"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.
But are California’s sanctuary laws really protecting them from being deported?
According to a report from the Migration Policy Institute (MPI), Trump’s immigration enforcement efforts have been hurt by pushback from California and cities such as Chicago, New York, and Boston that have sanctuary policies.
Sanctuary policies prevent local police departments from turning inmates over to ICE when they are released from custody, which has resulted in returning some dangerous criminal aliens to the community.
ICE had to change its enforcement operations from taking custody of aliens at police stations to looking for undocumented aliens in the community, which resulted in arresting approximately 40,000 noncriminal aliens in FY 2017.
The main obstacle to deporting removeable aliens is the immigration court backlog crisis.
“I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020.”
From April 2017 to April 2018, the backlog for the immigration courts in California increased by almost 20 percent to 692,298 cases.
These lengthy wait times make it necessary to release newly arrested aliens until hearings can be scheduled for them, which gives them time to disappear into the shadows.
Conclusion.
Apparently, the main beneficiaries of California’s sanctuary policies are deportable aliens in police custody who otherwise would be turned over to ICE when they are released and unscrupulous employers who exploit undocumented immigrant workers.
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Go on over to The Hill to read Nolan’s complete article! this article also was featured on ImmigrationProf Blog.
Here’s a “reprise” of a previous March 2018 post from Nolan in The Hill explaining how the Special Immigrant Juvenile (“SIJ”) provisions of the I&N Act could be used to facilitate a compromise solution for “Dreamers.” It certainly would be “worth a look” by both sides!
Trump inherited a number of immigration enforcement problems from the Obama administration, the most serious of which was an immigration court backlog that has prevented him from using removal proceedings to reduce the size of the undocumented alien population.
His solution seems to be to heed the advice of Mitt Romney, who said, when asked about reducing the population of undocumented aliens during a debate in 2012:
“The answer is self-deportation, which is people decide they can do better by going home because they can’t find work here because they don’t have legal documentation to allow them to work here.”
But Trump is using harboring prosecutions to discourage people from helping undocumented aliens to remain here illegally in addition to enforcing employer sanctions to discourage employers from giving them jobs.
Neither is likely to be successful.
. . . .
If Trump doesn’t find more promising enforcement measures, historians familiar with Macbeth may say that his “hour upon the stage” just amounted to “sound and fury, signifying nothing.”
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Go on over to The Hill at the link to read Nolan’s complete article with much more analysis!
I agree with Nolan that in practical terms of reducing the overall undocumented population, Trump’s strategies are not likely to succeed to a numerically significant extent. But, maybe that’s not the objective.
If the real objective to inflict unnecessary pain and suffering, keep stirring the pot of xenophobia, and rev up a restrictionist base, the policies might make more sense. And, certainly guys like Trump, Sessions, & Neilsen never take any responsibility for their own failures — they just shift the blame to others and use that as a bogus justification for seeking (or demanding) unneeded, draconian changes in the law.
Read Peter’s full article at the above link (sorry about the difficult formatting — this was my “file copy.”)
Abstract:
Recently the quasi-judicial appellate process for reviewing decisions of immigration judges in noncitizen removal proceedings changed dramatically when the Department of Justice proposed and later implemented a major downsizing of the Board of Immigration Appeals combined with greatly enhanced reliance on single Board members to decide cases. Because the rule restructuring the Board did not limit the Attorney General�s discretion in identifying those who would lose their Board Member positions�and potential criteria referenced by the Department of Justice in that regard were not helpful in explaining how reassigned Board Members differed from colleagues who remained-�this study undertook an examination of case related data.
The study of closely divided en banc precedent decisions of the Board during the period of service by all five subsequently reassigned Board Members showed that adjudicators inclined to favor the position of noncitizens were particularly vulnerable. In fact, four out of the five Board Members who most often supported outcomes favorable to the noncitizen faced reassignment�and the fifth reassigned Member�s stance in favor of the noncitizen in a high profile case of importance to the Attorney General could explain his reassignment. Outcomes in the closely divided cases also suggested that the Attorney General succeeded in moving the Board of Immigration Appeals in a conservative direction just by announcing his downsizing plans�and the result of implementing downsizing the following year was to remake the Board into a largely homogeneous body without significant dissent.
The paper discusses the need for independent immigration adjudicators and points to the judicial nature of the Board�s work. The Board�s experience under Attorney General Ashcroft, the paper concludes, should give new impetus to efforts to separate review of immigration judge decisions from an agency with law enforcement responsibilities. The alternatives recommended by Federal commissions�a specialized court or an independent Executive Branch adjudicatory agency�continue to provide potential solutions.
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Ashcroft certainly “poisoned the well” for judicial independence and Due Process at EOIR. And, frankly, the Obama Administration was also a huge part of the problem.
Well aware of the Ashcroft travesty at EOIR, the Obama DOJ basically covered up the truth and furthered a captive, complacent, “go along to get along” Immigration Court system, overwhelmingly composed of judges from government and prosecutorial backgrounds, because it furthered their own aims of compromising judicial independence to achieve “political goals,” when necessary. As one of my colleagues said, “while the Obama Administration was not Sessions, they certainly made Sessions possible, perhaps probable.”
