Northern Triangle – Page 86 – immigrationcourtside.com

FAILED DUE PROCESS VISION: BIA Blows Off IJ’s Due Process Violations — Third Circuit Blows Whistle On BIA! — Serrano-Alberto v. Attorney General — READ MY “CONTINUING CRITIQUE” OF THE BIA’S FAILURE TO PROTECT THE RIGHTS OF ASYLUM SEEKERS!

http://www2.ca3.uscourts.gov/opinarch/153146p.pdf

PANEL: Circuit Judges VANASKIE, KRAUSE, and NYGAARD

OPINION BY: Judge Nygaard

“While in the vast majority of cases, IJs diligently comport with their constitutional and statutory obligations, and while it is only on rare occasion that we have held an IJ’s conduct crosses the line, the record here compels us to conclude this is one of those rare cases. Because we reach this conclusion against the backdrop of the three main cases to date in which we have distinguished between permissible and impermissible IJ conduct under the Due Process Clause, we will review each of those cases before addressing Serrano- Alberto’s claims for relief.

. . . .

What these cases teach us is that, where a petitioner claims to have been deprived of the opportunity to “make arguments on his or her own behalf,” Dia, 353 F.3d at 239, there is a spectrum of troubling conduct that is fact-specific and must be evaluated on a case-by-case basis to determine if (1) the petitioner “was prevented from reasonably presenting his case[,] and (2) . . . substantial prejudice resulted,” Fadiga, 488 F.3d at 155 (internal quotation marks omitted). At one end of the spectrum, the “lack of courtesy,” “interject[ions]” to clarify and develop the record, and “annoyance and dissatisfaction with . . . testimony” in Abdulrahman, 330 F.3d at 597, were not sufficient to establish a due process claim. At the other end, the “contemptuous tone,” focus on “issues irrelevant to” the petitioner’s claims, and findings unsupported by the record in Wang, 423 F.3d at 270, and the “wholesale nitpicking,” “continual[] abuse[]” and “belligerence,” and “interrupt[ions] . . . preventing important

parts of [the petitioner’s] story from becoming a part of the record,” in Cham, 445 F.3d at 691, 694, were flagrant enough to violate due process. Where these component parts of an IJ’s conduct are sufficiently egregious, at least in combination, a petitioner’s procedural due process rights are violated.

In Serrano-Alberto’s case, we conclude the IJ’s conduct falls on the impermissible end of the spectrum. Indeed, the IJ’s conduct here shares many of the attributes of the conduct we found unconstitutional in Wang and Cham, including a hostile and demeaning tone, a focus on issues irrelevant to the merits, brow beating, and continual interruptions. See supra Sec. III.B. And in contrast to Abdulrahman where the interruptions assisted the petitioner in answering questions and appropriately refocused the hearing, 330 F.3d at 596-98, the IJ’s interruptions here repeatedly shut down productive questioning and focused instead on irrelevant details, see supra Sec. III.B.”

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On the “plus side,” the Third Circuit went out of its way to point out that this case is the exception rather than the rule with respect to Immigration Judges’ respect for due process during the hearing process.

But, on the negative side, why should a supposedly “expert” Board whose mission is to protect due process be letting clearly unfair adjudications like this, which violate due process, get by? Not everybody can afford to go to the Court of Appeals. So, the Board’s failure to carry out its due process functions can actually cost lives, or at least ruin them. How can such a critically important function as appellate immigration judging be treated so dismissively, inappropriately, incompetently, and lackadaisically by successive Administrations while largely escaping critical public examination of its often highly questionable jurisprudence?

In my view, as I’ve observed before, part of the problem lies with the BIA’s overall negative approach to asylum seekers, particularly those from Central America with claims based on “particular social groups.” With a “closed, inbred judiciary” drawn almost exclusively from Government, a highly politicized Department of Justice which is unqualified to run a court system, and the fear of another “Ashcroft purge” hanging over them for judging independently and protecting the rights of asylum seekers, the BIA has basically “tanked” on its duty to guarantee fairness, due process, and protection to asylum seekers. So, if the BIA is unwilling to speak up for the due process and substantive rights of respondents, what’s its purpose? To provide a “veneer of deliberation and due process” to dissuade the Article III courts and the public from digging into the details to find out the real problems?

It’s also interesting that the Third Circuit “calls out” the BIA for a standard practice of using (often bogus) “nexus” denials to deny protection to asylum applicants who fit within a protected ground and can clearly demonstrate a likelihood of harm upon return. Check out FN 5 in the Third Circuit’s opinion:

“5 In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus. See, e.g., Bol- Velasquez v. Att’y Gen., No. 15-3098 (3d Cir. filed Aug. 28, 2015) (ECF Agency Case Docketed); Bell v. Att’y Gen., No. 14-4781 (3d Cir. filed Dec. 18, 2014) (same); Santos v. Att’y Gen., No. 14-1050 (3d Cir. filed Jan. 8, 2014) (same); Ulloa- Santos v. Att’y Gen., No. 12-2781 (3d Cir. filed June 25, 2012) (same); Orellana-Garcia v. Att’y Gen., No. 12-2099 (3d Cir. filed Apr. 20, 2012) (same). This practice, however, can have troubling consequences. First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what? See, e.g., Bol-Velasquez, No. 15-3098. Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.” Matter of A-T-, 24 I. & N. Dec. 617, 623 n.7 (U.S. Att’y Gen. 2008). Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale. Just as the Supreme Court has observed in the qualified immunity context, adjudication at every step is generally “necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation” because “[t]he law might be deprived of this explanation were a court simply to skip ahead,” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (holding the two-step protocol announced in Saucier v. Katz, 533 U.S. 194 (2001) is no longer mandatory “but often beneficial”), so here, the BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, see SEC v. Chenery Corp., 332 U.S. 194 (1947), and ultimately generating additional needless litigation because of the uncertainty in this area, see Valdiviezo-Galdamez, 663 F.3d at 594-609; Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230 (BIA 2014). This is a case in point, where the IJ articulated the relevant PSG as “individuals perceived as wealthy who refuse to pay gang taxes,” App. 17, although other definitions were reasonable, and the BIA, despite being presented with alternative formulations, declined to rule on the question altogether. In sum, for both of the reasons stated, we strongly encourage IJs and the BIA to define the PSG in question and to adjudicate the existence and cognizability of that PSG.”

Let’s get down to the real point. Largely because of intervention from Article III Courts, more and more “particular social groups” are becoming “cognizable.” This is particularly true in the area of family-based social groups.

Alternatively, the DHS and the BIA have tried to deny claims on the grounds that the foreign government is “not unable or unwilling to protect.” But, given the documented conditions in the Northern Triangle of Central America, such findings often don’t pass the “straight face test” and have had difficulty on judicial review. So the best way to deny protection to Central American asylum seekers is by developing metaphysical, largely bogus, findings of lack of “nexus.”

The answer to the Third Circuit’s question “nexus to what” is simple. It doesn’t matter. No matter what the protected group is in Central American cases, the BIA will do its best to find that no nexus exists, and encourage Immigration Judges to do likewise.

A vivid example of that was the BIA’s recent precedent inMatter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), discussed in earlier blogs. There, without dissent or meaningful discussion, the BIA “deconstructed” a clearly established case for nexus (which actually had been found by the Immigration Judge) and buried it under layers of impenetrable legal gobbledygook. Maybe it will get deference from the Article IIIs, maybe it won’t. There isn’t much consistency there either.

Asylum applicants lives are at stake in removal proceedings. They deserve a process where fairness, due process, and deep understanding of the life-preserving functions of protection law are paramount. Today’s system, which all too often runs on the principles of expediency, institutional preservation, job security, pleasing the boss, and sending law enforcement “messages” is failing those most in need. One way or another, our country and future generations will pay the price for this dereliction of duty.

PWS

06-13-17

Not So Fast, My Friends! — Border Intrusions Increase In May N/W/S Administration’s (Perhaps Premature) “Victory Dance!”

http://m.washingtontimes.com/news/2017/jun/11/illegal-immigration-across-southwest-border-increa/

Stephen Dinan reports in the Washington Times:

“Illegal immigration across the southwest border appears to have jumped 27 percent in May, according to numbers released this week by Homeland Security, breaking a three-month streak of declines under President Trump and suggesting that the slump in migrants has bottomed out.

