Persecution – Page 69 – immigrationcourtside.com

REUTERS: Mica Rosenberg Reports On Trump’s “Under The Radar” Plan To Bar “Freedom Fighters” & “Victims Of Terrorism” From The U.S.!

http://www.reuters.com/article/us-usa-immigration-terrorism-exceptions-idUSKBN17N13C

Mica and Yegenah Torbati report:

“Now the Trump administration is debating whether to rescind the waivers that have allowed Raj, and tens of thousands of others, to immigrate to the United States in the past decade (See graphic on waivers: tmsnrt.rs/2oPssIo). Some immigration hardliners are concerned the exemptions could allow terrorists to slip into the country.

U.S. President Donald Trump directed the secretaries of State and Homeland Security, in consultation with the attorney general, to consider abolishing the waivers in an executive order in March. That directive was overshadowed by the same order’s temporary ban on all refugees and on travelers from six mostly Muslim nations.

The bans on refugees and travel were challenged in lawsuits, and their implementation has been suspended pending full hearings in court. But the waiver review was not included in the court rulings, so that part of the order remains in effect.

Rules governing the waivers have been hammered out over the last decade with both Democratic and Republican support. But in recent years they have drawn fire from some conservative lawmakers, including Attorney General Jeff Sessions when he was a senator.

A State Department official said this week the department is working with DHS to review the waivers and is “looking at actually pulling them back in accordance with the executive order.”

The official, who spoke on condition of anonymity, declined to give details on the timing of the review or its likely outcome. The Department of Justice declined to comment.

KURDS, KAREN, HMONG

Following the Sept. 11, 2001 attacks, Congress expanded the definition of who could be considered a terrorist and what constituted “material support” to terrorism in rules now known as the Terrorism Related Inadmissibility Grounds.

Those changes ensnared people like Raj who were coerced or inadvertently provided support to terrorists, as well as members of persecuted ethnic groups that supported rebel organizations, and even U.S.-allied groups fighting against authoritarian regimes.

Without an exemption, members of Kurdish groups that battled Saddam Hussein’s forces in Iraq, Hmong groups who fought alongside U.S. troops in Vietnam, or some Cubans who fought Fidel Castro’s regime would not be allowed to immigrate to the United States.

Under the exemptions, U.S. authorities have the discretion to grant people residency in the United States after they have passed background checks and are found to pose no threat to national security.

Congress initially passed waivers to the terrorism bars in 2007 with bipartisan support, and in the years that followed both the Bush and Obama administrations added additional groups and circumstances to the exemptions.

“PHANTOM PROBLEM”

U.S. Citizenship and Immigration Services (USCIS) has granted nearly 22,000 TRIG exemptions in total over the last decade, according to the latest data available, which goes through September 2016. The State Department also grants TRIG exemptions, but a spokesman could not provide data on how many.

Refugees from Myanmar are the largest single group of beneficiaries to date of TRIG exemptions granted by USCIS, with more than 6,700 waivers.

The wave of Myanmar refugees dates to 2006, when U.S. Secretary of State Condoleezza Rice ruled that thousands of members of the Karen ethnic group, then living in a camp in Thailand, could resettle in the United States, even if they had supported the political wing of an armed group that had fought the country’s military regime.

One high-profile supporter of scrapping the waivers is House of Representatives Judiciary Committee Chairman Bob Goodlatte, a Republican from Virginia whose staffers were instrumental in drafting Trump’s travel ban. Goodlatte told Reuters he was “pleased that the Trump Administration is reviewing the dangerous policy.”

Groups favoring stricter immigration laws have also applauded the review. Rosemary Jenks, director of government relations at NumbersUSA, called the waivers “a potential security risk.”

“I personally don’t think that a bureaucrat should be deciding how much support for terrorism is enough to be barred,” she said.

A USCIS spokeswoman, when asked if a recipient of an exemption had ever been involved in a terrorism-related case after arriving in the United States, referred Reuters to the Federal Bureau of Investigation, which said it was a question for the State Department to answer.

“I don’t know of any cases where beneficiaries of exemptions have gotten into trouble after arriving,” the State Department official said, noting that the department does not typically track people after they arrive in the United States.

Trump’s order to review the waivers “is another example of an attempt to address a non-existent phantom problem,” said Eric Schwartz, who served in the State Department during the Obama administration.

Schwartz and immigration advocates say the waivers are granted after lengthy review and are extremely difficult to get.

“These are case-by-case exemptions for people who represent no threat to the United States but rather have been caught in the most unfortunate of circumstances,” said Schwartz.

For Raj, the initial ruling that his ransom payment supported a terrorist group led to more than two years in U.S. immigration detention, followed by more years of electronic monitoring. His waiver allowed him to bring his wife to the United States after nine years apart. She now studies nursing.

(Reporting by Mica Rosenberg in New York and Yeganeh Torbati in Washington; Additional reporting by Julia Edwards in Washington and Kristina Cooke in San Francisco; Editing by Sue Horton and Ross Colvin)”

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Just to illustrate the lunacy of the already over-broad definition of “terrorist,” all of our “founding fathers” would be “terrorists” under this definition.

I heard a number of so-called”terrorist cases” over my time as a trial judge at the Arlington Immigration Court. A few of the folks on the detained docket (during the years I was assigned to that docket) might have potentially been dangerous.

But, most so-called “terrorists” were basically harmless individuals who actually appeared on my non-detained docket even during the “last years” when I was handling the “non-priority docket” (which was actually the overwhelming majority of cases at Arlington).

Most were folks who had supposedly provided “material support” like giving a ride to a rebel who commandeered the respondent’s car at gun point, carrying supply bags a few miles for guerrillas under threat of death, allowing rebels to ransack the family kitchen at gunpoint (sometimes called the “taco rule”), or giving money to a dissident group that was actually being supported by the U.S. in a battle against an oppressive government” (otherwise referred to as “freedom fighters”).

Most of them had lived in the U.S. for years without incident and were stunned to find out that being a victim of terrorism or helping a dissident group that the U.S. supported could be a bar to immigration. For example, anyone assisting rebels in the fight against the Assad Government or against ISIS would be considered a “terrorist” by our definition. And, ask yourself, why would any “real” terrorist have appeared on my non-detained, non-priority docket?

Of course, as a mere Immigration Judge I could not grant the “waiver” discussed in Mica’s article. But, I was required to make essentially an “advisory holding” that “but for” the “terrorist bar” I would have granted the respondent’s application.

I am aware that some of the cases I handled were referred to USCIS by the Office of Chief Counsel (the respondent can’t initiate the waiver process on her or his own) and eventually granted. Thereafter, I “vacated” on “joint motion” the removal order I had previously entered against the respondent. The whole process seemed convoluted.

Just another example of how the xenophobes in the Trump Administration are wasting time and taxpayer money making an already bad situation even worse.

A further example of how pointless the “terrorist bar” is in it’s current form: many of the individuals covered by the bar would also be entitled to “Deferral of Removal” under the Convention Against Torture (“CAT”). The “terrorist bar” can’t be applied to “CAT deferral.” Therefore, individuals who are denied asylum but qualify for CAT deferral can’t be removed from the country. In effect, all that the terrorist bar does in such cases is keep individuals who are no threat to the U.S. in “limbo,” rather than allowing them to regularize their immigration status.