If Ashcroft and the Bushies “poisoned the well,” Obama let the contamination fester, and Sessions now basically “dumps cyanide into the well” on an almost daily basis.
History is repeating itself in the ugliest possible manner at EOIR. The only question is whether armed with knowledge of the evils of the past, we can change the future to create a system of independent judges who will truly aspire to “be the worlds’ best tribunals, guaranteeing fairness and Due Process for all.”
Join the New Due Process Army! Due Process Forever!
I raised the possibility a year ago that Chicago Mayor Rahm Emanuel will face criminal charges for harboring undocumented aliens if he goes much further with his sanctuary policies.
Punishment for harboring ranges from a fine and/or up to a year in prison to life in prison or a death sentence.
It hasn’t happened…yet. But Attorney General Jeff Sessions has called for more harboring prosecutions and is not limiting the reach of the harboring provisions.
The Border Patrol arrested a member of the No More Deaths humanitarian group in the Arizona desert a few months ago and charged him with harboring for giving aliens who had made an illegal crossing food, water, and a place to sleep for three days.
Harboring prosecutions are still uncommon, but I expect this to change when Sessions realizes that the immigration court backlog crisis is making it impossible for him to enforce the immigration laws effectively.
He will have to find ways to make America a less desirable place for undocumented aliens to live. In other words, he will have to encourage “self-deportation.”
Harboring prosecutions can serve this purpose by making individuals, landlords, employers, humanitarian organizations, etc., afraid to become involved with undocumented aliens. Even church congregations would be vulnerable.
. . . .
Will harboring prosecutions be more successful than employer sanctions were?
Maybe not, but Sessions has to try something and harboring prosecutions might help.
To convict someone of harboring, the government must establish that the defendant concealed, harbored, or shielded an undocumented alien from detection. A conviction can result from committing any one of the three acts.
The harboring provisions provide the following penalties for each alien in respect to whom a violation occurs:
If the offense did not involve commercial advantage or financial gain, a fine or imprisonment for up to 5 years, or both;
If it was done for commercial advantage or financial gain, a fine or imprisonment for up to 10 years, or both;
In the case of a violation during and in relation to which the offender causes serious bodily injury, or places in jeopardy the life of any person, a fine or imprisonment for up to 20 years, or both; and
In the case of a violation resulting in the death of any person, a death sentence or imprisoned for any term of years or for life, a fine, or both.
The statute does not define “conceal,” “harbor,” or “shield from detection.” The federal courts have had to define these terms.
“Conceal” generally has been taken to mean hiding or otherwise preventing the discovery of an undocumented alien.
Courts have interpreted “shielding” more expansively. Even the making of false statements or falsifying documents may constitute “shielding.”
According to the ACLU, “harboring” is defined differently in the various federal jurisdictions across the country.
The most frequent characteristic the courts have used to describe “harboring” is that it facilitates an immigrant’s remaining in the United States illegally, which encompasses an extremely wide range of activities.
This is certain to result in inconsistent verdicts. People are going to be incarcerated for conduct that wouldn’t have been considered a crime if it had been committed in a different judicial district.
While a large-scale, nationwide campaign of harboring prosecutions might make it harder for undocumented aliens to live in the United States, the cost will be too high if it fills our prisons with American citizens and Lawful Permanent Residents who were just trying to be good Samaritans.
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Get Nolan’s complete article over at The Hill at the link!
Yeah, I could see Sessions pursuing this. But, believe it or not, it’s been tried before and failed as a deterrent.
During the Reagan Administration, when I was the INS Deputy General Counsel, the Administration brought criminal cases against some of the leaders of the so-called “Sanctuary Movement” in Texas and Arizona.
Unlike undocumented migrants held in immigration detention, those charged with harboring are always vigorously represented by good defense lawyers. The trials are very time-consuming and labor intensive.
I remember once spending the better part of a week in South Texas waiting to be called as a Government witness in a sanctuary prosecution. Upon finally being reached on the witness list, all I got to state was my name and position before the U.S. District Judge sustained the defendants’ objection to my testimony and disqualified me as a witness.
Also, unlike prosecuting undocumented migrants in Immigration Court, 100% of the convictions are appealed, a process that also stretches out for many years. Even when the Government “wins” the case and a conviction is sustained, the sentence is almost always probation or something quite nominal.
In other words, this is a “strategy’ that will tie up lots of U.S. Attorney and Federal Judicial resources, create lots of ill feeling in the community, but provide no real deterrence. Indeed, my recollection is that rather than deterring the “Sanctuary Movement,” these prosecutions actually inspired and motivated groups opposed to the Government’s policies on Central American migrants!
In fact, eventually there were enough demonstrated problems with the Regan/Bush I Administrations’ approach to Central American asylum seekers that the plaintiffs succeeded in a class action in getting a “redo” of all the cases. This was known as ABC v. Thornburgh. This case, for all practical purposes, ended the U.S. Government’s efforts to expel the Central American asylum seekers who arrived during the 1980s.
Eventually, class members were allowed to obtain green cards under the Nicaraguan and Central American Relief Act (“NACRA”). I was pleased to have approved numerous NACARA cases during my tenure as an Immigration Judge in Arlington. (Yes, they were still around decades later.)
