The Hill – Page 7 – immigrationcourtside.com

PROFESSOR RUTH ELLEN WASEM IN THE HILL: SAVING ICE – Ditch The Wanton & Counterproductive Cruelty – Supplement “Essential Functions” With “Quality of Life Enforcement!”

http://thehill.com/opinion/immigration/395358-abolishing-ice-good-policy-bad-politics

Ruth writes:

. . . .

The privatization of ICE detention centers has exacerbated the problems the bureau faces and has given considerable fodder to media exposes of abuses. The DHS Office of Inspector General recently released a scathing report on failures of the private contractors to comply with detention standards. It’s time to restructure the responsibilities to administer detention and removal policies more humanely.

To its credit, ICE also performs critical assignments that include investigating foreign nationals who violate the laws. The main categories of crimes its agents investigate are suspected terrorism, criminal acts, suspected fraudulent activities (i.e., possessing or manufacturing fraudulent immigration documents) and suspected smuggling and trafficking of foreign nationals. ICE investigators are housed in the Homeland Security Investigations (HSI) component and are among those who would dismantle ICE.

If ICE is not at the border performing critical background checks and national security screenings, who does? First, the State Department consular officers screen all foreign nationals requesting a visa, employing biometric technologies along with biographic background checks. In some high-risk consulates abroad, ICE assists in national security screenings. Then, DHS Customs and Border Protection (CBP) inspectors examine all foreign nationals who seek admission to the United States at ports of entry. CBP inspectors and consular officials partner with the National Counterterrorism Center (NCTC) to utilize the Terrorist Identities Datamart Environment on known and suspected terrorists and terrorist groups.

They also check the background of all foreign nationals in biometric and biographic databases such the FBI’s Integrated Automated Fingerprint Identification System. Improvements in intelligence-gathering, along with advances in technologies and inter-agency sharing, have greatly enhanced the rigor of our national security screenings.

The most effective policy for interior immigration enforcement would be one prioritizing “quality of life” enforcement. As I have written elsewhere, it would be aimed at protecting U.S. residents from the deleterious and criminal aspects of immigration. Foremost, it would involve the investigation and removal of foreign nationals who have been convicted of crimes and who are deportable, thus maintaining the important activities of the current ICE investigators.

“Quality of life” enforcement, furthermore, would prioritize investigations of specific work sites for wage, hour and safety violations, sweatshop conditions and trafficking in persons — all illegal activities to which unauthorized workers are vulnerable. “Quality of life” enforcement also would encompass stringent labor market tests (e.g., labor certifications and attestations) to ensure that U.S. workers are not adversely affected by the recruitment of foreign workers, as well as reliable employment verification systems. Many of these functions once were performed by the Department of Labor (DOL), before funding cuts gutted its enforcement duties.

Prioritizing these functions likely would go a long way toward curbing unauthorized migration. Whether DOL or a revamped immigration enforcement be the lead on “quality of life” measures remains a key management question. There is a strong case for re-establishing DOL’s traditional role in protecting U.S. workers and certifying the hiring of foreign workers. Given the critical role that ICE investigators play, it is imperative that they be housed in an agency that provides them with adequate support. These are finer points that can be resolved as the functions are reorganized.

Including a multi-pronged agency or agencies charged with ensuring “quality of life” immigration enforcement measures as part of a package of immigration reforms would only increase the strong public support (roughly two-thirds favor) for comprehensive immigration reform. Good policy. Good politics.

Ruth Ellen Wasem is a clinical professor of policy at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. For more than 25 years, she was a domestic policy specialist at the U.S. Library of Congress’ Congressional Research Service. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration. She is writing a book about the legislative drive to end race- and nationality-based immigration.

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Hit the above link to read Ruth’s entire article over at The Hill.

I believe that both Nolan Rappaport and I have previously noted the importance of better wage and hour enforcement in preventing employer abuse of both the legal and extra-legal immigration systems. Sure make lots more sense than “busting” hard-working, productive members of our community who have the bad fortune to be here without documents in an era of irrational enforcement!

There are lots of “smart immigration enforcement” options out there. Although the Obama Administration for the most part screwed up immigration policy, toward the end they actually were coming around to some of the “smart enforcement” initiatives, particularly with DACA at USCIS and more consistent and widespread use of prosecutorial discretion (“PD”) at ICE.

