"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.
These marriages are arranged to provide the alien spouses with a basis for obtaining visas they can use to enter the United States as lawful permanent residents, leaving young girls trapped in marriages that have been described as a form of slavery.
USCIS, however, will not approve the petition if the beneficiary or the petitioner was not old enough to marry under the laws of the place where the marriage was performed, or a marriage at that age violates the public policy of the American state in which the couple intends to reside.
Most states do not have a minimum age for marriageif the child has parental or judicial consent, but USCIS admittedat a Committee staff briefing that visa petitioners do not have to prove parental or judicial consent. However, the instructions for a fiancé petition require evidence that the couple met in-person within the last two years, unless doing so violates religious customs or social practices.
Delaware and New Jersey are the only statesthat prohibit marriage for anyone under the age of 18 with no exceptions.
The United Nations Population Fundsays that child marriage is a human rights violation. It threatens girls’ lives and health, and it limits their future prospects. Girls who marry while they are still children often become pregnant while still adolescents, which increases the risk of complications in pregnancy and childbirth. This is the leading cause of death for older adolescent girls.
Go on over to The Hill at one of the links for the complete article.
While so-called “Comprehensive Immigration Reform” might remain elusive, there are some “quick bipartisan fixes” like this that 1) address important issues; and 2) could get folks together and thereby form a basis for later cooperation on a bigger agenda. I’m also delighted to focus on something OTW (“other than wall”) these days. Thanks, Nolan!
WaPo: In addition to its immigration provisions, the package — which McConnell could move to advance as early as Tuesday, although a Thursday vote appears more likely — would reopen all parts of the government that are closed. It also would provide emergency funding for U.S. areas hit by hurricanes, floods and other natural disasters.
TRAC: Since the beginning of the federal government shutdown, most Immigration Court hearings have been cancelled. As of January 11, the estimated number of cancellations reached 42,726. Each week the shutdown continues, cancelled hearings will likely grow by another 20,000. As many as 100,000 individuals awaiting their day in court may be impacted if the shutdown continues through the end of January. See also: These states’ immigration courts are most impacted by the government shutdown.
USAToday: Of the 60,000 employees at Customs and Border Patrol, nine of 10 must report to work, checking passports and manning pieces of the border wall that have already been built. But they’re not being paid.
Vox: Refugee admissions have plummeted, while rejections of asylum applications have increased. Arrests of immigrants without criminal records have returned to the levels of the first term of the Obama administration, while Trump works to make hundreds of thousands more immigrants vulnerable to deportation, by stripping them of protections under the Deferred Action for Childhood Arrivals program or Temporary Protected Status. And the travel ban quietly churns on.
CMS: The US undocumented population from Mexico fell by almost 400,000 in 2017. In 2017, for the first time, the population from Mexico constituted less than one half of the total undocumented population.
WaPo: Speaking Sunday on CBS’s “Face the Nation,” the vice president quoted from King’s “I Have a Dream” speech as he defended Trump’s latest pitch to secure funding for a barrier along the United States’ southern border.
WaPo: Richard Kessler, an immigration lawyer in Grand Rapids, Mich., said he was surprised when a woman he had worked with called to tell him that her son, a 27-year-old Marine veteran with mental-health issues, was being held in an immigration facility, apparently awaiting a possible deportation.
CNN: With Sen. Kirsten Gillibrand entering the 2020 presidential race on Tuesday, her dramatic shift on the issue of immigration over the past decade will likely be one of the central questions about her candidacy as she seeks to take on President Donald Trump.
DailyNews: In what could be its biggest campaign, the New York Immigration Coalition, the state’s largest immigration advocacy group, plans to spend at least $1 million on TV, radio and targeted social and digital media ads as well as billboards.
CBS: When U.S. consumers are calling about a hotel reservation or an airline flight, there’s a good chance a deportee in El Salvador is on the other end of the line.
NBC: Trump administration officials weighed speeding up the deportation of migrant children by denying them their legal right to asylum hearings after separating them from their parents, according to comments on a late 2017 draft of what became the administration’s family separation policy obtained by NBC News. The draft also shows officials wanted to specifically target parents in migrant families for increased prosecutions, contradicting the administration’s previous statements.
WaPo: The report issued by the inspector general for the Department of Health and Human Services says no one systematically kept count of separated children until a lawsuit last spring triggered by the Trump administration’s “zero tolerance” policy, under which the government tried to criminally prosecute all parents who crossed the border illegally, taking their children from them in the process. See also As One ‘Tent City’ for Immigrant Children Closes in Texas, Another Opens in Florida.
Al Jazeera: Last year, around 2,297 migrants died or went missing in the Mediterranean while 116,959 people reached Europe by sea. According to the IOM, sea arrivals to Europe in the first 16 days of 2019 totalled 4,216, compared with 2,365 in the same period of 2018.
NPR: U.S. District Judge Jesse Furman ordered the administration to stop its plans to include the controversial question on forms for the upcoming national head count “without curing the legal defects” the judge identified in his 277-page opinion released on Tuesday.
USCIS: Generally, conditional permanent residents who file a Form I-751 must appear for an interview. However, USCIS officers may consider waiving an interview.
EOIR released guidance on Grace v. Whitaker, stating that for all credible fear review hearings conducted on or after 12/19/18, IJs may not rely on several aspects of Matter of A-B- as a basis for affirming a negative credible fear determination. Guidance obtained from CGRS and ACLU.