The Border Patrol nabbed 14,535 illegal immigrants in the southwest last month, up from just 11,129 in April. Analysts said that the number of people caught is a rough measure of the overall flow of people trying to sneak in.

The number of illegal immigrants showing up at ports of entry without authorization also ticked up, from 4,649 to 5,432.

U.S. Customs and Border Protection, the agency that oversees the Border Patrol and the ports of entry, acknowledged the increase in crossings, but attributed it to “a seasonal uptick.”

CBP said it “expects the uptick to continue” through the summer months.

The numbers suggest that while Mr. Trump appears to have changed the calculations of many border crossers, there’s still a segment of the population — particularly among Central Americans — determined to make the journey.

Agents usually record an uptick from April to May, but the jump this year is the largest on record.

Still, it’s by far the lowest May total on record. For example, May 2016 saw more than 40,000 illegal immigrants caught at the border.

Illegal immigration from Cuba and Haiti had been a problem last year, but had dipped under the final months of President Obama and again under Mr. Trump.

Now, Cubans appear to be surging again, while Haitians remain low.

Two other special categories of migrants — unaccompanied minors and families traveling together — also saw increases last month, rising from a combined 2,117 nabbed by the Border Patrol in April to 3,070 in May.”

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We should also keep in mind that according to other recent reports, the largest flow of asylum applicants is now from Venezuela. Most of them are middle class and business-oriented individuals who already have visas enabling them to enter the U.S. legally. Once admitted, they can apply for asylum at any time during the first year following entry. Such individuals would not show up in any of the border or port of entry statistics.

PWS

06-12-17

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATON COURTS

Keynote Address by

Paul Wickham Schmidt

United States Immigration Judge (Retired)

LIGHT OF LIBERTY AWARDS

Pennsylvania Immigration Resource Center

Heritage Hills Golf Resort

York, PA

JUNE 7, 2016

I. INTRODUCTION

Good evening. Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. The PIRC is a terrific organization that provides critical legal services to the most vulnerable during one of the most difficult periods in our recent history.

The York area has a well-established tradition of humanitarian generosity and support for the most needy that was highlighted during the Golden Venture episode and described in the book Snakehead. I learned today that PIRC was formed to respond to the needs of the Golden Venture detainees. The U.S. Immigration Court in York has one of the highest representation rates for detained individuals in the nation, over 50%.

By contrast, the Arlington Immigration Court, where I used to sit, and the Baltimore Immigration Court had detained representation rates of around 20% and 10% respectively. And, it’s even worse in other parts of the country.

Back in February, I had the pleasure of working with your amazing Executive Director, Mary Studzinski, at a group session directed at improving training for non-attorney representatives authorized to practice before the U.S. Immigration Courts and the Board of Immigration Appeals. We bonded instantly. That’s “human bonding” rather than “immigration bonding,” of course. Mary’s kinetic energy, practical knowledge, tremendous dedication, and incisive contributions to the group were simply stunning. I must admit, I thought she was the Managing Attorney of the organization until she explained her role to me. You are so fortunate to have of someone who cares so deeply about your mission leading you. Mary is just what America needs right now.

Speaking of what America needs, I of course want to be the first to congratulate the five extraordinary individuals and two groups we are honoring tonight with well-deserved “Light of Liberty” Awards. Your energy, knowledge, and willingness to give of yourselves to others is making a much needed positive difference in this community and in our world. Each of you is indeed changing the course of history for the better. And, I’m pleased to announce that I have bestowed on each of tonight’s award recipients the rank of “General” in the “New Due Process Army. “

And, of course, thanks again to our great sponsors, mentioned by Mary, for supporting PIRCV and tonight’s awards.

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

As most of you in this room probably recognize, there is no “immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

But, there is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that have brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.”

Instead, the Department of Justice’s ever-changing priorities, aimless docket reshuffling, and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Obviously, it is past time for an independent U.S. Immigration Court to be established outside the Executive Branch.

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. As I mentioned, this problem is particularly acute in detention courts. We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources is limited to non-existent.

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “aimless docket reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 600,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the latest edition of The Federal Lawyer.

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

Although there has been a downturn in border apprehensions since the Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21^st Century immigration judiciary.

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

III. ACTION PLAN

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

Obviously, the PIRC is a fantastic way to contribute to assertively protecting the due process rights of migrants. Internships and JLC positions at the Immigration Courts are also ways for law students and recent law grads to contribute to due process while learning.

As mentioned earlier, Mary and I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

Another critical area for focus is funding of nonprofit community-based organizations, like PIRC, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

IV. CONCLUSION

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

Thanks again for inviting me and for listening. Congratulations again to our award winners and newly commissioned Generals of the New Due Process Army.

(06-08-17)

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Congratulations to these Light of Liberty Awards winners and newly commissioned Generals in the New Due Process Army:

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

Asylum & Human Rights Clinic, University of Connecticut School of Law

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

Out in the audience was superstar lawyer/social worker Hannah Cartwright, a “Charter Member” of the New Due Process Army, now on the legal staff at the PIRC. Hanna, a distinguished Catholic University Law grad, served as a Legal Intern at the Arlington Immigration Court and a Judicial Law Clerk at the Philadelphia Immigration Court.

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

BREAKING: NPR’s Beth Fertig Exposes Administration’s Immigration Court Due Process Disaster — Taxpayers Billed For Sending Judges To Hustle Detainees Through Court Without Lawyers, Leaving More Represented Cases At Home To Rot! — Backlogs Mushroom As Administration Plays Games With Human Lives!

http://www.wnyc.org/story/missing-new-york-immigration-judges/

Fertig reports:

“In the middle of May, paper notices were posted on the walls of the federal building in lower Manhattan announcing the absence of several immigration judges. Some were out for a week or two, while others were away for six weeks. The flyers said their cases would be rescheduled.

The Executive Office for Immigration Review, which runs the immigration courts, would not comment on the judges’ whereabouts. It cited the confidentiality of personnel matters. But after WNYC asked about these missing judges, many of the paper notices were taken off the walls of the 12th and 14th floors, where hearings are held in small courtrooms.

It’s no secret that President Donald Trump’s administration has been redeploying judges to detention centers near the southern border to speed up the processing of cases. After contacting numerous immigration attorneys down south, as well as retired judges and others, WNYC was able to crowdsource the judges’ locations. At least eight of New York City’s 29 immigration judges had been sent to Texas and Louisiana since March to conduct hearings in person or by video. Six judges were out for different parts of the month of May, alone.

“NYC

The federal building is home to the nation’s busiest immigration court, with a backlog of 80,000 cases. By redeploying so many judges in such a short period of time, immigration lawyers fear the delays will grow even longer. Meanwhile, attorneys near the border question whether these extra judges are even necessary.

Among other matters, judges at detention courts are supposed to hear cases involving people who crossed the border illegally. Yet those numbers have declined since Trump took office. That’s why local attorneys are cynical about the surge.

“I don’t really think that they need all these judges,” said Ken Mayeaux, an immigration lawyer in Baton Rouge.

Mayeaux said what’s really needed there are more immigration attorneys. As federal agents arrest an increasing number of immigrants who are already in the U.S. without legal status, they’re sending them to southern detention centers that are pretty isolated. The ones in Oakdale and Jena, Louisiana, are hours west of Baton Rouge and New Orleans, where the vast majority of the state’s immigration advocates are concentrated, said Mayreaux.

“To ramp things up in one of the places that has the lowest representation rates in the United States, that’s a due process disaster,” he said.

Data from the Transactional Records Access Clearinghouse at Syracuse University confirms that immigrants may only wait a couple of months for their deportation case to be completed in these detention centers near the border. But in New York, the wait to see an immigration judge is 2.4 years.

So why move judges from a clogged and busy court system in New York to the border region, where immigration cases are already moving swiftly?

“In this particular instance, it’s a virtuous circle from the perspective of the administration,” explained Andrew Arthur, a former immigration judge.

