: Millions of workers are underemployed even as millions of jobs go unfilled. The U.S. workforce is also graying, presenting a challenge for industries that entail manual labor.
Construction is ground zero in the worker shortage. Many hard-hats who lost their jobs during the recession left the labor force. Some found high-paying work in fossil fuels during the fracking boom and then migrated to renewables when oil prices tumbled. While construction has rebounded, many employed in the industry a decade ago are no longer there.
. . . .
Some restrictionists claim that cheap foreign labor is hurting low-skilled U.S. workers, but there’s little evidence for that. One Napa grower recently told the Los Angeles Times that paying even $20 an hour wasn’t enough to keep native workers on the farm.
. . . .
President Trump would compound the problem by reducing legal immigration or deporting unauthorized immigrants whose only crime is working without legal documentation. Low-skilled immigrants (those with 12 years of education or less) are estimated to account for nearly a third of the hours worked in agriculture and 20% in construction.
If President Trump wants employers to produce and build more in America, the U.S. will need to improve education and skills in manufacturing and IT. But the economy will also need more foreign workers, and better guest worker programs to bring them in legally.”
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Gee whiz, Donald, I’ll freely admit to not knowing much more about labor economics that you and your advisors do. But when the WSJ, the organ of GOP corporate America, says you’re barking up the wrong tree, perhaps you should listen, before it’s too late. Just a thought.
PWS
03/30/17
Daniel Beekman writes in the Seattle Times:
“Seattle is suing President Donald Trump over his executive order cracking down on so-called “sanctuary cities” for how they handle people living in the United States illegally.
The city is doing nothing wrong by limiting its own involvement in immigration enforcement, while Trump is overreaching by trying to make cities do the work of the federal government, Mayor Ed Murray and City Attorney Pete Holmes said Wednesday.
The goal of the lawsuit, filed in U.S. District Court in Seattle, is to have the executive order declared unconstitutional, Murray said at a news conference, accusing the Trump administration of waging “a war on cities.”
“Our lawsuit is staying true to our values,” the mayor said. “We value civil rights, we value the courts and we value the Constitution.”
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I suspect that this is just the first of many suits we will see about this issue. I doubt that anything Trump has done so far will create jobs for working class Americans (sadly). But, he has been, and is likely to continue to be, a boon for lawyers and reporters.
He’s even keeping me pretty busy in retirement. I can’t even “blog” all of the interesting articles and cases I read in one day. Have to be “selective.”
PWS
03/30/17
http://www.cnn.com/2017/03/29/politics/hawaii-trump-travel-ban-extended/index.html?adkey=bn
Laura Jarrett at CNN reports:
“(CNN) A federal judge in Hawaii has granted the state’s request for a longer term halt of the revised travel ban executive order. US District Court Judge Derrick Watson blocked the revised executive order two weeks ago — but it was only a temporary halt through a restraining order. The plaintiffs asked for it to be converted into a longer term preliminary injunction, and he agreed Wednesday night.
“The Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim.”
This means the Justice Department can now appeal the ruling to the 9th Circuit, should it choose to do so.”
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I’m sure there will be more in the media about this later today!
PWS
03/29/17
MEDIA UPDATE:
ICE REFUSES TO RELEASE AMOS YEE DESPITE GRANT OF ASYLUM BY THE IMMIGRATION JUDGE
On March 27, 2017, Officers at Immigration and Customs Enforcement (ICE), Chicago Field Office informed Grossman Law, LLC that Amos Yee will remain in detention despite the Honorable Immigration Judge’s asylum grant on March 24, 2017. Yee has been detained since December 17, 2016.
When ICE officers first detained Yee, they stated he would be released on parole and that ICE had no interest in keeping Yee detained for the pendency of his proceedings. Then, after release of the new Administration’s Executive Orders, ICE informed Grossman Law that they would not release Yee. Subsequently, after Yee’s merits hearing, ICE moved him to another detention facility without informing counsel about the transfer. Now, ICE officers are basing the decision to keep Yee detained on a potential, but not yet filed, appeal by the Department of Homeland Security.
Grossman Law has learned from the Assistant Field Office Director for ICE’s Chicago Field Office that “…detained aliens who are granted relief remain in custody during the pendency of an ICE appeal, except in extraordinary circumstances.” Additionally, Amos Yee informed us via telephone that other individuals he has met at the Dodge County facility, remain in detention despite a grant of asylum. The decision to deny Yee his freedom is not limited just to him, but to many others.
ICE’s decision to continue to detain individuals granted asylum, especially when there are no security concerns, brings up serious questions about this country’s compliance with basic principles of international law regarding the treatment of asylees. There is no provision under the Immigration and Nationality Act, or under any Presidential Executive Order, that justifies the continued detention of an individual who has been granted asylum and is deemed to be a refugee. The supposed pendency of the Department’s appeal is immaterial; Yee should have been released immediately after he was granted asylum.
As the American Immigration Lawyers Association notes:
“America’s immigration detention practices undermine the fundamental principles of due process and fairness, and require immediate systemic reform. Annually, the Department of Homeland Security (DHS) unnecessarily detains more than 400,000 people, including asylum seekers and other extremely vulnerable immigrants. Many detainees are held for prolonged periods despite the fact that they have strong ties to the United States and pose no threat to public safety.
