The Hill – Page 9 – immigrationcourtside.com

THE HILL: N. RAPPAPORT SAYS THAT EXPEDITED REMOVAL IS THE ANSWER TO IMMIGRATION COURT BACKLOGS – I DISAGREE!

http://thehill.com/opinion/immigration/360139-our-immigration-courts-are-drowning-expedited-removal-can-bring-relief

Nolan writes:

“Trump has acknowledged that the immigration court’s enormous backlog cripples his ability to remove illegal immigrants in a timely manner, but his plan to deal with the backlog isn’t going to work.

This chart from the Executive Office for Immigration Review’s (EOIR) FY2016 Statistics Yearbook shows that the immigration judges (IJs) have not been making any progress on reducing the backlog.

At a recent Center for Immigration Studies panel discussion on the backlog, 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.”

By the end of September 2016, the backlog was up to 516,031 cases. A year later, it had grown to 629,051.

. . . .

If Trump relies on hiring more IJs to deal with the backlog crisis, his enforcement program will be a dismal failure.

His only viable alternative is to reduce the size of the immigration court’s docket, which he can do by promulgating regulations making IJ hearings unavailable to aliens whose cases can be handled in expedited removal proceedings.

He seems to have had this in mind when he directed DHS to use expedited removal proceedings to the full extent authorized by law, which would include most of the undocumented aliens in the United States who were not lawfully admitted, unless they can establish that they have been here for two years.

In expedited removal proceedings, which are conducted by immigration officers, aliens can be deported without IJ hearings unless they have a credible fear of persecution. If they establish a credible fear of persecution, they are entitled to an asylum hearing before an IJ.

But would the courts stop him?”

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

Expedited removal is the wrong solution to the Immigration Court backlog!

As I have noted in recent blogs, recent studies show that Immigration Court hearings area already falling substantially short of providing real due process because of lack of available counsel and overuse of immigration detention. Expedited removal would aggravate that problem tenfold.
Expedited removal couldn’t begin to solve the current backlog problems because the vast majority of the estimated 11 million individuals already here have been here for more than two years and can prove it, most from Government records. Indeed, I’d wager that the vast majority of individuals in Removal Proceedings in U.S. Immigration Court have had their cases pending for two or more years.
The problems in Immigration Court were caused by “Aimless Docket Reshuffling” by the last three Administrations emanating from undue political influence from the Department of Justice, DHS, and the White House. Only an independent Immigration Court that places control of the dockets in individual Immigration Judges, where it belongs, can address those problems.
The answer to hiring problems resulting from poor management and political hiring from the DOJ is certainly not to “get rid of” any existing U.S. Immigration Judges. Whether the hiring was done properly or not, there is no reason to believe that any of the currently sitting local U.S. Immigration Judges did anything wrong or participated in the hiring process other than by applying for the jobs. The system needs all the experienced judges it currently has.
The problem of inconsistency will only be solved by having an independent BIA that acts in the manner of an independent appellate court, cracking down on those judges who are not correctly applying legal standards. That’s how all other court systems address consistency issues — through precedent and independent appellate review. Numerous examples have been documented of Immigration Judges in courts like Atlanta, Stewart, and Charlotte, to name three of the most notorious ones, improperly denying asylum claims and mistreating asylum applicants. The BIA has failed to function in a proper, independent manner ever since the “Ashcroft Purge.” The only way to get it doing its job is by creating true judicial independence.
“Haste makes waste” is never the right solution! It’s been done in the past and each time has resulted in increased backlogs and, more importantly, serious lapses in due process.
The docket does need to be trimmed. The Obama Administration was at least starting the process by a more widespread use of prosecutorial discretion or “PD” as in all other major law enforcement prosecutorial offices. Most of the individuals currently in the country without status are assets to the country, who have built up substantial equities, and do not belong in removal proceedings. No system can function with the type of unregulated, irrational, “gonzo” enforcement this Administration is pursuing.
The reasonable solution is to do what is necessary to build a well-functioning system that provides due process efficiently, as it is supposed to do. The elements are reasonable access to lawyers for everyone in proceedings, reducing expensive, wasteful, and fundamentally unfair use of detention, better merit hiring and training procedures for Immigration Judges, modern technology, better use of prosecutorial discretion by the DHS, legislation to grant legal status to law-abiding productive individuals currently present in the US without status, and a truly independent judicial system that can develop in the way judicial systems are supposed to — without political meddling and without more “haste makes waste” schemes like “expedited removal!”

PWS

11-14-17

THE HILL: N. RAPPAPORT ASKS A GREAT QUESTION: “WHY NOT GO AFTER EMPLOYERS?”

http://thehill.com/opinion/immigration/358892-to-tackle-illegal-immigration-go-after-the-employers

Nolan writes:

“The job magnet is making it impossible to secure the Southwest border. The availability of jobs in the United States attracts immigrants who need work and are willing to do whatever they have to do to cross the border.

Congress tried to eliminate the job magnet by establishing employer sanctions with the Immigration Reform and Control Act of 1986 (IRCA). The theory was that if employers were sanctioned for hiring aliens who do not have work authorization, they would stop hiring them.

This was expected to prevent a new group of undocumented aliens from taking the place of the ones IRCA was going to legalize.

It didn’t work. Approximately 2.7 million undocumented aliens were legalized, but by the beginning of 1997, they had been replaced entirely by a new group of undocumented aliens.

It failed because the sanctions were not applied on a large-scale, nationwide basis. This is necessary to make employers throughout the United States afraid that they will be sanctioned if they hire undocumented workers. And it has continued to fail for the same reason. According to the Pew Research Center, there were 8 million unauthorized immigrants working or looking for work in the United States in FY2014.

The government has had more than 30 years to make the sanctions work, and it hasn’t happened. It is unrealistic at this point to expect it ever to happen. A new approach should be considered. But first, let’s look at what employer sanctions do.

. . . .

Shift attention to “the other magnet.”

Unscrupulous employers are drawn to undocumented immigrant workers because they can be exploited easily and are not in a position to complain about the way they are treated. I call this “the exploitation magnet.”

The Department of Labor (DOL) sanctions employers for exploiting employees without regard to their immigration status. Consequently, DOL enforcement officers do not have to determine whether an exploited employee is an alien, and if so, whether he has work authorization. For instance, DOL enforces the Fair Labor Standards Act, which requires a minimum wage and overtime pay.

Low wage industries tend to employ substantial numbers of undocumented immigrants.

DOL prosecutes employers for violating labor laws much more aggressively than DHS prosecutes employers for hiring unauthorized immigrants.

In FY2014, for instance, DHS issued only 643 final fine orders, imposing fines totaling $16.28 million, and DOL collected $79.1 million in back wages for overtime and minimum wage violations involving 109,261 employees.

With additional funding, DOL could mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants, which would go a long way towards eliminating the job magnet.”

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Go on over to The Hill at the link to read Nolan’s complete article. I highly recommend his succinct summary of the current employer sanctions program and “E-Verify.”

I think Nolan is “right on” in his recommendation for more aggressive enforcement of wage and hour laws. No matter where you stand on the overall immigration policy issue, I think that we can all agree that U.S. employers should not be gaining a competitive advantage by exploiting migrant labor, whether documented or undocumented.

PWS

11-06-17

THE HILL: N. Rappaport On The Diversity Program

http://thehill.com/opinion/immigration/358611-we-dont-need-a-terrorist-attack-to-know-diversity-visa-program-has-to-go

Nolan writes:

“What is the Diversity Visa Program?

Section 201(e) of the Immigration and Nationality Act (INA) provides 55,000 visas a year for a class of immigrants known as “diversity immigrants,” from countries with historically low rates of immigration to the United States.

The number temporarily has been reduced to 50,000, to make up to 5,000 visas a year available for use by Nicaraguans who are eligible for the NACARA program.