Naturally, the Trump Administration abandoned all of the “smart” initiatives started by the Obama Administration and instead doubled down on every cruel, ineffective, and just plain stupid policy from the past. But, that’s because it’s never been about law enforcement or developing a rational immigration policy. It’s really all about racism and White Nationalism. This Administration, representing a minority of Americans, has absolutely no interest in democracy or governing for the common good.

That’s why it’s critical for the rest of us, who want no part of White Nationalist Nation, to begin the process for “regime change” at the ballot box this Fall! And, in the meantime, join the New Due Process Army and fight the horrible excesses and intentionally ugly policies of the Trumpsters!

PWS

07-11-18

THE HILL: NOLAN HAS SOME IDEAS ON HOW TO DEAL WITH FAMILIES AT THE BORDER!

http://thehill.com/opinion/immigration/394201-trump-congress-have-options-on-the-table-to-prevent-family-separation

Here’s Nolan’s conclusion in The Hill:

. . . .

Perhaps Trump’s “no due process” approach is the best solution if persecution claims can be considered outside of the United States.

Letting them apply here isn’t working well.

As of April 2017, the average wait for a hearing was 670 days, and the immigration court backlog has increased since then. It was 714,067 cases in May 2018.

It isn’t possible to enforce the immigration laws if deportable aliens can’t be put in removal proceedings, and the judges are being pressed to spend less time on cases, which puts due process in jeopardy.

Relatively few asylum applications are granted, and even fewer will be granted in the future.

We need a politically acceptable way to reduce the number of asylum applicants to a manageable level.

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Go on over to The Hill at the link to read Nolan’s complete article!

I agree with Nolan’s observation that pushing Immigration Judges to schedule more cases and spend less time on them puts due process in jeopardy. I also can see that Sessions intends to reduce asylum grant rates to about 0% by totally distorting the system until it is impossible for virtually anyone actually needing protection to get it.

As I have stated before, the problem isn’t the asylum law. The problem is the way Trump and Sessions have distorted and perverted asylum law and the Constitutional right to Due Process.

Asylum law is designed to protect individuals fleeing from persecution. We haven’t even begun to test the limits of our ability to give refuge. Indeed, at the time of the world’s greatest need, and our own prosperity, we have disgracefully turned our backs on accepting anything approaching a fair share of the world’s desperate refugees. We should be ashamed of ourselves as a nation! Refugees of all types bring great things to our nation and help us prosper. But, even if they didn’t, that wouldn’t lessen our moral and humanitarian obligations to accept our fair and more generous share of the world’s refugees.

And never forget that the backlog and the waiting times have little or nothing to do with fault on the part of asylum applicants. Many of them have also been unfairly screwed by the mess that Congress, the DOJ, DHS, and politicos have made of the Immigration Court system.

The backlog is almost entirely the result of “Aimless Docket Reshuffling” which has been kicked into high gear under Sessions, exceptionally poor choices in docket management and bad prosecutorial decisions by DHS, and years of neglect and understaffing by Congress, as well as stunningly incompetent management of the Immigration Courts by the DOJ under the last three Administrations.

Here’s the truth that Trump and the restrictionists don’t want to deal with:

SOLVING THE SOUTHERN BORDER: It’s Not Our Asylum Laws That Need Changing — It’s The Actions Of Our Leaders Who Administer Them That Must Change!

By Paul Wickham Schmidt

U.S. Immigration Judge (Ret.)

Contrary to what White Nationalist liars like Trump & Sessions say, our U.S. asylum laws are not the problem. The politicos who misinterpret and misapply the law and then mal-administer the asylum adjudication system are the problem.

The current asylum laws are more than flexible enough to deal efficiently, effectively, and humanely with today’s bogus, self-created “Southern Border Crisis.” It’s actually nothing more than the normal ebb and flow, largely of refugees, from the Northern Triangle.

That has more do with conditions in those countries and seasonal factors than it does with U.S. asylum law. Forced migration is an unfortunate fact of life. Always has been, and probably always will be. That is, unless and until leaders of developed nations devote more time and resources to addressing the causation factors, not just flailing ineffectively and too often inhumanely with the inevitable results.

And the reasonable solutions are readily available under today’s U.S. legal system:

Instead of sending more law enforcement officers, prosecutors, and judges to the Southern Border, send more CBP Inspectors and USCIS Asylum Officers to insure that those seeking asylum are processed promptly, courteously, respectfully, and fairly.