I was continuously inspired by what these hard-working families had achieved in their lives, notwithstanding our efforts to expel them. No, they weren’t all “rocket scientists.” But, nearly without exception, they were contributing members of our community, providing important services or creating necessary goods.
One of the many things that “gives lie” to the restrictionist claim that the current wave of asylum seekers and migrants from the Northern Triangle won’t “fit in” and be able to assimilate. About the only thing inhibiting “assimilation” is our Government’s unwillingness to allow it to take place, and actually acting to discourage it in many, many ways.
I found NACARA applicants to be remarkably “the same as the rest of us, perhaps better” in terms dedication to the “American Dream,” work ethic, respect for education, and willingness to sacrifice so that future generations could have better lives. The only real difference was the “pure luck” of those of us who had the good fortune to be born here.
A “smart” approach to immigration would be to “can” the waste of resources on border prosecutions and detention and put together another legislative effort like NACARA, only this time for all long-time undocumented residents of the US. But, of course, that wouldn’t serve to “fire up” the White Nationalist electoral base that Trump relies upon.
Common sense, learning from history, responsible use of Government resources, and basic human decency are qualities conspicuously absent from Sessions. But, I think that the “NACRA story” shows a very plausible “ultimate long-term outcome” for the latest, ultimately doomed, efforts to deal with immigration issues exclusively with restrictionist policies.
Finally, Nolan has kindly supplied us with an updated link to a list of all seventy (70) of his past articles in The Hill on immigration policy. Congratulations, Nolan, for your prodigious contributions!
As a young Justice Department lawyer, I was present at the creation of the Refugee Act of 1980, which together with its amendments and implementing regulations constitute the regime of asylum and refugee protection in the United States. During the Carter administration, I had a hand in the final drafting of the 1980 asylum law. As a U.S. immigration judge in Los Angeles from 1990 through 2007, I heard and decided thousands of cases in which citizens and stateless persons from foreign countries sought asylum in our nation. As a law professor both in California and in England, I have lectured on asylum and refugee law.
The asylum law was intended as a humanitarian measure to defend the defenseless by offering them the possibility of a new and secure life in the United States. But that will no longer be the case if Attorney General Jeff Sessions has his way. The Refugee Act of 1980 grants asylum status in the United States for any foreign-born individual who demonstrates past persecution or a well-founded fear of future persecution for reasons of “race, religion, nationality” as well as “membership in a particular social group” and “political opinion.”
Additionally, under precedent set over the course of decades by federal courts across the country, the persecution that triggers asylum protection must be committed or attempted by a foreign government, or by forces that the government is unable or unwilling to control. That the persecution may be official or private recognizes the fact that in many countries, civil society and the rule of law are nowhere to be found. In their place, governments often unofficially depend on ad hoc private parties and organizations to aid in the torture, persecution and murder of those deemed “enemies of the state.” The use of nongovernmental persecutors provides plausible deniability to regimes that deny complicity in the mistreatment of those they seek to eliminate.
Now the attorney general is attempting to undermine if not eliminate the “unable or unwilling” standard applied in asylum cases for decades. In 2016, in a case entitled “Matter of A-B-,” the Board of Immigration Appeals, the administrative court that reviews decisions of immigration judges, ruled that based on prevailing precedent, an asylum applicant seeking refugee status based on her membership in a particular social group” that led to her gross domestic abuse, had demonstrated that the government of her native El Salvador was unwilling or unable to protect her from her abusive ex-husband. The board remanded the case to the trial judge so that he might apply the correct “unwilling or unable” standard.
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Go on over to The Hill to read Judge Einhorn’s complete article!
Judge Bruce J. Einhorn has spent his career advancing the true rule of law and seeking to rectify the wrongs of the past: first as a prosecutor in the Office of Special Investigations at the U.S. DOJ bringing Nazi war criminals to justice (where I first came in contact with him); then as a U.S. Immigration Judge; and finally as a law professor. (Yes, folks, there was a time long ago when the USDOJ actually was on the side of seeking and guaranteeing justice for the persecuted, rather than engaging in child abuse, spreading false scenarios about immigrants and crime, promoting xenophobic myths about refugees, building the “New American Gulag,” and mis-using the US Immigration Court system as a tool of DHS enforcement to discourage refugees from seeking protection under our laws and international treaties to which we are party.)
By contrast, Jeff Sessions has spent his entire legal & “public service” career on the wrong side of history: trying to “turn back the clock” to the era of Jim Crow; promoting intolerance, unequal treatment, and hate directed at African-Americans, Hispanics, immigrants, and the LGBTQ community; perverting the rule of law and the Constitutional guarantee of individual rights and fairness for everyone in America; and denying the massive contributions to the success of the United States made by non-White, non-Christian, and non-U.S. citizen individuals.
Jeff Sessions is a much bigger threat to the security, welfare, and future of the United States than are desperate women and children from the Northern Triangle seeking to save their lives by exercising their lawful rights under U.S. and international law to apply for asylum.
A TRAC Immigration study concluded that the outcome at asylum hearings over a recent six-year period depended largely on where the hearing was held and which immigration judge was assigned to the case.
. . . .