The eligibility requirements are stated in section 203(c). The applicant must have been born in a designated country. There are exceptions based on other connections to the designated country. Also, he must have at least a high school education or its equivalent, or two years of work experience that required at least two years of training or experience to perform.

Reasons for terminating it.

While it may be difficult to justify terminating the program on account of the recent terrorist attack, there should be some benefit to offset the fact that the program could bring terrorists to the United States. If the New York City terrorist hadn’t been here, he wouldn’t have been able to commit a terrorist act here.

The claimed benefit is diversity, but does the program really make America more diverse? The United States has a population of 326,199,506people, and that number is increasing by one international migrant (net) every 32 seconds. How does adding 50,000 aliens a year make the country more diverse?

Nevertheless, the program is bringing a lot of people in an absolute sense. Since 1995, it has made visas available to roughly one million people who have no ties to the United States. Is this fair to American citizens and legal permanent residents who get visa petitions approved to bring family members here and then have to wait years for visas to become available?

. . . .

Lastly, the visas are allocated randomly on the basis of a lottery run by the Department of State.

“A lottery is a crazy way to run an immigration system,” according to Steve Yale-Loehr, an immigration law professor at Cornell. “No other country selects immigrants based on a lottery.”

Wouldn’t the program add as much diversity if the same number of aliens, from the same group of countries, were to be selected on a merit-based point system?

My prediction is that the program will be terminated to make the visas available to family and/or employment-based immigrants.”

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Go on over to The Hill for Nolan’s full article which has other helpful statistics and information.

I don’t know that I see enough information to justify terminating the program at this time. But, Nolan’s point that the visas might better be used for other categories as part of overall immigration reform seems like something that should be part of the discussion.

PWS

11-03-17

GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!

http://thehill.com/opinion/immigration/355734-sessions-fundamentally-misses-the-mark-on-the-asylum-system

Lindsay writes:

“Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions.

. . . .

Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.

For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.

Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.

Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.

Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37 percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death.

Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.

Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees.

Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.”

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Go on over to The Hill at the above link and read the rest of Lindsay’s article (containing her points 1-4, which I omitted in this excerpt).

I can confirm that those who have passed the “credible fear” process often mistakenly believe that they “applied for asylum” before the Asylum Office. I also found that few unrepresented respondents understood the difference between required reporting to the DHS Detention Office and reporting to Immigration Court.

Moreover, given the “haste makes waste” procedures applied to recent border arrivals, the addresses reported to EOIR by DHS or entered into the EOIR system were often inaccurate. Sometimes, I could tell they were inaccurate just from my own knowledge of the spelling and location of various streets and jurisdictions in Northern Virginia. Another time, one of the Arlington Immigration court’s “eagle eyed” Court Clerks spotted that a number of supposed “in absentias” charged to Arlington were really located in the state of “PA” rather than “VA” which had incorrectly been entered into our system. No wonder these were coming back as “undeliverable!”

Therefore, I would consider Sessions’s claim of a high “no show” rate to be largely bogus until proven otherwise. My experience was that recently arrived women, children, and families from the Northern Triangle appeared well over 90% of the time if they 1) actually understood the reporting requirements, and 2) actually got the Notice of Hearing. Those who were able to obtain lawyers appeared nearly 100% of the time.

This strongly suggests to me that if Sessions really wanted to address problems in Immigration Court he would ditch the knowingly false anti-asylum narratives and instead concentrate on: 1) insuring that everyone who “clears” the credible fear process has his or her Immigration Court hearing scheduled in a location and a manner that gives them the maximum possible access to pro bono legal representation; 2) insuring that appropriate explanations and warnings regarding failure to appear are given in English and Spanish, and 3) a “quality control initiative” with respect to entering addresses at both DHS and EOIR and serving Notices to Appear.

Jeff Sessions also acted totally inappropriately in delivering this highly biased, enforcement-oriented, political address to the EOIR. Although housed within the DOJ, EOIR’s only functions are quasi-judicial — fairly adjudicating cases. In the words of the Third Circuit Court of Appeals in a recent case the function of the Immigration Judiciary is “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.” Alimbaev v. Att’y Gen. of U.S., 872 F.3d 188, 190 (3rd Cir. 2017).

Consequently, the only appropriate remarks for an Attorney General to make to EOIR and the Immigration Judiciary would be to acknowledge the difficulty of their judicial jobs; thank them for their service; encourage them to continue to render fair, impartial, objective, scholarly, and timely decisions; and explain how he plans to support them by providing more resources for them to do their important jobs. That’s it!!

What is totally inappropriate and probably unethical is for the Attorney General to deliver a “pep talk” to judges spouting the “party line” of one of the parties in interest (the DHS), setting forth inaccurate and unsupported statements of the law, and demeaning the other party to the judicial proceedings — the immigrant respondents and their attorneys.

Although I personally question their ultimate constitutionality under the Due Process Clause, the Attorney General does have two established channels for conveying his views on the law to the EOIR: 1) by incorporating them in regulations issued by the DOJ after public notice and comment; and 2) by “certifying” BIA decisions to himself and thereby establishing his own case precedents which the BIA and Immigration Judges must follow.

Troublesome as these two procedures might be, they do have some glaring differences from “AG speeches and memos.” First, public parties have a right to participate in both the regulatory and the precedent adjudication process, thus insuring that views opposed to those being advanced by the DHS and the Attorney General must be considered and addressed. Second, in both cases, private parties may challenge the results in the independent Article III Courts if they are dissatisfied with the Attorney General’s interpretations. By contrast, the “opposing views” to Session’s anti-asylum screed did not receive “equal time and access” to the judicial audience.

Sessions’s recent disingenuous speech to EOIR was a highly inappropriate effort to improperly influence and bias supposedly impartial quasi-judicial officials by setting forth a “party line” and not very subtilely implying that those who might disagree with him could soon find themselves “out of favor.” That is particularly true when the speech was combined with outrageous discussions of how “performance evaluations” for judges could be revised to contain numerical performance quotes which have little or nothing to do with fairness and due process.

Jeff Sessions quite obviously does not see the U.S. Immigration Courts as an independent judiciary charged with delivering fair and impartial justice to immigrants consistent with the Due Process clause of our Constitution. Rather, he sees Immigration Judges and BIA Appellate Judges as “adjuncts” to DHS enforcement — there primarily to insure that those apprehended by DHS agents or who turn themselves in to the DHS to apply for statutory relief are quickly and unceremoniously removed from the U.S. with the mere veneer, but not the substance, of Due Process.

Due process will not be realized in the U.S. Immigration Courts until they are removed from the DOJ and established as a truly independent Article I court.

PWS

10-31-17

THE HILL: N. RAPPAPORT SAYS CANADA MIGHT BE REGRETTING “OPEN ARMS” REFUGEE STATEMENT!

http://thehill.com/opinion/immigration/357316-canada-wakes-up-to-immigration-reality-after-a-refugees-welcome-dream

Nolan writes:

“According to an Immigration Department memorandum which was obtained by the Canadian press under Canada’s Access to Information Act, as of the end of April, there were 12,040 asylum claims, and it was viewed as likely that there would be 36,000 of them by the end of the year. If this continues, the wait time for an asylum hearing could reach 11 years by the end of 2021.

The backlog of pending asylum cases reached 24,404 in June 2017.

The Immigration and Refugee Board of Canada has deployed up to half of its capacity to address backlog claims, and it has established a process for disposing of straightforward cases with short hearings.”

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

PWS

10-26-17

THE HILL: N. Rappaport Believes That Expedited Removal Is the Key To Reducing The Immigration Court Backlog

http://thehill.com/opinion/immigration/356211-trumps-fast-tracked-deportations-may-be-only-practical-solution-to

Nolan writes:

“An alien who seeks admission to the United States without valid documents can be sent home without a hearing, and, this does not apply just to aliens at the border. An undocumented alien may be viewed as “seeking admission” even if he has been living here for more than a year.

But for immigration purposes, words mean whatever the Immigration and Nationality Act (INA) says they mean.