USCIS issued policy guidance in the USCIS Policy Manual to address the policies and procedures related to secure documents, including how USCIS delivers and tracks these documents and how requestors should request a replacement or reissuance. Comments are due by 1/30/19. Policy is effective 1/16/19.
CBP Liaison Minutes: If a permanent resident, who has a pending application for naturalization in which a Notice of Intent to Deny was issued challenging whether the individual had been eligible for adjustment of status at the time that application was filed, travels abroad and presents his green card upon his return, will he be admitted as a permanent resident? Are such cases flagged in some way? If there has only been a NOID and no action has been taken on the N-400, the individual will be admitted as an LPR. If the N-400 was denied and the individual was issued an NTA under Section 237 (but has not been served), CBP will re-issue the NTA under Section 212. If an NTA was issued and served under Section 237, the individual will be admitted as an LPR in proceedings.
2019 National Day of Action: On Thursday, April 11, 2019, AILA members and their clients are invited to meet with their legislators on Capitol Hill to discuss immigration policy changes and the impact it has on their state and district.
Upwardly Global’s mission is to eliminate employment barriers for skilled immigrants and refugees, and integrate this population into the professional U.S. workforce.
Trump offers to limit his border wall to strategic locations
BY NOLAN RAPPAPORT, OPINION CONTRIBUTOR — 01/20/19 07:00 AM EST 945
THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL
House Speaker Nancy Pelosi (D-Calif.) should give serious consideration to the settlement proposal that President Donald Trump made in his televised address from the White House.
Her objection all along has been to building a wall across the entire length of the Mexican border, and Trump no longer intends to erect “a concrete structure from sea to sea.”
He has acknowledged that much of the border is already protected by natural barriers, such as mountains and water. He wants the $5.7 billion he has requested for a strategic deployment of steel barriers at high priority locations.
The border already has many miles of barriers, including 115 miles that are being built or are under contract. He just plans to add another 230 miles this year at locations where they are most urgently needed.
These barriers would not make illegal crossings impossible, but they would make illegal crossings more difficult and make it easier for the Border Patrol to apprehend crossers.
His request includes $800 million for humanitarian assistance; $805 million for drug detection technology; 2,750 more border agents and law enforcement officers; and 75 more immigration judges.
In what he describes as an effort to build trust and goodwill, the legislation he is offering to implement his proposal also would extend the status of 700,000 DACA participants for three years.
This is just a temporary measure, but the outcome of the litigation over the DACA program is uncertain, and the participants will be extremely vulnerable if the program is terminated. DACA participation is sufficient in itself to establish deportability, and they can’t apply for asylum. There is a one-year time limit on filing asylum applications and they all have been here for more than a year.
The legislation also would extend the status of 300,000 current Temporary Protected Status recipients for three years.
Senate Majority Leader Mitch McConnell (R-Ky.) has promised Trump that his bill will be brought to the floor of the Senate this week.
Trump also mentions the immigration court backlog crisis in his address. He says that it is not possible to provide an asylum hearing for every illegal crosser who sets one foot on American soil.
The asylum provisions state that aliens who are physically present in the United States may apply for asylum irrespective of their immigration status, unless one of the stated exceptions applies.
In my opinion, the sheer number of illegal crossers is the real border crisis. It has overwhelmed our immigration courts, making it virtually impossible to enforce immigration laws..
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Read Nolan’s complete article over on TheHill at the link.
At the time Nolan released this, he didn’t have the complete Trump proposal. I initially thought like Nolan that there might be the seeds for agreement in there.
But, Trump misrepresented what he was offering. In reality, it was yet another bogus 1000 page anti-asylum travesty drafted by White Nationalist in Residence Stephen Miller. Clearly intended to be a non-starter. Actually, it’s much like the dishonest tactics Trump used during the “Dreamer Debacle” that he engineered for no particular reason I can think of. And, that was when the GOP actually was in control.
Also, Nolan didn’t have the benefit of the Supreme Court action leaving DACA in effect for the indefinite future.
I’ve posted lots recently on what real border security and humanitarian assistance might look like. And, the Dems appear to be at work on something along those lines; a robust $5.7 billion but more constructive border security package that provides more resources for the Asylum Office, EOIR, technology, and inspections, but doesn’t undermine fundamental asylum law, negate Wilberforce protections for unaccompanied minors, or trash our international protection obligations.
Ultimately, once the Government reopens, that approach, plus permanent status for the Dreamers, with some wall or other physical barriers for Trump still seems to be the most likely way of ”getting to yes.” Then again, there might be no way of getting to yes with Trump.
Unfortunately, Trump has made it easier for them by basing his request on claims about who is crossing the border that can be disputed readily, such as that many of them are terrorists or criminals.
He should base his otherwise correct argument instead on the numbers — on the fact that the sheer number of illegal crossings has overwhelmed our immigration courts, creating a backlog crisis that has made it virtually impossible to enforce our immigration laws, and that the border cannot be secured when illegal crossers are allowed to remain here indefinitely.
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Go on over to The Hill at the link for Nolan’s complete article.