Examples of improper hiring practices.
Political considerations. A July 28, 2018 report from the Office of Professional Responsibility and the Office of the Inspector General at the Department of Justice reveals that the office of former Attorney General Alberto R. Gonzales let political considerations guide the selection of immigration judges.
His chief of staff, Kyle Sampson, claimed that he thought immigration judge positions were “political” and therefore that it was appropriate to consider political factors in assessing candidates.
He solicited candidates for immigration judge positions from the White House’s Office of Political Affairs, its Office of Presidential Personnel, and its Office of the Counsel to the President.
Potential immigration judge candidates were screened at these offices to establish their “political qualifications.” This included searching databases to determine whether the candidates had made monetary political contributions.
Sampson also accepted recommendations from Republican Members of Congress and from colleagues within the Justice Department who were political appointees.
Affirmative action. On October 5, 2004, the Department of Justice, without admitting wrongdoing, agreed to pay $11.5 million to settle a class action lawsuit alleging discrimination against white male applicants for immigration judge positions.
I was a decision-writer at the Board when the discrimination allegedly was occurring.
A close friend who had received EOIR’s Director’s Award twice for being the most outstanding attorney of the year couldn’t even get an interview for a position as an immigration judge, but women and minority applicants with much less impressive credentials were being hired, some of whom had no immigration experience at all.
Acknowledging the problem. In response to rising criticism of the disparities in the decisions in asylum cases, EOIR has begun to track decisions to identify immigration judges who have unusually high or low rates of granting asylum, but that just highlights the problem, it doesn’t solve it.
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I encourage everyone to go on over to The Hill at the above link for Nolan’s complete article.
Nolan is right: the EOIR hiring system is broken and has been for many years.
The problem of “Refugee Roulette” was first documented by a group of three scholar-practitioners at Georgetown Law in 2007.
Although the situation abated somewhat for a few years after that study’s publication, large disparities seem to have persisted.
Perhaps because of space limitations (I believe Nolan told me he had an “800 word limit” — something that doesn’t happen at “Courtside”) Nolan wasn’t able to cover two of the most egregious examples of a broken system:
The “Ashcroft Purge” of 2001-2003 that reduced the BIA from approximately 20 Members to 12 by expelling those of us on the BIA duly appointed by prior AG Janet Reno whose views were considered “too liberal” for Ashcroft;
The BIA is now seeking to “reconstitute itself” as a 20 judge body, confirming the “political motivations” behind the original purge;
The 2017 GAO Study that documented the incredible two-year average hiring cycle for filling Immigration Judge vacancies that evolved under the Obama Administration;
That process produced highly skewed results favoring candidates from DHS, DOJ, and other governmental backgrounds by an astoundingly inexplicable ratio of nearly 9 to 1 over qualified attorneys from private practice, academia, and NGOs.
At present, judges who have actual experience representing asylum applicants in Immigration Court are grotesquely “underrepresented” in relation to those from prosecutorial or other governmental backgrounds.
Jeff Sessions will likely make things even worse.
Not surprisingly, Sessions has already drawn credible allegations from Democratic Representatives of political and ideological interference in judicial hiring. See, e.g., https://wp.me/p8eeJm-2rz
As Nolan demonstrates, the Immigration Courts need a true merit based hiring system.
Systems such as that used for selecting U.S. Bankruptcy Judges and U.S. Magistrate Judges are useful models that have earned praise for being efficient, inclusive, involving the practicing bar, and producing unbiased, merit-based judiciaries.
A merit-based system is impossible while the Immigration Courts and the BIA are in the Executive Branch at the DOJ.
The only solution is an Article I U.S. Immigration Court or some other type of structure independent of the Executive.
Trump isn’t the first president to use the National Guard this way. Presidents George W. Bush and Barack Obama did it when they were presidents. Their National Guard operations were successful, and Trump’s probably will be too, if his operation is similar to theirs.
Apparently, the Border Patrol feels that way too. According to Brandon Judd, president of the National Border Patrol Council, experience has shown that the military can supplement the work of agents on the ground.
We do not know yet how the troops will be used. The memorandum gives the secretary of Defense, working with DHS and the attorney general, 30 days to submit an action plan detailing what resources and actions are needed, including federal law enforcement and U.S. military resources.
. . . .
In any case, it doesn’t make sense to use the number of apprehensions as the criterion for determining how secure the border is. What about the aliens who were not apprehended? There is no way of knowing how many aliens succeeded in making an illegal entry without being detected by the Border Patrol.
Ultimately, Trump’s decision to send Border Patrol agents to the border should not be considered unusual or inhumane. Instead, it is a continuation of his existing immigration policies and even presidential precedent.
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As Nolan points out, sending the National Guard to the border is neither unusual nor unprecedented. But, that doesn’t mean it’s smart, effective, or cost efficient.
I’m aware of no hard evidence that sending the National Guard makes any long-term difference in border enforcement or security.
A number of commentators have also questioned whether the somewhat marginal short-term enforcement benefits of sending troops outweighs the substantial costs and negative perception issues. See e.g.,
I see no evidence of any real security crisis at the Southern Border. Certainly, Trump’s panic about the so-called “Caravan” (actually largely made up of desperate women and children) is totally bogus, apparently based on over-hyped reports by Fox News.