Section 235(a)(1) of the INA says that an alien who is in the United States but has not been “admitted” shall be viewed as an applicant for admission for purposes of this Act. And section 101(a)(13) of the INA says that the terms “admission” and “admitted” mean a lawful entry into the United States after an inspection and authorization by an immigration officer.

This makes it possible for DHS to use expedited removal proceedings to deport undocumented aliens who already are in the United States without giving them hearings before an immigration judge, which is necessary now because the immigration court is experiencing a backlog crisis.As of the end of August 2017, the immigrant court’s backlog was 632,261 cases, and the immigration court has only 330 immigration judges. The backlog is getting larger every year because the judges are not even able to keep up with the new cases they receive each year.

. . . .

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, can be deported without a hearing before an immigration judge, unless he has a credible fear of persecution.

Previous administrations limited these proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

Trump opted to use expedited removal proceedings to the full extent authorized by law. In his Executive Order, “Border Security and Immigration Enforcement Improvements,” he orders the DHS Secretary to use the proceedings for the aliens designated in section 235(b)(1)(A)(iii)(II)of the INA, i.e., aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.

If an alien wants an asylum hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.

Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years. I would prefer replacing the immigration officers with immigration judges for proceedings involving aliens who are already in the United States.

Expedited removal proceedings are not used for unaccompanied alien children.

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) exempts certain unaccompanied alien children (UAC) from expedited removal proceedings.

Trump has asked Congress to amend the TVRPA to restrict the unaccompanied alien children protections. In the meantime, steps are being taken to deter parents from bringing their children here illegally.

ICE will be putting the parents of UACs in removal proceedings if they are undocumented aliens too, and if a smuggler was paid, they might be prosecuted for human trafficking.

Immigrant advocates still have time to work with Trump on immigration reform legislation, but once Trump has implemented an expanded expedited removal proceedings program, he is not going to be inclined to stop it. And it could start soon. He recently issued a Request for Information to identify multiple possible detention sites for holding criminal aliens and other immigration violators.”

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

I have no doubt that the Trump Administration will attempt to “max out’ the use of expedited removal. Interestingly, however, although the Executive Order referenced by Nolan was issued at the beginning of the Administration, the regulatory changes necessary to expand the use of expedited removal have not yet been published in the Federal Register. A change of this nature is likely to require full notice and comment, which will take some time. If the Administration tries to avoid the notice and comment process, that will be likely to give advocates a valid ground for challenging the revised regulation under the Administrative Procedures Act.

I also doubt that expedited removal can successfully address the current Immigration Court backlog, which is, after all, largely the result of incompetent management, poor enforcement choices, and “ADR” by politicos at the DOJ, including particularly in this Administration. Without removing the political influence over the Immigration Courts and placing them in an independent structure that can be professionally administered in an unbiased manner, no “docket reform” is likely to succeed..

Second, nearly all of the 10-11 million individuals currently in the U.S. without documentation have been here more than two years and can prove it. Indeed, the vast majority of the 630,000+ cases pending in Immigration Court have probably been on the docket for more than two years!

Third, like Nolan, I believe that “Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years.” Individuals living in the United States are entitled to constitutional due process under Supreme Court decisions. A fair hearing before an impartial adjudicator normally is a minimum requirement for due process. A DHS Immigration Officer is not an impartial judicial or quasi-judicial adjudicator.

The situations in which the Federal Courts have permitted DHS Immigration Officers to enter final removal orders against individuals who are “in the United States” (as opposed to at the border, in fact or “functionally”) are fairly limited. One is the situation of an individual who was never admitted as a Lawful Permanent Resident and who committed an aggravated felony. This doesn’t apply to most individuals in the U.S. without documentation.

As Nolan points out, the Federal Courts have also approved “expedited removal” under the current regulations which limit applicability to those who have been here fewer than 14 days and are apprehended within 100 miles of the border — in other words, those who have very minimal connection with the U.S. and have not established any type of “de facto” residence here. In making those limited (but still probably wrong from a constitutional standpoint) decisions some courts have indicated that they would have reservations about reaching the same result in the case of someone who had actually been here for a considerable period of time and had established a residence in the United States.

For example, in Castro v. DHS, 835 F.3d 433 (3rd Cir. 2016), cert. denied, a case upholding expedited removal under the current regulations, the court states:

Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.

Here’s a link to the full Castro opinion and my previous blog on the decision:

http://wp.me/p8eeJm-IG

I predict that, as in other areas, by “pushing the envelope” on the expedited removal statute, the Trump Administration will eventually force the Federal Courts, including the Supreme Court, to find it unconstitutional at least in some applications.

The Administration would be smarter to go about Immigration Court docket reduction by limiting new enforcement actions to recent arrivals and those who have engaged in activities that endanger the public health and safety, similar to what the Obama Administration did. This should be combined with a realistic legalization proposal and return to a robust use of prosecutorial discretion (“PD”) that would remove many of the older, nonprioty cases from the docket.

Eliminating rights, “fudging” due process, and pretending like judicial and quasi-judicial resources are infinitely expandable will not solve the problem in the long run. It’s time for some “smart” immigration enforcement and action to reform the Immigration Courts into an independent court system. But, I’d ever accuse the Trump Administration of being “smart,” particularly in the area of immigration policy.

PWS

10-19-17

DREAMER UPDATE: N. Rappaport Says 47 Mi. Of “Trump‘s Wall” Is An Acceptable Price For Dems To Pay To Save “Dreamers” — CNN’S Tal Kopan Says GOP House Might Go With Own “Dreamer Bill” (Once Again) Excluding Dems!

http://thehill.com/opinion/immigration/354585-democrats-take-trumps-daca-deal-to-save-some-from-deportation

Nolan writes in The Hill:

“Realistically, it is not going to be possible to work with Trump on a permanent DACA program without providing the funds he needs to at least start the construction of his wall, but this does not have to be a deal breaker.

Get him started with funding to complete the last 47 miles of the border fencing that was mandated by the Secure Fence Act of 2006, which was passed in the Senate 80 to 19. The yeas included current Senate party leaders Mitch McConnell (R-Ky.) Schumer and former Senators Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.).

As amended by section 564 of the Consolidated Appropriations Act, 2008, it requires DHS to “construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective.” DHS only completed 653 miles of the authorized fencing.

Finishing this project would give Trump a chance to show what he can do and provide a reliable basis for estimating the cost of a wall along the entire length of the Southwest border.

The alternative to finding a compromise is to abandon the tentative agreement and let the Democrats continue their endless stream of complaints about Trump, which won’t improve Congress’ approval ratings or save any of the DACA participants from being deported.”

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Go on over to The Hill to read Nolan’s complete article, which is well worth it whether you agree or not.

I basically agree with what Nolan has said above. While recognizing the emotional and political difficulties behind the Democrats giving on any “Wall Issue,” 47 miles of fencing in return for saving the lives and futures of nearly one million American young people is a reasonable trade-off. Unlike a “Full Wall,” the 47 miles has some bipartisan historical precedent and might be at least somewhat helpful to the Border Patrol in securing the border. Trump has to get something out of this for his “base” to offset their qualms about a “Dreamer Deal.” And the Democrats still reserve their right to “dig in” on other “Wall Issues” that won’t be going away as long as Trump is President. Plenty of room for the Democrats to posture to their base in the future, plus take credit for saving the Dreamers.

I think the Democrats should include as many Dreamers in the bill as possible. Since these residents are good for America, the more that are included the better for all of us. I would also reject inserting any “points system” into the process. That’s a bad idea (part of the “restrictionist agenda”) that Democrats should emphatically reject. I had all sorts of folks come though my courtroom in my thirteen years on the bench. I’d never say that the doctors, teachers, and computer scientists were “better” or “more valuable” for America than the bricklayers, landscapers, taxi drivers, maids, and sandwich artists. They are all contributing in important ways. The elitist “point system’ is simply another part of the bogus white restrictionist agenda.