Arthur is a resident fellow at the Center for Immigration Studies. It’s a think tank that wants to limit immigration, though it’s been branded a hate group by the Southern Poverty Law Center. During the Obama administration, Arthur said too many immigrants were let out of detention and waited years for their cases to be heard. He said moving more judges to the border will prevent that from happening.

“Because the quicker that you hear the cases the less likely that an individual is to be released,” Arthur said. “Therefore the less likely another group of individuals are to attempt to make the journey to the United States.”

Another former immigration judge, Paul Wickham Schmidt, said the Obama administration tried something similar by fast-tracking the cases of Central American migrants in 2014. But he said it wound up scrambling the judges’ dockets and was counterproductive. He was redeployed from his home court in Virginia and estimates he had to reschedule a hundred cases in a week.

“Nobody cares what’s happening on the home docket,” he said. “It’s all about showing presence on the border.”

Not all judges assigned to the border are physically present. Mana Yegani, an immigration lawyer in Houston, said she’s seen several judges — including a few from New York — at a detention center where cases are done by video teleconference.

“We never see the prosecutor’s face, it’s just a voice in the background,” she explained. “It’s just not a fair process for our clients and I don’t think the judges can be efficient the way they’re supposed to. They take an oath to be fair and to uphold the Constitution and due process, and I think the way the system is set up it really hinders that.”

A new audit of the immigration courts by the Government Accountability Office questioned whether video teleconferences have an impact on outcomes and said more data should be collected.

Some attorneys believe the reassignments are temporary to see if border crossings continue to ebb. The Executive Officer for Immigration Review won’t comment on that, but spokesman John Martin said the agency will hire 50 new judges and “plans to continue to advertise and fill positions nationwide for immigration judges and supporting staff.”

In the meantime, there’s no question that shifting judges away from New York is having an impact on real people.”

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Read Beth’s entire article, including the story of one “real” asylum applicant waiting patiently for a hearing that almost didn’t happen.

The due process farce continues, at taxpayer expense, while the U.S. Immigration Courts are being treated as an enforcement arm of the DHS. Aimless Docket Reshuffling (“ADR”) denies due process at both the “sending courts” and “receiving courts.” When, if ever, will Congress or the Federal Courts step in and put an end to this travesty of justice and mockery of our constitutional requirement for due process! In the meantime, what’s happening in the Immigration Courts is a continuing national disgrace.

PWS

06-06-17

“IMMIGRATION COURTS — RECLAIMING THE VISION” — Read My Article In The Latest Federal Bar News!

Here is the link:

immigration courts

And, here’s an excerpt:

“Our immigration courts are going through an existential crisis that threatens the very foundations of our American justice system. I have often spoken about my dismay that the noble due process vision of our immigration courts has been derailed. What can be done to get it back on track?

First, and foremost, the immigration courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the Department of Justice—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the American Bar Association and the Federal Bar Association, would be best.

Clearly, the due process focus has been lost when officials outside the Executive Office for Immigration Review have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle (the Central American countries of El Salvador, Honduras, and Guatemala) who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized immigration judges.”

I encourage you to read the entire article.

Additionally, this entire issue of The Federal Lawyer is devoted to Immigration Law. Kudos to Judge Lawrence O. Burman of the Arlington Immigration Court and Judge Robin Feder of the Boston Immigration court for their key roles in FBA leadership and for inspiring this effort. There are four other great articles that will help you understand what is happening today in this most important area. Check them all out at this link:

http://www.fedbar.org/magazine.html

Finally, if you aren’t currently a member of the Federal Bar Association (“FBA”), please join the FBA and the Immigration Section today! The price is very reasonable, you get access to The Green Card (the Immigration Section newsletter, Edited by Judge Burman) and some other great educational materials, and you support the effort for due process, collegiality, and badly needed U.S. Immigration Court Reform, which the FBA advocates. The current “powers that be” are not going to fix the broken U.S. Immigration Court System without outside involvement and, ultimately, Congressional action. This won’t happen by itself. So, if like me, you are appalled and dismayed by what has happened to due process in our U.S. Immigration Court system, now is the time to get involved and work to change it!

Also, check out my previous blogs on the recent FBA Immigration Seminar in Denver.

http://wp.me/p8eeJm-O1

http://wp.me/p8eeJm-Oa

http://wp.me/p8eeJm-OU

http://wp.me/p8eeJm-P4

PWS

06-05-17

ANTH 375 @ BELOIT COLLEGE: Professor Jennifer Esperanza & Her Students Blaze Path To Understanding Migration In The Liberal Arts Context — Every College In America Should Be Teaching These Essential Skills!

Back in 1973, when I graduated from the University of Wisconsin Law School and joined the staff of the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice, nary a law school in the U.S. taught a course in immigration law. The handful of law school courses on the subject were taught almost entirely by Adjunct Professors. Indeed, shortly after I joined the Board, they sent me to what was then the premier law school immigration course at Georgetown Law taught by none other than Charles Gordon, the legendary General Counsel of the “Legacy” INS.

Today, thanks to a great extent to the efforts of such noted “scholar/public servants” as Professor David Martin of the University of Virginia Law School, Professor Alex Aleinikoff, former Dean of Georgetown Law, and Professor Stephen Legomsky of Washington University Law School, some form of immigration law or immigration clinic is offered at most major U.S. Law Schools.

But, a serious void remains at the most critical level of education: undergraduate institutions. However, at Beloit College in Beloit, Wisconsin, Professor Jennifer Esperanza is blazing the way for the future. Her “ANTH 375: Migrants, Immigrants, and Refugees” Summer Session class is jumping head-on into creating constructive dialogue, understanding, and action on the most important issue facing America today: migration.

I had the pleasure of working with Professor Esperanza and her fourteen “super students” as a “Guest Professor” during three days in late May. The students hailed from different backgrounds and entered the class with varying levels of immigration experience and interest.

Some were there because of their own backgrounds or prior work with migrants; others were there . . . well, just because they were there. But, funny thing, by the end of my three days I couldn’t tell the difference. Everyone pitched in as a team, demonstrated sharp analytical skills, asked incisive questions, showed creativity and originality, and made spectacular group presentations on some very tough subjects. In other words, it was all the things I love: fairness, scholarship, timeliness, respect, and teamwork!

Among our exercises: we watched and discussed the documentary “Credible Fear;” broke the group into two teams which designed and presented their own refugee systems based on competing “Mother Hen” and “Dick’s Last Resort” principles; and read, analyzed, and discussed two cases I had been involved in: the BIA’s landmark precedent Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) recognizing for the first time “female genital mutilation” (“FGM”) as a basis for asylum in the United States, and another decision (which was published on the internet) from my time at the Arlington Immigration Court where I granted “particular social group” asylum to a family from El Salvador.

I teach as an Adjunct Professor at Georgetown Law, one of the top law schools in the country. To my pleasant surprise, I found that Esperanza’s Beloit students were able to discuss the issues in a manner very similar to the class dialogue produced by some really great second-year, third-year, and graduate law students. Amazing!

I’m reproducing the results of the “Create Your Own Refugee System” exercise below, along with a class picture and some other pictures of my stay at Beloit (where my son-in-law, Daniel Barolsky, is a Professor of Musicology).

I also note that Professor Esperanza’s system and “real-world-oriented” approach to undergraduate education produces results, as in jobs in the real world! As featured in the Fall 2015 issue of Beloit College Magazine, Esperanza’s students were making an immediate difference: Jessica Slattery ’12, as a paralegal for the New York Legal Assistance Group in the Bronx, NY; Dan Weyl ’10, with the Heartland Alliance, an international human rights organization that provides resources for LGBT refugees resettling in the United States (as a footnote, following retirement I have been helping out the Heartland Alliance Washington, DC, office with various projects); Jane Choi ’14, working on the political team at the British High Commission in Cape Town, South Africa; Key Ishii ’12, working with African refugees in Israel; Angela Martellaro ’10, a licensed real estate agent at Chief Properties in Kansas City, MO, specializing in helping refugee families from Myanmar buy their first home; and Nikki Tourigny ’10, working for Hot Bread Kitchen, a wholesale nonprofit bakery in NYC that trains immigrant and minority women to work in the restaurant industry. Impressive!