It’s obvious that having blown the chance to get funding for his Wall, Trump is looking for some way to hype a non-existent “Southern Border Crisis” to show his base that he hasn’t given up on his racist approach to immigration. He also keeps raising his bogus claims that we need to further truncate the already too limited existing rights of children and asylum seekers and expand the “New American Gulag.” What total BS
There is an ongoing humanitarian crisis in the Northern Triangle causing individuals to undertake the journey North. That’s been going on for many years, and is almost certain to continue as long as folks like Trump are in charge. It’s not like Obama or Bush helped the situation either. Indeed, the US policy toward Latin America has been screwed up during my entire lifetime and shows no signs of changing.
Nothing Trump does is going to change that. Indeed, by almost any rational measure, Trump’s enforcement bluster is likely to make the situation even worse. As a number of commentators have pointed out, if Trump actually goes through with his stated wish to expel Hondurans and Salvadorans currently here in TPS status, that would almost certainly further destablilize both countries, further strengthen the hands of gangs, and guarantee an even larger northward flow.
In January 2018, Wilkes Legal won asylum for an immigrant mother and her children who escaped over a decade of extreme physical, psychological, and sexual abuse that sent our client to the hospital and left one of her children with a permanent physical impairment. Because our client’s domestic partner was a high-ranking military officer in their home country, her pleas for help from government authorities fell on deaf ears, causing her to flee the country for her safety. In recent years, the United States has offered asylum protection to domestic violence survivors like this client. A recent move by Attorney General Jeff Sessions, however, could soon limit or end the ability of domestic violence survivors to receive asylum protection in the United States.
Domestic violence has long been a contentious issue in asylum law. More than two decades ago, advocates began a 14-year legal battle to win asylum for Rodi Alvarado Peña, a Guatemalan woman who suffered a decade of brutal violence at the hands of her husband. Even though Ms. Alvarado repeatedly sought help from the Guatemalan police and courts, the Guatemalan authorities refused to intervene and protect her. When Ms. Alvarado tried to escape from her husband, he tracked her down and beat her unconscious. Ms. Alvarado ultimately fled to the United States and became the subject of a controversial, high profile immigration court case, as multiple administrations considered whether to grant asylum to women whose countries fail to protect them from domestic violence. Ms. Alvarado ultimately received asylum in 2009, but her case did not establish legal precedent that could help other asylum-seekers fleeing domestic violence.
In 2014, the Board of Immigration Appeals (BIA) finally issued a precedential decision recognizing domestic violence as a basis for asylum. In Matter of A-R-C-G-, the BIA granted asylum to a Guatemalan woman whose husband broke her nose, repeatedly raped her, and burned her with paint thinner. The BIA recognized “married women in Guatemala who are unable to leave their relationship” as a group that can qualify for asylum. This landmark case opened the doors to protection for other immigrant survivors of domestic violence whose countries fail to protect them from abuse.
While the United States has made great strides in offering protection to immigrant survivors of domestic violence, Attorney General Jeff Sessions recently took a step that could potentially undo decades of forward progress. As attorney general, Sessions has the authority to refer immigration court cases to himself, overturn decisions of the Board of Immigration Appeals, and set precedent. Last month, Sessions referred an immigration case to himself involving a survivor of domestic violence from El Salvador. If Sessions rules against this woman, he would begin reshaping asylum law for abuse survivors and could potentially shut the doors to countless victims seeking protection in the United States.
In the case under Sessions’ review, a Salvadoran women referred to as A.B. suffered years of domestic violence at the hands of her ex-husband in El Salvador. Even though A.B. separated from her husband and eventually divorced him, her ex-husband returned three years after their separation and raped her. A.B. also testified to receiving threats from her ex-husband’s brother, who is a police officer, and his friend, who told the woman that her ex-husband would kill her and he would help dispose of her body. Although an Immigration Judge denied A.B.’s asylum case, the Board of Immigrant Appeals disagreed with the judge’s ruling and sent the case back to the judge to reconsider his decision. The Immigration Judge again refused to grant asylum to A.B., however, despite the BIA’s precedent decision in Matter of A-R-C-G-, due to other more recent decisions in his jurisdiction.
Now that Sessions has stepped in to review A.B.’s case, he has the authority to determine whether she should be granted asylum. If Sessions denies her asylum case, his decision could have a far-reaching impact, setting precedent that would make it more difficult for other immigrant survivors of domestic violence to qualify for asylum in the future. If Session limits asylum eligibility for these survivors, he will roll back decades of progress in asylum law and close the doors to immigrant victims of abuse who have nowhere else to turn.
Wilkes Legal stands with immigrant survivors of domestic violence and urges Sessions to uphold the BIA’s current precedent, keeping America’s doors open to victims of domestic abuse whose governments fail to protect them.
Visit our website, follow us on Facebook or Twitter, or call our office at (301) 576-0491 to learn more about Wilkes Legal, LLC.
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From his actions to date, Sessions appears to be up to no good. But, by now the “A-R-C-G-/R-A- principles” are deeply ingrained in U.S. protection law as interpreted by the Article III Federal Courts.