PWS

04-21-17

Nobel Peace Prize Winner Malala Urges Trump To Visit Refugee Camps!

http://www.huffingtonpost.com/entry/malala-yousafzai-donald-trump-refugee-camps_us_58ecde9fe4b0c89f91217965

Hayley Miller reports in HuffPost:

“Nobel Peace Prize winner Malala Yousafzai has an urgent message for President Donald Trump: Visit refugee camps.

“President Trump needs to go and see refugee children,” Yousafzai said in an interview with “CBS This Morning” scheduled to air Wednesday. “He needs to go and visit the refugee camps. He needs to know what the real life is like in a refugee camp.”

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Sounds like a good plan. Perhaps he could at least send Jared!

PWS

04/13/17

RELIGION/POLITICS/REFUGEES: Pope Francis Puts Migrants’ Lives First — World’s Top Catholic Stands Tall Against Those Who Would Shun Most Vulnerable — Pence’s Values Might Bar Meeting With Women, But Haven’t Stopped Him From Supporting Policies That Hurt Refugees, Migrants, Transgender Children, Gays, The Sick, The Poor, The Starving, Many Women & Almost All Other Vulnerable People! Big Time Disconnect!

https://www.washingtonpost.com/world/europe/how-pope-francis-is-leading-the-catholic-church-against-anti-migrant-populism/2017/04/10/d3ca5832-1966-11e7-8598-9a99da559f9e_story.html?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.1dbd72f3d9a0

Anthony Faiola and Sarah Pulliam Bailey report in the Washington Post:

“VATICAN CITY — As politicians around the world including President Trump take an increasingly hard line on immigration, a powerful force is rallying to the side of migrants: the Roman Catholic Church led by Pope Francis.

Catholic cardinals, bishops and priests are emerging as some of the most influential opponents of immigration crackdowns backed by right-wing populists in the United States and Europe. The moves come as Francis, who has put migrants at the top of his agenda, appears to be leading by example, emphasizing his support for their rights in sermons, speeches and deeds.

The pro-migrant drive risks dividing Catholics — many of whom in the United States voted for Trump. Some observers say it is also inserting the church into politics in a manner recalling the heady days of Pope John Paul II, who stared down communism and declared his opposition to the 1991 Persian Gulf War. The Vatican is standing in open opposition to politicians like Trump not just on immigration but also on other issues, including climate-change policy.

But the focal point is clearly migrant rights.
In the United States, individual bishops, especially those appointed by Francis, have sharply criticized Trump’s migrant policies since his election. They include Newark Cardinal Joseph W. Tobin, who last month co-led a rally in support of a Mexican man fighting deportation. Tobin has decried Trump’s executive orders on immigration, calling them the “opposite of what it means to be an American.”

In Los Angeles, Archbishop José H. Gomez, the first Mexican American vice president of the United States Conference of Catholic Bishops, which leads the U.S. church, described migrant rights as the bishops’ most important issue. He has delivered blistering critiques of Trump’s policies, and instructed his clerics to distribute cards in English, Spanish, Korean and Vietnamese informing migrants of their rights in 300 parishes .
Chicago Cardinal Blase J. Cupich, one of Francis’s closest allies in the U.S. church, has issued orders that if federal immigration authorities should attempt to enter churches without a warrant in search of migrants, priests should turn them away and call the archdiocese’s lawyers. Catholic school principals were given the same instructions by the archdiocese, which Cupich said was an attempt to respond in a way that was firm “but not extreme.”

He said Francis has helped bishops shape their response.

“The pope makes it a lot easier for me to be a bishop because he’s very clear in his teaching, and [on] this one in particular, he’s trying to awaken the conscience of the citizens of the world,” Cupich said.

Francis has long been an advocate of migrants — kicking off his papacy in 2013 with a trip to an Italian island used as a waypoint for migrants desperate to enter Europe. In a highly public spat early last year, Francis and Trump exchanged barbs — with Francis declaring that anyone who wants to build walls “is not Christian.”

. . . .

Those who have the pope’s ear say Francis is seeking to counter anti-migrant policies by appealing directly to voters.

“I don’t think the pope is challenging [the politicians]. I think he is challenging their supporters, both those who actively support them and those who passively allow their policies to happen,” said the Rev. Michael Czerny, undersecretary of the Vatican’s new Section for Refugees and Migrants, which opened in January, just before Trump took office. Czerny reports directly to the pope — a sign of the importance of the new office.

“Mr. Trump or Ms. Le Pen are not the root of the problem,” Czerny continued. “The root of the problem is the fear, selfishness and shortsightedness that motivate people to support them.”

. . . .

He [William E. Lori, Archbishop of Baltimore] added that previous popes have taken similar positions as Francis on immigration. But, Lori added, Francis is “perhaps more dramatic.” His trips, such as his 2016 visit to the U.S.-Mexico border, also connected his stance on migrants to politics.
“The poor is the hallmark of his papacy,” Lori said. “It will affect our priorities and it should.”

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Meanwhile, Carla Gardina Pestana writes about “Arrogant Christians in the White House” in HuffPost:

“Mike Pence, the fundamentalist Christian whose views are so extreme that he cannot be alone with a woman other than his wife, and Donald Trump, who brags about sexually assaulting women and famously stumbled over an attempt to quote a biblical passage while on the campaign trail, seem to hold wildly divergent religious views. Yet both adhere to variations of Christianity inflected with arrogance. Together they represent two troubling trends in American Christianity, trends which appear to prove all the complaints secular liberals ever leveled against Christians.

Pence adheres to biblical literalism. Put simply, this view asserts that the Bible is a transparent document, one that prescribes specific behavioral guidelines. Glossing over the fact that the Bible is a complex text built of ancient fragments brought together by human hands, that it does not speak directly to many modern issues, and that even on its own terms it encompasses numerous contradictions, these Christians confidently declare that the Bible provides clear guidance for every Christian. Literalists arrived at this position only relatively late in Christian history, in response to various challenges from many quarters, including biblical scholarship, advances in science, and a rise in unbelief. Cutting through the complexities and the need to make choices, literalists declared all choice to be false and all discussion to be error. It was a comforting if simplistic and authoritarian solution to the problem of uncertainty.

Its arrogance lies in the hubris of those who believe that only their chosen answers are correct. Its potential to harm others comes when adherents gain political power and force their mandates on nonbelievers. One of the many dangers emanating out of the Trump White House is the power of Pence to impose not his religion but the behaviors his religion dictates onto the rest of us. Women’s rights and gender equality are on Pence’s hit list.

Trump’s religion, although very different, is similarly alarming. Unsurprisingly Trump accepts a religious viewpoint that tells him he is uniquely awesome. Whatever he has—however he acquired it—God wants him to enjoy to the fullest. Although traditional Christian social practice mandates that believers exercise humility, charity and other virtues that put others before self, Trump’s faith rejects all curbs on self-indulgence and self-aggrandizement. This religious position, known as Prosperity Theology, is newer than Pence’s literalism. It preaches that God wants the rich to be not only rich but selfish. Its attraction to a man like Trump—born to wealth, selfishly guided by his own desires, endlessly demanding that others adore him but never judge him—is transparent.