On a personal note, I graduated in 1970 from Lawrence University, just up the road from Beloit in Appleton, WI. Like Beloit, Lawrence is a member of the Associated Colleges of the Midwest.

I majored in History, minored in German, and spent a semester abroad in Germany. I found that a broad research and writing intensive, liberal arts eduction that promoted critical analysis and effective dialogue was the best possible preparation for all that followed: U.W. Law School, government attorney, private practice of immigration law, and several Senior Executive Service positions with the U.S. government, as well as Adjunct Professor positions. I spent the last 21 hears of my career as a U.S. Immigration Judge at the appellate and trial levels and served as Chairman of the BIA for six years. I can’t imagine a better preparation for the global perspective, analytical ability, and research and writing skills needed for judicial work than what I received at Lawrence. I just wish that someone like Professor Esperanza had been teaching her innovative approach to cultural anthropology when I was an undergrad!

Finally, I might add that Professor Esperanza and her husband Paul, who works in Administration at the College, are part of a a group of talented young professionals, which includes my daughter Anna, who teaches middle school English in the Beloit Public Schools, her husband Daniel, and their children, who have chosen to make their homes in Beloit, near the College. They enjoy and actively participate the in Beloit community and are big supporters of the “Beloit Proud” movement.

Here’s the pictorial version of my “tenure” at Beloit.

ANTH 375: Migrants, Immigrants, and Refugees” – Professor Jenn Esperanza — May 2017 — Beloit College, Beloit WI

Back Row:

Dan Arkes, Me, Joe Enes, “The Talking Statue,” Mark Hauptfleisch, Cynthia Escobedo, Yoon Ja Na, Rosa Ennison, Keila Perez, Gabe Perry

Front Row:

Jamie Manchen, Professor Jennifer Esperanza, Leanna Miller, Terra Allen, Abby Segal, Matt Tarpinian

Here are the results of the “Create Your Own Refugee System” Exercise. Click on the links for some really “great stuff:”

For “Dick’s Last Resort:”

The GreatHermetic Principles

For the “Mother Hens:”

ANTH 375- Mother Hen Refugee Program

And, here’s what the class looked like “in action,” as well as a picture of our dog Luna in front of the historic “Middle College Building” at Beloit.

PWS

06-04-17

Should 350,000 El Salvadorans & Hondurans With TPS Start Packing Their Bags?

http://abcnews.go.com/International/wireStory/homeland-security-chief-signals-shift-immigration-program-47778916

Jennifer Kay reports for the AP:

“Immigrants who have legally lived and worked in the U.S. since disasters in their countries years ago may have to start thinking about going home, the U.S. Homeland Security chief said Thursday.

In an interview with The Associated Press, Secretary John Kelly sent strong signals that immigration benefits known as “temporary protected status” should not be as open-ended as they have become for tens of thousands of people from Haiti and Central America.

“The point is not that there be a complete recovery of all ills in the country,” Kelly said. “The point is, whatever the event is that caused TPS to be granted — that event is over, and they can return.”

That might shock 86,000 immigrants from Honduras and another 263,000 from El Salvador, who constitute the vast majority of the program’s current beneficiaries.

The Hondurans, along with more than 5,000 immigrants from Nicaragua, became eligible for the temporary protections in 1999 because of destruction from Hurricane Mitch a year earlier. Immigrants from El Salvador were included in 2001 after a series of earthquakes.

Immigrants from those three countries make up 80 percent of the 435,000 people from 10 nations currently eligible. Their status has been renewed every 18 months, and it will be up for renewal again early next year.

Kelly spoke with AP in Miami a day after meeting with Haiti’s president to discuss the return of roughly 50,000 Haitians to the long-troubled Caribbean country. He joined Florida Gov. Rick Scott at the National Hurricane Center to mark the start of hurricane season Thursday.

Kelly said he has not yet discussed ending temporary status with the Central American countries’ leaders. However, he emphasized that those privileges were intended to be temporary, even though they have not been administered that way.

“People in my position automatically — without thinking about it very much, apparently — just simply extended it,” Kelly said. “They weren’t taking the same approach to the law as I am.”

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Read the complete article at the link.

A few problems here.

First, Hondurans with TPS have been in the U.S. continuously since 1999, El Salvadorans since 2001. Most of them have homes, jobs, and U.S. citizen kids. They are members of our society. Are we really going to send them home after they have been here for decades in many cases?

Second, the last time a termination of these programs was considered was during the Clinton Administration. At that time, the Governments of El Salvador and Honduras went berserk, telling the State Department that return of that many individuals in a short period of time could destabilize their economies and their political systems. In plain terms, those countries could collapse. Moreover, money sent home by El Salvadorans and Hondurans with TPS status was basically propping up the economies of those countries.

Third, some TPS individuals are under final orders of removal. In theory, they would become removable immediately if they failed to depart after termination of the programs. But, they could move to reopen Deportation or Removal Proceedings if circumstances in their cases have materially changed, which is quite possible. Moreover, many, probably the vast majority, of those with TPS either 1) were never place in Removal Proceedings, or 2) had such proceedings “administratively closed” prior to a decision on the merits by an Immigration Judge. In both of these situations, individuals would have to be placed back on the Immigration Courts’ Master Calendar (that is arraignment) dockets.

Given the current 600,000 case backlog in Immigration Court, and that many Immigration Judges are scheduling new non-detained cases for “individual hearing” dates three, four, or more years from now, most of these cases wouldn’t even be heard on the merits until well after the end of President Trump’s current term.

By that time, individuals will have been in the U.S. for almost a quarter of a century. Many will have adult U.S. citizen children who can petition for them for permanent immigration.

Eventually, folks here from El Salvador and Honduras will have to be given some type of permanent or semi-permanent status, with or without a “path to citizenship.” Until then, they are working, paying taxes, and are an asset to the U.S. and their communities. Because of the nature of TPS, those relatively few who do commit one felony or two misdemeanors are arrested, detained, and removed promptly, unless they qualify for additional relief. And, the Government apparently makes money from the fees generated by extensions of TPS status and work authorization.

So, regardless of the original legal framework, TPS is one of the most successful and beneficial programs that DHS runs right now. Better not to mess with it unless you have a better idea. And, better ideas on immigration are not a strong point of the Trump Administration generally or Secretary Kelly, specifically.

Stay tuned.

PWS

06-03-17

INTRODUCING NEW COMMENTATOR — Hon. Jeffrey Chase — “Matter Of L-E-A: The BIA’s Missed Chance” — Original For immigrationcourtside!

Hi immigrationcourtside.com readers:

I am delighted to provide an original article by my good friend and colleague the Honorable Jeffrey Chase, who recently joined us in the ranks of the “retired but still engaged.” Judge Chase is a former U.S. Immigration Judge in New York, a former Senior Attorney Adviser at the BIA, and a former sole immigration practitioner in New York. He’s also a gentleman, a scholar, and an immigration historian. In a subsequent post I’ll be providing some links to parts of the “Chase Immigration History Library” which has previously been published by our friend and former colleague Judge Lawrence O. Burman in the FBA’s The Green Card.

Welcome to retirement and to immigrationcourtside, Judge Chase! We live in interesting times. Enjoy the ride.

Now, for your reading pleasure, here’s the complete original version of Judge Chase’s article about a recent BIA precedent. Enjoy it!

Matter of L-E-A-

Matter of L-E-A-: The BIA’s Missed Opportunity

Jeffrey S. Chase

On May 24, the Board of Immigration Appeals published its long-anticipated precedent addressing family as a particular social group, Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). Thirteen amicus briefs were received by the Board addressing the issue of whether a “double nexus” is required in claims based on the particular social group of family. The good news is that the Board did not create a “double nexus” requirement for family-based PSG claims. In other words, the decision does not require an asylum applicant to prove both their inclusion in the social group of X’s family, and then also establish that X’s own fear is on account of a separate protected ground.