I predict that an attempt by Sessions to undo A-R-C-G- protections will be heavy-handed, blatantly biased, and thinly reasoned as have been all of his transparently biased reversals of established legal positions to date.
It’s therefore likely to suffer a fate of emphatic rejection by the Article IIIs much like what happened when Attorney General Michael Mukasey tried to undo years of established legal precedent about proof of crimes involving moral turpitude in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), rev’d & remanded, Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015).
I’m hardly a “Charter Member of the Mike Mukasey Fan Club.” His poor stewardship over the U.S. Immigration Court system is at least partially responsible for today’s inexcusable mess in our Immigration Courts.
Nevertheless, before becoming Attorney General, Mukasey was a well-respected U.S. District Judge. He’s 10X the lawyer as Sessions! Sessions’s lack of any discernible legal skills, integrity, humanity, and judgement probably bodes well for the “Good Guys” in the long run.
But, that doesn’t mean that there won’t be unnecessary and unconscionable suffering. Sessions is a bully at heart who relies on the fact that the majority of individuals in the U.S. Immigration Court system are unrepresented and therefore unable to defend themselves against his racist/xenophobic policies.
I’m proud to be one of the “Gang of Five” Appellate Immigration Judges (“Board Members” ) who dissented from the BIA’s original outrageously incorrect decision in Matter of R-A-, 22 I&N Dec. 908 (BIA 1999), vacated, Matter of R-A-, 22 I&N Dec. 908 (A.G. 2001) that reversed a clearly correct grant of asylum to Rodi Alvarado. The other dissenters were Judges John Guendelsberger (who wrote the dissent), Lory Diana Rosenberg, Gustavo D. Villageliu, and Anthony C. Moscato.
Not coincidentally, all of us except for Judge Moscato were removed and “exiled” from the BIA during the “Ashcroft Purge of 2003” for the transgression of doing our jobs conscientiously and standing up for a correct interpretation of the asylum law. So much for the “facade of quasi-judicial independence at the BIA.” (Credit to Peter Levinson). And, that’s before the current “descent into the abyss” brought about by Sessions!
We need an independent Article I U.S. Immigration Court now!
It might be more productive at this point to put negotiations about DACA and DREAM Acts aside and try a different approach. My suggestion is to work on creating a place in the Special Immigrant Juvenile (SIJ) program for the DACA participants.
This little-known humanitarian program makes lawful permanent resident (LPR) status available to undocumented alien children in the United States who have been abused, abandoned, or neglected by one or both parents and who should not be returned to their own countries.
. . . .
DACA
Undocumented aliens were considered for the DACA program if they:
Were under the age of 31 as of June 15, 2012;
Came to the U.S. before reaching their 16th birthday;
Have continuously resided in the U.S. since June 15, 2007;
Were physically present in the U.S. on June 15, 2012, when they filed their DACA applications; and
Had no lawful status on June 15, 2012.
The aliens in both programs came to the United States as children and humanitarian relief is warranted in both situations to prevent them from having to return to their own countries. The SIJ aliens would be returning to abuse, neglect, or abandonment; and the DACA aliens spent their childhoods here and know no home other than America.
The need for the new category would end when all of the DACA participants have been taken care of, but this should not be a problem. Section 1059 of the FY2006 National Defense Authorization Actestablished Special Immigrant status for Iraqi and Afghan nationals who had served as translators for the U.S. Armed Forces, and the need for that program will end when the translators are no longer needed.
Trump’s Framework
The first pillar of Trump’s framework is the legalization program.
Putting the DACA participants in the SIJ program would facilitate a compromise on Trump’s pillar requiring an end to chain migration.
The SIJ provisions take away a participant’s right to confer immigration benefits on his parents when he becomes an LPR. INA §101(a)(27)(J)(iii)(II)states that, “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”
This restriction continues even if they naturalize.
It might be necessary to amend this provision to include the rest of the family-based classifications that Trump wants to eliminate, but that would be a much smaller concession than terminating chain migration for everyone.
Trump has made it very clear that he will reject any deal that does not include funding for his wall.
Lastly, terminating the DVP should not be a problem. The Democrats have shown a willingness to end that program. Section 2303 of Senator Charles Schumer’s (D-N.Y.) Gang of Eight bill would have repealed the DVP if it had been enacted.
In any case, the parties have nothing to lose from trying this approach.”
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Go on over to The Hill at the link to read Nolan’s complete article.
This seems like an interesting idea that could work if, and it’s a big “if,” the parties can get over their respective “all or nothing” approaches.
For the Dems, it gives the Dreamers closure, permanent status, and a path to eventual citizenship. A very big deal!
At the same time, the GOP and Trump basically get three of “Trump’s pillars” in some form or another.
Yes, the inclusion of the “parent bar” could be a sticking point for the Dems. But, it will be at least three to five years after the Dreamers get their “green cards” before any of them would be eligible to naturalize. By that time, both the thinking and the politics behind the issue of status for parents of naturalized U.S. citizens could well change. We would definitely have better data about the “real universe” in terms of numbers.
Even now, many Dreamers no longer have two living parents who would be able to or interested in immigrating. Estimates of “future impact” based on the assumption that each Dreamer would “immigrate” two parents always have appeared wildly exaggerated to me. A “special immigrant program” would provide better data.