Take those who turn themselves in to the Border Patrol to the nearest port of entry instead of sending them to criminal court (unless, of course, they are repeat offenders or real criminals).

Release those asylum seekers who pass “credible fear” on low bonds or “alternatives to detention” (primarily ankle bracelet monitoring) which have been phenomenally successful in achieving high rates of appearance at Immigration Court hearings. They are also much more humane and cheaper than long-term immigration detention.

Work with the pro bono legal community and NGOs to insure that each asylum applicant gets a competent lawyer. Legal representation also has a demonstrated correlation to near-universal rates of appearance at Immigration Court hearings. Lawyers also insure that cases will be well-presented and fairly heard, indispensable ingredients to the efficient delivery of Due Process.

Insure that address information is complete and accurate at the time of release from custody. Also, insure that asylum applicants fully understand how the process works and their reporting obligations to the Immigration Courts and to DHS, as well as their obligation to stay in touch with their attorneys.

Allow U.S. Immigration Judges in each Immigration Court to work with ICE Counsel, NGOs, and the local legal community to develop scheduling patterns that insure applications for asylum can be filed at the “First Master” and that cases are completed on the first scheduled “Individual Merits Hearing” date.

If there is a consensus that these cases merit “priority treatment,” then the ICE prosecutor should agree to remove a “lower priority case” from the current 720,000 case backlog by exercising “prosecutorial discretion.” This will end “Aimless Docket Reshuffling” and insure that the prioritization of new cases does not add to the already insurmountable backlog.

Establish a robust “in-country refugee processing program” in the Northern Triangle; fund international efforts to improve conditions in the Northern Triangle; and work cooperatively with the UNHCR and other countries in the Americas to establish and fund protection programs that distribute refugees fleeing the Northern Triangle among a number of countries. That will help reduce the flow of refugees at the source, rather than at our Southern Border. And, more important, it will do so through legal humanitarian actions, not by encouraging law enforcement officials in other countries (like Mexico) to abuse refugees and deny them humane treatment (so that we don’t have to).

My proposed system would require no legislative fixes; comply with the U.S Constitution, our statutory laws, and international laws; be consistent with existing court orders and resolve some pending legal challenges; and could be carried out with less additional personnel and expenditure of taxpayer funds than the Administration’s current “cruel, inhuman, and guaranteed to fail” “deterrence only” policy.

ADDITIONAL BENEFIT: We could also all sleep better at night, while reducing the “National Stress Level.” (And, for those interested in such things, it also would be more consistent with Matthew 25:44, the rest of Christ’s teachings, and Christian social justice theology).

As Eric Levitz says in New York Magazine, the folks arriving at our border are the ones in crisis, not us! “And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.”

That warrants a much more measured, empathetic, humane, respectful, and both legally and morally justifiable approach than we have seen from our Government to date.The mechanisms for achieving that are already in our law. We just need leaders with the wisdom and moral courage to use them.

PWS

06-23-18

I also take note of how EOIR under Sessions has disingenuously manipulated the asylum adjudication numbers to support a false narrative that most asylum claims are meritless.

The only “real ” number is a comparison of asylum grants to denials, not grants to the total number of cases involving asylum applications including the substantial number that were never decided on the merits. The fact that a case is disposed of in some other manner does not mean that the asylum application was meritless; it just means that the case was disposed of in another way.

Here are the “real” numbers from EOIR’s own Statistics Yearbook, before they were dishonestly manipulated under Sessions’s instructions to support his false claims about asylum seekers:

Asylum Grant Rate

Grants

Denials

Grant Rate

FY 12

10,575

8,444

56%

FY 13

9,767

8,777

53%

FY 14

8,672

9,191

49%

FY 15

8,184

8,816

48%

FY 16

8,726

11,643

43%

In 2016, the “real” grant rate was 38%. Even under Sessions in the partial FY 2018, the merits grant rate is 35%. That’s by no means negligible — one in three! And, remember folks, this is with asylum law that was already badly skewed against applicants, particularly those from the Northern Triangle with potentially bona fide claims. (But, admittedly, before Sessions recent rewriting of asylum law to improperly deny asylum and essentially impose death sentences or torture on vulnerable women fleeing from the Northern Triangle.)