. . . .

Pence’s arrogance leads him to believe that he knows exactly what God wants us all to do and that he ought to force that on us if he has the power to do so. Trump’s faith simply endorses his own self-regard, elevating his personal whims to God’s desires. The political marriage of the two men is obviously one of expedience, given the great disparities in their beliefs and goals. Yet between them, they can do a great deal of damage. Arrogant self-righteousness and egotistical self-regard together wield power over the rest of us.

Little wonder that the pope has been modeling Christian humility and singing the praises of Christian charity, or that the supporters of these two find his lessons in what it means to be a Christian so infuriating.”

Read the complete article here: http://www.huffingtonpost.com/entry/arrogant-christians-in-the-white-house_us_58e94a6fe4b06f8c18beec89?

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Also, Allen Clifton writing in Forward Progressives quotes the views of Pastor John Pavlovitz taking Trump and the GOP to task for hypocricy on Syrian refugees, a point that has been noted several times previously in this blog:

“There are many things concerning Donald Trump that completely baffle me, but the fact that he’s strongly and enthusiastically supported by a party that comically portrays itself as representatives for “the Christian moral majority” is right near the top of my list. Of all the major candidates who ran for president from either party, Trump was, without a doubt, the least Christian of any of them. I haven’t viewed Republicans as actual Christians for years, but Trump’s rise to the top of the GOP cemented the fact that there’s nothing Christian about the Republican Party.
A great example of what I’m talking about is Trump and the GOP’s take on refusing to accept Syrian refugees. Innocent, desperate people, many of whom are women and children, fleeing a war-torn country hoping to escape a brutal dictator who, once again, just used chemical weapons against his own people. Not only have Trump and his fellow Republicans blatantly vilified these poor people as a means of pandering to the bigotry that fuels their party, but they continually lied about the process refugees must endure before ever stepping foot on U.S. soil.
If you listen to Trump talk about the vetting process, he essentially said we never had one — which is an outright lie. Every refugee allowed into the United States endures a rigorous process that usually takes between 18-24 months to complete and these refugees never know where they’re actually going to end up. So it’s not as if some “undercover terrorist” can pose as a refugee, say they want to go to America, and they’re here in two weeks.
Nevertheless, it’s undeniable that Trump and the GOP have gone out of their way to demonize these poor people for political purposes.

That made it rather nauseating to watch Trump claim that the images of the victims of the most recent chemical weapons attack launched by Assad are what “moved” him to take action by ordering last week’s airstrike. Nothing like selling yourself as the party of “Christian values,” while vilifying and rejecting refugees, then claiming that the images of victims of a horrific chemical attack “moved you” — not to do everything you can to help people who need it — but to fire 59 Tomahawk missiles at an airbase that was up-and-running within a few hours of the attack.

I’m sorry, but you can’t claim you’re “moved” by the sickening images of what’s going on in Syria when your administration’s policy is to reject helping thousands of refugees desperately trying to flee the carnage that’s plagued that nation for over six years now.

That’s also along the lines of what North Carolina Pastor John Pavlovitz said in a recent blog post:
‘This is the human collateral damage of what Donald Trump’s been selling for 16 months now. It is the cost in actual vibrant, beautiful lives, of the kind of incendiary rhetoric and alternative facts and Fox News truths that you’ve been fine with up until now. This is what you bought and paid for. Maybe not something this sadistic or explicitly grotesque, but the heart is the same: contempt for life that looks different and a desire to rid yourself of it.
I want to believe that you’re truly outraged, but honestly your resume is less than convincing.
Honestly, you didn’t seem all that broken up when Muslim families were handcuffed in airports a couple of months ago, or when mosques were being defaced, or when many of us were pleading the case for families fleeing exactlythe kind of monstrous atrocities you were apparently so moved by this week—and getting told to eat our bleeding hearts out by MAGA hat-wearing trolls. You weren’t all that concerned when your President told terrified, exhausted refugees to leave and go home—twice.'”

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Matthew 25:

44And they too will reply, ‘Lord, when did we see You hungry or thirsty or a stranger or naked or sick or in prison, and did not minister to You?’ 45Then the King will answer, ‘Truly I tell you, whatever you did not do for one of the least of these, you did not do for Me.’ 46And they will go away into eternal punishment, but the righteous into eternal life.”…

PWS

04-11-17

HuffPost: Larry Strauss — Trump, Sessions, & Co. Are On The Wrong Side Of History — “If you are knowingly hurting children, there is something wrong with you, whether or not you have the law on your side.”

http://www.huffingtonpost.com/entry/deportations-immigration-trump-children_us_58e66103e4b0773c0d3ebbb5?0tr

Larry Strauss, veteran high school teacher and basketball coach; author, “Students First and Other Lies” writes in HuffPost:

“Trump and his supporters have their own moral arguments. They say we must put America and Americans first. Of course these phrases express geographic ignorance, since many of the people they wish to expel are, in fact, Americans (the U.S. being but one country in America). But we know what they mean. Why should citizens of the United States be sympathetic to people from other places when so many of our own people are struggling so mightily? One can argue that undocumented individuals are not actually taking away jobs or other resources from those born here, but it’s a tough sell to someone whose financial fortunes have collapsed in the last five or ten or twenty years. The students in my classroom who were brought here or born to parents who came here will almost uniformly go further than those parents and enjoy prosperity far beyond that of those parents. It is not surprising that they are resented by those Americans (of the U.S. variety) whose prospects are far less than those of their parents and grandparents.

But politics and policies born of resentment cannot be good for the soul of our country. Nor can any law — ANY LAW ANYWHERE — that, for any reason, hurts children. If you are knowingly hurting children, there is something wrong with you, whether or not you have the law on your side.

Every year the school at which I teach enrolls students in my classes and whoever those children are I teach the hell out of their class for them — and so do most of my colleagues.

When you work with kids you don’t decide who deserves to be taught and encouraged. Where they come from and how they got here just doesn’t matter. I once taught the grand-daughter of a Nazi who’d escaped to El Salvador after World War II. The girl owed me no apology or explanation. Just her best effort and her homework on time — most of the time.

So I am not sympathetic to those who wish to punish the children of those who snuck into our country — or those who came on false pretenses.

I wish that Jeff Sessions and his ICE men and women would restrict their deportations to serious criminals — those no country wants. Why are federal agents wasting time and resources on people who’ve committed minor crimes? Are such actions any better than a municipality shutting down a lemonade stand because of a city ordinance?

Here’s an idea: if the crime of an undocumented immigrant does not exceed the crime of Jeff Sessions himself (perjury, that is) then let them stay. And if the harm of the deportation exceeds the harm of the deportee’s crime then let’s have a little collective heart.

We are a nation of laws but if those laws are being used to harm people for political expedience by indulging bigotry and ethnic paranoia, then those laws do not deserve out respect and the politicians exploiting them do not deserve our support.

