"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
STRIKING A blow for making America small again — plus petty, callous and self-defeating — the Trump administration on Monday stripped about 200,000 Salvadorans of their work authorizations and protection from deportation, effective 20 months from now.
The move will create tens of thousands of new undocumented immigrants in the United States; aggravate labor shortages in some American cities; saddle one of the hemisphere’s most beleaguered countries with problems it is ill-equipped to manage; and embitter tens of thousands of U.S.-born citizens whose parents are suddenly thrust into a life in the shadows or forced to return to a country where they have no future.
At this point, it’s naive to wonder what has become of America’s humanitarian impulse; in the Age of Trump, it’s null and void. Before the decision Monday by Homeland Security Secretary Kirstjen Nielsen to send packing Salvadorans who have lived in this country since a pair of earthquakes crippled their homeland in 2001, the administration took identical action last year against citizens of the hemisphere’s two poorest countries, Haiti and Nicaragua, who have also lived in this country since natural disasters ravaged their own, and announced its intention to end protections for young undocumented immigrants known as “dreamers” effective beginning in March.
As with the dreamers, the administration has seized on a narrow, legalistic interpretation as a pretext for turning against immigrants who have lived in the United States for years. In the case of the Salvadorans, officials insisted that the humanitarian program that shielded them, known as Temporary Protected Status, should lapse because their country had surmounted the original calamity that triggered TPS in the first place. The argument was the same last year for ending TPS for immigrants from Haiti, knocked senseless by a 2010 earthquake, and those from Nicaragua, leveled by a hurricane in 1998.
The administration insists it is giving meaning to the “temporary” in Temporary Protected Status. That’s fine as theory; as a policy, it fails by ignoring reality. Both the George W. Bush and Obama administrations grasped that it was unwise, not to mention cruel, to impose additional burdens on already desperate neighbors. El Salvador — wracked by brutal gang warfare, one of the world’s highest murder rates and an anemic economy — has gross domestic product per capita one-seventh that of the United States. Deporting tens of thousands of Salvadorans, and, in the process, depriving their country of the remittances they send home, will only deepen that country’s unfolding disaster. How is that in the United States’ interest?
The fact is that the Salvadorans have nearly 200,000 children who are U.S. citizens, born in this country, with no knowledge of their parents’ homeland. Nearly a quarter of those who will lose their status have mortgages, many have businesses, and a large majority have been gainfully employed for many years, paying taxes and contributing to communities.
The costs of the administration’s policy are clear. But what has been gained?”
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In the end, “Gonzo” enforcement and policy making will cost the United States dearly in many, many ways. But, that’s what happens when folks elect an Administration made up of “unqualifieds” and a Congress controlled by a minority Party that doesn’t take seriously its responsibility to legislate or goven in the overall public interest.
The only real solution here is likely to be a longer term one at the ballot box.
“Sessions considers tying the hands of immigration judges.
Administrative closure sounds like one of the driest bureaucratic terms imaginable, but it has huge implications for immigrants and their families. Now, U.S. Attorney General Jeff Sessions, who oversees immigration judges, is considering limiting that power.
Sessions wrote in a recent brief that he would review judges’ authority to administratively close immigration cases, the latest in a series of Department of Justice memos and policies that could reshape immigration courts and make it even harder for people to remain in the U.S.
Administrative closure has been used frequently by judges to drop cases against people who aren’t a priority for deportation or who have other pending legal issues. Judges under the Obama administration used this option far more than previous judges, administratively closing 180,000 cases in four years. Critics say it operates as a kind of backdoor amnesty, particularly for people who don’t qualify for other kinds of relief under immigration law.
Closed cases are in a sort of limbo: the immigrant isn’t legally in the U. S., but the government isn’t pursuing deportation. Authorities can change their mind at any time. Under Obama, this usually happened only if the immigrant went on to commit a crime or if there was a development in his or her legal status. But the Trump Administration has already begun re-openingthousands of administratively closed cases. Immigration judges under Trump have also stopped closing cases for people who didn’t used to be an enforcement priority — such as parents of U.S. citizen children who had been in the country for a long time and had no criminal record.
Judges, attorneys and advocates say that ending administrative closure entirely could have a significant impact on individual cases and the immigration court system overall. Sessions could decide to reopen as many as 350,000 closed cases, which could flood a backlogged system that has 650,000 pending cases.
“If he brings them all back into court at once, that’s going to cripple the courts even further,” said Paul Wickham Schmidt, a former immigration judge and former head of the Board of Immigration Appeals. “They can’t do the cases they have now — why is he out there looking for more?”
There are groups of immigrants for whom administrative closure is particularly important. Someone being deported for a crime but still fighting the conviction may have his or her case closed while an appeal is pending. Judges may also stop removal proceedings for immigrants with serious mental health issues or intellectual disabilities if they are found to be incompetent to go through court hearings.
Many undocumented children also ask for administrative closure while they’re applying for juvenile protected status, a legal status that can take years to wind its way through state family court and U.S. Citizenship and Immigration Services. Without administrative closure, “those children could be deported while their application for a green card is pending with another immigration agency,” said Nicholas Phillips, an immigration attorney with Prisoners Legal Services of New York.
If administrative closure isn’t an option, judges have another option of issuing a continuance, which postpones the decision. However, that practice also recently came under fire from the attorney general. Sessions’ office recently criticized the increased use of continuances by immigration judges, saying they delayed the courts.
The Justice Department has made several decisions and proposals recently that would change how immigration judges do their job.
Sessions’ announcement of the review came when he intervened in the immigration case of a minor who arrived from Guatemala in 2014. He has asked the Department of Homeland Security and other interested groups to submit briefs on the issue of administrative closure by a February deadline.”
There are an estimated 350,000 pending cases currently in “administratively closed” (“AC”) status! In my extensive experience at all levels of our immigration system, there are sound reasons supporting almost all of these ACs.
If Sessions, as expected by most advocates, reaches the rather absurd conclusion that notwithstanding over three decades of use by Administrations and Attorneys General of both parties, AC is somehow “illegal” or should be “withdrawn,” these cases likely would mindlessly be thrown back into the already overwhelmed U.S. Immigration Courts on top of the 660,000 already pending cases. Over a million pending cases! That has the potential to “implode” or “explode” or “sink” (choose your favorite verb) the Immigration Court system on the spot.
In reality, AC has been nothing but a godsend for overworked, over-stressed U.S. Immigration Judges and the immigration Court system. Rather than being forced to “docket babysit” cases that can better be resolved elsewhere in the system than in Immigration Court, or that under a proper use of resources and prosecutorial discretion by the DHS never should have been placed in Immigration Court in the first place, the Immigration Judges can “clear some of the deadwood” from their dockets and concentrate on the cases that actually need their limited time and attention. No, AC by itself can’t solve the chronic backlog and due process problems currently festering in the U.S. Immigration Courts. But, reducing the active docket by a whopping one-third without treading on anyone’s due process rights was certainly a step in the right direction!
The current backlog has been aggravated, if not actually largely created, by the practice of “Aimless Docket Reshuffling” (“ADR”) by politicos in the DOJ and the White House going back decades.As Administrations and AG’s change, and DHS Enforcement priorities change with them, cases that were once “priorities” are shuffled off to the end of the docket to make way for the new “enforcement priority of the moment.” Other times, Immigration Judges are shuffled or detailed to the new “priority dockets” and their now “non-priority regular cases” are arbitrarily reassigned to other judges (who already are carrying full dockets themselves). Many times, this means taking cases that are “ready for trial” and replacing them with cases that aren’t ready for trial because the respondent needs to find a lawyer, file applications, and prepare the case. Other times, when dockets are shifted around largely without meaningful participation by the Immigration Judges, the DHS files or EOIR “record files” are not available, thus causing further delays.
In that manner, cases are not completed on any regular, predictable schedule, “Individual Hearing” dates become “jokes,” and U.S. Immigration Judges lose both credibility and the last vestiges of independent control over their court dockets as politicos and bureaucrats who neither fully understand nor are properly part of the Immigration Court System screw things up time after time.
Sessions appears anxious to add to and further aggravate these problems, rather than addressing them ion a reasonable and systematic manner with participation of all parties who use and rely on the U.S. Immigration Courts for due process and justice. Shame on him and on our Congress for allowing this to happen!
As I’ve said over and over: It’s past time for Congress to create an independent U.S. Immigration Court system that would be free of these types of highly politicized and totally wasteful shenanigans!
Only an independent U.S. Immigration Court will provide the “level playing field” and truly impartial administration and adjudication necessary to bring these potentially “life or death” cases to conclusion in a manner that is both efficient and in full compliance with fundamental fairness and due process(and, consequently, will find a high degree of acceptance in the U.S. Courts of Appeals, rather than generating too many “returns for redos” as happens in the current “haste makes waste” environment at EOIR.)
“(CNN)A federal judge in California late Tuesday temporarily blocked the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals program.
Judge William Alsup also said the administration must resume receiving DACA renewal applications.
But the ruling is limited — the administration does not need to process applications for those who have never before received DACA protections, he said.
The Trump administration announced the move to draw down the program last September with a planned end for early March. DACA protected young undocumented immigrants who came to the US as children from deportation.
The fate of DACA and the roughly 700,000 “Dreamers” is the subject of heated negotiations in Washington, where President Donald Trump, Republicans and Democrats are searching for a way to allow Dreamers to stay while also addressing border security concerns. It is not clear how the order will impact those talks.
In his 49-page ruling, Alsup said “plaintiffs have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious” and must be set aside under the federal Administrative Procedures Act.
The judge said a nationwide injunction was “appropriate” because “our country has a strong interest in the uniform application of immigration law and policy.”
“Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States,” he wrote.
In response to the ruling, the Department of Justice questioned the legality of DACA, calling it “an unlawful circumvention of Congress.” DOJ spokesman Devin O’Malley said that DHS “acted within its lawful authority in deciding to wind down DACA in an orderly manner” and implied that the legal battles aren’t over yet.
“The Justice Department will continue to vigorously defend this position, and looks forward to vindicating its position in further litigation,” O’Malley said.
‘A huge step in the right direction’
California’s Attorney General Xavier Becerra hailed the ruling as a “a huge step in the right direction” in a statement. A coalition of attorneys general, including Becerra had also filed suit against the federal government over ending DACA, maintaining that it would cause “irreparable harm to DACA recipients.”
In contrast, Mark Kirkorian, the executive director of Center for Immigration Studies, a think tank that advocates for lower immigration, described the ruling as “our lawless judiciary” in a tweet.
The plaintiff, the University of California said in a statement it was “pleased and encouraged” by the judge’s ruling, which would allow DACA recipients to stay in the US as the lawsuits make their way through the courts.
“Unfortunately, even with this decision, fear and uncertainty persist for DACA recipients,” said Janet Napolitano, president of the UC school system and was the Secretary of Homeland Security in 2012 who established DACA.