Nevertheless, the resulting decision was highly unsatisfying. The Board was provided a golden opportunity to adopt the interpretation of the U.S. Court of Appeals for the Fourth Circuit, which has held persecution to be “on account of” one’s membership in the particular social group consisting of family where the applicant would not have been targeted if not for their familial relationship. Such approach clearly satisfies the statutory requirement that the membership in the particular social group be “at least one central reason for persecuting the applicant.” If the asylum seeker would not have been targeted if not for the familial relationship, how could such relationship not be at least one central reason for the harm? L-E-A- rejected this interpretation, and instead adopted a much more restrictive “means to an end” test. Under L-E-A-, even though the respondent would not be targeted but for her familial relationship to her murdered husband, she would not be found to have established a nexus because the gangsters she fears do not wish to harm her because of an independent animus against her husband’s family. Rather, targeting her would be a means to the end of self-preservation by attempting to silencing her to avoid their own criminal prosecution.

Under the fact patterns we commonly see from Mexico and the “northern triangle” countries of Central America, claims based on family as a particular social group will continue to be denied, as such fears will inevitably be deemed to be a means to some criminal motive of gangs and cartels (i.e. to obtain money through extortion or as ransom; to increase their ranks; to avoid arrest) as opposed to a desire to punish the family itself. Applying the same logic to political opinion, a popular political opponent of a brutal dictator could be denied asylum, as the dictator’s real motive in seeking to imprison or kill the political opponent could be viewed as self-preservation (i.e. avoiding losing power in a free and fair election, and then being imprisoned and tried for human rights violations), as opposed to a true desire to overcome the applicant’s actual opinions on philosophical grounds.

Sadly, the approach of L-E-A- is consistent with that employed in a line of claims based on political opinion 20 years ago (see Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997)) in which attempted guerrilla recruitment, kidnaping, and criminal extortion carried out by armed political groups were not recognized as persecution where the perpetrator’s motive was to further a goal of his/her political organization as opposed to punishing the asylum applicant because of his/her own political opinion.

Nearly a decade earlier, an extreme application of this “logic” resulted in the most absurd Board result of to date. In Matter of Maldonado-Cruz, 19 I&N Dec. 509 (BIA 1988), the Board actually held that a deserter from an illegal guerrilla army’s fear of being executed by a death squad lacked a nexus to a protected ground, because the employment of death squads by said illegal guerrilla army was “part of a military policy of that group, inherent in the nature of the organization, and a tool of discipline,” (to quote from the headnotes). After three decades of following the course of such clearly result-oriented decision making, the Board missed an opportunity to right its course.

The author formerly served as an immigration judge, and as a staff attorney at the Board of Immigration Appeals.

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

I agree with Judge Chase that this is a missed opportunity that will come back to haunt all of us. A correct decision would have allowed many of the Central American asylum seekers clogging the court system at all levels to be granted needed protection, either at the USCIS or in court. Here is a link to my prior blog and “alternative analysis” of L-E-A-.

http://wp.me/p8eeJm-Sh

Instead, I predict that some of these cases could still be “kicking around the system” somewhere a decade from now, unless some drastic changes are made. And the type of positive, due process, fairness, and protection oriented changes needed are not going to happen under the Trump Administration. So, the battles will be fought out in the higher courts.

Although the BIA did it’s best to obfuscate, it’s prior precedent in Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) basically established a “common sense/but for” test for one central reason. In a mixed motive case, if the persecution would have occurred notwithstanding the protected ground, then it is tangental, incidental, and not “at least one central reason.” On the other hand, if “but for” the protected ground the perseuction would not have occurred, that ground is at least “one central reason” of the persecution.

In L-E-A- the respondent would not have suffered threats and attempts to kidnap him “but for” his membership in the family. Hence family clearly is “at least one central reason” for the persecution. That’s basically the test the Fourth Circuit Court of Appeals would apply.

It’s a fairly straightforward case. The respondent in L-E-A- satisfies the refugee definition. In fact, the serious threats delivered by a gang which clearly has the ability and the means to carry them out amounts to past persecution. Hence, the respondent is entitled to the rebuttable presumption of future persecution.

Instead of properly applying its own precedents and reaching the correct result, the BIA launches into paragraphs of legal gobbledygook designed to mask what’s really going on here: manipulating the law and the facts to deny protection to Central American refugees whenever possible.

I know, this respondent is from Mexico; but, the BIA’s intended target obviously is Northern Triangle gang-based asylum claims. This precedent gives the Immigration Judges and Asylum Officers lots of “hooks” to deny claims by women and children fleeing family-targeted gang violence.

And, it insures that nobody without a really good lawyer and the ability to litigate up to Courts of Appeals if necessary even has a chance. The BIA is certainly well aware that the Trump Administration is pulling out all the stops to effectively deny counsel to arriving asylum seekers by a combination of using expedited removal, increasing negative credible fear determinations, and detaining everyone in out of the way locations where conditions are discouraging and pro bono counsel are not readily available.

Yeah, I don’t suppose any of this is going to bother Trump Administration officials any more than it did the BIA’s DOJ bosses during the Bush and Obama Administrations. Some negative case precedents on repetitive Central American claims proved mighty handy in border enforcement efforts and “don’t come, you’ve got no chance” publicity campaigns. The only problem is the it twists protection law out of shape.

Finally, let the record reflect that I lodged a dissent in Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); and Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997), wrongly decided BIA precedent cases cited by Judge Chase. Indeed, Matter of T-M-B- eventually was reversed by the Ninth Circuit Court of Appeals, Borja v. INS, 175 F.3d 332 (9th cir. 1999), something which many BIA Appellate Judges only grudgingly acknowledged in later cases.

So, it will be left for the Courts of Appeals to straighten out nexus in the family context. Or not.

Again, welcome Judge Chase. Look forward to hearing more from you.

PWS

06-03-17

N. Rappaport Reviews Travel Ban Litigation For HuffPost!

http://www.huffingtonpost.com/entry/5929ff8ce4b08861ed0cca0e

Man, Nolan sure gets around in terms of different publications! And, he is both timely and highly relevant! Here, Nolan writes in HyuffPost:

“In April 2016, I wrote an article entitled, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens.”

The article included a successful prediction of Trump’s temporary travel ban. But I failed to foresee that it would be rejected on the basis of his campaign statements, or that using campaign statements that way would put our country on the brink of a constitutional crisis.

. . . .

The campaign statements that Judge Gregory uses to justify his decision can be used again and again to attack anything Trump does that has a negative impact on a country with a large Muslim population.

If the Supreme Court does not reverse Judge Gregory’s decision, other courts will follow suit and President Trump ultimately will be faced with the constitutional crisis of not being able to meet his national security responsibilities as the Chief of the Executive Branch with respect to terrorism coming from Muslim countries unless he defies the orders of the Judicial Branch.”

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

Read Nolan’s complete article on HuffPost at the above link!

I appreciate Nolan’s helpful summary of what has happened to date on the “Travel Ban” litigation. Nevertheless, I disagree with his conclusion that the President will not be able to “meet his national security responsibilities as Chief Executive.”

I have little doubt that if there were a legitimate “national security” crisis, the Federal Courts would give the Executive considerable discretion to operate. President Trump’s problem is that there is no obvious national security crisis at present. Therefore, his attack on nationals of predominantly Muslim countries seems to be out of bounds, and motivated by religious animus and a desire to fulfill campaign promises, rather than by any legitimate national security considerations.

FPWS

05-29-17

Split 1st Cir. Bops BIA For Failing To Consider Reg Requiring That Resettlement Be “Reasonable” — Garcia-Cruz v. Sessions

http://media.ca1.uscourts.gov/pdf.opinions/15-2272P-01A.pdf

“8 C.F.R. § 1208.13(b)(3), however, lists a number of factors that an adjudicator should consider. “[W]hile the IJ and BIA do not necessarily have to address each of [8 C.F.R. § 208.13(b)(3)’s] reasonableness factors explicitly . . . the agency must explain why the factors that cut against the asylum applicant outweigh the factors in his favor.” Khattak v. Holder, 704 F.3d 197, 207 (1st Cir. 2013); see also Saldarriaga v. Gonzales, 241 F. App’x 432, 434 (9th Cir. 2007) (remanding asylum petition for further review because “the IJ did not consider whether [the petitioner’s] relocation would be reasonable”). In Khattak, the BIA determined that the petitioner could relocate to another part of Pakistan where he owned a home and had briefly lived twenty years earlier. 704 F.3d at 206-07. We remanded to the BIA, however, because (1) “neither the IJ nor the BIA addressed evidence in the record indicating that” the petitioner would not be safe in that area and (2) “neither the IJ nor the BIA made any mention of [the reasonableness] factors.” Id. at 207.