And, in my experience, the vast majority of denied asylum seekers had legitimate fears of harm upon return that should have entitled them to some protection; they just didn’t fit our unrealistically and intentionally restrictive interpretations. By no means does denial of an asylum claim mean that the claim was frivolous!

The real question we should be asking is that with the refugee situation in the world getting worse and with continually deteriorating conditions in the Northern Triangle, how do asylum merits grant rates drop from 56% and 53% as recently as FY 2011 & 2012 to 35% in 2018? What those numbers really suggests is large-scale problematic behavior and improper influence within the DOJ and the Immigration Judges who are denying far, far too many of these claims. Some of that includes use of coercive detention in out-of-the-way locations and depriving individuals of a fair opportunity to be represented by counsel, as well as a number of BIA decisions (even before Sessions’s Matter of A-B- atrocity) specifically designed to promote unfairness and more asylum denials.

There is no “southern border crisis,” other than the unnecessary humanitarian crisis that Trump and Sessions created by abusing children. Nor is there a problem with our asylum laws except for the intentional failure of our Government to apply them in a legal, fair, and Constitutional manner. But, there is a White Nationalist, racism problem clearly manifesting itself in our immoral and scofflaw national leadership.

Everyone committed to fairness, Due Process, and maintaining America as a country of humane values should fiercely resist, in every way possible, suggestions by Trump, Sessions, and some in the GOP to further abuse Due Process and eliminate the already limited rights of the most vulnerable among us!

We need to say focused on the real threats to our national security and continued existence as a democratic republic: Trump, Sessions, and their cohorts and enablers!

PWS

07-02-18

THE HILL: NOLAN HAS SOME GOOD IDEAS ON HOW TO ADDRESS NORTHERN TRIANGLE MIGRATION — Working “In Country” & With The UNHCR & Other Countries Who Signed The Geneva Refugee Convention Is Right In Line With The Refugee Act of 1980!

http://thehill.com/opinion/immigration/392984-an-alternative-to-trumps-family-separation-policy

Nolan writes in The Hill:

. . . .

Possible solution.

I wrote an article in July 2014 suggesting a way to deter unaccompanied alien children

from making the perilous journey from Central America to seek asylum in the United States. More than 50,000 of them had made that perilous journey and the number was growing.

Then-DHS Secretary Jeh C. Johnson posted an open letter to Central American parents on June 23, 2014, in which he advised them that:

“The criminal smuggling networks that you pay to deliver your child to the United States have no regard for his or her safety and well-being. …. In the hands of smugglers, many children are traumatized and psychologically abused by their journey, or worse, beaten, starved, sexually assaulted or sold into the sex trade; they are exposed to psychological abuse at the hands of criminals.”

I observed that the United States did not have to assume sole responsibility for helping the unaccompanied alien children from El Salvador, Guatemala, and Honduras. Their plight was an international problem. The United Nations High Commissioner for Refugees (UNHCR) should be involved in finding a way to help them. UNHCR was established to safeguard the rights and well-being of refugees.

I proposed working with UNHCR to set up refugee centers in Central America for these children to make it unnecessary for them to travel to the United States.

A few months later, President Barack Obama announced the establishment of a Central American Minors (CAM) refugee program that would provide in-country refugee processing for qualified children in El Salvador, Guatemala, and Honduras.

Ordinarily, the term “refugee” refers to aliens who are outside of their country of nationality and can’t return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

But section 101(a)(42)(B) of the Immigration and Nationality Act authorizes the president to include aliens who are still in their own countries when he thinks circumstances warrant it.

The CAM program was phased out in FY 2008 because very few of the children were establishing eligibility for refugee resettlement. See page 43 of the Proposed Refugee Admissions Report for FY 2018. But that does not mean that it was a bad idea.

Trump could establish an expanded version of Obama’s CAM program now that would make it possible for adults as well as children in Central America to apply for refugee status without having to travel to the United States.

This should significantly reduce the number of asylum-seeking aliens who come here from Central America and make illegal entries that result in the separation of children from their parents.

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Go over to The Hill for Nolan’s complete article at the above link.