Democrats aren’t destroying Trump’s credibility; he’s doing that himself with his constant lies and false narratives; this is just the latest and one of the most egregious examples;
By all reliable counts, illegal border crossings at the Southern Border are down substantially;
What is “up” are crossings by unaccompanied children and families from the Northern Triangle seeking asylum;
Such individuals present a humanitarian situation arising from a crisis in the Northern Triangle; but, they are not a “security threat” to the US; almost all turn themselves in at ports of entry or shortly after entering to apply for asylum under our legal system as they are entitled to do;
Those (other than unaccompanied children) who don’t establish a “credible fear” can be returned immediately without ever getting to the Immigration Courts (except for brief “credible fear reviews” before Immigration Judges);
The vast majority have a “credible fear” and should be referred to Immigration Court for full hearings on their claims in accordance with the law and our Constitution;
When matched with pro bono lawyers, given a clear understanding of the requirements, and time to prepare and document a claim, they appear for court hearings almost all the time;
Even with the Trump Administration’s “anti-asylum campaign” directed primarily at applicants from the Northern Triangle, and the lack of representation in approximately 25% of the cases, asylum claims from the Northern Triangle succeed at a rate of approximately 20%, https://wp.me/p8eeJm-3oo;
Undoubtedly, there is a “crisis” in our U.S. Immigration Courts — a Due Process and mismanagement crisis;
But, the Trump Administration with its often illegal actions and gross mismanagement, has actually managed to artificially increase the Immigration Court Backlog from just over 500,000 to more than 1.1 million in less than two years — despite having at least 100 additional Immigration Judges on duty, https://wp.me/p8eeJm-3qN;
Indeed, Trump’s shutdown is unnecessarily “ratcheting up” the Immigration Court backlog and initiating a new round of “Aimless Docket Reshuffling” right now;
In addition to not understanding the true complexities of the immigration system, the Administration’s incompetent administration of the Immigration Courts is another reason why Trump might choose to shift attention elsewhere.;
Somebody will have to address the Due Process and administrative mess in the Immigration Courts in a constructive manner, starting with an independent, apolitical, court structure; but it won’t be the Trump Administration.
We also know that in fiscal 2017, there were more than twice as many instances of aliens overstaying their nonimmigrant visitor admission period than known instances of aliens crossing the Mexican border illegally.
No one knows how long the overstays will remain.
According to the Dept. of Homeland Security (DHS) Fiscal Year 2017 Entry/Exit Overstay Report, 52,656,022 nonimmigrant departures were expected in fiscal 2017, and there were 701,900 overstays. These figures are limited to aliens who were admitted to the United States at air and sea ports of entry. DHS does not have much data on entries or exits at land ports of entry.
Moreover, the overstay estimates are based on “events,” the number of expected departures, not the number of aliens who were expected to depart that year. According to a Center for Immigration Studies (CIS) analysis of the report, this makes the overstay rates deceptively low.
Using the DHS methodology, if 10 nonimmigrant visitors each comes to the U.S. three times during the fiscal year being considered, that would result in each having three expected departure dates, for a total 30 departure dates. If they all leave when they are supposed to leave but an additional visitor who makes only one visit overstays, the overstay rate would be 1/31 entries, or about 3 percent.
But if the overstay rate were based instead on the number of people who were expected to make a departure, the rate in the example above would be 1/11, which would be 9 percent.
The following table provides the DHS report’s overstay rates:
Overstays can be removed quickly when they have been apprehended.
Many of them come under the provisions of the Visa Waiver Program(VWP), which allows eligible nationals from 38 VWP countries to enter the United States for 90 days as nonimmigrant visitors for business or pleasure without a visa.
There is a one-year time limit on applying for asylum, and withholding just prohibits sending the alien to the country where he would face persecution — It does not permit him to remain in the United States.
Removal of overstays who enter with a visa requires a hearing before an immigration judge, but the government’s burden of proof can be met by establishing that the person was admitted to the United States as a nonimmigrant visitor and that the period authorized for the visit has expired. This often can be handled very quickly at a Master Calendar Hearing if the alien does not want to apply for asylum or withholding.
If Trump wants effective border security, he cannot just erect a wall along the Mexican border. He also has to reduce the number of overstays.
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Go on over to The Hill at the link for Nolan’s complete article.
There are lots of “moving pieces” to the immigration puzzle.
The study finds that the engine that fueled ICE’s peak effectiveness—the intersection of federal immigration enforcement with state and local criminal justice systems—is being throttled by state and local policies that limit cooperation with ICE. Nearly 70 percent of ICE arrests in the early Trump months originated with local jails and state prisons, a sizeable share that is nonetheless down from more than 85 percent in fiscal 2008-11.
Beyond sanctuary policies, the report finds growing resistance at other levels. Some cities are changing policing practices to reduce noncitizen arrests, such as decriminalizing driving without a license. Immigrant advocates are conducting more “know-your-rights” trainings, teaching people they do not have to open their doors to ICE. And others are mobilizing to monitor ICE operations in the field, or increasing funding for legal representation for those facing removal hearings.
ICE report contradicts notion that Trump is using immigration law to ‘keep America white’
BY NOLAN RAPPAPORT, OPINION CONTRIBUTOR — 12/21/18 10:00 AM EST 150
THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL
Excerpt:
In fiscal 2018, ICE arrested 105,140 immigration violators who had criminal convictions and 32,977 immigration violators who had pending criminal charges.