Those who deported Mexicans and Mexican-Americans in the 1930s were within the law — but on the wrong side of history.

Those who interned Japanese Americans in the 1940s were within the law — but on the wrong side of history.

Those who forced Native American children into border schools to assimilate them were within the law — but on the wrong side of history.

Trump and Sessions are within the law — at least they are on immigration enforcement — but their cruelty is dragging us all onto the wrong side of history.”

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I couldn’t agree more with Strauss’s sentiments, although I’m not willing to say that everything Trump, Sessions, Kelly, and company are proposing is within the law. In fact, they seem to be heading toward some massive violations of the due process guaranteed by law.

However, “nations that turn their backs on children will be dealt with harshly by history” is the gist of an earlier op-ed that I wrote criticizing the Obama Administration’s inhumane and wrong-headed prioritization of recently arrived women and children for removal. http://wp.me/P8eeJm-1A.

While the “Obama priorities” were rescinded upon the change of Administration, the Trump Administration appears to have an even crueler and more inhumane fate in store for women and children seeking refuge from the Northern Triangle: detention, expedited removal, attempts to deny the fair opportunity to apply for asylum, intentional restriction of access to counsel, criminal prosecution of parents seeking to save their children, and an overall atmosphere of coercion and mistreatment meant to encourage those who have recently arrived to abandon their claims for refuge and to discourage others from coming to seek refuge under our laws. Only time will tell whether the Article III Courts will allow the Administration to get away with it.

I particularly like Strauss’s use of the “Sessions standard” — anybody who has done no more than perjure themselves under oath should be allowed to stay. And, talk about someone who has lived on the “wrong side of history” for his entire life, yet stubbornly refuses to change: well, that’s the very definition of Jeff Sessions’s depressingly uninspiring career. Given a chance for some redemption late in life, he’s instead choosing to “double down” on his biases and narrow outlook. Jeff had better hope that there’s forgiveness for his sins out there somewhere in the next world.

PWS

04-07-17

Update On Singapore Asylum Grant — Grossman Law Reports That Amos Yee Remains Detained In Wisconsin Pending Possible DHS Appeal!

MEDIA UPDATE:
ICE REFUSES TO RELEASE AMOS YEE DESPITE GRANT OF ASYLUM BY THE IMMIGRATION JUDGE
On March 27, 2017, Officers at Immigration and Customs Enforcement (ICE), Chicago Field Office informed Grossman Law, LLC that Amos Yee will remain in detention despite the Honorable Immigration Judge’s asylum grant on March 24, 2017. Yee has been detained since December 17, 2016.

When ICE officers first detained Yee, they stated he would be released on parole and that ICE had no interest in keeping Yee detained for the pendency of his proceedings. Then, after release of the new Administration’s Executive Orders, ICE informed Grossman Law that they would not release Yee. Subsequently, after Yee’s merits hearing, ICE moved him to another detention facility without informing counsel about the transfer. Now, ICE officers are basing the decision to keep Yee detained on a potential, but not yet filed, appeal by the Department of Homeland Security.

Grossman Law has learned from the Assistant Field Office Director for ICE’s Chicago Field Office that “…detained aliens who are granted relief remain in custody during the pendency of an ICE appeal, except in extraordinary circumstances.” Additionally, Amos Yee informed us via telephone that other individuals he has met at the Dodge County facility, remain in detention despite a grant of asylum. The decision to deny Yee his freedom is not limited just to him, but to many others.

ICE’s decision to continue to detain individuals granted asylum, especially when there are no security concerns, brings up serious questions about this country’s compliance with basic principles of international law regarding the treatment of asylees. There is no provision under the Immigration and Nationality Act, or under any Presidential Executive Order, that justifies the continued detention of an individual who has been granted asylum and is deemed to be a refugee. The supposed pendency of the Department’s appeal is immaterial; Yee should have been released immediately after he was granted asylum.

As the American Immigration Lawyers Association notes:

“America’s immigration detention practices undermine the fundamental principles of due process and fairness, and require immediate systemic reform. Annually, the Department of Homeland Security (DHS) unnecessarily detains more than 400,000 people, including asylum seekers and other extremely vulnerable immigrants. Many detainees are held for prolonged periods despite the fact that they have strong ties to the United States and pose no threat to public safety.

Detention is extremely expensive, costing American taxpayers $2 billion per year. Proven alternatives to detention, by contrast, cost between 17 cents and $17 per day. Detention should be a last resort, used only when other means of supervision are not feasible, and only after a truly individualized assessment of someone’s public safety and flight risk.”

Grossman Law, LLC is renewing a request to release Yee on humanitarian parole and is exploring all other viable legal options.

For further Media inquiries on this case please contact:

ICE – Chicago Field Office: 312-347-2168

Melissa Chen – Movements
Email: mchen@movements.org
Cell: 857-285-0975

The American Immigration Lawyers Association can be reached at:
George Paul Tzamaras
AILA Senior Director, Strategic Communications and Outreach
202.507.7649
GTzamaras@aila.org

Grossman Law, LLC
4922 Fairmont Avenue, Suite 200
Bethesda, Maryland 20814
Phone: (240) 403-0913
Website: www.GrossmanLawLLC.comAmos

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Sadly, notwithstanding the equities here, my recollection of the “black letter law” is that the Immigration Judge’s order is not “final” during the appeal period unless appeal is immediately waived. If either party files an appeal, the order does not become final while the appeal is pending. In other words, it is as if the case were never completed; it remains a pending case while it is before the BIA, and the rules governing detention are basically the same as they are when the case is pending before the Immigration Court.

If the respondent had “entered” the U.S., the asylum grant could be viewed as a “changed circumstance” giving the Immigration Judge a basis to redetermine custody upon his or her own motion or upon the respondent’s request. But, Mr. Yee appears to be an “arriving alien.” Therefore under the somewhat arcane rules applying to such aliens, neither the Immigration Judge nor the BIA has jurisdiction to redetermine custody. Continuing custody is within the sole jurisdiction of the DHS, unless a U.S. District Court intervenes by habeas corpus and directs either the DHS or the Immigration Judge to conduct an individualized bond hearing.

Tough system. But, I doubt the Trump Administration is going to make it any easier for respondents to get released from detention.

PWS

03/29/17

US Immigration Judge Samuel Cole (CHI) Grants Asylum To Singapore Dissident

https://www.nytimes.com/aponline/2017/03/25/us/ap-us-singapore-us-teen-asylum-seeker-.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region®ion=top-news&WT.nav=top-news

The AP reports in the NY Times:

“A blogger from Singapore who was jailed for his online posts blasting his government was granted asylum to remain in the United States, an immigration judge ruled.

Amos Yee, 18, has been detained by federal immigration authorities since December when he was taken into custody at Chicago’s O’Hare International Airport. Attorneys said he could be released from a Wisconsin detention center as early as Monday.

Judge Samuel Cole issued a 13-page decision Friday, more than two weeks after Yee’s closed-door hearing on the asylum application.

“Yee has met his burden of showing that he suffered past persecution on account of his political opinion and has a well-founded fear of future persecution in Singapore,” Cole wrote.