As someone who was extensively involved in the drafting and enactment of the Refugee Act of 1980 (during my time as INS Deputy General Counsel) I think that Nolan’s ideas are the type of creative, humane, international solution that we were hoping to achieve by enacting international refugee standards and definitions into U.S. law and by providing flexibility for “in-country” programs (with which the U.S. has some historical record of success). Also, solving problems in an orderly manner as close as possible to the area of conflict causing the flow is an important consideration in international protection. The Convention itself also encourages countries to think beyond its terms to create expanded forms of protection, some temporary, some durable. And, of course, giving some international thought, resources, and attention to what is causing the refugee flow in the first place is very important. I see all of these things in Nolan’s ideas.

Here’s what I said in a recent on alternatives to the present policies:

https://wp.me/p8eeJm-2FZ

The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments.

Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.

While, not surprisingly, our ideas are not identical, there are some common themes that we could build upon in the future and perhaps achieve some bipartisan support. International solutions to refugee problems are preferable to each country trying to act on its own. And, by setting a good and responsible example, we could hopefully motivate other countries to follow suit. That once was a key principle of U.S. refugee policies. Sure makes lots more sense to me than sinking ungodly sums of money money into expensive (and not very effective) walls, detention centers, militarization of the border, and the inevitable barrage of lawsuits that “enforcement only” approaches generate.

PWS

06-20-18

THE HILL: Nolan Says Sessions Got It Right In Matter of A-B- — Not Me!

http://thehill.com/opinion/immigration/392409-sessions-domestic-abuse-decision-didnt-change-asylum-law-just-applied-it

Family Pictures

Nolan writes:

. . . .

This isn’t the first time The Board of Immigration Appeals has considered domestic violence and rejected victims of domestic violence as a particular social group. The Board did it in “Matter of R-A-” in 1999.

The Board held that R-A- was not eligible for asylum for two reasons. First, her claimed social group — “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” — did not qualify as a “particular social group” for asylum purposes.

And second, that she has not established that her husband abused her because he perceived her to be a member of this group.

Attorney General Janet Reno intervened and vacated that decision — rendered it void — so it could be reconsidered in light of a proposed regulation that would clarify some of these concepts, but no final rule was ever promulgated.

The case was resolved without further consideration by the Board when R-A- and DHS jointly stipulated that she was eligible for asylum. Nevertheless, the Board and the federal courts continued to treat the R-A- analysis as persuasive.

In a later case, “Matter of A-R-C-G-”, the Board abandoned the reasoning from the R-A- analysis and held that depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for asylum purposes. But the finding was based primarily on government concessions, as opposed to basing it on an application of Board precedent.

Sessions found that the Board decided A-R-C-G-’s case without performing the rigorous analysis required by Board precedents by basing its decision on concessions from the DHS attorney that the respondent had suffered past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution instead of adjudicating these issues.

Sessions concluded therefore that A-R-C-G-’s case was wrongly decided and should not have been issued as a precedential decision. Accordingly, he overruled it.

Having overruled A-R-C-G-’s case, he had to vacate the Board’s decision in the A-B- case too. The Board’s cursory analysis of the respondent’s “particular social group” in that case consisted mainly of a general citation to A-R-C-G-’s case and country condition reports.

He remanded the case to the immigration judge for further proceedings consistent with this opinion, reiterating that an applicant for asylum on account of membership in a particular social group must demonstrate:

Membership in a particular social group that is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct;

That membership in that group is a central reason for the alleged persecution; and

That the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.

The Board decisions applying asylum to domestic abuse victims may be morally correct, but they are legally indefensible.

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Read Nolan’s complete article over at The Hill at the above link.

I respectfully dissent. See Matter of R-A-, 22 I&N Dec. 906, 922 (BIA 1999) (Judge Guendelsberger, dissenting, joined by Schmidt, Chairman, and Judges Rosenberg, Villageliu, Moscato). The “Gang of Five” had it right then and continue to be right today.

I’ve been one of those fighting the battle for a correct interpretation of asylum law, particularly as it applies to abused women and other vulnerable groups, for two decades. It’s discouraging to have to re-fight a war we already won once. But, we’re all going to hang in there until justice and the humane, protective values behind the 1952 Convention and the Refugee Act of 1980 prevail. And, after we’re gone, members of the New Due Process Army will continue the fight until justice for the most vulnerable among us prevails.

PWS

06-17-18

NOLAN’S LATEST IN THE HILL: “Undocumented immigrants shouldn’t replace legal ones”

http://thehill.com/opinion/immigration/390812-undocumented-immigrants-shouldnt-replace-legal-ones

Nolan writes in The Hill:

President Bill Clinton’s 1995 State of the Union included the following remarks:

“All Americans, not only in the states most heavily affected, but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers.”