Only 20,464 (12.9 percent) did not have convictions or pending criminal charges. A recent Yale study estimates that there are more than 22 million undocumented aliens in the United States, which indicates that the likelihood of deportation is quite low for undocumented aliens who do not become involved in criminal activity.
Moreover, according to MPI’s study, ICE relies heavily on help from state and local law enforcement agencies to identify and arrest removable aliens. In jurisdictions that cooperate with ICE, the police screen aliens when they are arrested and booked into custody and notify ICE if any of them appear to have unlawful status.
Sanctuary cities do not provide this cooperation, which leaves ICE with little choice but to carry out its enforcement activities in neighborhoods and at other community locations, even though this is not an efficient use of its resources. This has resulted in an increase in the arrests of noncriminal aliens and numerous complaints.
Communities in Crisis: Interior Removals and Their Human Consequences
Kino Border Initiative
Center for Migration Studies of New York
Office of Justice and Ecology, Jesuit Conference of Canada and the United States
Excerpt:
The Criminalization of Deportation
The Trump administration has regularly portrayed undocumented residents, migrants seeking to request asylum at the US-Mexico border, and deportees as criminals and security threats. Most survey respondents either had not been convicted of a crime or had committed an immigration or traffic offense prior to their deportation. Nevertheless, study participants described a deportation system that treated them as criminals and instilled fear in their communities.
Nearly one-half of respondents said they had not been convicted of a crime prior to their deportation.
Of the 37 respondents (51.4 percent) who reported having been convicted of a crime,[6] more than one-third (35.1 percent) had been convicted of a traffic or immigration offense, 21.6 percent of a drug-related crime (including possession), and another 21.6 percent of a violent crime.[7]
A high percent of respondents (65.2) reported that their deportation began with a police arrest, 30.3 percent reported having been arrested by Immigration and Customs Enforcement (ICE), and less than 1 percent by Customs and Border Protection (CBP).
The majority of apprehensions took place while respondents were driving (36.1 percent), at home (26.3 percent), or at work (6 percent).
Survey respondents spent an average of 96 days in immigrant detention. Most were detained for 30 days or less, and 17 percent were detained for 180 days or more.
Only 28 percent were able to secure legal counsel.
Roughly one-fourth of survey respondents reported spending no time in criminal custody and 22.6 percent spent a week or less prior to their deportation. However, 17.3 percent spent more than one year.
Trump’s border security funding request therefore should include measures to locate and remove overstays. He could start with the overstays who used the Visa Waiver Program (VWP) to come here.
VWP overstays totaled 379,734 from fiscal 2015 through fiscal 2017. No one knows how many overstayed in the 27-year period between the inception of the program in 1988, and when DHS began recording entry/exit data for fiscal 2015.
Perhaps Trump should request legislation to remove aliens from the program who may not be bona fide visitors, such as young men who are unemployed. Restrictions are already in place to remove aliens from the program for security reasons.
Nationals of VWP countries who have been in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011, are not allowed to use the program. They may still be able to come here, but they will have to go through the visa application screening process.
Trump also should request funding to address the incentives that encourage illegal border crossings, such as the “job magnet.”
The Immigration Reform and Control Act of 1986 (IRCA) added section 274A to the Immigration and Nationality Act to provide sanctions for employers who hire aliens who are not authorized to work in the United States. But the program has never been fully implemented.
The Trump administration has increased worksite enforcement efforts. In fiscal 2018, the Homeland Security Investigations office opened 6,848 worksite investigations, compared to 1,691 in fiscal 2017. But there are more than 30.2 million businesses in the United States.
DOL enforces federal labor laws that were enacted to curb such abuses, such as the Fair Labor Standards Act which established a minimum wage, overtime pay, and other employment standards. With additional funding, DOL could mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants.
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Go on over to TheHill at the link for Nolan’s complete article.
These seem like reasonable enforcement strategies that could garner bipartisan support. Wonder why the Administration hasn’t made them priorities to date?
The parties agreed that the proclamation did not render any alien ineligible for asylum. District Judge Jon S. Tigar found, therefore, that the case did not present the question of whether section 212(f) authorizes the president to directly limit asylum eligibility, so he did not include the proclamation in his decision.
This was a mistake. Although the proclamation doesn’t say that it is making the illegal crossers ineligible for asylum, it prevents them from getting relief of any kind that would allow them to enter the United States.
Judge Tigar granted a temporary restraining order which prohibits any action to continue the implementation of the rule and requires a return to the pre-rule practices for processing asylum applications.
. . . .
Judge Tigar’s restoration of pre-rule practices for processing asylum applications means that the illegal crossers will not be prevented from establishing a credible fear of persecution in the expedited removal proceedings, which will entitle them to an asylum hearing before an immigration judge.
But the immigration judge will have to deny their applications because asylum would permit then to enter the United States – and the proclamation bars their entry.
Moreover, the denial will make them statutorily ineligible for asylum if they file another asylum application later.
The first paragraph in the asylum provisions states that any alien who is physically present in the United States may apply for asylum, but the second paragraph provides three exceptions.
One of the exceptions states that asylum is not available to an alien who has filed a previous application that was denied, unless he can show a change in circumstances which materially affects his eligibility for asylum.
The rule that Judge Tigar suspended would have avoided this problem by preventing the asylum seekers from getting to a hearing before an immigration judge at which their applications would be denied.