I can’t agree with Nolan that there is anything that the Democrats can realistically do with Trump’s White Nationalist “wish list” on larger immigration reform. It’s a toxic and offensive compendium of truly reprehensible measures that will either diminish the legal and human rights of the most vulnerable migrants or send America in a totally wrong direction by restricting legal immigration at a time when it should be expanded. Just nothing there that’s realistic or morally acceptable, as you might expect when White Nationalists like Sessions, Miller, and Banning get their hands on immigration policy.

Although clearly outnumbered at present, the Democrats do have two “Trump Cards” in their hand.

First, no matter how much cruel, inhumane, and wasteful “Gonzo” enforcement the Trump-Sessions-Homan crowd does, they won’t be able to make much of a dent in the 10-11 million population of undocumented workers during the Trump Administration, be that four or eight years. That means most of those folks aren’t going anywhere. It’s just a question of whether they work legally and pay taxes or work under the table where most of them probably won’t be able to pay taxes. So the issue will still be around, looking for a more constructive solution whenever “Trumpism” finally ends.

Second, no amount of Gonzo restrictionism can stop additional needed foreign workers from coming in the future as long as there 1) is an adequate supply, and 2) are U.S. industries that demand their services — and there clearly will continue to be. Employer sanctions won’t stop undocumented migration. We’ve already proved that. About the most the restrictionists can do is change the cost equation, making the cost of importing documented and undocumented workers more expensive to U.S. employers while enriching and enlarging international human smuggling operations. Restrictionists are international smuggling cartels’ “best friends,” at least up to a point.

It is, however, possible, that legal immigration restrictions enacted into law could eventually raise the costs of obtaining foreign labor, both documented and undocumented, to the point where it becomes “not cost-effective.” The cost of legal foreign labor would simply become too great and the supply too small. Meanwhile, over on the undocumented side, workers would have to pay smugglers more than they could anticipate making by working in the U.S.; there would come a point when it would not be cost-effective for U.S. employers to raise wages for undocumented workers any further.

At that point, the U.S. agriculture, tourism, hospitality, and entertainment industries, as well as other service industries heavily dependent on legal and undocumented foreign labor would start to disappear. They would soon be joined by technology, education, and other “STEM type” industries that need more qualified legal foreign labor than the restrictionists would be willing to provide. At that point, the country would go into economic free-fall, entirely attributable to the GOP restrictionists. The Democrats could come back into power, and eventually restore economic order with the necessary sane expansion of legal immigration opportunities.

It’s certainly a scenario that most Americans should want to avoid. But, as long as our government is controlled by restrictionists with overriding racial and political motivations, rather than by those searching for the “common good,” successful immigration reform might well be out of reach. And no “White Nationalist Manifestos” such as the Trump White House just issued are going to change that.

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

http://www.cnn.com/2017/10/11/politics/daca-negotiations-congress-latest/index.html

Meanwhile, over at CNN, Tal Kopan reports on the House GOP’s “own plan” for a “non-bi-partisan” Dreamer Bill, which, of course, would be DOA in the Senate.

Tal writes:

“Washington (CNN)A key House Republican involved in immigration negotiations said Wednesday that he expects his chamber will pass a bill with only GOP votes — and would include some version of a border wall — even as Democrats dismiss the idea that such a deal could reach the President’s desk.

Texas Rep. John Carter is a member of the House Republican immigration working group set up by House Speaker Paul Ryan to figure out a path forward for the Deferred Action for Childhood Arrivals program, an Obama-era policy that protected young undocumented immigrants brought to the US as children from deportation, which President Donald Trump has decided to end.

Carter told reporters in the Capitol that he expects what comes out of those meetings to be Republican-only and to include at least something for Trump’s controversial border wall.

“I think we will have a wall factor in the bill and I don’t think we will get a single Democrat vote,” Carter said about the discussions.

How serious is Trump on DACA?

Democrats have said any wall funding would be a nonstarter for negotiations, and Trump has suggested he’d consider separating the wall from the debate, though the White House has said it’s a priority.

close dialog

Carter declined to talk about the internal deliberations of the group, but said, “we are trying to come up with solutions which will not only be good for the DACA people but will also be good for America.”

Sources familiar with the workings of the group, which includes Republicans from across the spectrum of ideology in the party, say that while the group has been meeting and discussions are happening among members, the rough outline of a deal has yet to form.

Republicans may aspire to be able to use its House majority to pass the bill but will almost certainly lose some members over any legalization of DACA recipients, and could lose more moderates or conservatives depending on how a deal takes shape. For any bill to pass the Senate, it will need Democratic votes to clear the 60-vote filibuster threshold.

White House lays out DACA deal asks

When Trump announced in early September he was ending DACA, Ryan created the group to attempt to gain consensus on the thorny issue. Trump urged Congress to act and protect DACA recipients, but has also called for border security and immigration enforcement with it. Sunday night, the White House released a laundry list of conservative immigration principles that House Minority Leader Nancy Pelosi on Wednesday dismissed as “trash” and coming from a place of “darkness and cruelty.”

Trump created a six-month window for Congress to act by offering DACA permits that expire before March 5 one month to renew for a fresh two years, postponing any DACA expirations until March.

On Wednesday, the Department of Homeland Security said it was still finalizing numbers but that at least 86% of those DACA recipients eligible to renew had applications in by the October 5 deadline. Roughly 132,000 of the 154,000 eligible recipients had applied, spokesman David Lapan said, but that could leave thousands of recipients losing protections before March.

DHS explores ways to transform immigration system without Congress

As for the strategy of the House to pass a Republican-only bill, Carter acknowledged that there was a concern the group’s proposal couldn’t pass the Senate but said the other chamber needs “to get their work done” and he hoped both the House and Senate could hammer out a final compromise.

But Pelosi criticized the strategy when asked by CNN what she thought of Carter’s comments.

“That would not be a good idea,” Pelosi said. “Why would they go to such a place? It is really, again, another act of cruelty if they want to diminish a bill in such a way. And they still have to win in the Senate.”

California Democratic Rep. Zoe Lofgren, a longtime key House Democrat on any immigration policy, said that no serious negotiations have occurred between parties and moving forward alone would be Republicans’ prerogative but not necessarily successful.

“I like (Carter), I have no idea what they’re looking at, and if we were really having negotiations, we would be talking to each other,” Lofgren told CNN. “If they have the votes to pass something, they have the capacity to do that. How they get 60 votes in the Senate, who knows.”

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

Another unilateral House GOP proposal that will be DOA in the Senate. Really, these guys don’t earn their salaries.

Stay tuned.

PWS

10-12-17

NEW FROM THE HILL: N. RAPPAPORT SAYS “NO” TO MOST OF CAL SB 54, BUT WOULD LIKE TO FIND A COMPROMISE LEGISLATIVE SOLUTON TO HELP DREAMERS AND OTHER UNDOCUMENTED RESIDENTS!

http://www.huffingtonpost.com/entry/59dad902e4b08ce873a8cf53

In encourage you to go over to The Hill at the above link and read Nolan’s complete article. As always, whether you agree with Nolan or not, his articles are always thought-provoking and timely. Nolan is definitely a “player” in the immigration dialogue! (And, frankly, by going over to The Hill, Nolan gets a few more “hits” which give him a few more “hard-earned nickels” in his pockets. Gotta help out my fellow retirees!)

I can agree with Nolan’s bottom line:

“It would be better to help undocumented aliens by working on comprehensive immigration reform legislation that meets essential political needs of both parties.”

The challenge will be figuring out what those points might be. So far, the GOP “Wish List” is basically an “incendiary White Nationalist screed” drafted by notorious racist xenophobe Stephen Miller (probably with backing from Sessions and certainly incorporating parts of Steve Bannon’s alt-right White Nationalist world view) that contains virtually nothing that any Democrat, or indeed any decent person, could agree with. Indeed, the very involvement of Miller in the legislative process is a “gut punch” to Democrats and whatever “moderate GOP” legislators remain.