“We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.”

Clinton is not the only Democrat who has spoken out against illegal immigration. The Republicans provide a number of examples in a blog they posted recently: “The Democrat Hard Left Turn on Illegal Immigration.”

In 1993, then-Senator Harry Reid (D-Nev.), said, “When it comes to enforcing laws against illegal immigration, we have a system that will make you recoil in disbelief. … Yet we are doing almost nothing to encourage these people to go home or even to deter them from coming here in the first place.”

In 1994, Senator Dianne Feinstein (D-Calif.) ran a political ad showing illegal immigrants crossing the border and promised to get tough on illegal immigration with more “agents, fencing, lighting, and other equipment.”

In 2006, then-Senator Barack Obama (D-Ill.) said “Better fences and better security along our borders” would “help stem some of the tide of illegal immigration in this country.”

In 2009, during a speech at Georgetown Law, Senator Chuck Schumer(D-N.Y.) said, “When we use phrases like ‘undocumented workers,’ we convey a message to the American people that their government is not serious about combating illegal immigration, which the American people overwhelmingly oppose.”

The blog also provides video clip links, including one that shows Clinton receiving a standing ovation for his remarks about Americans being disturbed by the large numbers of illegal aliens entering the country.

. . . .

A recent report from the Economic Policy Institute (EPI) on the labor laws California has enacted to protect unauthorized immigrant workers indicates that many of the immigrants who have been attracted to California by its sanctuary policies are being exploited by unscrupulous employers.

In fact, the main beneficiaries of California’s sanctuary policies are the employers who exploit undocumented immigrant workers and deportable immigrants in police custody who otherwise would be turned over to ICE when they are released.

California has had to enact seven laws to protect undocumented workers from being exploited by their employers.

EPI found that the ability of U.S. employers to exploit unauthorized workers undercuts the bargaining power of U.S. workers who work side by side with them. When the wages and labor standards of unauthorized immigrants are degraded, it has a negative impact on the wages and labor standards of U.S. workers in similar jobs.

In reality, we could meet all of our immigration needs with legal immigration. We do not need nor ultimately benefit from uncontrolled illegal immigration.

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Go on over to The Hill to read Nolan’s complete article.

I’m all for replacing the uncontrolled flow of undocumented migrants with legal migrants. That’s why I favor a “smart” immigration policy that would:

Legalize the vast majority of those currently here without documentation who are working in needed jobs, law-abiding, and contributing to our society. Legalization would allow them to be screened, brought into the tax system (if they aren’t already), and protected by U.S. labor laws.
Expand legal immigration opportunities, particularly for so-called “non-professional,” manual labor skills and jobs that are badly needed in the U.S. and which now often are filled by undocumented labor. That would allow screening of visa applicants abroad, a controlled entry process, and protections under the labor laws. To the extent that undocumented migration is being driven by unfilled market forces, it would decrease the flow of undocumented individuals, thus saving us from expensive, unneeded, inhumane, and ineffective “enforcement overkill.” Immigration enforcement would be freed to concentrate on those who might actually be a threat to the U.S.
Create more robust, realistic refugee laws that would bring many more refugees through the legal system, particularly from the Northern Triangle. This, along with cooperation with the UNHCR and other nations would reduce the need for individuals to make they way to our borders to apply for asylum. Asylum processing could be improved by allowing the Asylum Office to review and grant “defensive” as well as affirmative applications, thus lessening the burden on the Immigration Courts.
More investment in Wage and Hour, NLRB, and OSHA enforcement to prevent unscrupulous employers from taking advantage of workers of all types.
We have full employment, surplus jobs, a declining birth rate, and we’re losing the “STEM edge” to the PRC, Canada, Mexico, the EU and other nations that are becoming more welcoming and attractive to “high skill” immigrants. We’re going to need all of the legal immigration we can get across the board to remain viable and dynamic in a changing world.

PWS

06-06-18

THE HILL: Nolan On Who Really Benefits From Cal’s “Sanctuary Cities” Laws

http://thehill.com/opinion/immigration/389600-the-people-really-benefiting-from-californias-sanctuary-laws

Nolan writes:

. . . .

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.