Yee left Singapore with the intention of seeking asylum in the U.S. after being jailed for several weeks in 2015 and 2016. He was accused of hurting the religious feelings of Muslims and Christians in the multiethnic city-state. Yee is an atheist.

Many of his blog and social media posts criticized Singapore’s leaders. He created controversy in 2015 as the city-state was mourning the death of its first prime minister and he posted an expletive-laden video about Prime Minister Lee Kuan Yew just after his death.

Such open criticism of political leaders is discouraged in Singapore. The case raised questions about free speech and censorship and has been closely watched abroad.

Cole said testimony during Yee’s hearing showed that while the Singapore government’s stated reason for punishing him involved religion, “its real purpose was to stifle Yee’s political speech.” He said Yee’s prison sentence was “unusually long and harsh” especially for his age.

Singapore’s government criticized the decision.”

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Mr. Yee was successfully represented by Maryland immigration attorney Sandra Grossman of Grossman Law LLC.

As I have mentioned before in this blog, most fully litigated U.S. Immigration Court cases today, particularly those involving asylum or criminal law, involve exceptionally complex, and often sensitive, issues of law and fact which can’t be fairly resolved in a one to two hour time block. Yet, most of the Administration’s recent enforcement initiatives seem to assume that Immigration Court is an “assembly line” and that U.S. Immigration Judges are more or less “assembly line workers” who can be detailed to obscure locations on demand and perhaps required to work “night shifts” to keep the “deportation railroad running at full throttle.”

But, due process is not an assembly line operation. It usually takes time, expertise, careful scholarship, and detailed fact-finding for U.S. Immigration Judges to produce fair decisions that will pass muster upon judicial review in the Circuit Courts of Appeals. (I note that the Administration’s first, high-profile attempt to “ram” an immigration case — “Travel Ban 1.0” — through a Court of Appeals was spectacularly unsuccessful.)

These days, most individuals who are represented by competent counsel and reach the “Individual (Merits) Hearing” stage have at least some plausible defenses to removal. Indeed, a 2016 study by TRAC Immigration showed that more than half (57%) of the total dispositions in U.S. Immigration Court favored the individual. http://trac.syr.edu/immigration/reports/435/

And, this was during the Obama Administration which already was prioritizing so-called “serious criminals.” By expanding the “criminal alien” definition to include minor criminals and non-criminals, the Trump Administration will probably be taking on even more cases where it ultimately will fail to get a “final order of removal” unless concerted attempts are made to “game the system” to insure that individuals lose (for example, by denying individuals fair access to counsel or using prolonged detention in poor conditions as a device to persuade individuals to abandon their claims to remain in the US).

PWS

03/26/17

Trump Picks On The World’s Most Vulnerable — Syrian Refugee Children — Refugee Cuts Hit Desperate Kids In Need Of Help!

https://www.washingtonpost.com/opinions/global-opinions/the-heartbreaking-losses-in-the-worst-year-for-syrias-children/2017/03/15/419bdcb8-08e7-11e7-93dc-00f9bdd74ed1_story.html?utm_term=.93f1dad68517

The Washington Post reports:

“Syria’s revolution began with children. A group of boys in the southern town of Daraa who painted anti-government slogans on walls were arrested and tortured, touching off popular demonstrations that started in March 2011 and soon spread to other cities. From the beginning, the Assad regime responded brutally, gunning down peaceful marchers who called for democratic reforms. Six years later, as U.N. Human Rights Commissioner Zeid Ra’ad al-Hussein put it on Tuesday, “the entire country has become a torture chamber: a place of savage horror and absolute injustice.” It is, he said, “the worst man-made disaster the world has seen since World War II.”
Having abandoned feeble attempts to stop the slaughter, Western governments — including the Trump administration — are trying to literally screen it out, blocking the flows of increasingly desperate refugees. Peace talks promoted by Russia and Turkey are going nowhere, while the Assad regime is proclaiming its intention to continue its scorched-earth tactics until it gains control over the entire country. So far, 2017 looks to be another “worst year” for Syrian children.”

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Is this really what we’ve become as a nation?

PWS

03/16/17

NEW FROM 4TH CIR: Cantallano-Cruz v. Sessions — 4th Rips BIA’s “Excessively Narrow” & “Shortsighted” Treatment Of “Nexus” Issue In Honduran Family PSG Asylum Case!

http://www.ca4.uscourts.gov/Opinions/Published/152511.P.pdf

“Our decision in Hernandez-Avalos is particularly instructive in the present case. There, the BIA denied asylum to a petitioner who fled El Salvador after gang members threatened to kill her because she prevented her son from joining the gang. 784 F.3d at 946-47. The petitioner had argued that at least one central reason for her persecution was her nuclear family relationship with her son. Id. at 949. The BIA disagreed, holding that she actually was targeted because she did not consent to her son’s criminal activity. Id.

We held that this application of the nexus requirement by the BIA was “excessively narrow,” and explained that there was no meaningful distinction between the existence of a maternal relationship and a mother’s decision to forbid her son from participating in a gang. Id. at 949–50. We held that the record compelled a factual conclusion that the petitioner’s relationship with her son was a central reason for her persecution, because that relationship was the reason “why she, and not another person, was threatened.” Id. at 950.

We likewise conclude in the present case that the BIA and IJ applied an improper and excessively narrow interpretation of the evidence relevant to the statutory nexus requirement. The BIA and IJ shortsightedly focused on Avila’s articulated purpose of preventing Cantillano Cruz from contacting the police, while discounting the very relationship that prompted her to search for her husband, to confront Avila, and to express her intent to contact the police. See Oliva, 807 F.3d at 59-60 (although the applicant’s refusal to pay the gang rent was the “immediate trigger” for an assault, the applicant’s membership in the social group of individuals who left the gang led to threats, and thus the two reasons were linked). The BIA’s and IJ’s focus on the explanation Avila gave for his threats, while failing to consider the intertwined reasons for those threats, manifests a misapplication of the statutory nexus standard.

The full record before us compels a conclusion that Avila’s threats were motivated, in at least one central respect, by Cantillano Cruz’s membership in Martinez’s nuclear family. Although, as the IJ observed, any person interested in Martinez’s disappearance may have confronted Avila concerning Martinez’s whereabouts, this fact does not adequately explain the ongoing threats Avila made against Cantillano Cruz and her children over a period of two years at her home. See Cordova, 759 F.3d at 339-40 (although the applicant was first attacked by the persecutor to force the applicant to join the gang, the BIA failed to consider evidence showing that later attacks were motivated by family ties). Avila persisted in threatening Cantillano Cruz after she promised him that she would not contact the police. Avila placed threatening telephone calls to Cantillano Cruz at her home, the center of life for Martinez and his nuclear family. Also at the Martinez family’s home, Avila and his associates killed the family’s dogs, brandished and fired weapons, and threatened to harm Cantillano Cruz and her children.”

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

Read the full opinion at the link.

In too many cases, the BIA appears to strain the law and misconstrue facts to avoid granting protection to deserving applicants from Northern Triangle countries in Central America who clearly face harm upon return. Misapplication of the highly technical concept of “nexus” is a device sometimes used by by the Board and some Immigration Judges to deny claims of vulnerable individuals who could and should be granted protection under U.S. laws.