What are some “smart enforcement” moves that Democrats could agree with: more funding for DHS/ICE technology; improvements in hiring and training for DHS enforcement personnel; U.S. Immigration Court reforms; more attorneys and support (including paralegal support) for the ICE Legal Program; more funding for “Know Your Rights” presentations in Detention Centers.

But more agents for “gonzo enforcement,” more money for immigration prisons (a/k/a the “American Gulag”), and, most disgustingly, picking on and targeting scared, vulnerable kids seeking protection from harm in Central America by stripping them of their already meager due process protections: NO WAY!

Although “The Wall” is a money wasting folly with lots of negative racial and foreign policy implications, it probably comes down to a “victory” that Democrats could give to Trump and the GOP without actually hurting any human beings, violating any overriding principles of human rights law, or diminishing Constitutional Due process. It also inflicts less long-term damage on America than a racially-oriented “point system” or a totally disastrous and wrong-headed decrease in legal immigration when the country needs the total opposite, a significant increase in legal immigration opportunities, including those for so-called “unskilled labor.”

While this GOP Congress will never agree to such an increase — and therefore workable “Immigration Reform” will continue to elude them — the Democrats need to “hold the line” at current levels until such time as Americans can use the ballot box to achieve a Congress more cognizant of the actual long-term needs of the majority of Americans.

PWS

10-09-17

THE HILL: N. Rappaport Says DHS Search Of Social Media Is Likely Legal

http://thehill.com/opinion/immigration/353479-homeland-securitys-social-media-searches-dont-actually-violate-privacy

Nolan writes:

“Homeland Security searching some social media doesn’t violate privacy

The Department of Homeland Security (DHS) has posted a new rule on the Federal Register which authorizes adding information from an alien’s social media sites to the files that are kept in his/her official immigration records, such as “social media handles, aliases, associated identifiable information, and search results.”

The official immigration records are known as “A-Files.”

The social media sites will be searched for information which pertains to granting aliens a visa or some other type of immigration benefit, and this almost certainly will lead to social media searches of the American citizens and lawful permanent residents who sponsor them.

For instance, if a citizen files a visa petition to accord immediate relative status to his alien spouse, and information on the spouse’s Facebook site indicates that the marriage is a sham, DHS will search the citizen petitioner’s Facebook site for additional information to assist in determining whether the marriage really is a sham.
But the most important reason is to identify terrorists, and this is the reason that prompted 26 senators to ask DHS to search social media sites after the San Bernardino terrorist attack.

. . . .

The Electronic Frontier Foundation and the ACLU have filed a lawsuit to stop DHS from searching mobile electronic devices at the border in violation of the Fourth Amendment to the U.S. Constitution. I expect them to challenge social media checks on the same basis.

The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” But this only applies to situations where an individual has “a reasonable expectation of privacy,” which is not an easy concept to apply to social media information.

In any case, there is no expectation of privacy in immigration processes. Most, and perhaps all, of the persons involved in immigration processes have to authorize DHS to investigate them and the information they provide.

For instance, an American citizen or lawful permanent resident who files a visa petition for a relative has to fill out a Form I-130 Petition for Alien Relative, which requires extensive information about the petitioner, his/her spouse, and his/her parents. It requires similar information about the alien who is the beneficiary of the petition.

The petitioner also has to authorize the release of information that is needed for the adjudication of the petition, or that is “necessary for the administration and enforcement of U.S. immigration laws.”

The Form DS-160 Application for a Nonimmigrant Visa requires even more information, and it should be apparent to aliens applying for a visa that they are subject to background investigations.

I am not convinced, therefore, that social media searches violate privacy rights, and the San Bernardino terrorist attack has shown that information on social media sites can help DHS to identify terrorists before they strike.

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

Go over to The Hill at the link to read Nolan’s complete analysis.

I guess the message here is that if you want privacy, stay off of social media. Otherwise, user beware!

PWS

10-02-17

THE HILL: N. RAPPAPORT ON WHAT IT WILL TAKE TO CLOSE THE DEAL ON DREAMERS

http://thehill.com/opinion/immigration/352155-if-democrats-insist-on-chain-migration-theyll-kill-the-dream-act

Nolan writes:

“According to Migration Policy Institute estimates, potentially 3,338,000 aliens would be able to qualify for conditional lawful status under H.R.3440, which leads to permanent resident status, and chain migration would make the number much larger.

Moreover, chain migration would make it possible for the DREAMers to pass on legal status and a path to citizenship to the parents who brought them to the United States in violation of our laws, which is sure to be unacceptable to many Republicans.

The chain migration issue does not just apply to a DREAM Act. If it is allowed to block passage of a DREAM Act, it is likely to become an obstacle to every legalization program from now on, and for most undocumented immigrants, there is not going to be another way to obtain lawful permanent resident status.”

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

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

I’m far removed from the days when I had a sense of what’s happening on the Hill. So, if Nolan says that the Dems will have to give on family migration for Dreamers to cut a deal to save them in a GOP-controlled Congress in a Trump presidency, maybe that’s true. Gotta do what you have to do to save lives and preserve America’s future.

But, I do know something about the bogus term “chain migration” It’s a pejorative term coined by restrictionists to further their racial and ethnic agenda.

Chain migration is simply legal family migration, a process that has been ongoing for at least half a century and has done nothing but good things for America. Of course, it makes sense to give preferred treatment to those with family already in the U.S. Of course, having family here helps folks adjust, prosper, and contribute. It’s a win-win. Studies by groups not associated with a restrictionist agenda confirm that.

Moreover, unlike the folks pushing the restrictionist agenda, I actually have seen first-hand the highly positive results of family-based legal immigration for years in Immigration Court. It brings really great folks into our society and allows them to contribute fully to the success of America, and particularly our local communities.

If we want more skills-based immigration, that’s also a good idea. But, that doesn’t require a corresponding cut in family immigration. Immigration is good for America. It’s not a “zero-sum game,” although restrictionists would like us to think so.

The GOP position on parents of Dreamers is absurd. Those folks are already here and contributing to our society and our communities. Many have been here for decades. They are not going anywhere notwithstanding the rhetoric of the restrictionists and the Trump Administration. Other than picking on Dreamers once they become citizens, what could we as a country possibly gain by such an absurd and punitive measure directed against productive long term residents?

I think it is worth considering what pushing for unnecessary and harmful restrictions on family migration says about the real motivations of today’s GOP and its apologists.

PWS

09-24-17

TAL KOPAN IN CNN: HUMAN RIGHTS TRAVESTY — According To U.S. State Department’s Info, Sudan Remains One Of The Most Dangerous And Violent Countries In The World — But, Reality Isn’t Stopping The Trump Administration From Ending TPS Protection! -“I mean look what’s going on in Sudan,” [Rep. Zoe] Lofgren [D-CA] said. “If that is a wise decision, what’s an unwise one?”

http://www.cnn.com/2017/09/18/politics/sudan-tps-decision-dhs/index.html

Tal writes:

“Washington (CNN)The Trump administration on Monday announced an end to protections for Sudanese immigrants, a move that advocates fear could be a sign of things to come.