While the ruling that orders DACA renewals is “a sigh of relief,” it’s a fleeting one, said Karen Tumlin, legal director of the National Immigration Law Center, which advocates for rights of immigrants.
“It is important to remember, however, this is temporary relief by a single federal district court judge, it should not take the pressure off of Congress to do the right thing and enact a permanent solution for these young people.”
Lawmakers are racing toward a January 19 deadline for government funding and a host of issues, including DACA are tied to the negotiations.
“Dreamers deserve permanence they can count on, not legal thrillers. Congress needs to bring that home,” tweeted Tumlin.
CNN’s Sonya Hamasaki, Emily Smith, David Shortell and Catherine Shoichet contributed to this report.”
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We now essentially have a conflict with a much earlier ruling from USDJ Hanen in Texas who found that a different, but related, Obama-era program called “DAPA” was illegal. That case was affirmed by the Fifth Circuit in a split opinion and went to the Supreme Court where an equally divided Court let the ruling below stand. So, unless new Justice Neil Gorsuch sides with the plaintiffs in this case, its likely to eventually be a loser (and a winner for the Administration) before the Supremes. Hopefully, Congress will resolve this in a way that ultimately makes further litigation unnecessary.
“President Trump met with a bipartisan group of Congress members at the White House on Tuesday in an effort to revive stalled talks over immigration, urging lawmakers to pass a “bill of love” to protect some undocumented immigrants from deportation.
Trump expressed confidence that a deal over the fate of the “dreamers” — immigrants who arrived in the country illegally as children — was within reach ahead of a March 5 deadline he set before work permits issued under an Obama-era program to nearly 700,000 begin to expire in mass. The president reiterated his demands for border wall funding and curbs to some legal immigration programs, but he said he would defer to lawmakers to hammer out the details and sign whatever bill they put in front of him.
“I really do believe Democrat and Republican, the people sitting in this room, really want to get something done,” Trump said.
“My position is going to be what the people in this room come up with,” he added. “I have a lot of respect for people on both sides. What I approve will be very much reliant on what people in this room come to me with. If they come to me with things I’m not in love with I’m going to do it.”
Lawmakers in both parties have said they are waiting for the Trump White House to specify its demands before the negotiations can move forward. Democrats and some moderate Republicans have resisted funding a border wall at a time when illegal immigration over the Mexico border is at record lows.
In an unusual meeting, Trump allowed reporters to remain in the Cabinet Room for more than 50 minutes as he and the Congress members laid out their bargaining positions. Trump challenged the group to “put country before party” to get a deal done.
“Lives are hanging in the balance. We’ve got the time to do it,” said Sen. Richard J. Durbin (D-Ill.), an original sponsor of legislation to legalize dreamers.
During the meeting, Trump also addressed other news, saying he believed a presidential run by media mogul Oprah Winfrey would be fun, but predicting she would ultimately chose to forgo a White House bid despite some enthusiasm among Democrats after she gave a rousing speech at the Golden Globe awards this week.
“I don’t think she’s gonna run,” Trump said, responding to a question from a reporter. “I know her very well.”
Trump announced in September his plans to terminate the Deferred Action for Childhood Arrivals (DACA) program, but he gave lawmakers a six-month window to pass a legislative deal before the temporary work permits begin to expire at a rate of nearly 1,000 per day. (About 122 immigrants a day already are losing their work permits after failing to renew their applications last fall.)
But negotiators have been at an impasse over how to proceed. Democrats and some moderate Republicans are eying a Jan. 19 deadline for a must-pass government spending deal as leverage to get a deal done on DACA. But the talks are deadlocked over Trump’s demands for the wall and cuts to legal immigration, including ending a diversity visa lottery and ending what the president calls “chain migration,” the practice of Americans sponsoring extended family members for green cards.
Democrats have balked at accepting major new border security provisions, saying the administration’s call for $18 billion in funding for hundreds of miles of a border wall is costly and unnecessary at a time when illegal immigration levels have plummeted.
Lawmakers from both said expressed confidence that the meeting had been productive and said the group had succeeded in narrowing the framework for discussions — yet both sides defined that framework in different terms. Democrats suggested they were open to some border security enhancements, but they emphasized that they agreed with Trump that broader talks over additional changes to the immigration system must be done after a deal over the dreamers is completed.
But Republicans said they expect Democrats to address four areas — border security, the fate of the dreamers, the diversity visa lottery and curbs to “chain migration.”
During the talks in the Cabinet Room, Trump appeared at one point to agree with Sen. Dianne Feinstein, who said Democrats are seeking a “clean” DACA bill without additional border security provisions. House Majority Leaders Kevin McCarthy (R-Calif.) then interjected to insist that Republicans want security included.
“Mr. President, you need to be clear, though,” McCarthy said. When we talk about just DACA, we don’t want to be back here two years later. We have to have security.”
Trump responded: “I think that’s what she’s saying.”
Further confusing matters, Trump also said he hoped to pursue a “comprehensive” immigration bill after lawmakers strike a deal on the dreamers. Comprehensive bills, which would deal with work visas and other elements of the immigration system, failed on Capitol Hill during the tenures of both Barack Obama and George W. Bush.
Republican leaders of the House Judiciary and Homeland Security committees said they will introduce a bill Wednesday that will represent a purely Republican solution to the DACA dilemma, offering legal status to immigrants who had participated in the DACA program alongside a suite of measures that go well beyond the parameters of the bipartisan negotiations. Two Republicans familiar with the bill say it is expected to include several measures Democrats have roundly rejected, such as sanctions for “sanctuary cities” that do not cooperate with federal immigration enforcement agencies.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said the bill would be a “good foundation” for the bipartisan talks and that more would have to be done after the initial deal is struck,
Trump indicated during the meeting that he would accept a border wall that includes elements of fencing and surveillance tools, such as aerial drones, in the place of a steel or concrete structure. Democrats said they were supportive of additional border security but declined to say whether they were open to supporting funding for a wall.
“That’s all part of the negotiations,” McCarthy said. “What today was about was bringing the narrowing of solving this problem and finding common ground.”
He said negotiators for both parties were scheduled to meet Wednesday to continue the talks.
Mike DeBonis contributed to this report.”
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And, here are the latest reports from Tal Kopan and her colleagues at CNN, who are on top of the DACA story.
Trump contradicts self repeatedly in immigration meeting
By Tal Kopan, CNN
President Donald Trump appeared to contradict himself multiple times in a meeting on immigration with a bipartisan group of lawmakers Tuesday — a reflection of growing frustration from Capitol Hill about the lack of direction from the White House on the issue.
The President at times suggested he would be looking to sign everything from a stand-alone fix for the Deferred Action for Childhood Arrivals program — set to expire in March — to comprehensive immigration reform, often appearing to being guided by lawmakers in the room to modify his positions.
The comments came during a nearly hour-long conversation between the roughly two dozen lawmakers, the President and White House staff that the press was allowed to record — a window into the difficult negotiations that still surround the issue of replacing DACA, which protected young undocumented immigrants who came to the US as children from deportation, and border security.
At the end of the session, Trump suggested that ultimately, he would sign whatever he was presented with.
A group of House conservatives are set to introduce their own proposal on immigration this week — a move that could seek to pull ongoing bipartisan negotiations to the right.
Reps. Bob Goodlatte and Raul Labrador said the bill was expected Wednesday — with Goodlatte telling President Donald Trump about the effort in a White House meeting with bipartisan lawmakers Tuesday and Labrador speaking with reporters earlier in the day.
The meeting with Trump was largely focused on resolving the Deferred Action for Childhood Arrivals policy, which Trump has opted to end but says he wants preserved legislatively in exchange for border security and immigration reforms.
According to a source familiar with the effort, the bill was discussed in Republican conference on Tuesday and will include virtually the entire wish-list of conservatives.
The bill comes from a handful of conservative Republican members from Speaker Paul Ryan’s immigration working group — though not some key moderate members of that group. The team had a meeting at the White House the Tuesday before Christmas, which included Reps. Mike McCaul, the House Homeland Security Committee chairman; Goodlatte, the House Judiciary Committee chairman; Labrador, the chairman of the immigration subcommittee on Judiciary; Martha McSally, the chairwoman of the border subcommittee on Homeland; and Mark Meadows, the conservative House Freedom Caucus chairman.
Lauren Fox, Phil Mattingly, & Tal Kopan report for CNN:
“(CNN)Republicans and Democrats will sit down with President Donald Trump in a bipartisan meeting Tuesday aimed at moving closer to protecting hundreds of thousands of immigrants from deportation, but a long-entrenched partisan divide over immigration policy and a looming budget deadline are threatening progress.
Republican and Democrats involved in negotiations over the must-pass January spending deal say that DACA — the Deferred Action for Childhood Arrivals program — has become the key to unlocking any funding agreement and some are frustrated with how negotiations are unfolding. Republicans charge that Democrats have all but halted talks on spending caps until there is a resolution on DACA, which gives undocumented immigrants who came to the country as children a chance to stay, work or study in the US without fear of deportation.
“Seems to me that Democrats are holding that deal hostage for a DACA negotiation and we are meeting at the White House tomorrow on a bipartisan basis with the President to see what that might look like,” said the Senate’s No. 2, Texas Republican John Cornyn. “But I think that’s going to make the January 19 date pretty hard to hit.”
“It’s a mess,” said one person directly involved in the negotiations.
A separate GOP aide said the broader environment for both parties simply “isn’t in a good place right now.”
Democrats argue the White House hasn’t been fully engaged to the degree it needs to be and say that a long and broad policy wish list released last week just further irritated Democrats working closely on the immigration compromise. One Democratic aide argued the White House’s list was “out of the realm of reality.”
Republicans can’t avoid Trump’s wall promises in DACA talks
“No wall,” said Democratic Sen. Kamala Harris of California. “Listen, I believe in border security. I think it’s very important that we have a secure border, but spending billions and billions of dollars on this wall because of a political promise and a campaign promise is ridiculous.”
What Tuesday’s meeting means
The meeting at the White House on Tuesday was expected to — at the very least — symbolize that Trump was growing more serious about finding a bipartisan resolution. But adding more tension to the anticipated meeting for Democrats is the fact the White House invited GOP lawmakers Democrats view as openly hostile to finding a consensus deal on DACA.
In the background, details are still being worked out on what a plan to help recipients of DACA would look like, and a bipartisan group of Senate lawmakers led by Democrat Dick Durbin of Illinois and Republican Lindsey Graham of South Carolina continues to negotiate.
However, the tensions that existed in December but had been overcome with a holiday deadline are playing out in real time now between the two parties.
“I think this is going to be the flexion point where we get some things done or we don’t,” Rep. Adam Kinzinger, a Republican from Illinois, said Monday afternoon on CNN.
On Capitol Hill, bipartisan talks have been ongoing for months and the group of senators led by Durbin and Graham acknowledge they need Trump to lay out clear priorities to move forward.