In doing so, the BIA jettisons the generous spirit of the Supreme Court’s decision in Cardoza-Fonseca and their own precedent decision in Mogharrabi warranting generous treatment of credible asylum seekers in need of protection. Indeed, the BIA often seems more willing to “rote cite” Mogharrabi than to actually follow their own precedent.

The purpose of asylum and other protections laws is to protect individuals facing harm wherever possible, not to find hyper-technical ways to deny or limit protections.

I am pleased that one of the cases cited by the Fourth Circuit is Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011). Crespin is one of the “seminal” fourth Circuit cases recognizing family as a “particular social group” for asylum purposes. I had granted the asylum applications in Crespin only to have the BIA reverse those grants after the DHS appealed. However, upon judicial review, the Fourth Circuit agreed with me and reversed and remanded the case to the BIA.

This case also vividly illustrates the absurdity of forcing individuals to pursue these types of claims in Immigration Court without a lawyer. Even the Immigration Judge and the BIA were confused about the proper standards here! Fortunately, this individual not only had a lawyer but a good one.

But, how would an unrepresented individual, without English language skills, and perhaps with minimal education, and therefore no ability to access or understand the important and complicated Fourth Circuit precedents showing the BIA and the IJ to be wrong have any legitimate chance of achieving success? Yet, the Administration proposes to race just such individuals through expedited hearings at inconveniently located and often poorly run detention facilities where chances of getting competent legal assistance are minimal.

PWS

03/13/17

TIME: Deportation Can Be a Death Sentence — We Should Be Concerned About “Quick Removal Schemes” By The Administration & Continued Deterioration of Due Process And Fairness For Asylum Seekers – Particularly Those Unrepresented — In U.S. Immigration Court!

http://time.com/4696017/deportation-death-refugees-asylum/

Conchita Cruz and Swapna Reddy, co-founders of the Asylum Seeker Advocacy Project at the Urban Justice Center, write:

“For one immigrant group—asylum seekers already living in the United States—the fear is especially intense: deportation is a death sentence.
While thousands showed up to support refugee families at airports in response to the refugee ban, many Americans do not realize that a different group of refugee families stands to be picked up in raids, detained and wrongfully deported from the United States. These refugees are called “asylum seekers” because they are seeking refugee status from inside the United States instead of abroad.
For many asylum seekers, there is no mechanism to apply for refugee status abroad, which causes them to come to the U.S.-Mexico border and turn themselves in, seeking refuge. Like their counterparts in airports, they have experienced incredible violence in their countries of origin. They have been brutally raped, threatened by gunpoint to join gangs, or witnessed the murder of loved ones.
In response, the Department of Homeland Security (DHS) holds asylum seekers in detention centers for weeks or months until they pass a preliminary interview with an asylum officer. If they secure release, they move in with relatives or friends while remaining in deportation proceedings pending a full asylum trial.
Asylum seekers do not have a right to government-appointed counsel though their lives hang in the balance. Instead, families are forced to navigate the complex immigration system alone in a language they do not understand. Many also suffer from trauma-based disabilities such as post-traumatic stress disorder due to the persecution they experienced in the countries they fled.”

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Perhaps contrary to popular perception, we often return individuals to dangerous and life-threatening situations. That’s because of the somewhat arcane “nexus” requirement for asylum that only covers persecution because of race, religion, nationality, membership in a particular social group, or political opinion.

By manipulating these definitions, U.S. Government authorities often can deny protection even to individuals who clearly face life-threatening danger upon return. The Government has worked particularly hard to develop technical legal criteria to disqualify those fleeing danger in the Northern Triangle.

Given the complexity and the highly legalistic nature of the system, competent representation by an attorney is a requirement for due process. For example, according to TRAC, for a sample population of Northern Triangle “women with children,” slightly more than 26% of those with lawyers got favorable decisions from the Immigration Court. Without lawyers, only 1.5% succeeded.

And, if the law were interpreted more reasonably and generously, in accordance with the spirit of asylum protection, I think that a substantial majority of those applying for asylum from the Northern Triangle would be granted relief. Pressure for more favorable interpretations will not come from unrepresented individuals who can’t speak English, let alone articulate, document, and support sophisticated legal arguments for better interpretations of protection laws.

PWS

03/09/17

REUTERS EXCLUSIVE: Will Administration’s Next “Border Deterrence” Plan Be To Separate Women & Their Children — Rep. Henry Ceullar (D-TX) Takes A Stand Against Violating Human Rights!

http://www.reuters.com/article/us-usa-immigration-children-idUSKBN16A2ES?utm_source=applenews

Julia Edwards Ainsley reports:

“Women and children crossing together illegally into the United States could be separated by U.S. authorities under a proposal being considered by the Department of Homeland Security, according to three government officials.

Part of the reason for the proposal is to deter mothers from migrating to the United States with their children, said the officials, who have been briefed on the proposal.

The policy shift would allow the government to keep parents in custody while they contest deportation or wait for asylum hearings. Children would be put into protective custody with the Department of Health and Human Services, in the “least restrictive setting” until they can be taken into the care of a U.S. relative or state-sponsored guardian.

Currently, families contesting deportation or applying for asylum are generally released from detention quickly and allowed to remain in the United States until their cases are resolved. A federal appeals court ruling bars prolonged child detention.

President Donald Trump has called for ending “catch and release,” in which migrants who cross illegally are freed to live in the United States while awaiting legal proceedings.

Two of the officials were briefed on the proposal at a Feb. 2 town hall for asylum officers by U.S. Citizenship and Immigration Services asylum chief John Lafferty.

A third DHS official said the department is actively considering separating women from their children but has not made a decision.

HHS and the White House did not respond to requests for comment.”

. . . .

U.S. Representative Henry Cuellar, a Texas Democrat whose district includes about 200 miles (320 km) of the border with Mexico, slammed the proposal. “Bottom line: separating mothers and children is wrong,” he said in a statement.

“That type of thing is where we depart from border security and get into violating human rights,” he said.”

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

I agree with Rep. Cuellar. “Refugee deterrence plans” used by past Administrations of both parties involving mass detention and schemes to make things difficult for families have failed and will continue to do so. Desperate people, fleeing for their lives, will do desperate things, including putting up with detention and other inhumane treatment by the U.S.

Undoubtedly, as in the past, some individuals will be pressured by detention and family separation into giving up claims and accepting return. But, overall, most who face the real possibility of death, torture, extortion, and other abuse upon return will “wait the system out” hoping, even when the the evidence might suggest otherwise, that the U.S. will eventually live up to its ideals of fairness, due process and compliance with laws on protection.

Let’s remember that we are talking about scared refugees seeking to exercise their rights under U.S. law, the Geneva Convention on Refugees, and the Convention Against Torture, to apply for protection at the border or in the U.S., and to have those claims fairly and impartially determined.