The Department of Homeland Security announced Monday afternoon that it would be ending Temporary Protected Status for Sudan after a 12-month sunset period. It opted to extend, however, Temporary Protected Status for South Sudan, which gained its independence in 2011, through May 2019.
The decision was overdue. By law, decisions on TPS designations are required 60 days before an expiration deadline. With both countries’ status set to expire on November 2, the decision was due September 3. DHS said it made a decision in time, but kept it quiet for more than two weeks and did not respond to requests for an explanation.
While the decision on the future of Temporary Protected Status for Sudanese and South Sudanese immigrants only affects just over 1,000 people in the US, the decision is being closely watched as a harbinger of where the administration will go on upcoming TPS decisions that affect more than 400,000 people in the US.
Under Acting DHS Secretary Elaine Duke’s direction on Monday, recipients of protections from Sudan will be allowed to remain protected from deportation and allowed to work under the program until November 2, 2018, during which they are expected to arrange for their departure or seek another immigration status that would allow them to remain in the US.
Individuals from South Sudan will be able to extend their status until May 2, 2019, when DHS will make another decision on their future based on conditions in the country.
According to USCIS data, at the end of 2016 there were 1,039 temporarily protected immigrants from Sudan in the United States and 49 from South Sudan.
Temporary Protected Status is a type of immigration status provided for by law in cases where a home country may not be hospitable to returning immigrants for temporary circumstances, including in instances of war, epidemic and natural disaster.
While DHS did not explain the delay in publicizing the decision, which the agency confirmed last week was made on time, the law only requires “timely” publication of a TPS determination. The decision was made as the administration was preparing to announce the end of the Deferred Action for Childhood Arrivals program, or DACA, a popular program that has protected nearly 800,000 young undocumented immigrants brought to the US as children from deportation since 2012.

Some of the affected individuals have been living in the US for 20 years. TPS is not a blanket protection — immigrants have to have been living in the US continuously since a country was “designated” for TPS in order to qualify.

For example, Sudan was first designated in 1997 and was re-designated in 1999, 2004 and 2013, meaning people had opportunities to apply if they’ve been living in the US since any of those dates. South Sudan’s TPS was established in 2011 and had re-designations in 2014 and 2016.
Both countries were designated for TPS based on “ongoing armed conflict and extraordinary and temporary conditions.”

The situation in Sudan has improved in recent years, but there are still concerns about its stability and human rights record. In January, outgoing President Barack Obama eased sanctions on Sudan but made some moves contingent upon further review. President Donald Trump has extended that review period. South Sudan, meanwhile, remains torn by conflict.

Advocates for TPS have expressed fear that if the administration were to begin to unwind the programs, it could be a sign of further decisions to come. In the next six months, roughly 400,000 immigrants’ status will be up for consideration, including Central American countries like El Salvador that have been a focus of the Presidents’ ire over illegal immigration and gang activity.
close dialog

California Rep. Zoe Lofgren, the top Democrat on the immigration subcommittee for the House Judiciary Committee, said in an interview before the decision that ending Sudan’s protections could be a sign of more to come.

“I mean look what’s going on in Sudan,” Lofgren said. “If that is a wise decision, what’s an unwise one?”

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

Let’s take a closer look at some of those supposedly “improved conditions,” using the Government’s own information, the U.S. Department of State’s latest (2016) Country Report on Human Rights Conditions for Sudan:

“The three most significant human rights problems were inability of citizens to choose their government, aerial bombardments of civilian areas by military forces and attacks on civilians by government and other armed groups in conflict zones, and abuses perpetrated by NISS with impunity through special security powers given it by the regime. On January 14, the government launched an intensive aerial and ground offensive against Sudan Liberation Army-Abdul Wahid (SLA/AW) strongholds in the Jebel Marra area of Darfur. This operation displaced more than 44,700 persons by January 31, according to the UN Office for the Coordination of Humanitarian Affairs (OCHA). In February the government established in Darfur a suboffice of the National Human Rights Commission to enhance the commission’s capacity to monitor human rights in Darfur. Meanwhile, ground forces comprising Rapid Support Forces (RSF) and Border Guards carried out attacks against more than 50 villages in an attempt to dislodge the armed opposition. Attacks on villages often included killing and beating of civilians; sexual and gender-based violence; forced displacement; looting and burning entire villages; destroying food stores and other infrastructure necessary for sustaining life; and attacks on humanitarian targets, including humanitarian facilities and peacekeepers. In September, Amnesty International issued a report alleging that, through September the government engaged in scorched-earth tactics and used chemical weapons in Jebel Marra, Darfur. UN monitors were unable to verify the alleged use of chemical weapons, due in part to lack of access to Jebel Marra, including by rebel commanders loyal to Abdel Wahid. By year’s end the Organization for the Prohibition of Chemical Weapons (OPCW) had not been presented with sufficient corroborating evidence to conclude chemical weapons had been used. The NISS continued to show a pattern of widespread disregard for rule of law, committing major abuses, such as extrajudicial and other unlawful killings; torture, beatings, rape and other cruel or inhuman treatment or punishment; arbitrary arrest and detention by security forces; harsh and life-threatening prison conditions; incommunicado detention; prolonged pretrial detention; obstruction of humanitarian assistance; restrictions on freedom of speech, press, assembly,association, religion, and movement; and intimidation and closure of human rights and nongovernmental organizations (NGOs). Societal abuses included discrimination against women; sexual violence; female genital mutilation/cutting (FGM/C); early childhood marriage; use of child soldiers; child abuse; sexual exploitation of children; trafficking in persons; discrimination against ethnic and religious minorities, persons with disabilities, and persons with HIV/AIDS; denial of workers’ rights; and child labor. Government authorities did not investigate human rights violations by NISS, the military or any other branch of the security services, with limited exceptions relating to the national police. The government failed to adequately compensate families of victims of shootings during the September 2013 protests, make its investigations public, or hold security officials accountable. Impunity remained a problem in all branches of the security forces.

. . . .

The 2005 Interim National Constitution prohibits torture and cruel, inhuman, and degrading treatment, but security forces, government-aligned groups, rebel groups, and ethnic factions continued to torture, beat, and harass suspected political opponents, rebel supporters, and others. In accordance with the government’s interpretation of sharia (Islamic law), the penal code provides for physical punishments, including flogging, amputation, stoning, and the public display of a body after execution, despite the constitution’s prohibitions. With the exception of flogging, such physical punishment was rare. Courts routinely imposed flogging, especially as punishment for the production or consumption of alcohol. The law requires police and the attorney general to investigate deaths on police premises, regardless of suspected cause. Reports of suspicious deaths in police custody were sometimes investigated but not prosecuted. For example, in November authorities detained a man upon his return from Israel. He died while in custody, allegedly from falling out a window, although the building had sealed windows. The president called on the chief prosecutor and chief justice to ensure full legal protection of police carrying out their duties and stated that police should investigate police officers only when they were observed exceeding their authority. Government security forces (including police, NISS, and military intelligence personnel of the Sudanese Armed Forces (SAF)) beat and tortured physically and psychologically persons in detention, including members of the political opposition, civil society, religious activists, and journalists, according to civil society activists in Khartoum, former detainees, and NGOs. Torture and other forms of mistreatment included prolonged isolation, exposure to extreme temperature variations, electric shock, and use of stress positions. Some female detainees alleged NISS harassed and sexually assaulted them. Some former detainees reported being injected with an unknown substance without their consent. Many former detainees, including detained students, reported being forced to take sedatives that caused lethargy and severe weight loss. The government subsequently released many of these persons without charge. Government authorities detained members of the Darfur Students Association during the year. Upon release, numerous students showed visible signs of severe physical abuse. Government forces reportedly used live bullets to disperse crowds of protesting Darfuri students. There were numerous reports of violence against student activists’ family members.

Security forces detained political opponents incommunicado, without charge, and tortured them. Some political detainees were held in isolation cells in regular prisons, and many were held without access to family or medical treatment. Human rights organizations asserted NISS ran “ghost houses,” where it detained opposition and human rights figures without acknowledging they were being held. Such detentions at times were prolonged. Journalists were beaten, threatened, and intimidated (see section 2.a.). The law prohibits (what it deems as) indecent dress and punishes it with a maximum of 40 lashes, a fine, or both. Officials acknowledged authorities applied these laws more frequently against women than men and applied them to both Muslims and non-Muslims. Courts denied some women bail, although by law they may have been eligible. There were numerous abuses reported similar to the following example: On June 25, the Public Order Police arrested several young women and men in Khartoum under the Public Order Act for “indecent dress.” During the sweep, all women who did not have their hair covered were taken into custody. The Public Order Police further arrested two young men for wearing shorts. According to NGO reports, the Public Order Police released the young women and men later the same day without charges.