The thinking is that Trump — who secured the Republican Party’s nomination by promising mass deportations and a border wall — can offer political cover for Republicans who may be fearful of backing any immigration bill that is viewed as amnesty among their base. With Trump’s blessing, Republicans believe they can find a way to move ahead on DACA. Without it, the votes are compromised.
The bipartisan meeting at the White House on Tuesday comes after Trump met with Republicans last week at the White House and Sen. Jeff Flake of Arizona refused to attend, citing the lack of bipartisanship.
White House chief of staff John Kelly, formerly the secretary of homeland security, will also be in the bipartisan meeting Tuesday and has been leading outreach to lawmakers on Capitol Hill on the ongoing talks.
Also on the list Tuesday are a host of lawmakers who would be expected, including Durbin and Democratic Sen. Bob Menendez of New Jersey, a 2013 immigration reform veteran. But the list also includes red state Democrats like Sens. Heidi Heitkamp of North Dakota and Jon Tester of Montana, as well as Democratic Rep. Henry Cuellar of Texas, who frequently votes with Republicans on immigration and border issues — a sign that the White House is looking to pick off as many Democrats as it can even if it can’t work with the party’s key negotiators.
The key for some negotiators attending the meeting is to convince Trump to keep any deal on DACA narrow. The agreement that is taking shape in Durbin and Graham’s group would offer a path to citizenship to DACA eligible immigrants, would include money for border security, would address the “chain migration” — or family-based sponsorship options — of the covered population and would end the diversity lottery in favor of reallocating those visas somewhere else, possibly to include a fix for Temporary Protected Status.
Flake told CNN he’s prepared to tell Trump on Tuesday that this DACA deal cannot include a whole host of immigration policy changes but instead has to be narrowly focused if Republicans want to succeed.
“This is not a comprehensive reform bill,” Flake said. “We can’t do one before March.”
More than one group pushing immigration plans
In addition to the bipartisan working group, conservatives including Cornyn and Senate Judiciary Chairman Chuck Grassley of Iowa are having their own conversations, and Republican Sens. Thom Tillis of North Carolina and James Lankford of Oklahoma are also going to be at the White House on Tuesday.
In the House, multiple efforts are underway as well, many led by rank-and-file members. Republican Rep. Will Hurd of Texas and Democratic Rep. Pete Aguilar of California have released their own bipartisan framework for a deal after weeks of negotiations. Aguilar is the whip for the Congressional Hispanic Caucus. That deal focuses on DACA and border security, but the lawmakers hope additional measures could be added if necessary to finalize a deal.
The bipartisan Problem Solvers Caucus — including Republican Rep. Carlos Curbelo of Florida, a longtime DACA advocate — had also been working to reach a compromise that before the break was similar in concept to what the Senate group was working on.
And, as in the Senate, a group of more conservative Republican lawmakers are working on their own proposal, including House Homeland Security Chairman Mike McCaul of Texas and House Judiciary Chairman Bob Goodlatte of Virginia, which would be strongly to the right of most of the bipartisan compromises. Both men will also be at the White House on Tuesday.
CNN’s Ted Barrett and Dana Bash contributed to this report.“
The always amazing Tal Kopan at CNN files this exclusive report on a possible “Dreamer Breakthrough:”
“Exclusive: Pair of lawmakers unveil bipartisan DACA plan
By Tal Kopan, CNN
A bipartisan pair of House members have reached a compromise on Deferred Action for Childhood Arrivals and border security — a plan the two unlikely allies hope could provide a “foundation” for a deal President Donald Trump could sign into law.
Reps. Will Hurd, a Texas Republican, and Pete Aguilar, a California Democrat and whip for the Congressional Hispanic Caucus, have been quietly working for weeks to develop their legislation, which the two sophomore lawmakers are releasing as a discussion draft as talks heat up on DACA ahead of a government funding deadline January 19 being used as leverage in Congress. The hope is, they say, that putting out a bipartisan proposal could speed up talks about resolving the issue.
The plan aims to be “as narrow as possible,” Hurd told CNN in an exclusive joint interview with Aguilar on Sunday night about the proposal.
The legislation draws heavily from other proposed legislation, a conscious decision by the two congressmen to lean on language that has already been vetted by committees and lawmakers, they say.
At the core of the deal would be a legislative way to enact DACA, an Obama administration program that protected young undocumented immigrants who came to the US as children from deportation that Trump has decided to end.
The bill would offer qualifying individuals the ability to get in line for a green card and eventual citizenship after years of conditional residency, provided they meet certain requirements, including a background check and work, education or military service requirements. The bill doesn’t make explicit reference to sponsoring relatives, but the bill summary notes that existing law would prohibit parents of these individuals who came to the US illegally to return to their home country for at least 10 years before applying for a visa to come back, and the bill does nothing to erase that requirement. That addresses “chain migration,” or family-based migration, that Trump says he wants to cut.
Other provisions include increasing the number of immigration judges and attorneys, as the Justice Department has sought, to reduce the lengthy backlog of cases in immigration courts that cause people to stay in the US in limbo for years. The bill also coordinates efforts to improve conditions in Central America, to address factors that send undocumented immigrants to the US.
For the border, the bill draws heavily from Hurd’s “smart wall” bill that would direct the Department of Homeland Security to gain “operational control” of the border by the end of 2020 through “technology, physical barriers, levees, tools and other devices,” according to a bill summary shared with CNN.
Both lawmakers said they hope the deal can provide a basis for Congress to resolve the DACA issue, which Trump has said he wants replaced but only if paired with his border wall and some other immigration fixes.
Leadership has not officially blessed Hurd and Aguilar’s work, but party leaders on both sides, including the White House, have been looped in on its development, the lawmakers said.
“This is a DACA and border security fix,” Hurd said. “And if there’s other elements that have to be included in a broader deal to get signed into law, this is a foundation for that conversation.”
Aguilar said he has been whipping “in the weeds” on the issue, and Hurd has been working on his side of the aisle. Neither gave numbers of supporters, though Hurd estimated “dozens of Republicans” could back it.
“This is the building block that would have bipartisan support if it was on the floor tomorrow,” Aguilar added. “I feel confident about that. I feel the same as Will, if there are other pieces that have to come to get a signature, we’ll take a look.”
Unlikely allies
Both lawmakers were elected in 2014, both defeating incumbent congressmen of the opposite party, and both defended their seats in rematch challenges in 2016.
The partnership evolved out of Congressional Hispanic Caucus efforts to engage Republicans and see what they could support, Aguilar said. He even checked with his colleague Democrat Beto O’Rourke, whose district neighbors Hurd’s and who did a 24-hour livestreamed road trip with him to DC. O’Rourke affirmed that Hurd could be trusted, Aguilar said.
Both noted that they were not in Congress for previous immigration reform battles, unlike some of their counterparts in the Senate and broader House negotiations, something they see as an advantage.
“I think it grew out of two folks that, we don’t have all the wounds from all the other in-fights over these topics,” Hurd said.
“We’re having really substantive discussions in a way that some of our colleagues can’t because they’re trying to fight the battles from 10 and 15 and 20 years ago, or because this isn’t something that they work with or see a lot,” Aguilar added.
Aguilar represents the whip operation of the Hispanic caucus, which has been one of the leading voices on the left and closely listened to by Democratic leadership in negotiating a deal.
Hurd’s district in Texas contains the most border of any lawmaker in Congress, from the outer ring of El Paso on the western edge of Texas to the region due south of San Antonio in the middle of the state. It includes more than 800 miles of border with Mexico, which is more than one-third of the entire US-Mexico border. It’s also a district Hillary Clinton won in the last election and has a heavy Hispanic population.
That combination of knowledge, the duo says, was key.
“From my perspective, he has the most knowledge of issues that are going on in a border district than any member I’ve worked with or talked to, period, irrespective of party affiliation,” Aguilar said.
“This is about solving the problem, and the only way you solve the problem is to do it with people that have the respect of their colleagues and knowledge of the problem, and that is Pete Aguilar,” Hurd said.”
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Sounds like a plausible deal that “finesses” some of the longer term immigration policy questions. Thanks to Tal for passing this on.
o ABC: Sessions posed detailed questions challenging the use of “administrative closures,” an increasingly common outcome that allows people to stay in the country without legal status. The attorney general invited feedback from advocates and others, after which time he may issue new instructions for immigration judges nationwide.
o Matter of CASTRO-TUM, 27 I&N Dec. 187 (A.G. 2018): The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to administratively close immigration proceedings, ordering that the case be stayed during the pendency of his review.
NYMag: In an interview Tuesday with Fox News Channel’s Neil Cavuto, Homan said political leaders in sanctuary cities, which don’t cooperate with ICE officials looking to make immigration arrests, are breaking the law when they “knowingly shield and harbor an illegal alien.” “That is a violation of 8 USC 1324. That’s an alien-smuggling statute. I’ve asked the Department of Justice to look at this,” he said.
Catholic Charities: Before IJ Kolbe: It was business as usual until a case that involved a UAC, 13 years old, present with step-father, after counsel stated they were pursuing Asylum, DHS handed her a letter stating that they’re giving her a letter de-designating her client. It all happened very fast, and it was unexpected. Kolbe did look surprise and stated that counsel could still send her application to USCIS and keep her up-to-date with the outcome. My question is, has anyone else had this letter handed out to them? If so, can you share the letter so we can see what exact language DHS is using and prepare rebuttals?
ICE sending G-56 call-in letter after attempted raid
IDP: We just got a call from an individual who was deported (to the wrong country) in 2007, he then reentered in 2008. He was recently arrested on a criminal case in Rockland County, NY. About 3 weeks ago — shortly after one of his criminal court dates –, 9 agents, a mix of ICE and the local gang unit of the sheriff’s department, raided his home early in the morning. He was at work and after waking up his sleeping children and speaking everyone in the home, the agents left without arresting anyone. A few days later, this individual received [a] G-56 letter from ICE in the mail, telling him to report to ERO at 201 Varick Street this Tuesday for “Case Review”, with his immigration documents and valid passport, which seems like a less resource-intensive tactic of ICE to take him into custody to re-deport him.
ProPublica: The Justice Department is pushing for a question on citizenship to be added to the 2020 census, a move that observers say could depress participation by immigrants who fear that the government could use the information against them. That, in turn, could have potentially large ripple effects for everything the once-a-decade census determines — from how congressional seats are distributed around the country to where hundreds of billions of federal dollars are spent.
Reuters: The number of approvals dropped by nearly a quarter in the first nine months of 2017 to around 406,000 compared to the same period a year earlier when approvals were more than 530,000, despite a similar number of applications during both periods, USCIS data showed.
ImmProf: The hearing will address whether the court has jurisdiction to consider the petitioners’ claim that they are entitled to a stay of removal while they seek reopening of their removal orders.
NPR: Washington Attorney General Bob Ferguson sued Motel 6 on Wednesday, alleging motel employees gave private information about thousands of guests to U.S. immigration authorities.
LA Times: Complaints over immigration-related retaliation threats surged last year in California, according to the Labor Commissioner’s Office. Through Dec. 22, workers had filed 94 immigration-related retaliation claims with the office, up from 20 in all of 2016 and only seven a year earlier.