Detention is extremely expensive, costing American taxpayers $2 billion per year. Proven alternatives to detention, by contrast, cost between 17 cents and $17 per day. Detention should be a last resort, used only when other means of supervision are not feasible, and only after a truly individualized assessment of someone’s public safety and flight risk.”
Grossman Law, LLC is renewing a request to release Yee on humanitarian parole and is exploring all other viable legal options.
For further Media inquiries on this case please contact:
ICE – Chicago Field Office: 312-347-2168
Melissa Chen – Movements
Email: mchen@movements.org
Cell: 857-285-0975
The American Immigration Lawyers Association can be reached at:
George Paul Tzamaras
AILA Senior Director, Strategic Communications and Outreach
202.507.7649
GTzamaras@aila.org
Grossman Law, LLC
4922 Fairmont Avenue, Suite 200
Bethesda, Maryland 20814
Phone: (240) 403-0913
Website: www.GrossmanLawLLC.comAmos
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Sadly, notwithstanding the equities here, my recollection of the “black letter law” is that the Immigration Judge’s order is not “final” during the appeal period unless appeal is immediately waived. If either party files an appeal, the order does not become final while the appeal is pending. In other words, it is as if the case were never completed; it remains a pending case while it is before the BIA, and the rules governing detention are basically the same as they are when the case is pending before the Immigration Court.
If the respondent had “entered” the U.S., the asylum grant could be viewed as a “changed circumstance” giving the Immigration Judge a basis to redetermine custody upon his or her own motion or upon the respondent’s request. But, Mr. Yee appears to be an “arriving alien.” Therefore under the somewhat arcane rules applying to such aliens, neither the Immigration Judge nor the BIA has jurisdiction to redetermine custody. Continuing custody is within the sole jurisdiction of the DHS, unless a U.S. District Court intervenes by habeas corpus and directs either the DHS or the Immigration Judge to conduct an individualized bond hearing.
Tough system. But, I doubt the Trump Administration is going to make it any easier for respondents to get released from detention.
PWS
03/29/17
Robert Barnes writes in the Washington Post:
“Everyone agrees that Jae Lee pleaded guilty to a drug charge and now faces deportation to South Korea because of bad lawyering.
The Tennessee restaurateur, who came to the United States as a child in 1982, was told if he took the plea he’d serve a year in prison. But his lawyer Larry Fitzgerald told him there was no chance that a longtime legal permanent resident like him would be deported. Fitzgerald was wrong.
But does Fitzgerald’s mistake make any difference if the evidence against Lee was so strong that he almost certainly would have been convicted had he rejected the deal and gone to trial? As the appeals court that ruled against him noted, he would still be deportable.
The Supreme Court struggled with the issue Tuesday. Does Lee deserve a second chance, because of his lawyer’s mistake, to either seek a plea deal that would not result in his deportation or roll the dice with a jury and hope that somehow he is not convicted?
The answer could be important, as the Trump administration promises a new vigor in deporting immigrants convicted of crimes.”
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The Justices appeared to be sympathetic to Mr. Lee. But, that might not be enough to add up to a victory for him.
PWS
03/29/17
Steve Hendrix writes:
“STEWART DETENTION CENTER, LUMPKIN, Ga. — In a tiny hearing room at one of the country’s most remote and unforgiving immigration courts, Elena Albamonte walked right past the table she had used for years as the government’s highest-ranking prosecutor here. Instead, she put her briefcase on the other table, taking a seat next to an Armenian man in prison garb who had illegally crossed into the United States.
After a three-decade career overseeing deportations as a government immigration lawyer, Albamonte has switched sides.
“Ready, your honor,” Albamonte said to immigration court Judge Dan Trimble after tidying a thick file of legal documents.
She knew her chances of persuading Trimble to grant her client political asylum were awful. Even before President Trump’s crackdown on the nation’s 11 million undocumented immigrants, the judges at Stewart had been deporting detainees at startlingly high rates. Trimble had turned down 95 percent of those seeking asylum from fiscal 2011 to 2016, according to a study of immigration judges by Syracuse University.
But for 40 minutes, Albamonte gamely made the case for Geregin Abrahamyan, a 33-year-old who said he was repeatedly beaten and threatened because of his political activity in Armenia.
Abrahamyan had been in Immigration and Customs Enforcement custody since the day he and his pregnant partner and their 3-year-old daughter crossed from Mexico seven months earlier and turned themselves in at a Border Patrol office. Mother and daughter were quickly granted parole and live with Abrahamyan’s parents in California. But Abrahamyan was shipped across the country and had yet to meet his son, who was born in August.
Albamonte, 60, argued that he was eligible for asylum despite being turned down once before and that he had suffered additional beatings in Armenia that the court should know about.”
. . . .
She doesn’t apologize for prosecuting hundreds of asylum cases that ended in deportation.
“Not everyone has a right to asylum under the law as it is written,” she said. “But everybody does deserve competent, fair representation. That’s how the system is supposed to work.”