          Relevant factors here include:

 “ongoing civil strife within the country “(the IJ found that “electoral violence” is common “in every electoral cycle”);
 “economic…infrastructure “(IJ found that relocation “would be economically difficult”);
 “socialandculturalconstraints”(García-Cruz speaks Quiché, a minority language that has no official status and is spoken mainly in Guatemala’s central highlands); and
 “familial ties”(all of García-Cruz’s extended family live in Chixocol).

-Yet the IJ and the BIA discussed only the fact that García-Cruz’s wife and children were in Salamá. They did not address evidence in the record that appears to undercut the conclusion that García- Cruz could reasonably relocate within Guatemala — for example, García-Cruz’s testimony that he could not live with his wife in Salamá and does not “have a home . . . [or] a job” there. Thus, neither the BIA nor the IJ “presented a reasoned analysis of the evidence as a whole.” Id. at 208 (quoting Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012)).

García-Cruz asserts that “every single factor” supports a conclusion that he cannot reasonably relocate, but he does little to develop this argument. He then asserts that the BIA’s “unfounded conclusion . . . itself requires reversal.” That is not accurate. To reverse the BIA’s order, rather than simply remand it, the evidence must compel us to conclude that it would beunreasonableforGarcía-CruztorelocatewithinGuatemala. Id. at 207 (citing INS v. Elías-Zacarías, 502 U.S. 478, 481 n.1 (1992)). There is significant evidence in the record supporting a conclusion that relocation would be unreasonable. But García- Cruz has understandably focused on the BIA’s failure to properly analyze the reasonableness factors, rather than whether the evidence compels a finding that internal relocation would be unreasonable, and neither the IJ nor the BIA weighed the reasonableness factors. Given the limited analysis on this issue, we think it best to remand to the BIA to consider it fully. We therefore grant the petition for review, vacate the BIA’s order, and remand for further proceedings.”

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PRACTICE POINTER:

8 C.F.R. § 1208.13(b)(3) requires that internal relocation not just be “possible,” but also must be “reasonable” under all of the circumstances. Sometimes Immigration Judges at both the trial and appellate level ignore this requirement and the relevant regulation. Attorneys challenging “internal relocation” should be sure to cite the regulation and refer specifically to the non-exclusive list of the type of factors that should be considered.

Additionally, as pointed out by the 1st Circuit majority, the BIA and the IJ could have found that the respondent suffered past persecution, thus shifting the burden to the DHS to provide that there was no reasonably available internal relocation alternative. In cases of this type, where a finding granting protection could have been made, but the BIA chose not to, it appears that the BIA has both failed to follow the generous dictates of their own precedent in Mogharrabi, but also has abandoned the vision of “guaranteeing fairness and due process for all.” “Close cases” should go to the respondent under Cardoza-Fonseca and Mogharrabi. But, for the last decade plus, the BIA has been unwilling to follow the law and its own precedents mandating generous treatment of asylum seekers.

PWS

05-29-=17

NYT Sunday Maggie: The “Deportation Resistance” In Trump’s America — Re-energized Or Outgunned? — The “country woke up in Arizona!”

https://www.nytimes.com/2017/05/23/magazine/is-it-possible-to-resist-deportation-in-trumps-america.html?em_pos=medium&emc=edit_ma_20170525&nl=magazine&nl_art=1&nlid=79213886&ref=headline&te=1&_r=0

Marcela Valdes writes:

“On Monday, Feb. 6, two days before Guadalupe García Aguilar made headlines as the first person deported under President Donald Trump’s new executive orders on immigration, she and her family drove to the modest stucco offices of Puente, an organization that represents undocumented immigrants. It was a postcard day: warm and dry, hovering around 70 degrees, the kind of winter afternoon that had long ago turned Phoenix into a magnet for American retirees and the younger, mostly Latin American immigrants who mulch their gardens and build their homes.
García Aguilar and her family — her husband and two children — squeezed together with four Puente staff members into the cramped little office that the group uses for private consultations. Carlos Garcia, Puente’s executive director, had bought a fresh pack of cigarettes right before the talk; he needed nicotine to carry him through the discomfort of telling García Aguilar that she would almost certainly be deported on Wednesday. Until that moment, she and her family had not wanted to believe that the executive orders Trump signed on Jan. 25 had made her expulsion a priority. She had been living in the United States for 22 years, since she was 14 years old; she was the mother of two American citizens; she had missed being eligible for DACA by just a few months. Suddenly, none of that counted anymore.
García Aguilar’s troubles with Immigration and Customs Enforcement (ICE) began in 2008, after police raided Golfland Sunsplash, the amusement park in Mesa, Ariz., where she worked. She spent three months in jail and three months in detention. (ICE booked her under the last name “García de Rayos.”) In 2013, an immigration court ordered her removal. Yet under pressure from Puente, which ultimately filed a class-action lawsuit contending that Maricopa County’s work-site raids were unconstitutional, ICE allowed García Aguilar (and dozens of others) to remain in Arizona under what is known as an order of supervision. ICE could stay her removal because the Obama administration’s guidelines for the agency specified terrorists and violent criminals as priorities for deportation. But Trump’s January orders effectively vacated those guidelines; one order specifically instructed that “aliens ordered removed from the United States are promptly removed.” García Aguilar, who had a felony for using a fabricated Social Security number, was unlikely to be spared.
Orders of supervision are similar to parole; undocumented immigrants who have them must appear before ICE officers periodically for “check-ins.” García Aguilar’s next check-in was scheduled for Wednesday, Feb. 8. She had three options, Garcia explained. She could appear as usual and hope for the best. She could try to hide. Or she could put up a fight, either from a place of sanctuary or by appearing for her check-in amid media coverage that Puente would organize on her behalf. Whatever she decided, he said, she would be wise to spend Tuesday preparing for separation from her children.
The family was devastated. García Aguilar left the meeting red-faced with tears.
The next day a dozen activists gathered at Puente to strategize for García Aguilar’s case. After reviewing the logistics for the usual public maneuvers — Facebook post, news release, online petition, sidewalk rally, Twitter hashtag, phone campaign — they debated the pros and cons of using civil disobedience. In the final years of the Obama administration, activists in Arizona had come to rely on “C.D.,” as they called it, to make their dissatisfaction known. Puente members had blocked roads and chained themselves in front of the entrance to Phoenix’s Fourth Avenue Jail. Yet Francisca Porchas, one of Puente’s organizers, worried about setting an unrealistic precedent with its membership. “For Lupita we go cray-cray and then everyone expects that,” she said. What would they do if Puente members wanted them to risk arrest every time one of them had a check-in?
Ernesto Lopez argued that they needed to take advantage of this rare opportunity. A week earlier, thousands of people had swarmed airports around the country to protest the executive order barring citizens from seven Muslim-majority nations. “There’s been a lot of conversation about the ban, but for everything else it’s dead,” Lopez said. “Nobody is talking about people getting deported. In a couple of months, it won’t be possible to get that media attention.”
Garcia wasn’t sure a rally for García Aguilar would work. “We’re literally in survival mode,” Garcia told me that week. It was too early to tell how ICE would behave under Trump, but they were braced for the worst. Nobody had a long-term plan yet. Even as he and his staff moved to organize the news conference, his mind kept running through the possibilities: Would it help García Aguilar stay with her family? Would it snowball into an airport-style protest? Would it cause ICE to double down on her deportation? He decided it was worth trying.
Shortly before noon on Wednesday, García Aguilar and her lawyer, Ray Ybarra Maldonado, entered ICE’s field office as supporters chanted “No está sola!” (You are not alone!) behind her. Telemundo, Univision and ABC shot footage. Supporters posted their own videos on Twitter and Facebook. ICE security warily eyed the scene. An hour later, Ybarra Maldonado exited ICE alone. García Aguilar had been taken into custody. All around the tree-shaded patio adjacent to ICE’s building, Puente members teared up, imagining the same dark future for themselves. Ybarra Maldonado filed a stay of deportation, and Porchas told everyone to come back later for a candlelight vigil.
That night a handful of protesters tried to block several vans as they sped from the building’s side exit. More protesters came running from an ICE decoy bus that had initially distracted those attending the vigil out front. Manuel Saldaña, an Army veteran who did two tours in Afghanistan, planted himself on the ground next to one van’s front tire, wrapping his arms and legs around the wheel. The driver looked incredulous; if he moved the van forward now, he would break one of Saldaña’s legs. Peering through the van windows with cellphone flashlights, protesters found García Aguilar sitting in handcuffs. The crowd doubled in size. “Those shifty [expletive],” Ybarra Maldonado said as he stared at the van. ICE, he said, had never notified him that her stay of deportation had been denied.
Four hours later, García Aguilar was gone. After the Phoenix Police arrested seven people and dispersed the crowd, ICE took her to Nogales, Mexico. By then images of García Aguilar and the protest were already all over television and social media. She and her children became celebrities within the immigrant rights movement. Carlos Garcia, who was with her in Nogales, told me that Mexican officials stalked her hotel, hoping to snag a photo. “Everyone wanted to be the one to help her,” he said. “Everyone wanted a piece.” Later that month, her children — Jacqueline, 14, and Angel, 16 — sat in the audience of Trump’s first address to Congress, guests of two Democratic representatives from Arizona, Raúl Grijalva and Ruben Gallego.
During the Obama years, most immigrant rights organizations focused on big, idealistic legislation: the Dream Act and comprehensive immigration reform, neither of which ever made it through Congress. But Puente kept its focus on front-line battles against police-ICE collaboration. For Garcia, who was undocumented until a stepfather adopted him at 16, the most important thing is simply to contest all deportations, without exception. He estimates that Puente has had a hand in stopping about 300 deportations in Arizona since 2012.
Ever since Arizona passed Senate Bill 1070, one of the toughest anti-undocumented bills ever signed into law, the state has been known for pioneering the kind of draconian tactics that the Trump administration is now turning into federal policy. But if Arizona has been a testing ground for the nativist agenda, it has also been an incubator for resistance to it. Among the state’s many immigrant rights groups, Puente stands out as the most seasoned and most confrontational. In the weeks and months following Election Day 2016 — as progressive groups suddenly found themselves on defense, struggling to figure out how to handle America’s new political landscape — Garcia was inundated with calls for advice. He flew around the country for training sessions with field organizers, strategy meetings with lawyers and policy experts and an off-the-record round table with Senators Dick Durbin and Bernie Sanders in Washington. A soft-spoken man with a stoic demeanor and a long, black ponytail, Garcia was also stunned by Trump’s victory. But organizers in Phoenix had one clear advantage. “All the scary things that folks are talking about,” he told me, “we’ve seen before.” On Nov. 9, he likes to say, the country woke up in Arizona.”