AILA: The Commission calls for heightened oversight and transparency of the Voluntary Work Program within both government and privately-run detention centers.
Reuters: Urgent negotiations aimed at shielding young, undocumented immigrants from deportation intensified on Thursday as Republican U.S. senators emerged from a meeting with President Donald Trump expressing confidence a deal could be struck this month.
IJ Lamb’s Retirement
Empire Justice Center: Update 1/8/18: I spoke with IJ Lamb’s legal assistant this morning and she informed me that my individual scheduled for tomorrow was adjourned and all her hearings will be reassigned to a new judge.
If the DREAM Act is passed without going through the checks and balances that are provided by regular order, it will represent little more than the partisan views of those who wrote it.
. . . .
It seems somewhat hypocritical for Schumer and Pelosi to be urging the passage of a DREAM Act without going through the regular order: They have expressed outrage in the past when the Republicans have resorted to such tactics.
There is no regular order here. There are no bipartisan, public hearings on the Graham-Cassidy bill. … [I]t’s the same backroom, one-party sham of a legislative process that ultimately brought the other bill down. A contrived, 11th hour hearing on block grants in the Homeland Security Committee — a committee with such limited jurisdiction over healthcare matters — does not even come close to suggesting regular order.
And when House Speaker Paul Ryan (R-Wis.) abandoned the pledge he had made to return to regular order, Pelosi responded with an angry press statement claiming that, “It has long been clear that regular order is not as important to republicans as protecting their special interest agenda.”
The nonpartisan Congressional Budget Officeestimates the DREAM Act would make legal status available to 3.4 million undocumented aliens and would increase national budget deficits by $25.9 billion over the 2018-2027 period.
The Immigration Reform and Control Act of 1986 established the largest legalization program we have ever had, and it only legalized 2.7 million aliens.
The extreme generosity of the DREAM Act of 2017 is unfair to the American citizens and Lawful Permanent Residents who have unconscionably long waits to be reunited with alien family members. As of November 2017, there were 4 million aliens with approved family-based visa petitions on the visa waiting list.
. . . .
Congress needs to pass a bill to help alien children who were brought here illegally by their parents, but it should be a bill that has gone through the checks and balances of the legislative process.”
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Go on over to The Hill at the link to get the full detail about Nolan’s objections to the current draft of the “Dream Act.”
The parallel between “Graham-Cassidy,” which was in fact a GOP backroom effort that totally excluded Dems from the process, and the Dream Act appears strained. Nonpartisan Dream Act negotiations are currently going on and have been for some time. Indeed, since the Dems are in the minority in both Houses, they will need some bipartisan GOP support to pass Dreamer relief. Moreover, unlike Graham-Cassidy, various versions of the Dream Act have been around and debated for years. Indeed, various bills at one time had majority support in both Houses, but GOP restrictionist maneuvering blocked them from becoming law.
The Dems had to face down some “rebellions’ from their base for going back on their word and voting to temporarily fund the USG over the Holidays. I don’t see how they can “kick the can” on the Dreamers down the road any more without some serious backlash from their own base. That’s particularly true now that the unnecessary and unwise termination of TPS for El Salvador has sowed yet more fear and unease in the immigrant and Hispanic communities.
As I’ve pointed out before, because of the “Bakuninist Wing” of the GOP, Trump isn’t going to get any type of budget without some Democratic support. Once he gets a budget, that need for “bipartisanship” might well disappear overnight. So, now is the time for the Dems to use their “leverage.”
As other commentators have noted, at one time additional border fencing was basically a “nonpartisan no-brainer.” But, by turning “The Wall” into a White Nationalist racist anti-Hispanic symbol, Trump basically has “poisoned the well” for the Democrats. Nevertheless, there might be room for some additional fencing that the Dems could characterize as “less than The Wall” while Trump could claim victory to his base. The Dems also could give on border equipment and technology as well as more administrative and legal personnel for DHS. Beyond that, the pickings are slim.
But, the GOP leaders and Trump don’t have lots of options either. They will be hard pressed to come up with a budget that satisfies Trump while still gaining sufficient support from the Bakuninists. Then, there is the problem that the budget apparently will require 60 votes in the Senate. That means that the GOP has to do at least something akin to a bipartisan deal. I’ve certainly been wrong before, but I don’t see Nolan’s idea as something the Dems can buy at this time.
I have no problem with also giving relief to family members waiting in line to immigrate. It’s not a “zero sum game” as the restrictions try to portray it. We could clearly take in more legal immigrants now and in the future; clearly we should have been doing so in the past, in which case we wouldn’t have approximately 10 million productive residents living here without legal status. But, that probably will have to await some type of overall Immigration Reform that’s unlikely to be accomplished as long as guys like Jeff Sessions, Steven Miller, and Sen. Tom Cotton are “driving the train” for the GOP on immigration.
“WASHINGTON ― President Donald Trump sent senators a lengthy set of demands on Friday that could tank a deal to help Dreamers ― young undocumented immigrants who came to the U.S. as children ― and might risk a government funding agreement in the process.
The document is essentially an immigration restrictionist wish list. It calls for a border wall, more immigration enforcement agents, punishment for so-called “sanctuary cities,” restrictions on citizens and legal residents sponsoring family members’ visas, and policies to make it easier to detain and deport undocumented immigrants. No dollar amounts were included in the list of demands, but The Wall Street Journal reported earlier Friday that Trump is seeking nearly $18 billion to pay for a border wall.
Democrats and immigrant rights activists have said they won’t accept the White House’s demands in a deal to grant legal status to Dreamers, hundreds of thousands of whom are at risk of losing deportation protections because Trump ended the Deferred Action for Childhood Arrivals or DACA program.
The list could be enough to trigger a Democratic revolt on a government funding bill that needs to pass later this month, Senate Minority Whip Dick Durbin (D-Ill.), whose office shared the White House’s list with reporters, said in a statement.
“President Trump has said he may need a good government shutdown to get his wall,” Durbin said. “With this demand, he seems to be heading in that direction. … It’s outrageous that the White House would undercut months of bipartisan efforts by again trying to put its entire wish-list of hardline anti-immigrant bills—plus an additional $18 billion in wall funding—on the backs of these young people.”
Trump ended DACA in September and said Congress should act to give more permanent protections to recipients of the two-year work permits and deportation relief. DACA recipients will begin to lose permits in greater numbers in March, although activists estimate they’re already losing them at a rate of about 122 per day.
In the months since Trump ended the program, the White House has put out long lists of immigration priorities, and Trump has made broad pronouncements in public comments and tweets, largely focused around building a wall, ending the diversity visa lottery and eliminating so-called “chain migration,” immigration restrictionists’ preferred term for family reunification visas.
The list of demands was initially created in October, with Stephen Miller, a Trump policy adviser, listed as the author of the document, according to the properties on the PDF file. But senators didn’t get a copy until Friday.
The White House did not immediately respond to a request for comment on the document.
Democrats have said they are willing to give Trump some of what he wants on border security, such as more infrastructure, technology and funds, in exchange for legal status for Dreamers. But they, and Dreamers themselves, have argued any deal must be proportional — not everything Republicans want in exchange for legal status for one subset of the undocumented population. During comprehensive immigration reform efforts in 2013, for example, Democrats agreed to an overhaul of the legal immigration system, border security measures and enforcement as part of a package that would have also granted a path to legal status and eventual citizenship for much of the undocumented immigrant population.
Democrats, activists and even some Republicans have warned that piling on more immigration issues has the potential to sink a deal — it happened during past reform efforts and could again now.
The document the White House sent to senators on Friday could indicate the administration either thinks it can get Democrats to settle because of their desire to help Dreamers, or that it doesn’t really want a deal at all.
I am not a bargaining chip for Stephen Miller’s vendetta against brown and black people. Offering up my safety in exchange for the suffering of immigrant families is sick and we won’t stand for it. Greisa Martinez Rosas, advocacy director for United We Dream
The demands include ending the diversity visa lottery and limiting refugee intake, as well as allowing citizens and legal permanent residents to sponsor only minor children and spouses for green cards ― shutting out the ability to bring over adult children or siblings. Trump has disparaged both the diversity visa lottery and “chain migration” as dangerous by citing two terror incidents allegedly perpetrated by people who entered through those programs, although there is no evidence there is a greater risk of terror by immigrants with those visas.
The White House also asked for funds to hire 10,000 additional Immigration and Customs Enforcement officers and to give local police more authority to assist with deportation efforts. Another priority is to more easily penalize “sanctuary cities,” the loose term for jurisdictions that don’t fully cooperate with immigration enforcement, often because they view it as bad for community policing or because of constitutional concerns.
The list also includes changing policies for people seeking asylum and for unaccompanied children apprehended at the border, restricting relief and making it easier to quickly deport them. It would also mandate E-Verify, a system that allows employers to check immigration status of would-be hires, something immigrant advocates and some business interests oppose because there currently is no pathway for many undocumented people in the U.S. to get status and some industries say they can’t find enough willing legal workers.
The demands include ending the diversity visa lottery and limiting refugee intake, as well as allowing citizens and legal permanent residents to sponsor only minor children and spouses for green cards ― shutting out the ability to bring over adult children or siblings. Trump has disparaged both the diversity visa lottery and “chain migration” as dangerous by citing two terror incidents allegedly perpetrated by people who entered through those programs, although there is no evidence there is a greater risk of terror by immigrants with those visas.
The White House also asked for funds to hire 10,000 additional Immigration and Customs Enforcement officers and to give local police more authority to assist with deportation efforts. Another priority is to more easily penalize “sanctuary cities,” the loose term for jurisdictions that don’t fully cooperate with immigration enforcement, often because they view it as bad for community policing or because of constitutional concerns.
The list also includes changing policies for people seeking asylum and for unaccompanied children apprehended at the border, restricting relief and making it easier to quickly deport them. It would also mandate E-Verify, a system that allows employers to check immigration status of would-be hires, something immigrant advocates and some business interests oppose because there currently is no pathway for many undocumented people in the U.S. to get status and some industries say they can’t find enough willing legal workers.”
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Read the rest of Elise’s report at the link.
I think that “Dreamers” are a good place for the Dems to take a stand. And, given the “Bakuninist Wing” of the GOP (who share Trump’s desire to destroy Government, but are dissatisfied with the pace of the destruction), it’s going to be very difficult for Trump to get any type of budget passed without Democratic support.
The DHS needs an additional 10,000 agents like we all need holes in our heads. They don’t have enough legitimate law enforcement functions to perform with the staff they have; that’s why they have time for chasing after kids and stuffing their generally law-abiding parents into an already overwhelmed Immigration Court system for hearings that probably won’t take place until long after this Administration is history. (And, that’s even without Gonzo’s current “plan” which appears to be intentionally “jacking up” the Immigration Court backlog to more than 1,000,000 cases overnight by “recycling” all of the currently “administratively closed” cases!)