Rep. Cuellar is someone who has taken the time to understand the problems of children and families in the U.S. Immigration Court system. I know he visited the Arlington Immigration Court on one or more occasions to observe “priority” juvenile hearings. Partially as a result, he became one of the leaders of the successful bipartisan effort to provide additional funding and judicial positions for the Immigration Court. Remarkably, the bulk of those additional positions remained unfilled or “in the pipeline” at the conclusion of the Obama Administration.

Thanks to Nolan Rappaport for sending this in.

PWS

03/04/04

IMMIGRATION IMPACT: Katie Shepard Explains How New USCIS Lesson Plans Are Likely To Harm Asylum Seekers!

http://immigrationimpact.com/2017/02/28/changes-may-keep-asylum-seekers-getting-day-court/

“Effective February 27, 2017, new changes to the asylum screening process could lead to an increased number of deportations of asylum-seekers who fear persecution upon return to their home country.

On February 13, 2017, U.S. Citizenship and Immigration Services (USCIS) revised its Asylum Division Officer Training Course (ADOTC) lesson plans on how to assess an asylum seeker’s credible and reasonable fear of persecution or torture. The lesson plans were revised to be consistent with the January 25, 2017 Executive Order on border security and immigration enforcement and provide guidelines to the asylum officers when conducting credible fear interviews (for those at the border or port of entry who were never previously deported) and reasonable fear interviews (for those who were previously order deported but who later seek asylum).

The changes to the lesson plans are significant and may cause the denial rate to skyrocket, in which case thousands of asylum seekers would be wrongfully denied a meaningful day in court . Not only does the new guidance provide asylum officers with greater discretion to deny an applicant for reasons which may be out of the applicant’s control, but the applicant will essentially be forced to undergo a full asylum hearing with none of the safeguards in place to ensure a meaningful opportunity to present a claim for relief.”

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Read Katie’s complete analysis at the link. You should also look at Dree Collopy’s short video on the changes which I previously posted.

http://wp.me/p8eeJm-qx

If this carries over into Immigration Court where unsuccessful applicants can seek “expedited review,” it would mean that “credible fear reviews” could become more time consuming.

I was usually able to complete them in a few minutes using the Asylum Officer’s notes and asking a few questions. I found that the overwhelming number of those denied had “credible fear,” and probably at least half of those cases eventually resulted in relief. However, over the last year of my career I was primarily on the non-detained docket, so I only did “credible fears” when I was on detail to a detention center or the system was backed up.

As an Immigration Judge, I did not use the USCIS lesson plans. But, I did rely on the Asylum Officer’s notes for a basic understanding of the claim. I then usually asked a few questions to verify that the notes accurately reflected the claim and that nothing relevant had been omitted.

PWS

03/03/17

Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?”

https://www.splcenter.org/sites/default/files/2017-atl_complaint_letter_final.pdf

“We write to provide you with findings of observations of the Atlanta Immigration Court conducted by Emory Law students, in conjunction with the Southern Poverty Law Center, during the fall semester of 2016. Six Emory Law students observed the Court in September and October 2016 seeking to identify any apparent factors leading to the Court’s reputation as one where rule of law principles are not widely respected.1 Atlanta Immigration Judges (IJs) “have been accused of bullying children, victims of domestic abuse and asylum seekers;” while “[immigration] attorneys complain that judges impose such stringent requirements on their clients that they are

1 See Elise Foley, Here’s Why Atlanta Is One of The Worst Places To Be An Undocumented Immigrant, HUFFINGTON POST, May 25, 2016, http://www.huffingtonpost.com/entry/deportation-raids-immigration- courts_us_574378d9e4b0613b512b0f37; Chico Harlan, In an Immigration Court That Almost Always Says No, A Lawyer’s Spirit is Broken, WASHINGTON POST, Oct. 11, 2016, https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers- spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html?utm_term=.430a15e12a55; Ted Hesson, Why It’s Almost Impossible to Get Asylum in Atlanta, VICE MAGAZINE, Jun. 8, 2016, http://www.vice.com/read/why-its-almost-impossible-to-get-asylum-in-atlanta. See also Southern Poverty Law Center, Immigrant Detainees in Georgia More Likely to Be Deported Than Detainees Elsewhere; Georgia Detainees Less Likely to Be Released on Bond (2016), https://www.splcenter.org/news/2016/08/23/immigrant- detainees-georgia-more-likely-be-deported-detainees-elsewhere.

impossible for an immigrant to meet.”2 Atlanta’s Immigration Court records one of the highest denial rate of asylum applications–98 percent–in the United States.3

The observations identified several areas of key concern that indicate that some of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice.”

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Read the complete letter to EOIR Director Juan Osuna at the link. Gotta ask: How does the performance of the Atlanta Immigration Court fulfill the “EOIR Vision” of: “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all?” Where has the Board of Immigration Appeals (“BIA”) in been on these alleged abuses? Why doesn’t the BIA live up to the EOIR Vision? If it’s this bad now, how bad will it get under the Trump Administration?

PWS

03/02/17

DHS Issues New Training Materials For Credible Fear Determinations — Complete Text Here!

Release lesson plans

credible fear lesson plan

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These were forwarded by Nolan Rappaport. Nolan believes that these guidelines will “raise the bar” substantially for asylum claimants to pass through the credible fear process.

On initial review, I’d be hard pressed to say there was anything “legally erroneous” about these lesson plans. However, they did seem highly “legalistic.”

I have done numerous “credible fear reviews” in my judicial career and found that the determinations were more “holistic” than “legalistic.” Most of the folks I reviewed had credible, legitimate fears that arguably came within the legal definitions of persecution and/or torture particularly if the individual could fully develop the claims with the help of a lawyer.

I did not always retain jurisdiction over the cases once they were allowed into the Individual Hearing system Of the cases the came back to me, I estimate that at least half of the individuals succeeded in getting some form of protection at the Immigration Court level.

Read the lesson plans here and decide for yourself!

PWS

02/27/17

Nolan Rappaport Comments On Expansion of Expedited Removal In “The Hill”

http://thehill.com/blogs/pundits-blog/immigration/321102-what-expedited-removal-really-means-for-illegal-immigrants-in

Nolan writes:

“Knowing that an alien in the United States who is charged with being deportable has a statutory right to a hearing before an immigration judge and that there is a backlog crisis in our immigration courts, I predicted that President Donald Trump would not be able to deport millions of undocumented immigrants.

Since then, the backlog has gotten even higher. As of the end of January 2017, it was 542,411 cases and the average wait time for a hearing was almost 700 days.

Even if the immigration judges did not receive any additional cases, it would take them more than two-and-a-half years to catch up.

But President Trump has finessed his way around this problem by implementing a little-known expedited removal provision in his executive order (EO), “Border Security and Immigration Enforcement Improvements.” The provision is section 235(b)(1)(A)(iii)(II) of the Immigration and Nationality Act (INA).

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established expedited removal proceedings to deal with fraud and willful misrepresentations at ports of entry and to stop aliens with bogus asylum claims from being admitted for asylum hearings before an immigration judge. Many of them absconded instead of appearing at their hearings.
Under expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissible and may be removed without a hearing before an immigration judge. Aliens subject to expedited removal must be detained until they are removed and normally may only be released due to a medical emergency.”