. . . .

On May 3, the day Arreola was to have been deported, Arreola and Andiola gathered with friends, family and supporters for a prayer breakfast at the First Congregational United Church of Christ in Phoenix, which had offered to house Arreola if she chose sanctuary. Pastor James Pennington had been active in the fight for gay rights. The patio of First Congregational was decorated with several flags, including a rainbow flag, an Arizona state flag and an American flag. Inside the church, members of Puente and former members of ADAC formed a circle with several non-Hispanics who had only recently allied themselves with the undocumented. Standing together they recited Psalm 30 in Spanish:

Te ensalzaré, oh Señor, porque me has elevado, y no has permitido que mis enemigos se rían de mi.

I’ll praise you, Lord, because you’ve lifted me up. You haven’t let my enemies laugh at me.

Yet their enemies remained hard at work. A week later, Marco Tulio Coss Ponce, who had been living in Arizona under an order of supervision since 2013, appeared at ICE’s field office in Phoenix with his lawyer, Ravindar Arora, for a check-in. ICE officers, Arora said, knew that Coss Ponce was about to file an application for asylum — several of his relatives had been recently killed or threatened by the Sinaloa cartel in Mexico — and they had assured Arora several times that Coss Ponce would not be removed. They said he simply needed to wear an ankle monitor to make sure he didn’t disappear. The fitting was delayed several times until finally Arora had to leave to argue a case in court. After he departed, ICE officers handcuffed Coss Ponce and put him in a van, alone. Three hours later, he was in Nogales.”

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Read the entire, very lengthy but worthwhile, article at the link.

Wow, can’t help but think “what if” all the energy, emotion, and activity on both sides of the immigration issue were re-directed at working together to “make America greater,” rather than engaging in a dangerous, counterproductive “grown up” game of hide and seek aimed at intimidating and removing productive members of American society who aren’t causing anyone any particular harm!

I’ve got some bad news for “the enforcers.” The U.S. families of most of the deportees aren’t going anywhere. And, there will be a steep price to pay in future generations for intentionally alienating some of America’s “best and brightest,” and our hope for the future as a nation.

Actions have consequences. Hate and disrespect aren’t quickly forgotten. Witness that even today, more than a century after the event, we’re still struggling as a nation with the misguided and hateful cause that created the short-lived “Confederate States of America,” killed hundreds of thousands of Americans of all races, and ruined millions of lives.

Something to think about on Memorial Day.

PWS

05-29-17

USCIS Nominee Apparently Has Strong Anti-Immigrant Views!

https://psmag.com/news/trumps-uscis-pick-harsh-on-undocument-immigrants

Pacific Standard reports:

“Lee Francis Cissna, President Donald Trump’s nominee to head the federal agency that handles applications for visas, refugee status, and citizenship, has put little on the public record in his 20 years as a lawyer, government employee, diplomat, and Capitol Hill aide.

But it turns out he has left many clues about how he could reverse Obama-era policies if he becomes director of United States Citizenship and Immigration Services, a non-enforcement arm of the Department of Homeland Security.

On Wednesday, May 24th, Cissna, 50, who has worked on immigration policy at Homeland Security for much of his career, is scheduled to appear at a confirmation hearing chaired by Senate Judiciary Committee Chairman Charles Grassley. From 2015 until earlier this year, Cissna worked for Grassley on immigration issues, having been detailed to his staff by Homeland Security. During that time, he remained on the agency’s payroll.

While there, he drafted dozens of letters under the senator’s name to Homeland Security officials, helping Grassley, an Iowa Republican, to intensify his oversight of immigration and creating a blueprint for dismantling President Barack Obama’s initiatives, according to a dozen current and former agency and congressional staff members.

ProPublica reviewed more than 60 of the letters sent by Grassley during the time Cissna worked in his office. Among the policies they criticized were:

An emergency program for Central American children to reunite with parents in the U.S. The system “unquestionably circumvents the refugee program established by Congress,” according to a November of 2015 letter.
The system for granting asylum to people claiming persecution in their home countries. A November of 2016 letter claimed thousands of immigrants were “amassing” in Mexican border cities with the intention of “asserting dubious claims of asylum, which will practically guarantee their entry.”
Giving so-called “Dreamers”—undocumented immigrants brought to the U.S. as children—the chance to obtain travel documents on top of work permits. This program would “open the door to undocumented immigrants to gain U.S. citizenship,” a March of 2016 letter said.
A program allowing undocumented immigrants who are victims of crime to stay in the U.S. even if there are no visa slots available. A December of 2016 letter said the policy is “being exploited by those wishing to defraud the system and avoid deportation.”

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

Dude seems to oppose many of the best things that USCIS has done to improve the immigration situation. Also appears that like Senator Grassley he has a habit of repeating largely “fact free” restrictionist, white nationalist dogma. Grassley is right on a few things (allowing cameras in court is one of them) but none of the items mentioned in this article.

PWS

05-25-17

NEW PRECEDENT: Family Is A PSG, But Beware Of Nexus — Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) — Read My “Alternative Analysis!”

https://www.justice.gov/eoir/page/file/969456/download

BIA Headnote:

“(1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question. (2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.”

PANEL: BIA Appellate Immigration Judges Greer, Malphrus, Liebowitz

OPINION BY: Judge Anne Greer

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

I was the Immigration Judge in one of the leading “family as a PSG” cases cited by the BIA, the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117, 124−25 (4th Cir. 2011). In Crespin, I had granted asylum to a Salvadoran family comprising a PSG of “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses.”