The words of Greisa Martinez Rosas, advocacy director for United We Dream, are worth repeating and keeping in mind:
“I am not a bargaining chip for Stephen Miller’s vendetta against brown and black people. Offering up my safety in exchange for the suffering of immigrant families is sick and we won’t stand for it.”
For some time now, immigrant advocates have been fearing/expecting Attorney General Jeff Sessions to use his authority to “certify” BIA cases to himself as a means to undo or restrict BIA administrative precedents that might be helpful or favorable to migrants.
For those new to the practice, the U.S. immigration Court, including both the trial courts and the Appellate Division (“BIA”), is a “wholly owed subsidiary” of the Attorney General and the U.S. Department of Justice. The Attorney General gets to select U.S. Immigration Judges and BIA Appellate Judges, and they basically serve in their judicial positions at his pleasure (although, for the most part, they can’t be removed from their positions as DOJ Attorneys without cause — in other words, they can be reassigned to non-judicial duties at the same pay and grade largely “at will”).
Additionally, the Attorney General has the authority to promulgate regulations governing the jurisdiction and authority of the Immigration Courts and the BIA. Beyond that, he can actually change the result in individual cases with which he disagrees by a regulatory device known as “certifying” cases to himself for final decision. This process, of course, also applies to BIA precedents, which otherwise are binding on U.S. Immigration Judges nationwide.
The process of certification has now begun. Today, Sessions “certified” a BIA case to himself for the apparent purpose of stripping or limiting the authority of the BIA and Immigration Judges to “administratively close” cases. “Administrative closure” is a method of removing the case from the court’s active docket (significantly, it then no longer counts toward the “backlog” of pending cases).
It is normally used for cases that are pending for adjudication somewhere within the USCIS. It had also been widely used, particularly during the Obama Administration, as a means of implementing decisions by the ICE Chief Counsel to exercise “prosecutorial discretion” or “PD” in particular humanitarian situations, as well as a way for removing so-called “DACA” grants from the courts’ active dockets.
The particular case certified is Matter of Castro-Tum, 27 I&N Dec. 87 (A.G. 2018). The BIA’s decision is unpublished (“non-precedcential”). However, Session’s real target appears to be the BIA’s precedents Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), which gave Immigration Judges at least some independent authority to administratively close cases over the objection of a party (although, importantly, not the authority to close a case for “PD” without ICE Counsel’s consent). While Matter of Castro-Tum asks for briefing on a number of questions, it seems highly unlikely that Sessions went to the trouble of certifying the case to reaffirm, continue, or expand the use of “administrative closing.”
“Administrative closing” was initiated by the first EOIR Chief immigration Judge, the late William R. Robie, as a way of clearing court dockets of cases that were not actually under active consideration before the Immigration Court. It has been an effective way or reducing and prioritizing immigration Court dockets that has presented few problems in administration. Its elimination or restriction could lead to more “Aimless Docket Reshuffling” (“ADR”) or bigger backlogs.
Some advocates have even suggested that Sessions actually intends to maximize the Immigration Court’s already huge 660,000 case backlog to support a request for 1) a dramatic immediate increase in immigration Judge funding, or 2) a dramatic expansion of the number of individuals subject to so-called “Administrative (or “Expedited”) Removal” by DHS Enforcement officers without recourse to the immigration Court, or both.
Stay tuned to see which BIA precedents might be next on Session’s “chopping block.”
U.S. Department of Justice Office of the Attorney General
The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to administratively close immigration proceedings, ordering that the case be stayed during the pendency of his review.
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:
1. Do Immigration Judges and the Board have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case? If so, do the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure?
2. If I determine that Immigration Judges and the Board currently lack the authority to order administrative closure, should I delegate such authority? Alternatively, if I determine that Immigration Judges and the Board currently possess the authority to order administrative closure, should I withdraw that authority?
3. The regulations governing removal proceedings were promulgated for “the expeditious, fair, and proper resolution of matters coming before Immigration Judges.” 8 C.F.R. § 1003.12 (2017). Are there any circumstances where a docket management device other than administrative closure—including a continuance for good cause shown (8 C.F.R. § 1003.29 (2017)), dismissal without prejudice (8 C.F.R. § 1239.2(c) (2017)), or termination without prejudice (8 C.F.R. § 1239.2(f))—would be inadequate to promote that objective? Should there be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility under the immigration laws or for benefits under federal or state programs, where a case has been administratively closed rather than continued?
4. If I determine that Immigration Judges and the Board do not have the authority to order administrative closure, and that such a power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed?
The parties’ briefs shall not exceed 15,000 words and shall be filed on or before February 2, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before February 9, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before February 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.
188
If you want a copy of the BIA’s unpublished decision in Castro-Tum, go on over to LexisNexis Immigration Community at this link:
The outline of an immigration deal is starting to take shape in Washington after months of negotiations. Yet even as lawmakers draw close to a resolution, filling in the blanks could prove insurmountable.
Key Republican senators left a White House meeting Thursday optimistic about reaching a deal to make permanent the Deferred Action for Childhood Arrivals program — which protected young undocumented immigrants who came to the US as children from deportation — along with some border security and immigration reforms.
But the meeting was boycotted by one Republican who is actively negotiating with Democrats, Sen. Jeff Flake of Arizona, for not being bipartisan, and even the GOP lawmakers in the room did not all agree on how to hammer out remaining sticking points.
President Donald Trump called for a bipartisan meeting next week to follow, lawmakers said afterward, and Vice President Mike Pence personally called to invite Flake, who accepted.
Democrats, meanwhile, are keeping their options open — doubling down on bipartisan negotiations and declining opportunities to draw red lines around some of the proposals.
The shape of a deal
Republicans who were in the meeting, including Sens. John Cornyn of Texas, Thom Tillis of North Carolina and James Lankford of Oklahoma, all described a similar set of ingredients. A deal should include a resolution for DACA — which currently would be a path to citizenship for qualifying young undocumented immigrants, negotiators say — along with beefed up border security that would include physical barriers, some limits to family-based visa categories and the end of the diversity visa lottery.
But there was disagreement over what all that consists of specifically.
South Carolina Sen. Lindsey Graham, who was at the White House meeting, and Flake — who have been negotiating intensely with Democratic Whip Dick Durbin of Illinois and Colorado Sens. Michael Bennet, a Democrat, and Cory Gardner, a Republican — both said Thursday that the “chain migration,” or family-based migration, piece would be limited.
“We’re not going to fix it all,” Graham told radio host Hugh Hewitt on Thursday. “But the first round, there will be a down payment on breaking chain migration.”
Flake told reporters that the negotiations were settling on limiting the issue of “chain migration” to the DACA-eligible immigrants protected in the eventual deal.
But Lankford flatly rejected that approach.
“No,” he said when asked about Graham’s characterization of talks. “This has to be broader than that, because if you’re going to deal with chain migration, you deal with chain migration. … I can’t count on the fact that we’re going to do another (bill) in six months to resolve the rest of it.”
Lawmakers are discussing ending the diversity visa lottery but not erasing the 50,000 visas for legal permanent residency distributed through it annually. Graham said the deal would “use them more rationally” and Flake said it would be part of a trade for resolving a type of immigration protection for nationals of countries who suffer major disasters, which the Trump administration has moved to curtail.
And the border security piece still remained elusive, even as Trump continues to demand his wall. Lankford and Tillis made efforts to tell reporters that the “wall” piece does not mean a solid structure all the way across the entire southern border.
“That’s not what he means. That’s not what he’s tried to say — I think that’s what people are portraying it as,” Lankford said. But neither could describe what Republicans actually want out of a border deal, and they said they were still waiting for the White House to provide clarity on what it could and could not live with.
“What we did today that I thought was truly (a) breakthrough … we saw the President assume leadership on this issue beyond what he already has in terms of the message to the American people,” Tillis said. “Now it’s about the mechanics.”
Lankford said he anticipated something on “paper” from the White House by Tuesday, though lawmakers have been asking for such guidance for weeks.
Democrats hedge
Democrats, for their part, wave off Republican accusations that they are not being serious on a border security compromise as noise, pressing on in the Durbin-hosted negotiations.
“Anybody who thinks that isn’t paying attention or has their own agenda,” said a Democratic Senate aide.
Senate Minority Leader Chuck Schumer at a news conference Thursday dodged an opportunity to attack Republicans’ demands on “chain migration” and the visa lottery.
“I’m not going to negotiate in front of everyone here,” the New York Democrat said. “We’ve always said we need strong and real border security, not things that sound good but don’t do the job. And we need to help the (DACA recipients). That’s what we believe, and we will sit down with our Republican colleagues and try to negotiate.”
As a January 19 government funding deadline rapidly approaches, Democrats are still insisting a DACA deal must be had but are also continuing to hope negotiations bear fruit, alarming some progressives.
“It’s concerning that Schumer and Pelosi are not positioning and framing on this,” tweeted Center for American Progress’ Topher Spiro, speaking of House Minority Leader Nancy Pelosi, a California Democrat. “They’re not setting themselves up to win public opinion and the blame game.”
In December, when Democrats helped Republicans punt the issue to January, a Senate Democratic leadership aide noted that it made no sense to force the issue when negotiations were still productive.
“I can’t imagine Sen. Schumer or Ms. Pelosi wanting to shut down the government over this issue when there is a bipartisan commitment to work on it in good faith,” Cornyn said Thursday, reiterating that Senate Majority Leader Mitch McConnell had promised Flake he would call a bill for a vote by the end of January if a compromise were reached.
Until then, 60 is the magic number — the number of votes required in the 51-49-split Senate to advance legislation.
“We got to get to 60, we’ve got to be reasonable and we’ve got to get it done,” Tillis said Wednesday.”
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Meanwhile, Tal’s CNN colleague Lauren Fox tells us why some (but not all) in the GOP are “gun-shy” of involvement in immigration legislation.
“(CNN)A group of Republican senators is working alongside Democrats to try to protect hundreds of thousands of young immigrants from being deported in upcoming months, but the harsh lessons of a failed immigration reform push in 2013 loom large for a party barreling toward a midterm election.
For the last several months, familiar players in the immigration debate — South Carolina’s Sen. Lindsey Graham and Arizona’s Sen. Jeff Flake — have re-emerged, committed to finding a narrower legislative solution for the Deferred Action for Childhood Arrivals policy, a program that shielded young immigrants who came to the US illegally as children from deportation. But new faces have also joined in. Sen. James Lankford, a Republican from Oklahoma, a state with a relatively small immigrant population, is involved, as is Sen. Cory Gardner of Colorado, the leader of the Senate’s campaign arm, and Sen. Thom Tillis of North Carolina, who worked as speaker of the House back in his state to pass immigration bills.
But in a climate where President Donald Trump swept the 2016 Republican primary with promises to build a wall at the southern border and applause lines to deport “bad hombres,” the politics for GOP senators involved in the negotiations are precarious. Still hanging in the backs of many members’ minds is the stark reality of what happened to a rising star in the Republican Party who stuck his neck out to fight to overhaul the country’s immigration system.