Also, once Dreamers become Lawful Permanent Residents and U.S. citizens, they are likely to be in a position favorably to influence the dialogue about parental migration.
“Congressman Bob Goodlatte’s (R-Va.) immigration bill, the Securing America’s Future Act (SAFA) may be the last chance this election year to pass a bill that would help the Dreamers. It needs more support, but he should be able to get it from the Democrats.
First, however, he needs to overcome the negative impression some Democrats have of him and his bill, which is expressed in this commentthe ACLU made when SAFA was introduced:
“This bill should be viewed for what it is — an obvious attempt by longtime anti-Dreamer lawmaker Rep. Bob Goodlatte and his allies to derail a legislative solution for Dreamers.
“The policies in the new legislation are a collection of hardline provisions designed to sabotage, rather than advance, the possibility of a bipartisan breakthrough.”
The best approach may be to revise SAFA to include a statutory DACAprogram with a legalization program that would not become available until the bill’s enforcement measures are implemented. Also, Goodlatte should remove enforcement measures that are not needed to prevent a recurrence of what happened the last time the Republicans agreed to a legalization program.”
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Please go over to The Hill at the link to read Nolan’s complete, much more detailed, analysis of the opportunities for compromise.
This case is very risky for Trump. He is likely to lose in the Ninth Circuit, and it is difficult to predict how the Supreme Court would handle this federal vs. state rights issue. Immigration experts on both sides say this lawsuit takes the sanctuary-cities debate into uncharted territory.
The only certainty is that a loss would clear the way for the enactment of more sanctuary laws in California and other states.
Ironically, California’s sanctuary policies make it easier for ICE to find undocumented aliens.
Instead of being spread out across the United States, a quarter of the nation’s undocumented aliens are living in California. California’s labor force has 1.75 million undocumented aliens. Nearly 10 percent of its workers are undocumented aliens. And in 2014, more undocumented aliens lived in Los Angeles County, Calif., than in any other county in the United States.
This would make it easy for Trump to carry out a successful, large-scale enforcement campaign in California to arrest undocumented aliens and impose sanctions on the businesses that employ them, which is likely to be his next step if the lawsuit fails.
California could end up having to abandon its sanctuary policies to protect its undocumented population.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
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Go on over to The Hill at the link for Nolan’s complete article.
Putting together Nolan’s analysis with that of Professor Peter Markowitz in the preceding article, one can conclude that both sides are likely to come out losers in this contest. We’ll see.
“Making the situation worse, pursuant to the EU’s Dublin II regulation, refugees are supposed to apply for asylum in the first EU country they reach, and EU nations are resisting any changes to this regulation that would cause them to receive more migrants.
This has created an impossible burden for Greece and Italy, which have become the main gateways for 1.5 million refugees arriving on Europe’s shores over the last three years.
The EU Commission sought to redistribute 160,000 asylum seekersthroughout the EU from Greece and Italy, but lack of cooperation from other EU nations made it impossible to achieve that goal. When the program ended, only 31,000 refugees had been resettled.
The numbers have not gone down because fewer people need refuge.
European governments entered into partnership agreements with North African countries in 2017. They offered financial support to them in exchange for stepped-up border patrols and crackdowns on migrant smuggling in their territories.
While these agreements have succeeded in reducing the numbers, it has come at a human cost. In Libya, the launch point for most of the migrant journeys to Europe, migrants intercepted while fleeing from Libya are sent to detention centers. Government and NGO reports have documented widespread physical and sexual violence, more conditions and killings at these centers.
Crime.
In 2016, Germany accepted the largest population of asylum seekers in Europe, but it has not worked out well for Germany. According to a study conducted by the Zurich University of Applied Sciences, the German state of Lower Saxony has experienced a 10.4 percent increase in violent crime.
German criminologists claim that the best way to prevent violent crime among migrants is to provide them with better integration opportunities. It also could help if Germany allowed them to be reunited with their families. Germany recently limited family reunifications.
In view of Europe’s low natural population growth rate, refugee family reunification could be a great benefit by adding to the birth rate in the EU. In the first half of the 1960s, the population of the EU increased by only 0.8 percent a year, and the birth rate is even lower now.
The European economy, meanwhile, is growing, which is producing labor shortages. Europe needs population inflows from outside the EU to increase its workforce.
The EU needs to ensure that the Schengen Agreement does not prevent individual nations from securing their borders, and it should consider making a greater effort to integrate its migrant population.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.”
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I encourage you to go over to The Hill at the above link to read Nolan’s complete article.
It’s difficult to impossible to solve migration problems solely by working on them at the “receiving” end. I suspect that there will continue to be additional arrivals and more deaths unless and until the problems causing the refugee migration are addressed at the “sending” end.
Seems like the African nations acting as “middlemen” are the only “winners” here. The get paid by the EU for shutting down some routes for refugee migration. In the meantime, I suspect that they get paid by the smugglers for leaving some routes “open” or “looking the other way.”
Nolan’s point that Europe’s economic future might well depend on their better integrating migrants is well taken. Generally, the US has done a superior job of integrating migrants into our society. That’s one reason why our economy generally has done better than those of most EU nations.