And that is how she wound up staying here, far from her home in the Washington suburbs, living in a tiny Southern town and working on the opposite side of the issue that defined her career.
“I never expected any of this,” she said.
. . . .
She doesn’t apologize for prosecuting hundreds of asylum cases that ended in deportation.
“Not everyone has a right to asylum under the law as it is written,” she said. “But everybody does deserve competent, fair representation. That’s how the system is supposed to work.”
And that is how she wound up staying here, far from her home in the Washington suburbs, living in a tiny Southern town and working on the opposite side of the issue that defined her career.
“I never expected any of this,” she said.”
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Hendrix’s full-page, in depth profile of Elena and her amazing career is a “must read” for anyone seeking to understand the challenges of providing due process in today’s U.S. Immigration Court system. And, Elena is a truly inspiring role model for young lawyers seeking to enter the immigration field. Elena’s career demonstrates the importance of combining knowledge with flexibility and interpersonal skills and caring. As pictured in this article, Elena treats everyone she comes in contact with clients, staff, court personnel, opponents, and Immigration Judges with respect, conviviality, and genuine humanity. She recognizes an essential truth — the law is complex and often difficult, but it is the people who will make or break you in practicing law.
I’m proud to say that Elena once worked for me during my tenure as Chair of the BIA. Our paths later crossed when she was detailed to the Arlington Immigration Court as an Assistant Chief Counsel several years before my retirement. I think I told her at that time that a number of my colleagues had remarked on how much we appreciated her skills as a trial lawyer and enjoyed having her appear before us. Obviously, she’s taken those skills with her into private practice.
I’ve also commented previously about the inherent unfairness of the U.S. Immigration Court agreeing to locate “captive courts” within detention centers where effective representation is often unavailable, public access (and therefore transparency) is limited, and the atmosphere is not conducive to the impartial delivery of justice. Clearly, this Administration intends to double down on this unfortunate practice rather than seeking to end or phase it out.
Don’t think that representation by someone like Elena makes a difference for a respondent? Well, by my count, she’s succeeded in six of her seven cases where decisions have been rendered by the Immigration Judge. That’s a success rate of about 85% in a location where the average asylum grant rate is 5% — an astounding 1,700% difference.
Thanks, Elena, for all you have accomplished for the cause of justice during your career and for your continuing commitment to providing due process for the most needy and vulnerable among us! You are truly an inspiration to all of us!
PWS
03/29/17
Josh Gerstein writes in Politico:
“When President Donald Trump’s first travel ban executive order was effectively shut down by a federal judge, the Trump administration seemed to be in a huge rush to get the policy back on track.
This time? Not so much.
It took less than a day for Justice Department lawyers to file an appeal last month after U.S. District Court Judge James Robart blocked the key parts of Trump’s directive.
A few hours later — just after midnight Eastern Time — the federal government filed an emergency motion asking the San Francisco-based 9th Circuit to allow the president to move forward with his plan to halt travel to the U.S. from seven majority-Muslim countries and to suspend refugee admissions from across the globe.
A three-judge 9th Circuit panel unanimously turned down Trump’s request, prompting the president to redraft the executive order, dropping Iraq from the roster of affected countries and exempting existing visa-holders from the directive.
But when a federal judge in Hawaii issued a broad block on the new order March 15, just hours before it was set to kick in, there was no immediate appeal. In fact, nearly two weeks later, the Justice Department is still tangling with Honolulu U.S. District Court Judge Derrick Watson and has yet to take the issue back to the 9th Circuit.
The delay has puzzled many lawyers tracking the litigation, particularly given Trump’s public warning that “many very bad and dangerous people may be pouring into our country” as a result of the courts’ interference with his first travel ban directive. A total of two months have now passed since Trump signed his first order.
“A lot of people have talked about that,” said University of Richmond law professor Carl Tobias. “It seems hard to wait on this without undercutting the argument” that the travel ban order is needed to address an urgent national security threat, he added.
Some attorneys believe the Justice Department is intentionally dragging its feet in the Hawaii case because the 9th Circuit rotates the three-judge panels assigned to motions every month, with the next swap-out due Saturday. The 9th Circuit also announces the panels publicly, although not in advance. This month’s consists of two Obama-appointed judges — Morgan Christen and John Owens — along with George W. Bush appointee Milan Smith.”
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Interesting that Gerstein reports later in his article that the 4th Circuit might “bypass” the panel stage and just send the “Maryland case” directly to the en banc court. I hadn’t picked up on that. Sounds unusual.
As I have speculated before, no matter what happens in the 4th Circuit, if this issue does get to the Supremes, it’s unlikely to be decided until some time in 2018. So, barring something pretty unusual, the Travel Ban will be “banned” for the foreseeable future.
I suspect that by then, the Administration will have discovered that it doesn’t need an Executive Order and all this hoopla to quietly and gradually “beef up” visa and refugee vetting in individual cases or groups of cases where it is warranted. They have already started that process, as I previously reported. I think the scope, method, publicity, and “in your face” tone of the two EOs are what got them into difficulty with the courts.
PWS
03/29/17