It is possible that when the proclamation is terminated, a court will find that the termination materially affects asylum eligibility and therefore that the bar to future asylum applications no longer applies.
But the third paragraph provides that no court shall have jurisdiction to review any determination on the exceptions. The courts, therefore, will not be able to reinstate asylum eligibility on this or on any other basis.
It will be up to Trump to decide whether aliens whose applications are denied on account of the proclamation will be able to file another asylum application when the proclamation is lifted.
Indefinite detention
Illegal crossers, however, may be able to avoid persecution by applying for withholding of removal.
Relief under the withholding provision just prohibits sending an alien to a country where it is more likely than not that he would be persecuted. Consequently, withholding would not violate the entry prohibition in the proclamation.
The relief would apply only to the alien who is at risk of being persecuted. It would not include his spouse or children.
The proclamation, nevertheless, would be a serious problem for aliens who are granted withholding. It would prevent them from being released from detention while arrangements are being made to find a suitable country that is willing to take them, and that may not even be possible, depending on the case.
Asylum seekers who go to ports of entry instead of making an illegal crossing are experiencing problems. Nevertheless, it might be wise to try at least some of the ports of entry before resorting to an illegal crossing.
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Go on over to The Hill at the link to read Nolan’s complete article.
I’m not aware that anyone at DHS or EOIR has actually taken the legal position that Nolan has outlined. If they did, I would expect ACLU to have them instantly back before Judge Tigar on a contempt of court motion.
Also, that this theory hasn’t been pursued before Judge Tigar would make it unlikely that it would be argued before the Supremes, assuming that the case eventually winds up there (which I don’t). I do concede, however, that because the “Supremes are supreme” they basically can do whatever they want, including pursuing theories not argued or decided below. Most of the time, however, they prefer a more judicially (and politically) prudent approach.
I agree with Nolan’s bottom line that notwithstanding the inconvenience and the apparent slowdown by the Administration in asylum processing, asylum applicants would be well advised to patiently and peacefully wait in line to pursue their applications at ports of entry. There are also several cases pending which ultimately could provide some relief from both the intentional slowdown of processing at the ports of entry, and the skewing of the credible fear process against applicants from the Northern Triangle.
Judge Tigar acknowledged the stipulation and concluded that the case therefore did not present the question of whether section 212(f) authorized Trump to directly limit asylum eligibility by proclamation.
I believe – based on my own experience – the situation is a Catch 22.
The proclamation does not render illegal crossers ineligible for asylum. It bars their entry into the United States.
It’s the not being able to enter that keeps them from getting asylum.
The temporary restraining order prevents Trump from taking any action to continue or to implement the rule, but it leaves his proclamation untouched.
Accordingly, while the injunction is in effect, immigration judges won’t be able to find illegal crossers “ineligible” for asylum for violating the proclamation. But neither will they be able to grant asylum to them. They are barred by the proclamation from entering the United States, and they can’t be asylees if they aren’t allowed into the country.
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The immigration organizations almost certainly will file another motion for a preliminary injunction that will request a restraining order to prevent the implementation of the proclamation too.
That will be more challenging in view of the Supreme Court’s holding in the Travel Ban case that section 212(f) “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.”
It would be better if the asylum seekers just would comply with our laws by requesting asylum at one of the 48 ports of entry on the Mexican border instead of crossing illegally.
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Please click the above link to read Nolan’s complete article in The Hill.
It actually appears that most members of the “Migrant Caravan” are doing just what Nolan suggests: waiting at ports of entry to be screened for asylum. The real problem here is that the Trump Administration is purposely not processing individuals in a reasonable or timely manner. To the extent that there is a “crisis,” it is entirely self-created by the Administration.
The number of undocumented individuals has leveled off and even declined. Two thirds of them have been there more than a decade and have basically integrated into our society. Fewer than 20% actually arrived within the past five years, and the majority of the “recent arrivals” appear to be non-immigrant “overstays” rather than irregular border crossers. With a better and wiser Administration, current laws can actually accommodate and fairly process those arriving from the Northern Triangle and claiming asylum.
Indeed, the “numbers” suggest, as I have said many times, that a “rational” approach to immigration would be to remove the many cases of those with no serious crimes from the Immigration Court dockets pending the passage of legalization legislation (favored by a majority of voters). That would free up adequate time for those courts to timely hear cases of recently arriving asylum applicants, those with serious criminal convictions, and other more recent arrivals. And, it would cost the taxpayers less than the bone-headed fake immigration crises and bogus responses being orchestrated by the Administration is support of their racist, White Nationalist agenda.
In any event, the “border crisis” is just another self-created scam, fairly typical of Trump and his corrupt and incompetent Administration.
This made it more difficult for migrants to make illegal entries at those locations. Consequently, many of them went around those areas to make their entries at remote locations that were not patrolled so heavily, such as the Arizona desert.
This resulted in a humanitarian crisis.
According to U.S. Border Patrol data, 7,216 people died while illegally crossing the southwest border at remote locations in the 20-year period from FY 1998 to FY 2017. Most of them perished in the desert from dehydration, hypothermia or heatstroke.
The actual number of deaths is much higher. According to CNN, the Border Patrol usually just counts dead bodies they discover while patrolling the border. In FY 2017, for instance, the Border Patrol reported 294 deaths, but CNN identified at least 102 more, not including scores of other likely crossing deaths in which officials were not able determine whether the remains were migrants.