Security forces, rebel groups, and armed individuals perpetrated sexual violence against women throughout the country; the abuse was especially prevalent in the conflict areas (see section 1.g.). As of year’s end, no investigations into the allegations of mass rape in Thabit, Darfur, had taken place (see section 6).”

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

What I’ve set forth above is just a small sample of some of the “lowlights.” Virtually every paragraph of the Country Report is rife with descriptions of or references to gross abuses of Human Rights.

Clearly, these are not the type of “improved country conditions” that would justify the termination of TPS for Sudan. Moreover, since it affects only 1,000 individuals, there are no overriding policy or practical reasons driving the decision.

No, the Administration’s totally disingenuous decision is just another example of wanton cruelty, denial of established facts, and stupidity. Clearly, this is an Administration that puts Human Rights last, if at all.

As pointed out by Nolan Rappaport in a a recent post, the best solution here is a legislative solution that would provide green cards to long-time “TPSers” through the existing statutory device of “registry.” With some lead time to work on this, hopefully Lofgren can convince enough of her colleagues to make it happen.

Here’s a link to Nolan’s proposal:

http://immigrationcourtside.com/2017/09/14/the-hill-n-rappaport-suggests-legislative-solutions-for-long-term-tpsers/

PWS

09-19-17

THE HILL: N. RAPPAPORT SUGGESTS LEGISLATIVE SOLUTIONS FOR LONG-TERM “TPSers!”

http://thehill.com/opinion/immigration/350668-with-dreamers-out-bring-immigrants-under-temporary-protection-status-in

Nolan writes:

“The Temporary Protected Status program (TPS) provides refuge in the United States to more than 300,000 aliens from a total of 13 countries: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and Yemen.

They are supposed to leave when it is safe for them to return to their own countries, but it can take many years for conditions in their countries to improve. The need for TPS can last for decades.

It does not include a path to permanent resident status, but should aliens who have lived in the United States for decades be required to leave when their TPS is terminated?

Rep. Zoe Lofgren (D-Calif.) says that at some point they have been here so long that they should be allowed to remain permanently: “There should be some rational way to transition people who have been here for a long time … who because of the length of their stay have basically become valued members of our community.”

. . . .

An alien is free to apply for other types of immigration status while he has TPS.

So, should congress make permanent resident status available to TPS aliens when conditions in their countries keep them here an exceptionally long time?

I agree with Lofgren that at some point, TPS aliens have been living here so long that it no longer makes sense to send them back to their own countries.

The best solution would be to change the TPS provisions to make some form of permanent status available when aliens are forced to remain for exceptionally long times because conditions in their countries do not improve, but that might not be possible.

One of the TPS provisions imposes a limitation on consideration in the Senate of legislation to adjust the status of aliens who have TPS. It provides that it shall not be in order in the Senate to consider any bill or amendment that provides for adjustment to lawful temporary or permanent resident status for TPS aliens, or has the effect of amending the TPS provisions in any other way.

This restriction can be waived or suspended with an affirmative vote from three-fifths of the senators, which is known as a “supermajority vote.”

But there is an alternative that would not require changing the TPS provisions.

The Registry legalization program, which was established in 1929, makes lawful permanent resident status available to qualified aliens who entered the United States before January 1, 1972; have resided in the United States continuously since such entry; and have good moral character.

An update of the registry cutoff point is long overdue. It has not been changed since it was set at 1972, by the Immigration Reform and Control Act of 1986 (IRCA).

The change would apply to all undocumented aliens who can meet the eligibility requirements.”

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

Read Nolan’s complete article, which contains a very succinct and helpful explanation of TPS which I omitted above, over at The Hill.

I think that Nolan has hit it on the head here! There is virtue in using existing administrative processes to deal with new issues. And, as he points out, “Registry” is there for the taking, and it’s been 30 years since it was updated!

Recollection: Understandably, we didn’t see very many “Registry” cases during my tenure at the Arlington Immigration Court (2003-16). But the rare ones we did receive always received “waivers” of the “no business at lunch rule” because they always involved such interesting human stories. I never came across one myself. But, I think that my colleagues who did always felt like they had discovered a “nugget of gold” in the least expected place! It would also help the Immigration Courts because most of the Registry cases (like the TPS cases) could be adjudicated over at USCIS, thereby reducing “docket pressure.” Bring back Registry! Yea Nolan!

PWS

09-14-17

THE HILL: Rappaport Says: “Trump ended DACA in the most humane way possible!” –Hector Barreto, Chairman of The Latino Coalition Agrees!

http://thehill.com/blogs/pundits-blog/immigration/349566-trump-ended-daca-in-the-most-humane-way-possible

Nolan writes:

“Former President Barack Obama established the Deferred Action for Childhood Arrivals (DACA) Program five years ago with an executive order that granted temporary lawful status and work authorization to certain undocumented immigrants who had been brought to the United States as children.

This was not a good idea. It only provided temporary relief and applicants had to admit alienage, concede unlawful presence, and provide their addresses to establish eligibility for the program, which has made it very easy to find them and rush them through removal proceedings.

Instead of giving false hope to the young immigrants who participated in the program and heightening their risk of deportation, Obama should have worked on getting legislation passed that would have given them real lawful status and put them on a path to citizenship. Such bills are referred to as DREAM Acts, an acronym for “Development, Relief, and Education for Alien Minors Act.”

That still is the only option that makes any sense.

. . . .

DACA advocates need to put aside any anger they have over the rescission of DACA and work on getting a DREAM Act passed.

DREAM Acts have been pending in Congress since 2001, and we are yet to see one enacted. This is what led Obama to establish the DACA program administratively.

A new approach is needed. One possibility would be to base eligibility on national interest instead of on a desire to help as many undocumented immigrants as possible, which is the approach taken by the recently introduced American Hope Act, H.R. 3591. It might more appropriately have been named, “The False Hope Act.”

The solution is to find a way to help immigrants who were brought here as children that would be acceptable to both parties.”

In a separate blog over on CNBC, Hector Barreto, Chairman of the Latino Coalition echoed Nolan:

https://www.cnbc.com/amp/2017/09/06/on-daca-trump-did-the-right-thing-commentary.html

“The winding down of DACA is the perfect time for Congress to develop effective, compassionate policy on immigration – something most Americans strongly agree we need. The best reforms will be developed through the legislative process, not executive orders – and that’s something else both sides can agree on.

In the meantime, leaders should stay away from inflammatory language and fear mongering. Mass deportations will not happen – it is simply not logistically possible, and it is not what the Trump Administration has called for. It is worth noting how Attorney General Sessions described the government’s next steps:

The Department of Justice has advised the President and the Department of Homeland Security that DHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program. … This [wind down process] will enable DHS to conduct an orderly change and fulfill the desire of this administration to create a time period for Congress to act—should it so choose. We firmly believe this is the responsible path.

Sessions’ words about a “wind down” were rational and calm, indicating an approach that is not drastic or dramatic, not gratuitously painful or overly political. The end of DACA and the beginning of lawful immigration reform can, and should, be handled with this level of maturity and respect – for dreamers for American citizens, and for our nation’s tradition of the rule of law.

PLAY VIDEO

There are no easy or simple answers on immigration, and it’s okay for our leaders to acknowledge that fact. I believe they can find legislative solutions that strengthen America, recognize our proud immigrant tradition, keep the economy strong, and keep our citizens safe and our borders secure. The core elements of President George W. Bush’s immigration reform proposals, for example, met those goals through effective border security, a functioning and humane guest worker program, and a pathway to earned legal status for the undocumented. Given the six-month time frame Congress will have before DACA ends, they would do well to start their work with Bush’s already well-developed proposal.

President Trump even Tweeted on Tuesday that he would revisit the issue if Congress cannot act.”

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

Read Nolan’s and Hector’s blogs at their respective links above.

I agree with Nolan’s “bottom line:”

“The solution is to find a way to help immigrants who were brought here as children that would be acceptable to both parties.”