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I agree with Nolan that the intent of the Trump Executive Order is to reduce the number of individuals who will be entitled to “full” removal hearings before an Immigration Judge. But, even if the Administration applies expedited removal in its broadest permissible form under the statute — to individuals who have been in the U.S. for less than two years, the vast majority of individuals in the U.S. without documentation will still be entitled to hearings in U.S. Immigration Court.

First, for a number of reasons, and quite contrary to the Trump Administration’s alarmist rhetoric, illegal entries have been declining over recent years. The overwhelming number of the estimated 11 million undocumented migrants in the U.S have been here at least two years and would therefore be entitled to full hearings.

The estimated number of undocumented migrants in the United States has actually dropped by one million, from approximately 12 million around 2007 to approximately 11 million today. And, although neither the Trump Administration nor most Republican legislators are willing to admit it, at least some of the credit belongs to the Obama Administration for increased border enforcement.

Moreover, the bulk of the undocumented arrivals over the past several years have been children, women, and families fleeing violence and corruption in the Northern Triangle of Central America. Most turn themselves in to the authorities at the border or shortly after crossing the border and seek asylum. The majority of those have been determined to have a “credible fear” of persecution and therefore have already been placed in removal proceedings.

As Nolan points out in his article, individuals who have not applied for asylum within one year of entry are prima facie barred from seeking asylum. However, there are exceptions to this rule for those who can demonstrate fundamentally changed circumstances or extraordinary circumstances directly related to the delay in filing.

Perhaps even more significantly, the one year bar does not apply to claims for protection under the withholding of removal provisions of the Immigration and Nationality Act, nor does it apply to claims under the Convention Against Torture. Other forms of relief under the Act also remain available to individuals who failed to timely file for asylum.

Additionally, even where an individual is subject to “expedited removal” she or he is still be entitled to a full removal hearing before an Immigration Judge if a DHS Asylum Officer finds that such individual has a “credible fear” of persecution.

As Nolan also points out, even where an Asylum Officer finds “no credible fear,” an individual may seek review by an Immigration Judge. Such reviews should take precedence over other types of detained hearings. Consequently, a dramatic increase in “credible fear” denials could well result in Immigration judges spending more time on such hearings and therefore having less time to conduct actual individual hearings on removability and relief.

While to date, the Article III Courts have seemed to accept the statutory limitations on their ability to review expedited removal and credible fear determinations, the Administration’s attempt to “ratchet up” summary removals is almost certainly going to draw more sophisticated constitutional challenges to the process from the advocacy community. And if, as is likely, the Administration “pushes the envelope” by attempting to remove individuals on an expedited basis without giving them a fair chance to obtain evidence that they have been present for two or more years, the Article III Courts are at some point likely to intervene to force at least some procedural due process into the system.

Consequently, notwithstanding efforts by the Trump Administration to circumvent the Immigration Court process, the new enforcement initiatives are still likely to put more than enough new cases before the Immigration Courts to crush an already overwhelmed system.

PWS

02/26/16

WashPost: Professors (And Former USG Senior Execs) Martin & Legomsky Analyze Judge Brinkema’s Travel Ban Decision — Religious Discrimination Finding Might Be Key To Opponents’ Future Success (Or Not)!

https://www.washingtonpost.com/local/public-safety/why-virginia-matters-in-the-travel-ban-fight/2017/02/14/27cfff3c-f2ec-11e6-b9c9-e83fce42fb61_story.html?utm_term=.880047c24800

Rachel Weiner reports:

“’Judge Brinkema spells out a lot more; she really fleshes out one of the possible claims, and that’s the religious discrimination claim,’” said David Martin, a professor at the University of Virginia who, for many years, helped shape immigration policy inside the government. ‘That may well prove to be the strongest or more fruitful line of inquiry for the plaintiffs in these various cases, particularly if they’re trying to reach past green-card holders or people on immigrant visas. It’s hard to get there without a religious discrimination case of some kind.’”

. . . .

“’It was a very well-reasoned, thoughtful decision. Frankly, I think, a more careful decision than the 9th Circuit decision,’ said Steve Legomsky, former chief counsel for immigration services in the Department of Homeland Security. In her opinion, Legomsky said, Brinkema ‘pretty methodically went through the various statements by Trump. . . . They put great weight on the opinions of the former national security officials to show the absence of counterevidence from the Trump administration. For both of those reasons, I think the Virginia opinion is very important.’
Brinkema also brings to the case extensive national security experience. She presided over the trial of Sept. 11, 2001, conspirator Zacarias Moussaoui, among other high-profile cases.

‘It was a thoughtful opinion, it’s well considered, it wasn’t hastily done like some of these other decisions had to be in light of circumstances,’ said Justin Cox of the National Immigration Law Center. His group is involved in several lawsuits against the ban, including one filed in Maryland last week focused on refugees. That case is specifically focused on religious discrimination.

‘Legally [the Virginia ruling] is actually quite significant because it’s the first court to squarely hold that the executive order violates the establishment clause,’ Cox said.

The danger for opponents of the ban is that, should the Justice Department appeal Brinkema’s decision, they will face the more conservative 4th Circuit rather than the left-leaning 9th Circuit.

‘It would be a close call,’ Legomsky said. ‘There is such strong evidence of religious discrimination — it’s really hard to know.’”

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As noted in this article, in addition to being leading academic “immigration gurus,” both Professor Martin and Professor Legomsky have lived in the “real world” of shaping Government policies and managing programs that actually implement those policies.

As they point out, while many of the objections to the “travel ban” could be eliminated by applying it just prospectively to those outside the U.S. who have not previously been admitted, that wouldn’t necessarily overcome Judge Brinkema’s finding that the “national security” reasons asserted by the Government in her court were merely “pretext” for unconstitutional religious discrimination.

While Justin Cox might be correct that the Fourth Circuit is not as liberal as the Ninth Circuit, that distinction probably would apply to every other Circuit Court of Appeals. Having spent 13 years as an Immigration Judge in Arlington, where my decisions ultimately could be reviewed by the Fourth Circuit and Fourth Circuit law applied, I found their immigration rulings very balanced. Indeed, they sometimes cited Ninth Circuit precedent and even were ahead of the Ninth in recognizing some migrants’ rights.

While the Fourth Circuit affirmed the overwhelming majority of BIA and Immigration Judge decisions in unpublished, non-precedential decisions, when they spoke in published precedents they always had important guidance to offer. The Fourth Circuit also was not afraid to stand up to the Government and “call them out” when necessary in the field of immigration.

And, at least in the Arlington Immigration Court, we trial judges paid close attention. I think that the Fourth Circuit’s very fair and well-reasoned asylum jurisprudence, in some significant ways more faithful to the asylum law and regulations than rulings of the BIA, was one reason why asylum applicants were often successful in Arlington. That’s also why many asylum cases in Arlington could be resolved by the parties in “short hearings” based on extensive written documentation and application of the Fourth Circuit law.

There is also a wonderful pastel portrait of Judge Brinkema in her court with the full article at the link. Check it out!

PWS

02/16/17

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