According to TRAC Immigration, as of the end of April 2017, when the backlog was 585,930 cases, most aliens were waiting around 670 days for a hearing.

At a panel discussion last year on the backlog, Immigration Judge Larry Burman said:

“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.

PWS

05-28-18

NOLAN REMINDS US THAT THERE ARE ALTERNATIVES TO THE CURRENT DEADLOCK ON DREAMERS

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!

https://wp.me/p8eeJm-2lh

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

PWS

05-25-18

THE HILL: NOLAN SAYS TRUMP‘S “GET TOUGH” IMMIGRATION POLICIES COULD BE “SOUND AND FURY SIGNIFYING NOTHING!”

http://thehill.com/opinion/immigration/388488-enforcing-trumps-immigration-plan-will-be-harder-than-he-thinks

Nolan writes:

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.”

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

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.

PWS

05-21-18

NOLAN’S LATEST @ THE HILL – Sessions’s Next Move Might Well Be To “Gin Up” Harboring Prosecutions!

http://thehill.com/opinion/immigration/387533-harboring-undocumented-aliens-is-still-a-crime-expect-sessions-to

Nolan writes:

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.

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

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!

http://thehill.com/search/site/Nolan%20Rappaport

PWS

05-15-18

HON. BRUCE J. EINHORN IN THE HILL: SCOFFLAW AG JEFF SESSIONS PERVERTS RULE OF LAW, “PERSECUTES THE PERSECUTED,” AND UNDERMINES THE FUNDAMENTAL PROTECTION PURPOSES OF THE REFUGEE ACT OF 1980

http://thehill.com/opinion/immigration/386956-persecuting-the-persecuted-in-asylum-cases-is-not-the-answer

Judge Einhorn writes:

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.

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

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.

PWS

05-10-18

THE HILL: NOLAN ON EOIR’S BROKEN JUDICIAL SELECTION SYSTEM

http://thehill.com/opinion/immigration/384987-when-immigration-judges-get-political-justice-suffers

Nolan writes in The Hill:

. . . .

How serious is this problem?

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.

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

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.

PWS

04-27-18

N. RAPPAPORT IN THE HILL: Trump Follows In Bush’s & Obama’s Footsteps By Sending National Guard To The Southern Border

http://thehill.com/opinion/immigration/382136-by-sending-national-guard-to-border-trump-follows-bush-obama

Nolan writes:

. . . .

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.

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

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.,

https://www.dailysignal.com/2014/07/16/sending-military-border-good-idea/

https://www.militarytimes.com/news/pentagon-congress/2018/04/08/what-happened-when-bush-obama-sent-troops-to-mexico-border/

https://www.theguardian.com/us-news/2018/apr/03/trump-mexico-wall-military-guards-obama-bush-not-first-president

https://www.sciencedaily.com/releases/2016/04/160421171156.htm

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.

PWS

04-09-18

THE HILL: A Different Approach to DACA? Nolan Asks Whether Redefining DACA In Terms Of Special Immigrant Juvenile (“SIJ”) Provisions Could Save The Day?

http://thehill.com/opinion/immigration/380265-trump-dems-can-solve-the-daca-problem-by-redefining-it

Nolan writes:

“. . . .

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.

The other two pillars are the wall and ending the Diversity Visa Program(DVP).

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.”

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

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.

PWS

03-27-18

THE HILL: Nolan Thinks “Goodlatte Bill” In House Could Have Room For Compromise!

http://thehill.com/opinion/immigration/378981-goodlattes-immigration-reform-bill-has-room-for-compromise

Nolan writes:

“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.”

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

Please go over to The Hill at the link to read Nolan’s complete, much more detailed, analysis of the opportunities for compromise.

PWS

03-19-18

NOLAN @ THE HILL: IF CA WINS “SANCTUARY CASE” THEY MIGHT REGRET IT — The Wrath & Vengeance Of Trump, Sessions, & DHS Could Be Devastating To Communities & Undocumented Populations!

http://thehill.com/opinion/immigration/377605-even-without-trumps-lawsuit-california-may-have-to-abandon-sanctuary

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.

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

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.

PWS

03-10-18

Asylum Grant Rate
	Grants	Denials	Grant Rate
FY 12	10,575	8,444	56%
FY 13	9,767	8,777	53%
FY 14	8,672	9,191	49%
FY 15	8,184	8,816	48%
FY 16	8,726	11,643	43%

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