PWS

09-05-17

THE HILL: RAPPAPORT ON TEXAS INJUNCTION OF PARTS OF SB 4 — City of El Cenizo v. State of Texas

http://thehill.com/blogs/pundits-blog/immigration/349103-texas-courts-pro-sanctuary-cities-decision-can-cripple

Nolan writes:

“At the end of August, a federal district court in Texas ruled against that state, halting an immigration enforcement law shortly before it was to go into effect.

The court issued a preliminary (temporary) injunction to halt the implementation of five allegedly unconstitutional provisions in Texas’ anti-sanctuary city law, Senate Bill 4 (SB 4), including one that would require law enforcement agencies in Texas to “comply with, honor, and fulfill” any immigration detainer issued by U.S. Immigration and Customs Enforcement (ICE).

This means that the court found a substantial likelihood that the plaintiffs (in this case, the parties opposing the state of Texas) will succeed in establishing that those provisions are unconstitutional when a decision is rendered on the merits of the case.

If the decision on ICE detainers is correct, which seems to be the case, it could cripple ICE’s ability to prevent removable criminal aliens from absconding when they are released from custody by state and local law enforcement agencies.

. . . .

When Texas Governor Greg Abbott signed SB 4 into law, he said that denying detainer requests can have deadly consequences. This is illustrated by the case of Kate Steinle, who was shot dead by a criminal alien while she was walking with her father on a busy pier in San Francisco.

The alien was a repeat felon who had been deported five times, but the police department that had been holding him released him in disregard of a detainer request because San Francisco is a sanctuary city that does not honor detainer requests.

Preventing the use of detainers could have unintended consequences. If other federal courts agree with the decision’s disposition of the detainer issue; state and local police in every part of the country may have to stop honoring detainer requests, and ICE could use the time that would have been spent following up on detainers to go after noncriminal aliens.

ICE can encourage state and local police departments to participate in the federal 287(g) Program, which allows participants to enter into a partnership with ICE on the basis of a Memorandum of Agreement (MOA). They would receive training on immigration enforcement and delegated immigration authority, which includes the option of being able to detain aliens on the basis of detainers.

But ICE does not have the resources to train and supervise police in all of the state and local law enforcement agencies in the country.

The only solution is for Congress to grant state and local police the authority to detain aliens on the basis of an ICE detainer.”

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

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

I agree with Nolan that the Chief District Judge Orlando L. Garcia’s analysis of SB 4’s constitutional infirmities appears to be correct. I also agree that rationale should eventually require DHS to change its detainer policy nationwide to meet constitutional standards.

That means that a battery of DHS and DOJ attorneys, of which there is no shortage, will have to work with the enforcement branches to come up with effective enforcement methods that comply with our Constitution. Stuff like that happens all the time. That’s why the Government needs good lawyers.

I don’t agree with Nolan that the only way for DHS to function is for Congress to pass legislation turning untrained local cops into immigration officers for the purpose of honoring detainers. Seems like you end up with the same problem, just “dressed up” differently.

I spent over a decade working for the Legacy INS on immigration enforcement matters. Nobody ever doubted that immigration officers could effectively carry out their duties 1) in full compliance with the U.S. Constitution, and 2) without relying on state and local officials. Indeed, the “mantra” of INS Enforcement in those days was “we’re the immigration pros, leave enforcement to us.” I guess times must have changed; but not that much. And, the Fourth Amendment hasn’t changed at all.

I also don’t buy the claim that Abbott was interested in protecting Texans from dangerous crime. No, this was about a White Nationalist agenda designed to put down minorities, particularly in the Latino community, and prevent them from getting their fair share of political power. That’s why, although Latinos make up a large proportion of Texas’s population, Latino leaders generally opposed the GOP’s and Abbott’s racially divisive action.

A bill really aimed at protecting all Texans, regardless of ethnicity or status, from violent crime would have received support from about 98% of residents (who really wants to be a victim of violent crime — almost nobody, as the BIA has observed on a number of occasions) including the overwhelming number of Latinos. That it didn’t, and that a majority-Latino jurisdiction like El Cenizo is the lead plaintiff opposing the bill says all you need to know about the SB 4’s White Nationalist intent.

There will come a day when the Abbotts, Paxtons, and other denizens of the Texas White GOP will have to share power equitably with Latino and other minority Texans. When that happens, they can only hope that Latino leaders and politicians will have short memories, forgive the racism of the past, and move on to the future treating them with greater respect and consideration than they deserve based on their recent “sharp stick in the eyes” words and actions.

Until that happens — well, as I’ve said before, lots of work for lawyers and judges.

PWS

09-04-17

THE HILL: NOLAN’S PROPOSAL FOR AVOIDING A SHUTDOWN, SAVING DREAMERS, & GIVING TRUMP SOME WALL!

http://thehill.com/blogs/pundits-blog/immigration/348280-trump-strike-a-deal-trade-border-wall-funding-for-daca

Nolan Rappaport writes in The Hill:

“Despite the difficulty of the task, give Trump a chance to show what he can do. This can be done by properly funding the existing border security legislation.

Provide Trump with the funding needed to finish the southwest border fencing project mandated by the bipartisan Secure Fence Act of 2006.

The Secure Fence Act was passed in the Senate 80 to 19. The yeas included current Senate party leaders Mitch McConnell (R-Ky.) and Charles Schumer (D-N.Y.) and former Senators Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.).

It mandated 850 miles of fencing along the southwest border, but as amended by section 564 of the Consolidated Appropriations Act, 2008, it just requires DHS to “construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective.”

DHS has constructed just 653 miles of fencing.

When Trump has completed the last 47 miles of this project, he will be able to show Congress the kind of wall he wants for the rest of the border and provide a reliable estimate of what it would cost.

To incentivize Trump to accept this alternative, Congress should assist him with his border security efforts by weakening the “job magnet,” the fact that undocumented aliens generally come here to find employment.

Congress tried to eliminate this magnet with an employer sanctions program in the Immigration Reform and Control Act of 1986 (IRCA), but it has been more than 30 years since the program was established and it still has not been fully implemented.

According to a report by Georgetown’s Institute for the Study of International Migration, unscrupulous employers “knowingly hire unauthorized workers to exploit their labor.” For instance, they “pay salaries in cash, failing to pay their share of social security taxes.”

The Department of Labor (DOL) enforces labor laws that curb such abuses without regard to employee immigration status, e.g., the Fair Labor Standards Act, which mandates minimum wages, overtime pay, youth employment, and other standards for all employees.

Congress can provide Trump with the funding DOL needs for a nationwide campaign to stop the exploitation of employees in industries known to hire undocumented aliens. This would weaken the job magnet and reduce the number of illegal border crossings.

But the president isn’t the only player congressional Republicans need to persuade to accept a compromise. To prevent a government shutdown (and fund Trump’s border wall), they will also need Democrats. What may be enough to persuade them is protecting an Obama-era immigration program.

On June 15, 2012, President Barack Obama established a program to offer temporary lawful status to undocumented aliens who were brought here as children, the Deferred Action for Childhood Arrivals (DACA) program.

The application process required them to admit alienage and concede unlawful presence, and to provide their addresses, which makes it easy for them to be arrested and deported.

In a June 2017 letter, state attorney generals asked U.S. Attorney General Jeff Sessions to terminate DACA. If he does not do it, they will amend a pending lawsuit in a Federal District Court to include a challenge to DACA.

The administration apparently does not intend to defend DACA in court if it is included in the lawsuit. Moreover, recent media reports indicate that Trump is likely to rescind the program.

The Democrats might be more receptive to the measures I have proposed if they are offered a separate bill that would protect DACA participants from deportation if the program is terminated.

Nothing good will come from a showdown between Trump and the Senate over funding his wall. They need to prevent that from happening.”

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

Read Nolan’s complete op-ed over at The Hill at the above link.

PWS

08-29-18

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