Agency Will Focus on Processing Recently Filed Applications
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today that the agency will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog.
USCIS is responsible for overseeing the nation’s legal immigration system, which includes adjudicating asylum claims. The agency currently faces a crisis-level backlog of 311,000 pending asylum cases as of Jan. 21, 2018, making the asylum system increasingly vulnerable to fraud and abuse. This backlog has grown by more than 1750 percent over the last five years, and the rate of new asylum applications has more than tripled.
To address this problem, USCIS will follow these priorities when scheduling affirmative asylum interviews:
Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;
Applications pending 21 days or less since filing; and
All other pending applications, starting with newer filings and working back toward older filings.
Additionally, the Affirmative Asylum Bulletin issued by USCIS has been discontinued.
“Delays in the timely processing of asylum applications are detrimental to legitimate asylum seekers,” said USCIS Director L. Francis Cissna. “Lingering backlogs can be exploited and used to undermine national security and the integrity of the asylum system.”
This priority approach, first established by the asylum reforms of 1995 and used for 20 years until 2014, seeks to deter those who might try to use the existing backlog as a means to obtain employment authorization. Returning to a “last in, first out” interview schedule will allow USCIS to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings.
For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter ( @uscis ), YouTube ( /uscis ), and Facebook (/uscis).
– USCIS –
Last Reviewed/Updated:
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LIFO, FIFO, LILO, FILO, ADR. Gimmicks, gimmicks, gimmicks, and smokescreens. They never work in the long run. Been there, done that, myself during my Government career. Never, ever, saw it work. Just moves the backlog to different places (sometimes more obvious, sometimes “semi-hidden” for a while) and makes things worse in the long run.
And, once the “newly expedited denials” get over to EOIR they will either 1) be put at the front of the line, an exercise in ADR that will move everything else backwards and make the Immigration Court backlog worse, or 2) take their place at the back of the current backlog for adjudication sometime after 2020, by which time the priorities will have been reshuffled numerous times anyway.
There is little or no “hard evidence” that I’m aware of that ADR like this has any material effect on the flow of asylum seekers. Using what are supposed to be “fair adjudication” systems as “deterrents” and part of the “immigration enforcement initiatives” does compromise the integrity of the adjudication process, but has little or no effect on enforcement.
Most asylum applicants, successful and unsuccessful, come because of conditions in their home countries, not because of “intelligence” or “messages” about waiting times at the Asylum Office or in Immigration Court. And, by sending more and more cases to the end of the line, where the message is that they might never be reached, the ADR process also creates a “De Facto TPS Program” of sorts at both the Asylum Office and the Immigration Courts.
What’s a “better solution?” Legalize or PD the folks currently in line who have no serious criminal record. Then, do the rest of the cases on a FIFO basis except for detainees. No, it’s not a “perfect solution.” But, it’s what works best in the long run. And, it does establish 1) achievable expectations, 2) predictability, and 3) at least some approximation of fairness.
BTW, the current Asylum Office “backlog” appears to be largely the result of the Obama Administration’s poor decision to up detention levels and take a huge proportion of the Asylum Officer workforce off of “Final Interviews” and instead send them to the Southern Border to do “Credible Fear Interviews” as a result of a so-called “Border Surge Strategy.” In other words, ADR by the Obama Administration begets ADR by the Trump Administration. When will they ever learn, when will they ever learn . . . ?
Many thanks to Nolan Rappaport for sending this my way.
“Senator Chuck Schumer (R-N.Y.) has dismissed the White House’s new Framework on Immigration Reform & Border security as a “wish list” for hard-liners. According to Schumer, Trump is using protection for Deferred Action for Childhood Arrivals program (DACA) participants as “a tool to tear apart our legal immigration system and adopt the wish list that anti-immigration hardliners have advocated for years.”
But Schumer’s own DACA proposal, which he put together as part of the Gang of Six, was just as unacceptable to Trump as Trump’s current proposal is to Schumer.
Schumer rejected Trump’s previous proposal, which was to establish a program for the 690,000 DACA participants that would continue their temporary legal status, and proposed a legalization program for a couple of million Dreamers. Moreover, he offered Trump just $1.591 billion for building a wall, which is only a small fraction of the amount he needs; and did not meaningfully address his chain migration concerns.That was not the first time Schumer has advocated a position he knew would be rejected. Four years ago, he moved his immigration reform bill, S.744, through the Senate despite the fact that it was opposed by 70 percent of the Senate Republicans. It was dead on arrival in the Republican controlled House.
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This does not have to be an “either or” situation. The visas currently given to extended family members could be transitioned to a merit-based point system that would give extra credit for family ties to a citizen or LPR. Under such a system, aliens who have family ties would be chosen ahead of aliens with similar qualifications who do not have family ties.”
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Go on over to The Hill at the above link to read Nolan’s complete analysis!
Seems like an idea worth exploring, particularly since current negotiations appear to be running up against a “brick wall.” No, it won’t resolve all of the outstanding issues. But trying to work the concepts of “merit and family” into one system could be a starting point. After all, it’s hard to argue that “family” doesn’t have “merit” — both for the individuals involved and for the U.S.