Clinton’s plan was to make some of the resources available for other locations when the Border Patrol had control over the major corridors. The Border Patrol would then monitor the flow of illegal entries and shift resources to areas that had a lot of activity.
The instructions on implementing the strategy acknowledged, however, that although the Border Patrol knew where apprehensions were made, it did not have a reliable way to determine where aliens who eluded them were crossing. This made it difficult to know where to place additional resources.
Go on over to The Hill to read the rest of Nolan’s article. It’s a timely historical reminder that failed border policies have a long and unhappy history in the U.S.
I was in private practice in 1994. However, I will admit to being involved in a number of such failed efforts over the past 45 years. That’s why I’m convinced that the issues driving migration to and across our Southern Border won’t be solved unilaterally by draconian enforcement strategies on this end. They have all been tried to some degree or another and ultimately failed.
An effective answer must involve a cooperative international effort to address the “sending” or “push” factors so that the vast majority of folks in Latin America will be able to live safely, peacefully, and relatively prosperously in their native countries.
Of course there will always be those who want to emigrate. More power to them and to us for finding ways to accept, integrate, and benefit from their skills. But, an orderly, predictable, legal migration system would be in everyone’s best interests. Sadly, we’re heading in the opposite direction at present.
Last week the Trump administration announced new rules that deny asylum to immigrants who initially entered the United States illegally. Immigration law explicitly allows illegal immigrants to apply for asylum, but the Supreme Court’s ruling in the Muslim Travel Ban case gave the president wide power to ban any group of foreigners if he considers them detrimental to the United States.
President Trump’s announcement is in response to the caravan of 4,000-5,000 Central American migrants and asylum seekers slowly making their way to the border. Before the election, Trump stated that “unknown Middle Easterners” were in the caravan who pose a national security threat. President Trump justified the Muslim Travel Ban with an exaggerated national security threat, the legitimacy of the new asylum rules rest on the same fear.
There is little national security threat from the caravan.
There have been zero terrorists from Mexico or Central America who have committed or attempted to commit attacks on U.S. soil during the 43-year period from 1975 through the end of 2017. Those countries are afflicted with ghastly rates of violent crime exacerbated by an American-funded war on drugs, but there is no international terrorist threat emanating from Central America.
Most people in the migrant caravan will apply for asylum while the rest will try to enter illegally. Looking more broadly at terrorist attacks committed by all asylum seekers and illegal immigrants over the last 43 years, only 20 people entering the country illegally or as asylum seekers committed or attempted to commit an attack on U.S. soil.
The illegal immigrant terrorists, who all came from countries outside of the Western Hemisphere except for a single Canadian environmental extremist, killed zero people in their attacks. The asylum seekers, who all came from countries outside of the Western Hemisphere except for one Cuban, did manage to murder nine people in attacks. The annual chance of being murdered by a terrorist who entered as an asylum-seeker was about 1 in 1.3 billion per year from 1975 through the end of 2017.
To put that small chance in context, the annual chance of being murdered in a homicide in the United States is about 89,000 times as great as being murdered in a terrorist attack by an asylum-seeker during the same 43-year period.
Altogether, terrorists who initially entered as asylum-seekers or illegal immigrants accounted for only about 0.3 percent of the 3,037 people murdered in attacks committed by foreign-born terrorists on U.S. soil during that time.
As terrible as each of those murders were, they are not a sufficient national security justification for changing asylum rules and potentially deny many legitimate claims.
There are few foreign-born terrorists who want to commit attacks on U.S. soil, but the government’s revamped visa vetting system is superb at weeding them out. Asylum-seekers and everybody else seeking to enter the United States legally are rightfully subject to a vetting procedure that mistakenly permitted the entry of one radicalized terrorist for every 29 million visa or status approvals from 2002 to 2016 according to research by my colleague David Bier. Most of those terrorists didn’t murder anybody in their attacks, meaning that one radicalized terrorist was admitted for every 379 million visa or status approvals from 2002 through 2016.
Even by government standards, that’s an effective system.
Obviously, people who enter as illegal immigrants are not vetted by the government. However, none of those vetting failures from 2002-2016 was of an asylum-seeker who radicalized and had terroristic intents before coming here. They either entered as children or radicalized after their arrival.
To be fair to the president, it’s theoretically possible that the current caravan of Central Americans could contain entirely new national security threats that are different from the past. The Trump administration has revealed no evidence to indicate that this caravan poses more of a risk to national security than previous Central American migrants or that it contains “unknown Middle Easterners.” The government should have to show that these people threaten our national security.
The recent Supreme Court rubber stamp of Trump’s Muslim Travel Ban granted the president seemingly unlimited powers to close the border or to clog up the asylum system with new red tape. The major justification for new asylum rules has been the national security threat posed by the caravan. Regardless of the president’s power, there is no evidence that this caravan poses an actual national security threat.
Alex Nowrasteh is a senior immigration policy analyst at the Cato Institute.
Alex correctly points out that the Supremes took a “nose dive” in the “Travel Ban case” by allowing Trump to get away with a clearly bogus and discriminatory “national security” rationale. While Chief Justice Roberts, ensconced in the “Supreme Ivory Tower,” might have fantasized that his mealy-mouthed “words of caution” would have some restraining impact on Trump, as I had predicted, they did nothing of the sort.