Notably absent in this debate is Sen. Marco Rubio of Florida — who spent most of his 2016 presidential campaign trying to answer for the Gang of Eight’s 2013 immigration bill. From debates to campaign ads, it was Rubio who endured the brunt of the right’s consternation.
close dialog
“I frankly think Sen. Rubio would have been better off embracing and not apologizing for what we did. The Gang of Eight bill was a good bill. I think that Republicans can survive more than we think we can survive on immigration,” said Flake, who will retire at the end of his term after facing a serious primary threat. “But on this, on DACA, look at this issue. This is a 70 to 80% issue across the board. People think kids shouldn’t be punished for the actions of their parents.”
One Democratic aide suggested the lesson from 2013 wasn’t to avoid immigration reform. After all, Graham was able to run for re-election successfully in a primary in South Carolina after backing the 2013 bill. Instead, the Democratic aide said, the lesson was “if you are going to get involved in immigration, do it all the way.”
Republicans working now say the politics of immigration reform have changed drastically for the party. Many have compared Trump’s opportunity on immigration to that of former President Richard Nixon’s détente with China, and Republican lawmakers hope that if they can convince the President to endorse a bipartisan immigration bill, it will offer political cover in the midterms from a mobilized base that has long opposed anything that gives immigrants who entered the country illegally a shot at legal status.
“At the end of the day, the base needs to recognize we would do nothing the President doesn’t support and the President has strong support from the base,” Tillis said when asked why he’d ever engage in talks on immigration after watching what happens to Republicans who got involved in the Gang of Eight negotiations in 2013.
On one hand, Republicans argue that Trump gives them the flexibility to pursue protections for immigrants eligible for DACA they never could have touched when President Barack Obama was in office. If the argument during the Obama administration was the base couldn’t trust Obama to enforce immigration laws or secure the border, Republicans believe the base will follow Trump wherever he leads them on immigration.
“We all agree that this president is the first president in my adult life time who really is in a position to to deliver on the promise that every other president has made and failed to produce,” Tillis said.
Even with Trump, however, there is still a liability in jumping headfirst into immigration reform. After the President attended a dinner with House Democratic leader Nancy Pelosi of California and Senate Minority Leader Chuck Schumer, D-New York, in the fall and Democrats suggested Trump had agreed to support the DREAM Act, conservative news site Breitbart declared Trump was “Amnesty Don.”
GOP Rep. Steve King of Iowa, a hard-liner on immigration, blasted Trump on Twitter: “@RealDonaldTrump Unbelievable! Amnesty is a pardon for immigration law breakers coupled with the reward of the objective of their crime.”
Other conservatives suggested the President had violated his promise on the campaign trail.
For now, the bipartisan effort to protect DACA recipients is far narrower than anything the Gang of Eight attempted — and the Republicans who are new to the talks insist on keeping it that way. In exchange for a potential path to citizenship for young immigrants, Republicans would get additional border security that included barriers, more personnel and technology. And anything agreed to, again, would have to have the blessing of the White House.
“I think it will be hard for Breitbart to attack Republicans who support Donald Trump’s immigration plan,” said GOP consultant and former Rubio spokesman Alex Conant.
Some also argue that DACA recipients themselves are easier to defend on the campaign trail, no matter how conservative your district is.
“I think it’s much harder to arouse hostility against the DREAMers,” former House Speaker Newt Gingrich told CNN. “But I also think the President is making real progress in controlling the border and dealing with illegals and going after MS-13.”
Rep. Mario Diaz-Balart, a Florida Republican who has worked for years on immigration reform in the House and has seen the politics evolve, said he’s been “encouraged” by how many Republicans still want to be involved despite the risks.
“The safe thing to do is just stay away from the issue, but I have been very encouraged by the number of Republicans who want to get involved,” Diaz-Balart said.
CNN’s Tal Kopan, Ted Barrett and Phil Mattingly contributed to this report.”
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No deal yet, and not clear there will be.
At some point, the GOP is going to have to start governing in the overall public interest, not just the interests of the 20-30% of voters who make up the dreaded “Trump Base.” Yeah, I understand that without the support of the “Trump Base” the GOP might revert to its proper place as a minority party. But, eventually, even the “Base,” plus gerrymandering, plus voter suppression won’t be able to save the GOP. Leaving the retrogressive policies of “the Base” behind would make the GOP more competitive with the rest of the electorate. It would also make America better and stronger, both domestically and internationally. And, assuredly, the “Trump Base” represents a “dying breed” in American politics. It’s just a question of how nasty and for how long its “death throes” will last.
About one in five inmates in federal prison are foreign-born, and more than 90 percent of those are in the United States illegally, according to a report released on Thursday by the Trump administration, which has sought to highlight the dangers it says unauthorized immigrants pose to public safety.
Officials at the Justice Department and the Department of Homeland Security quickly framed the statistics as evidence that the country needed stricter anti-immigration measures, particularly the wall President Trump has pushed to erect across the southern border.
The report arrives as the White House and Republicans in Congress insist that any legislative deal to restore legal protections for young immigrants who were brought to the country illegally as children must include more restrictions on legal and illegal immigration.
. . . .
Administration officials have repeatedly emphasized what it says are links between unauthorized immigrants and crime, even opening an office to advocate for the victims of crimes committed by immigrants. But a large body of research has suggested that immigrants are no more likely, and often less likely, to commit serious crimes than native-born Americans.
The proportion of unauthorized immigrants in federal prison may be explained partly by the fact that immigration offenses now account for about half of all federal prosecutions, including those for smuggling people into the United States, illegally entering the country and illegally re-entering the country after being deported.”
Predictably, Attorney General Jeff Sessions seized upon the report to re-iterate his oft-made claim that we’re in the middle of an “alien crime wave:”
“At the border and in communities across America, our citizens are being victimized by illegal aliens who commit crimes,” the attorney general, Jeff Sessions, said in a statement on Thursday, calling on Congress to pass Mr. Trump’s immigration agenda. “The simple fact is that any offense committed by a criminal alien is ultimately preventable.”
Also predictably, Sessions’s claim was vigorously rejected by pro-immigrant advocacy groups:
“The report proves one thing only: The administration will take any opportunity possible to twist facts to demonize immigrants,” said Tom Jawetz, the vice president for immigration policy at the Center for American Progress, a liberal think tank. “The vast majority of immigrants in federal prison are there for crimes that only immigrants can be charged with — illegal entry and illegal entry after removal. When you cook the books you shouldn’t pretend to be surprised by the results.”
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The Administration’s conclusions were also rejected in a report filed by Alex Nowrasteh of the Cato Institute, a Libertarian think tank:
“The Department of Homeland Security (DHS) and the Department of Justice (DOJ) today released a report that found that about 94 percent of foreign-born inmates in Federal prisons are illegal immigrants. That is not surprising, as illegal immigrants convicted of an immigration offense are incarcerated in federal prison and account 7.3 percent of all inmates. Likewise, drug traffickers who cross international borders are also in federal prison and account 46.3 percent of all prisoners. Thus, illegal immigrants are overrepresented in federal prison because the federal government enforces immigration laws and many drug trafficking laws but only a small fraction of all those incarcerated for all crimes committed in the U.S. are in federal prisons.
The authors of this DHS/DOJ report do deserve credit for highlighting its shortcomings. On the first page, it states:
This report does not include data on the foreign-born or alien populations in state prisons and local jails because state and local facilities do not routinely provide DHS or DOJ with comprehensive information about their inmates and detainees. This limitation is noteworthy because state and local facilities account for approximately 90 percent of the total U.S. incarcerated population.
The federal prison population is not representative of incarcerated populations on the state and local level, so excluding them from the report means that it sheds little light on nationwide incarcerations by nativity, legal status, or type of crime. On the last point, it is shocking how unrepresentative federal prison is regarding the types of crimes its inmates are convicted of. In 2016, 67,742 people were sentenced to federal prison. Almost 30 percent of them were for immigration offenses. Those immigration convictions comprised 100 percent of the convictions for immigration crimes in the United States in 2016. By contrast, there were only 85 federal convictions for murder out of a nationwide total of 17,785 murder convictions that year, comprising less than 0.5 percent of all murders.
If Garcia Zarate had actually been convicted of murdering Kate Steinle, then he would have been incarcerated in California state prison and he would not show up as an illegal immigrant murderer in this DHS/DOJ report. What good is a federal report on illegal immigrant incarceration rates if it would have excluded Kate Steinle’s killer had he been convicted?
The DHS/DOJ report also explained why they did not include an estimate of illegal immigrants incarcerated on the state and local level:
DHS and DOJ are working to develop a reliable methodology for estimating the status of state and local incarcerated populations in future reports.
A March 2017 Cato Institute Immigration Research and Policy Brief employed a commonly used residual statistical methodology to analyze the incarcerated population in the U.S. Census for 2014. We found that illegal immigrants were about 44 percent less likely to be incarcerated than native-born Americans. I look forward to reviewing any methodology that the federal government comes up with but illegal immigrant criminals would have to be severely undercounted in prisons to give them an incarceration rate that even approaches native-born Americans.
The broad finding among criminologists and economists who study this topic is that immigrants are less crime-prone than natives whether measured by the areas where they live or their incarceration rates. Although there is less research on illegal immigrant criminals, the general finding is that they are less crime-prone or about as criminally inclined as native-born Americans. The DHS/DOJ report reveals no new information about incarcerations on the federal level, does not provide evidence for a higher nation-wide illegal immigrant incarceration rate, nor does it support the administration’s plea for more border security.”
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Meanwhile, over at the American Immigration Council (“AIC”), another pro-immigrant group, Walter Ewing, although not mentioning the DOJ report specifically, asserts that here is no basis for the “nativists” claim that crimes by migrants are a crisis:
First, in the nativist mindset, since undocumented immigrants have broken a law by coming to or staying in the United States without authorization, they are all “criminals”—and criminals are dangerous. Therefore, according to this line of reasoning, undocumented immigrants must be dangerous criminals.
Second, since some undocumented immigrants are in fact serious criminals, nativists argue that we would have fewer criminals in the United States if we had fewer undocumented immigrants. Yet the same reasoning applies to any social group. If we had fewer white people, or short people, or blonds in this country, then there would be fewer serious criminals as well since some criminals are white, and some are short, and some are blond. Missing from this argument is the fact that immigrants commit crimes at a much lower rate than the native-born.
An example of the nativist line of reasoning comes from a story on Frontpage Magazine by retired Immigration and Naturalization Service (INS) agent Michael Cutler. The story throws together a collection of disembodied incarceration statistics with inflammatory political rhetoric. Cutler also argues, without citing a primary source, that undocumented immigrants are responsible for nearly a third of all murders in the country.
While Cutler can’t credibly back up his claims, there is no shortage of credible researchers who have demonstrated the absence of any relationship between high rates of immigration and high crime rates. In just the past three years, three compelling studies have been added to the pile of evidence which has been growing for decades concerning the lack of any connection between immigration and crime.