The BIA reversed me on appeal, and the respondents sought judicial review in the Fourth Circuit. That Court (much to my delight and satisfaction, I must admit) reversed the BIA and agreed with me that the respondent’s PSG was valid.

Following that, family based PSGs came up frequently in the Arlington Immigration Court. However, in a number of cases, as in L-E-A-, in their haste to posit a valid family-based PSG, attorneys neglected to prove the nexus between the PSG and the harm, or, even more surprisingly, failed to show that the respondent was even a member of the proposed PSG. Details are important!

Nevertheless, since family-based PSG cases are often “grantable,” I can’t help wondering why the BIA selected a denial for the precedent, rather than putting forth a positive example of how family-based PSGs can be a legitimate means of granting protection under the law and thereby saving lives?

In L-E-A-, the PSG was the respondent’s membership in his father’s family. Gangs threatened him with harm because they wanted him to sell drugs in his father’s store, and he refused. The respondent’s membership in the family is immutable. Additionally, there is no reason to believe that the gangs would have threatened the respondent but for his membership in a family which ran a store where they wanted to sell drugs.

Consequently, the IJ and the BIA panel could just have easily found that “family membership” was at least one central reason for the threatened harm. To me, this seems like a better analysis. I find the panel’s observation that anyone who owned the store would have been threatened irrelevant. So what?

PWS

05-25-17

“Trump Effect” Slows Migration, But There Might Be More Than Meets The Eye — Increase In Surreptitious Entries, Higher Smuggling Fees, Wait & See Attitude All Play Roles!

https://www.washingtonpost.com/world/the_americas/the-trump-effect-has-slowed-illegal-us-border-crossings-but-for-how-long/2017/05/21/dfa12a0a-39be-11e7-a59b-26e0451a96fd_story.html?hpid=hp_hp-more-top-stories_border-crossings410am%3Ahomepage%2Fstory&utm_term=.3cb4b3c465ee

Joshua Partlow reports in the Washington Post:

“SAN JOSE LAS FLORES, El Salvador — In a different era, Oscar Galvez Serrano might have abandoned his mother’s tin-roof shack in the jungly Central American hills by now and set out for the United States.

Despite having been deported in March, Galvez said, he would have tried to quickly return to join his 11-year-old son in Sherman, Tex., and his siblings and cousins. He would have taken another job — roofing, landscaping or washing dishes. There is something different now, however, looming over Central Americans’ decisions on migration: President Trump.

Migrants used to feel that if they reached the United States illegally, they could stay. “They’ve gotten rid of all that,” said Galvez, 36. “I still hope I can go back there. I just don’t know when.”

Trump has credited his tough stance on illegal immigrants for the sharp decline in apprehensions of migrants at the U.S.-
Mexico border, tweeting in March that “many are not even trying to come in anymore.” In the first four months of the year, U.S. authorities have detained about 98,000 would-be immigrants heading north, a 40 percent drop from the previous year.

In El Salvador, which has contributed tens of thousands of border crossers in recent years, officials and potential migrants acknowledge that fewer people are heading to the United States. But they say that the slowdown may be temporary — and that the drop-off may not be as large as it seems.”

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Read the complete article at the link.

In immigration, things seldom have simplistic explanations. So, if I were the Trump Administration, I’d wait awhile before going into the “victory dance” on halting unauthorized migration.

PWS

05-22-17

N. Rappaport On GOP’s “Extreme Enforcement” Initiatives!

http://thehill.com/blogs/pundits-blog/immigration/334554-republicans-are-preparing-extreme-immigration-measures

Nolan writes in The Hill:

“Highlights from Labrador’s summary of the Davis-Oliver Act.

It provides states with congressional authorization to enact and enforce their own immigration laws to end the executive branch’s ability to unilaterally shut down immigration enforcement.
It withholds certain federal grants from jurisdictions that refuse to honor immigration detainers or prohibit their law enforcement officers from giving immigration-related information to U.S. Immigration and Customs Enforcement (ICE).
Jurisdictions that refuse to honor detainer requests and release criminal aliens may be sued by the victims of crimes the aliens commit after they are released.
It makes membership in a criminal gang grounds for deportation.
It requires background checks to be completed before immigration benefits can be granted.
Criminalization of undocumented aliens.

Section 314 makes crimes out of illegal entry and unlawful presence. If an offender does not have three misdemeanor convictions or a felony conviction, a first offense can result in imprisonment for up to six months. Subsequent offenses can result in imprisonment for up to two years.

If the alien has three misdemeanor convictions or a felony conviction, however, the term of imprisonment can be up to 20 years. This is not as harsh as some of the criminal provisions which are in the Immigration and Nationality Act (INA) already. Smuggling an alien into the country or helping one to remain here unlawfully (harboring) may “be punished by death or imprisoned for any term of years or for life” if it results in the death of any person.

Home free magnet.

President Obama created what I call the “home free magnet”, when he focused enforcement on undocumented aliens who had been convicted of serious crimes or had been caught near the border after making an illegal entry. Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country.

This attracted undocumented aliens and became a powerful incentive for them to do whatever was necessary to enter the United States. President Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expands Obama’s enforcement priorities.

. . . .

Perhaps the Democrats should consider supporting a modified version of the Davis-Oliver Act in return for Republican consideration of a modified legalization program and other measures that are important to the Democrats.

A similar agreement was the basis for the Immigration Reform and Control Act of 1986 (IRCA), which made legalization available to millions of undocumented aliens in return for interior enforcement measures and border security.

The Republicans can deport most of the undocumented aliens in the country if they choose to do so, but it would take a long time and would be very expensive politically as well as financially.

They might be willing to consider a legalization program that is based on American needs, such as preventing citizen and lawful permanent resident families from being broken up and providing needed foreign workers for American employers.”

It could be limited to temporary lawful status while background investigations are being conducted. Greg Siskind and I suggested a way to do this in, “Pre-Registration: A Proposal to Kick-Start CIR.”

To be truly comprehensive, immigration reform has to include effective enforcement measures and time for putting together such a bill is running out.

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

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

Having served during the Obama Administration (as well as others from both parties) I disagree with Nolan’s characterization of Obama as having a “home free” policy. At least since the summer of 2014, no characterization could be further from the truth!

Beginning in the summer of 2014, the Obama Administrations, quite unwisely in my view, “prioritized” the cases of recent arrivals at the Southern Border. By taking these cases out of sequence, and totally out of proportion to any “threat” they posed, the Obama Administration’s policy of Aimless Docket Reshuffling (“ADR”) helped create an Immigration Court backlog that now approaches 600,000 cases, notwithstanding relatively “flat” receipts and actual increases in the number of sitting judges.

While eliminating the “recent arrivals priority,” the Trump Administration’s essentially “random” enforcement policy, lacking in any type of restraint or rationality, has actually made things much worse. As backlogs mushroom, the “home free” problem is actually more significant, although with a pronounced degree of randomness and irrationally. In other words, total docket chaos in Immigration Court.

While the threat of more “expedited removals,” which evade the Immigration Courts, does hang over the system, the procedures have not actually been implemented. Moreover, contrary to Nolan’s suggestion, there is no chance that the GOP will be able to remove more than a small fraction of the approximately 11 million undocumented aliens in the U.S. Yes, arbitrary enforcement does produce some “terrorism” effect by making everyone feel unsafe. Perhaps a relatively small number of undocumented residents will give up and leave (or try to enter Canada). Nevertheless, there is no practical way that 11 million individuals actually could be removed.

The GOP would do much better to sign on to immigration reforms that would give some type of legal status (not necessarily green cards) to most of those already here, while expanding legal immigration opportunities across the board. The resulting system would actually reduce pressure on the border while making interior enfircement more of a practical possibility than it has been at any time during the last for decades. But, that would take a thoughtful, practical, non-xenophobic, approach — something that has eluded the GOP in the years since the Reagan Administration.

Look for folks like Labrador & Goodlatte to work with the Adminstration to create a complete “train wreck” in the immigration enforcement system.

PWS

05-22-17

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