No, it just showed Trump that Roberts and his GOP colleagues on the Court were afraid to stand up to him. The same type of obsequious sycophants to Executive power that Trump believes that he and Mitch McConnell (with help from the Heritage Foundation, voters who don’t understand their own best interests, and a subservient Senate majority) have been rapidly installing on the Federal Courts.
Unless and until Roberts & Co. get some backbone, read the Constitution, and “just say no” to Trump’s lies, racism, and disingenuous White Nationalist agenda, he’s going to continue to roll over them while crushing democracy and our Constitutional system of government along the way, not to mention destroying the lives of real human beings — something that the majority of today’s Supremes seem to have totally tuned out.
Meanwhile, while I never had pictured myself as having lots in common with the folks at Cato, I’m happy that Alex has the courage to expose both the irrational evil of Donald Trump and the gross dereliction of duty going on at the Supremes in such clear and understandable language.
If the Supreme aren’t willing to stand up for the Constitutional rights of the rest of us when it counts, they might well find their black robes, marble palace, and lifetime tenure scant protection when Trump or some future lawless demagogue in his mold comes after them.
Detention will continue to be a major problem, regardless.
Under the proclamation, DHS would not have to screen aliens to determine whether they have a credible fear of persecution for asylum purposes, but it would have to screen them to determine if they have a reasonable fear of persecution.
The United States is a signatory to the Refugee Convention, which prohibits expelling a refugee to a country where it is likely that he will be persecuted. Asylum just requires a well-founded fear of persecution.
America also is a signatory to the Convention Against Torture (CAT), which provides that, “No State Party shall expel … a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
Relief under these provisions is limited to sending the alien to a country where he would not be persecuted or tortured.
The proclamation should be withdrawn until these problems can be resolved.
Nolan’s conclusion ties in nicely to my preceding posts that confirm, as Nolan points out, that CBP, the Asylum Office, the Immigration Courts, and probably the Federal Courts are woefully unprepared for the additional chaos and workload that is likely to be created by Trump’s shortsighted actions. Like most of what Trump does in the immigration areas it demonstrates a chronic misunderstanding of the laws, how the system operates, the reality of what happens at the border, and ignores the views of career civil servants and experts in the area. In other words, a totally unprofessional performance. But, that’s what “kakistocracy” is all about.
We’ll see what happens next. I expect a U.S. District court ruling on the ACLU’s suit to stop implementation of the Executive Order and the “Interim Regs” to be issued in the near future.
President Donald Trumpsaid recently that, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.”
But the rest of the 195 countries (80 per cent) base citizenship at birth on the nationality or resident status of the child’s parents.
Perhaps Trump should have said instead that the United States and Canada are the only two developed countries that have it, and Canada is in the process of deciding whether to stop using it.
Why have most of the countries in the world rejected birthright citizenship?
. . . .
The fact that so many countries have rejected birthright citizenship doesn’t justify giving it up, but it does warrant taking a closer look at the practice.
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Go on over to The Hill at the link to read Nolan’s complete article. Among other things, he discusses the approaches of the UK, Canada, and Ireland.
Mexico already is encouraging the migrants in the caravan to apply for asylum in Mexico instead of in the United States. It has offered them temporary identification papers and jobs if they register for asylum in Mexico.
If Trump establishes third country agreements with a substantial number of countries, it could greatly reduce the number of asylum applications the United States has to consider.
Trump also is considering an executive order to keep asylum seekers from Central America out of the United States. Presumably, it would be based on section 212(f) of the INA, which reads as follows:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation … suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.
The Supreme Court upheld Trump’s travel ban order on the basis of this provision, but an order suspending the entry of asylum seekers from Central America would be challenged in the same lower courts that flouted precedent to reject his travel ban.
According to Eric Posner, a professor at the University of Chicago Law School, the courts created a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order.
And this time, the courts would have an objective basis available to them.
The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Trump also can arrange for persecution claims to be screened outside of the United States.
Moreover, the United Nations Refugee Agency, UNHCR, might be willing to process some of the Central American asylum seekers outside of the United States.
The only certainty is that Trump is preparing to take drastic action.
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Read Nolan’s complete article over at The Hill at the above link.
It‘s debatable whether Mexico qualifies as a “safe third country” for asylum purposes. Most notably , the Mexican Government has not entered into a qualifying agreement with the US, and currently shows little inclination to do so.
However, Nolan directs our attention to a very significant point. While Mexico might not be a “safe third country,” it probably is a “safer third country” than any of those in the Northern Triangle. Nolan correctly notes that some migrants already are choosing to apply for asylum in Mexico rather than continuing the hazardous and uncertain journey to the US border.
Given the clearly xenophobic, anti-asylum attitudes of the Trump Administration, the uncertainties of the current US process, the lengthy waiting times, and that only about one in three applicants who reach a final merits hearing in Immigration Court get asylum (and that rate will probably be lower for Northern Triangle applicants under the Sessions regime), more refugees from the Northern Triangle might want to seriously consider applying in Mexico instead.
Rather than making threats and wasting taxpayer money on ridiculous and unnecessary militarization of our border, the Trump Administration would be wiser to provide financial and professional support to Mexico in establishing a fairer, more professional, and more legitimate asylum adjudication system in Mexico.