A study released in 2017 concluded that “undocumented immigration was significantly associated with reductions in drug arrests, drug overdose deaths, and DUI arrests” between 1990 and 2014. The study “provides evidence that undocumented immigration has not increased the prevalence of drug or alcohol problems, but may be associated with reductions in these public health concerns.”
Another recent study found no relationship between undocumented immigration and rates of violent crime. The authors note that their findings undermine what they call the “Trump Hypothesis,” a notion which holds that undocumented immigration is fueling “violent and drug-related crime in the United States” as declared by President Trump’s 2015 presidential campaign announcement.
Finally, a 2014 study found that “immigrants to the United States are less likely to engage in violent or nonviolent antisocial behaviors than native-born Americans.” Notably, native-born Americans were approximately four times more likely to report violent behavior than Asian and African immigrants and three times more likely than immigrants from Latin America.”
Cutler’s piece ignores this evidence and resorts to simplistic rhetoric; labeling any immigrant in prison for any offense a “criminal alien” and accusing them of terrorizing the American people. But it is immigrants—particularly the undocumented—who risk being terrorized by nativists in their zeal to stereotype and scapegoat immigrants as the source of every ill that afflicts the United States.
The former INS agent characterizes the statistics in his story as “the stunning numbers the Left cannot refute.” However, it is Cutler who seemingly can’t refute the body of research which thoroughly discredits his arguments.”
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Suffice it to say that the grandiose claims about the DOJ report’s findings made by Sessions and others in the Administration appear problematic, at best.
Trump supports the congressional establishment of a temporary DACA program for current DACA participants in return for funding to complete the border fencing that was mandated by the Secure Fence Act of 2006, which was passed in the Senate by a vote of 80 to 19. The yeas included current Senate party leaders Mitch McConnell (R-Ky.) and Schumer and former Senators Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.).
DHS only completed 653 miles of the 700-mile mandate, which leaves 47 miles for Trump. This would give him a chance to show that he can erect a “beautiful wall” for a reasonable price — the question is if Democrats will accept that cost.”
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Go on over to The Hill to read Nolan’s complete article, which contains much more information on the Dream Act proposal.
I’ve said for some time now that I think 47 miles of additional border wall/fencing for a path to permanent status for the current “Dreamers” would be a good trade off for both parties.
“Over the course of President Donald Trump’s first year in office, his administration’s top immigration priority has shifted subtly. He’s talking less about deporting “bad hombres” and talking more — a lot more — about how “chain migration” is bad for the United States.
“We have to get rid of chainlike immigration, we have to get rid of the chain,” Trump told the New York Times’s Mike Schmidt in an impromptu interview at his West Palm Beach golf club in December. He followed it up, as he does, with a tweet:
“Chain migration” — which is loosely used as a synonym for all immigration to the United States that happens based on family ties (when a US citizen or, in some cases, a green card holder petitions for a relative to join them) — has become a conservative boogeyman, and an excuse to cut down on legal immigration. It’s long been a target of immigration restrictionists whose concerns about immigration are less about people “respecting the law” than about the government exercising stricter control over who enters the country.
Under the Trump administration, those restrictionists have more political power than they’ve had in a generation — and they’re using it to prosecute an aggressive case against the family-based system as it stands.
The Trump administration’s attacks on “chain migration” have helped shift the terms of the debate over immigration policy. “Chain migration” is being invoked, among other things, to frame two totally different demands Republicans have made in the debate over legalizing immigrants temporarily covered by the Deferred Action for Childhood Arrivals program: preventing current DACA recipients from sponsoring their parents after becoming citizens, and cutting or eliminating some categories of family-based immigration for all immigrants in exchange for legalizing DACA enrollees.
But it’s not just during the DACA debate. The Trump administration blamed the failed New York subway bombing in December on “chain migration” because the would-be bomber came as the child of a US citizen’s sibling in 2010. Its National Security Strategy, issued Monday, called chain migration a security threat.
In other words, the Trump administration’s attack on “chain migration” isn’t just a setup for a particular policy fight. It’s about who is allowed to be a part of America — and whether changes to the country’s makeup are healthy demographic development or a sign of uncontrolled invasion.
“Chain migration” is the technical name for a commonsense idea: People are more likely to move where their relatives are
The dynamic underlying “chain migration” is so simple that it sounds like common sense: People are more likely to move to where people they know live, and each new immigrant makes people they know more likely to move there in turn.
But as obvious as the reality is on the ground, it wasn’t always incorporated into theoretical models of migration (particularly economic models). Economists tended to think about the decision to migrate as a simple calculus of how much money someone was making at home versus how much he could be making abroad, rather than understanding that the decision was more complicated — and that family and social relationships played a role.
Princeton demographer Doug Massey, one of the leading scholars on immigration to the US at the end of the 20th century (and the beginning of the 21st), was one of the scholars who tried to correct this oversimplified view. As he put it in an essay for the Inter-American Parliamentary Group on Population and Development in the early 1990s:
The first migrants who leave for a new destination have no social ties to draw upon, and for them migration is costly, particularly if it involves entering another country without documents. After the first migrants have left, however, the costs of migration are substantially lower for their friends and relatives living in the community of origin. Because of the nature of kinship and friendship structures, each new migrant creates a set of people with social ties to the destination area.
These immigrants would also end up behaving differently once they arrived in their new countries. If they were just there for economic reasons, they’d have an incentive to move back once they’d made enough money, or circulate back and forth. But immigrants who move for social reasons are moving to a new community — a new place they’ll stay. That’s an upside if you think it’s important for immigrants to become American — and a downside if you think the US should be much pickier about who gets to move here for good than it is about who gets to work here.
One upshot of chain migration: Any policies that made it easier for immigrants to bring their relatives would allow migration chains to form, thus expanding immigration into the country. “Family reunification systems,” Massey wrote, “work at crosspurposes with the limitation of immigration.”
Massey and the other demographers of “chain migration” weren’t presenting it as a negative. But their words were easily adopted by people who did. The Massey essay quoted above ended up being reprinted in an issue of The Social Contract — the journal founded by immigration restrictionist mogul John Tanton, who also founded the three most visible restrictionist organizations in American politics (the think tank the Center for Immigration Studies and the advocacy groups NumbersUSA and FAIR).
The Social Contract was a forum for concerns about the threat of mass immigration (particularly mass nonwhite immigration) to the United States. (The Southern Poverty Law Center, which considers all Tanton-affiliated institutions to be “hate groups,” has a rundown of some of the journal’s more incendiary content.) Massey, on the other hand is a longtime supporter of reforms that would make it easier for immigrants to come to America.
An article by a supporter of expansive immigration policy could be reprinted, with few apparent edits, in a journal for his intellectual opponents only because the debate over chain migration is fundamentally not about whether it happens, but whether it’s okay. Defenders of chain migration tend to argue that it’s important for immigrants to put down roots in the US, and that having a family here is part of what that means.
Opponents, on the other hand, see family-based immigration as the government ceding some control for who gets to come here, so that it’s not selecting individuals in a vacuum — which leads rapidly to fears of the US government losing control of the immigration system entirely.
The actual policy behind “chain migration”
It’s not clear whether President Trump understands how family-based immigration actually works — and when it can lead to “chains” of relatives. Trump has claimed that the man who ran over several pedestrians in New York in November brought 23 (sometimes he says 24) relatives to the US in the seven years he’d lived here — a claim that chain migration opponent Mark Krikorian of the Center for Immigration studies said was impossible. And the White House’s “chain migration” diagram makes it looks like each generation of adults brings in children, which brings their children — which isn’t how chain migration works.
To better understand what policies, exactly, opponents of “chain migration” are worried about, check out this chart from the restrictionist advocacy group NumbersUSA — which is a more detailed representation of the same fear of overwhelming, uncontrollable waves of migration.
Let’s walk through the scenario in that chart. It depicts an immigrant who’s come to the US on an employment-based green card (in black) and is able to bring over his spouse and children immediately. He can also petition for his parents to come to the US on green cards, and — after he becomes a citizen (something the NumbersUSA chart doesn’t clarify) — he can petition for his siblings as well (all in gray).
The siblings all bring over their spouses and children immediately, and the spouses (in orange, maroon, navy, and teal) petition to bring over their own parents and (upon naturalization) their own siblings. The original immigrant’s parents (eventually) petition for their own siblings to come to the US, and the siblings then petition to bring over their married adult children — whose spouses can then petition for their own parents and (eventually) siblings, etc., etc.
Meanwhile, the original immigrant’s spouse can petition for her parents (in pink) and, once she becomes a citizen, her siblings (in blue, purple, red, and green). Those siblings bring over their spouses, who subsequently petition for their own parents and siblings, etc., etc.
There are a ton of assumptions in this model about the way immigrants behave — why is everyone in families of four or five? Does no one really want to stay in her home country? Is there no such thing as a bachelor in any of these families? — but the visa categories under US law make it a hypothetical possibility. But the thing is, US policymakers know that it’s a hypothetical possibility. And there are safeguards built into the system that restrict family-based immigration far more than the diagram would have you believe.
In practice, bringing over a family member takes years — which makes it very hard to build a chain
No one is automatically allowed to immigrate to the US. Anyone applying for residency in the country has to go through a standard vetting process — including a criminal and terrorism background check, and an evaluation of whether they’re likely to become a “public charge” in the US (i.e., be unable to support themselves for income and rely on social programs).
Trump’s National Security Strategy claims that “chain migration” is a problem for national security, but there’s nothing inherent to the way someone is allowed to immigrate to the US that makes it harder for the US to catch would-be terrorists — that is, if anything, a failure of the screening process.
The bigger obstacle, though, isn’t qualifying to immigrate — it’s that the number of hypothetically qualified family-based immigrants greatly exceeds the number of slots available for immigrants each year. The US doesn’t set caps on the number of spouses, minor children, or parents of US citizens who can come to the US each year — but, again, those categories in themselves don’t create chains.
The categories that do create chains are strictly capped: 23,400 married children of US citizens (plus their own spouses and minor children) are allowed to immigrate each year, and 67,500 adult siblings of US citizens (plus spouses and minor children). Furthermore, because the total number of immigrants coming from a particular country each year is capped, would-be immigrants from Mexico, China, India, and the Philippines end up facing even longer wait times.
When people talk about the “visa backlog,” this is what they mean: In January 2018, for example, the US government will start processing applications for F4 visas (the siblings of US citizens) who first petitioned to let them immigrate on June 22, 2004, or earlier. That is, unless the sibling lives in India (in which case the petition had to be filed by December 2003 to get processed in January 2018), Mexico (November 1997), or the Philippines (September 1994).