As the TPS programs and NACARA have shown, refugees and other forced migrants from the Northern Triangle are generally law abiding, hard working, talented folks who could help Mexico both stabilize its society and further bolster its economy. With the Trump Administration’s disdain for internationalism and trade, there will be room for countries like China, Mexico, and India to advance their positions. Forced migrants from the Northern Triangle could help Mexico advance. And, in the long more economic equality between the US and Mexico could prove to be in everyone’s best interest.
The only solution is to find a way to process their asylum applications outside of the United States.
In July 2014, I suggested a way to do this to deter unaccompanied alien children from making the perilous journey from Central America to seek asylum in the United States. I proposed working with United Nations High Commissioner for Refugees (UNHCR) to set up refugee centers in Central America for children to make it unnecessary for them to travel to the United States.
A few months later, President Barack Obama announced the establishment of a Central American Minors (CAM) refugee program to provide in-country refugee processing by U.S. Citizenship and Immigration Services (USCIS) for qualified children in El Salvador, Guatemala, and Honduras.
Trump could establish such a program that would be open to adults too.
He also should be able to persuade UNHCR to process asylum seekers who come to the United States at a location outside of the United States if processing is limited to aliens who enter without inspection.
Notwithstanding claims to the contrary, undocumented aliens do not have a right to apply for asylum in the United States. Asylum is a discretionary form of relief. The asylum provision in the Immigration and Nationality Act just states that eligible aliens “may” be granted asylum.
The United States, however, is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
This obligation could be met by arranging for UNHCR to process their persecution claims in some other country with the understanding that an agreed upon number of them would be accepted by the United States as refugees.
It would have to be a very large number to make the program politically feasible.
Aliens who enter without inspection would be placed in expedited removal proceedings. The ones who fear persecution would be transferred to UNHCR. Asylum seekers also could go directly to the processing centers without having to make the journey to the United States.
The alternative is to accept the fact the that our 2,000-mile border is open to anyone who is willing to cross it illegally and ask for asylum.
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Go on over to The Hill at the above link to read Nolan’s complete article.
I disagree with Nolan’s statement that because asylum is, in the end, discretionary, there is no right to apply for asylum at the border or in the United States. The statute, 8 USC 1158(a)(1), specifically states that: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) irrespective of status, may apply for asylum in accordance with this section or . . . .”
It couldn’t be clearer that ANY MIGRANT, whether documented or not and whether applying at a port of entry or not, who reaches the U.S., including the border, is legally entitled to apply for asylum. While the ultimate granting of the application might be discretionary (I note, however, that current Article III Court decisions restrict the grounds for discretionary denial), the right to apply is clear. Moreover, in light of the obvious care and comprehensiveness that Congress used in insuring that EVERYONE at the border or in the U.S. could at least apply for asylum, I doubt that “blanket denials,” based solely on nationality and/or method of arrival would be proper exercises of discretion.
However, Nolan is correct in that the Supreme Court has held that the INA.s right to apply for asylum does not apply extraterritorially to individuals stopped before they can reach U.S. territory (such as interdiction).
Nolan and I agree on a major point: The Trump Administration should be using the overseas refugee processing provisions of the Refugee Act, the auspices of the UNHCR, and cooperation with other countries who have signed the UN Convention & Protocol to address forced migration issues abroad, closer to the sending country, wherever possible.
However, this Administration has shown little interest in doing that. Threats of sanctions, welshing on our own obligations to take overseas refugees under the Act, false characterizations of the refugees as “criminals and terrorists,” and threats to reduce or eliminate foreign aid aimed at solving the very infrastructure and societal problems that produce refugee flows are certainly not ways to show leadership and to inspire international cooperation in solving refugee problems.
Finally, for “Nolan’s Fan Club,” here’s a link to all 162 of his published articles:
But the prospect is now on the horizon of asylum seekers remaining in detention regardless of being able to establish a credible fear of persecution.
Attorney General Jeff Sessions is now reviewing that BIA decision to determine whether it should be overruled in light of the Supreme Court’s ruling in Jennings v. Rodriguez.
The Ninth Circuit had held that an alien who establishes a credible fear of persecution cannot be held indefinitely under the expedited removal provisions of the Immigration and Nationality Act without bond hearings every six months at which the government has the burden of showing that further detention is necessary.
The pertinent provision states when it’s been determined that a person has a credible fear of persecution, he “shall be detained for further consideration of the application for asylum,” and the Supreme Court held that this language “mandate(s) detention of aliens throughout the completion of applicable proceedings and not just until those proceedings begin.”
In other words, mandatory detention continues to apply until they have been granted asylum, deported, or – and this is key – they choose voluntarily to leave on their own.
If aliens placed in expedited removal proceedings have to be detained until they can be deported or are granted asylum, most of them will go home rather than stay at a detention center on a military base for several years with no realistic hope of being granted asylum.
According to Adam Cox, a leading expert on immigration and constitutional law, Justice Department lawyers under both Democratic and Republican administrations have argued that undocumented aliens apprehended at the border lack due process protections, and the Supreme Court has never clearly resolved the dispute.
There was an uproar – and some backtracking – over detaining children for even relatively short periods. How will the American public react to people – men, women, and children – being put in mandatory detention that can last for months or even years?
. . . .
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Go on over to The Hill at the above link to see Nolan’s complete article.
It’s likely that “Our Gang” of retired Immigration Judges will be weighing in on this issue in the near future. So, stay tuned for further developments.