Sudarshana Sengupta, pictured here with family in Massachusetts, had been waiting for a green card for seven years when this picture was taken.Washington Post/Getty Images
Understanding that an F4 visa is a 13- to 23-year process throws that NumbersUSA diagram into a different light. How implausible it is depends on your assumptions about how close together generations are, and how young the immigrants are when they come to the United States. But if you start by understanding that the first members of the orange, maroon, navy, teal, blue, purple, red, and green chains don’t enter the US until 18 years after the original immigrant (signified by black) does — and that the first immigrants in the yellow section of the chart don’t enter the country until 23 years later — it should give you a sense of how long it will take in to fill in the rest of the chain.
In practice, this ultimately looks like a lot of people coming to the US in late middle age. That’s backed up by the data: A study from Jessica Vaughan of the Center for Immigration Studies — which is critical of “chain migration” — found that the average age of immigrants to the US has risen over the past few decades, and that family-based immigration was a substantial cause.
But even then, the NumbersUSA scenario assumes that all the immigrants can afford to sponsor a family member to immigrate to the US. A US citizen (or green card holder seeking to bring an unmarried child or parent) has to prove to the government that they can provide financial support if their relative needs it, rather than relying on the government for aid.
In practice, this means that every immigrant needs to have someone vouching for them whose household income is 125 percent of the poverty line — and the “household” includes the relative who’s trying to come to the US. In other words, a single adult could sponsor his parent to immigrate if he made at least $20,300 — 125 percent of the federal poverty line for a two-person household — but if he had a spouse and two children, he’d have to be making 125 percent of the poverty line for a five-person household. And that includes any other immigrants who the household is sponsoring at the same time.
So an immigrant with a wife and two children who wanted to sponsor his parents and four siblings to immigrate as soon as he became a citizen would have to be making $56,875 — around the median income in the US. And if his spouse were trying to do the same thing with her parents and four siblings, as in the NumbersUSA chart, they’d have to be making $83,000 — which would place them in the 66th percentile of US household income.
That’s not impossible. But it certainly calls into question the stereotype of family-based migration as a way for “low-skilled,” low-earning immigrants to bring their low-skilled, low-earning relatives into the US.
There are ways for citizens to get other people to agree to help support a potential immigrant relative. But at the same time, the US government has discretion to reject an application, even if the citizen meets the income threshold, if they suspect that in practice the immigrant won’t be supported in the US. (Another factor in determining “public charge”is age — which is interesting, given the data about family-based immigrants being older.)
Add all of these factors together, and it becomes clear that an immigrant won’t be able to bring that many relatives to the US over the course of his or her lifetime. Vaughan’s studyfound that as of 2015, immigrants who came to the US from 1981 to 2000 had sponsored an average of 1.77 relatives to come join them. The most recent immigrants in the study — those who came to the US in the late 1990s — had sponsored the most relatives: 3.46. But both of those numbers include the minor children they brought with them at the time: In other words, they were hardly starting 3.46 new “chains.”
If anything, in fact, the family-based system is so overloaded that it ends up creating unrealistic hopes in people that they’ll be able to immigrate to the US. If your sibling moves to the US on a work visa, for example, you might start to hope that he’ll eventually be able to bring you along — but if you try to plan your life around that, you’ll end up waiting for two decades.
There are hints all this panic over “chain migration” is really about fear of cultural change
All of this is relevant to a conversation about whether to further restrict, or eliminate, the F3 and F4 visas for married children and adult siblings of US citizens. And indeed, that’s the most common policy demand being made by Republicans who are seeking to end or reduce “chain migration.”
But the most stalwart opponents of “chain migration,” the ones who use it to refer to all family-based immigration, period, are talking not just about the mechanics of the chain but about a bigger normative question: whether allowing immigrants to come as family units, or allowing people to immigrate based on family relationships, gives the US too little control over who gets to come.
The ultimate impression of both the White House and NumbersUSA “chain migration” diagrams is to make it seem that admitting a single immigrant unleashes an uncontrollable tide of infinite future family-based immigration — that each immigrant is a one-person Trojan horse for hundreds more.
This is an image from the pro-Brexit campaign, but the theme’s the same: a lack of control.Daniel Leal-Olivas/AFP via Getty
“As more and more immigrants are admitted to the United States, the population eligible to sponsor their relatives for green cards increases exponentially,” the restrictionist group FAIR says on its website. “This means that every time one immigrant is admitted, the door is opened to many more.”
This potent visual is why “chain migration” has been a longtime target of immigration restrictionists, even when the Republican Party as a whole was attempting to welcome legal immigrants. For people whose biggest fear regarding immigration is that immigrants will change the face of America — that they’ll trample the country’s “traditionally” white, Christian majority — there’s little more potent than the idea of immigrants bringing over huge families, replanting their communities whole in American soil.
This fear goes hand in hand with a fear that immigrants won’t assimilate. When immigration restrictionists cite the second quarter of the 20th century as a great time for the United States, they’re not (at least explicitly) praising the racist country quotas that governed immigration at the time. They’re (explicitly) praising the fact that, with overall immigration levels low, immigrants were forced to interact with and eventually integrate among US citizens. The more immigrants that come over — and especially the more that immigrants bring their families over — the less, in theory, that they and their descendants will have to interact with people from outside of their community. In turn, this gets into fears that parts of America could become alien to Americans — cultural, or literal, “no-go zones.”
The use of “chain migration” in the current debate over DACA, to refer to DACA recipients allowing their parents to become legal immigrants, complicates the matter even further. Because the parents of DACA recipients have, by definition, lived in the US as unauthorized immigrants, this isn’t really about bringing new people into the US — it’s about legalizing people who are already here (or bringing people back who have been deported, something US policy already makes pretty hard).
The insistence among some Republicans that “Dreamers” not be allowed to sponsor their parents, even after they become US citizens, is really about not wanting to “reward” unauthorized immigrants for living in the US without papers. They’re worried about losing “control” in a slightly different sense — worried that any “reward” for illegal behavior will incentivize a new wave of unauthorized migration to take advantage of potential rewards. This is pretty far afield from the way that “chain migration” is commonly understood — but that’s the word being used in the DACA debate anyway, not least because the president has helped turn it into a buzzword.
Because these memes, and the fears that they provoke, are all so tightly connected, “chain migration” is both an ideological concern about America selecting immigrants based on their merit, and a racist smokescreen for fears of demographic change. It can be hard to separate the two. And it’s certainly not in the interests of the opponents of “chain migration” to try.
There’s a reason that family-based immigration has lasted as long as it has
It’s a lot easier to get people to agree, in theory, that the US should be accepting immigrants on the basis of “merit” — i.e., without concern for whether they have relatives living here — than it is to get them to agree on exactly what should be done to reduce the importance of family-based immigration to the current system.
For one thing, many policymakers, including many Republicans, see allowing some family members to immigrate as an important factor in encouraging integration. Allowing immigrants to bring along their spouses and minor children, for example, makes it less likely that they’ll decide to return to their home countries — and it means their children will grow up American, in more ways than one.
There are also policymakers who see family unity as a value worth protecting for its own sake (an argument you’ll often hear among religious advocates). And there’s, of course, an ethnic component. Asian Americans, in particular, feel that they are still trying to make up ground after decades of racist exclusion from the immigration system — and family-based immigration has been the best way for them to make that ground up. Mexican Americans, too, feel that the current system has unfairly forced Mexican immigrant families to be separated while other families get to reunite with ease.
All of these objections have combined, so far, to make Democrats firmly opposed to any proposal that would restrict future family-based immigration. But as “chain migration” begins to eclipse other issues (like immigration enforcement in the interior of the US) as a top Republican priority, it’s not clear whether Democrats’ commitment to hypothetical legal immigrants of the future is going to win out over their commitment to legalizing unauthorized immigrants who are currently here.”
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The fear that the US won’t be a “White Christian country” is what’s really driving the campaign against family migration (a/k/a/ “chain migration”). But, in reality, the days of the US as a “White Christian Empire” are in our national rearview mirror, no matter what the White Nationalist restrictionists do. It’s really just a question of how much pain, suffering, and divisiveness the White Nationalists can inflict as their already tenuous control inevitably continues to slip.
As almost all “non-restrictionist” economists tell us, restrictive national immigration policies are not in our national interest. In fact, more, not less legal immigration is going to be a necessity to keep our economy from stagnating like that of Japan and some European countries. Indeed, Paul Ryan’s goofy “everyone should have more kids” was an acknowledgement of how our future success depends on a robust legal immigration system.
Also, the concept that the legal admission of Dreamers is a “negative” that has to be “offset” by cuts in legal immigration elsewhere is pure fiction. Dreamers are already here and contributing to our society and our national welfare. Giving them legal status is not only the right thing to do, but also the smart thing. And doing the “smart thing” requires no bogus “offsets.”
“West Palm Beach, Florida (CNN)President Donald Trump said Friday there will be no deal to protect hundreds of thousands of young undocumented immigrants from deportation without funding to build a wall along the US-Mexico border.
“The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc,” Trump tweeted. “We must protect our Country at all cost!”
Trump’s declaration casts doubt over how Democrats and Republicans will come together to protect Deferred Action for Childhood Arrivals (DACA) participants — of which there are nearly 800,000 who were brought to the United States illegal as children — from deportation because it is unlikely that Democrats will agree to substantial funding for Trump’s border wall in exchange for DACA protections.
Drew Hammill, House Minority Leader Nancy Pelosi’s spokesman, responded to Trump’s tweet by stating Democrats are “not going to negotiate through the press and look forward to a serious negotiation at Wednesday’s meeting when we come back.”
Pelosi, Senate Minority Leader Chuck Schumer, House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell and White House chief of staff John Kelly will meet on Wednesday, according to two sources familiar with the meeting. The top discussion topic will be renewed government spending talks, the sources said.
Trump campaigned for president on a hardline immigration platform. Chants of “Build The Wall” became a trademark of his campaign and, as president, Trump has advocated ending so-called chain migration, guidelines that allow people in the United States to bring in family members from abroad, and the visa lottery system, a program that distributes around 50,000 visas to countries where there is a low rate of immigration to the US.
Trump’s tweet is his clearest statement to date on his negotiating position with Democrats to achieve a deal on DACA, an Obama-era program that Trump ended in September. At the time, the President said he wanted Congress to step in to save the program.
Democrats and Republicans were unable to come together before the end of the year to mint a deal on the immigration program, but members of both parties will return to Washington in 2018 with the DACA program as a focus.
Any agreement would be the second major deal between Trump and Schumer and Pelosi — who Trump has taken to referring to as “Chuck and Nancy.” The trio, much to the chagrin of conservatives, worked together earlier this year to strike a deal on the debt ceiling and government spending.
Trump has previously said that McConnell and Ryan are on board with a deal to make the DACA program permanent.
The details, however, are what matter in the deal and remain elusive.”
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Read the complete article at the link.
As I have previously said, I think the Democrats are well-positioned to hold out for a “good deal” for the Dreamers when USG funding runs out in January. I personally that a “Some Wall Funding for Otherwise Clean Dreamer Bill” would be a decent deal for the Democrats to make. But, I don’t see the Dems agreeing to restrictions or reductions of legal immigration as part of a deal.
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