ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Immigration Law Blogs on ILW.COM

description

  1. Will Trump Be Able To Use Information From DACA Applications In Removal Proceedings? By Nolan Rappaport


    AMERICA BY THE NUMBERS
    Kids at DACA rally

    In 2012, President Barack Obama used his executive discretion to establish the Deferred Action for Childhood Arrivals (DACA) Program. It grants temporary lawful status and work authorization to certain undocumented immigrants who came to the United States as children. The status expires in two years unless it is renewed.


    I do not think that President Obama intended information from DACA applications to be used as a basis for finding DACA applicants deportable in removal proceedings, but there is reason to think that it can be used that way. Apparently, he failed to tell the agency charged with implementing the program that application information should not be used for enforcement purposes.


    Lack of protection in DACA Program.


    President Obama frequently cites this observation by Robert Gates, his first defense secretary, “One thing you should know, Mr. President, is that any given moment, on any given day, somebody in the federal government is screwing up.” President Obama adds: “Even if you’re firing at a 99.9 percent success rate, that still leaves a lot of opportunity for things not to go as planned.” This is illustrated by the following paragraphs from the Frequently asked Questions list on the U.S. Citizenship and Immigration Services website for the DACA program, which explicitly state that the promise not to use application information for immigration enforcement purposes can be “modified, superseded, or rescinded at any time without notice” and was not intended to be relied upon in any legal proceedings. This will make it extremely difficult to prevent the use of information from DACA applications in removal proceedings.


    Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?

    A19: Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter. (Emphasis added.)

    Q20: If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?
    A20: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

    This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. (Emphasis added.)

    Would the deportability of DACA participants be difficult to prove in removal proceedings?


    DACA participants have acknowledged that they are aliens, and this is sufficient to establish a rebuttable presumption of deportability under section 237(a)(1)(B) of the Immigration and Nationality Act (INA) for being in the United States in violation of law, unless they can prove lawful presence. See section 291 of the INA, the pertinent part of which reads as follows:


    Sec. 291of the INA .... In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, ... If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.

    A better way to fix our broken immigration system.



    Congress writes the immigration laws, not the president. The president does have discretion on how he implements the laws, but what one president does with an executive order, a subsequent president can undo with a new executive order. Only Congress can provide lasting protections for immigrants who participate in legalization programs. The last permanent legalization program was established by the Immigration Reform and Control Act of 1986, which included a confidentiality provision that prevented information from legalization applications from being used in removal proceedings. The pertinent part of the confidentiality provision reads as follows:


    (5) Confidentiality of information. —- Neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—

    “(A) use the information furnished pursuant to an application filed under this section for any purpose other than to make a determination on the application or for enforcement of paragraph (6), ....

    Anyone who uses, publishes, or permits information to be examined in violation of this paragraph shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.

    (6) Penalties for false statements in applications....

    Will President Elect Donald Trump use information in DACA applications in removal proceedings?


    According to recent statements, he plans to focus deportations on convicted criminals, which basically is a continuation of President Obama’s enforcement priorities, and the backlog crisis in our immigration courts severely limits how many people he can put through removal proceedings.

    Published originally in Huffington Post.
    http://www.huffingtonpost.com/entry/...=1481150769288

    About the Author
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.



  2. President Elect Donald Trump will not be able to deport millions of people. By Nolan Rappaport



    11/10/2016 11:28 pm ET
    SAÚL MARTÍNEZ/NEWSCOM

    Pew Research Center (PEW) claims that the United States has 11 million undocumented aliens, but my examination of PEW’s methodology has persuaded me that its estimates of the undocumented population are unreliable. I believe that the actually number is much larger. In any case, I am sure it is at least that large.

    Will President Elect Donald Trump be able to deport 11 million undocumented aliens?

    Every alien accused of being deportable has a statutory right to a hearing before an immigration judge. The immigration courts always have had big backlogs, and the backlogs have continued to grow. The immigration court completed 181,575 cases in FY 2015, which is impressive for a court that only has 273 judges. Nevertheless, the number of cases awaiting resolution before immigration judges as of the end of October 2016, was 521,676. To put this in perspective, this was an average of 1,910 cases for each of the 273 immigration judges. The average wait time for a hearing as of the end of October was 675 days, which is a couple of months short of two years.



    If we add 11 million cases to the immigration court backlog, the new count would be 11,521,676. Even if no additional aliens enter the United States unlawfully, the average for each of the 273 immigration judges would increase to 42,204 cases, and the average wait time would increase to 14,915 days, which would be approximately 41 years. The number of immigration judges could be increased, but the increase would be limited by the availability of lawyers who are qualified to become immigration judges and willing to do so. Let’s suppose that the immigration court is tripled in size to 819 judges. The average wait time for a hearing would be reduced to 4,972 days, which would be approximately 13.6 years, still much too long.

    Right to Appeal a Deportation Order

    Aliens who have been found deportable by an immigration judge can delay the finality of their deportation orders by appealing to the Board of Immigration Appeals, and they cannot be deported while their appeals are pending. The Board, however, is not a statutory body. It was created by federal regulations, which specify its jurisdiction and powers, and the president can promulgate new regulations to eliminate the Board. But the Board is needed to reverse the mistakes that immigration judges make and to maintain consistency in the way the law is interpreted and applied. The Board received 284,667 cases in FY 2015 and completed 262,293, which is an impressive number for a Board that only has 17 members. Nevertheless, this left a pending case load of 16,945 cases. The Board’s work could be done more efficiently by replacing it with an immigration court made up of federal judges with limited jurisdiction, but that would just reduce the delay from appeals, not eliminate it, and it would take a while to establish and staff such a court.

    President Elect Donald Trump has two alternatives.

    When the impossibility of deporting 11 million undocumented aliens becomes apparent to President Elect Trump, he can press ahead anyway and fail miserably. Or, he can persuade the republican controlled congress to establish a legalization program that would reduce that number to a manageable level and foster better relations between the republicans and the immigrant community. This is the IRCA wipe-the-slate-clean and-start-over deal which was the basis for the last comprehensive immigration reform bill. The legalization program’s eligibility requirements could be drafted to exclude aliens who do not believe in our Constitution, who support bigotry and hatred, or who are undesirable in any other way he wants to specify; and make legalization available to qualified undocumented aliens who would be expected to flourish in our country and to embrace a tolerant American society. And extreme vetting could be required. Which alternative do you think he will choose?

    Start the legalization program with DACA participants.

    My suggestion is to start the program with children in the Deferred Action for Childhood Arrivals (DACA) Program. In addition to the availability of information about them in our public school system and elsewhere in the United States, they are the most sympathetic group. They are completely innocent of any wrongdoing. They did not choose to come here in violation of our laws. They were brought here by their parents. They would be the most Americanized of all of the groups of undocumented aliens. And, a bill for such a legalization program already exists that could be modified to satisfy President Elect Trump’s eligibility criterion, the Dream Act, which has had broad bipartisan support.



    Published initially on Huffington Post.
    http://www.huffingtonpost.com/entry/...74901#comments

    _______________________________________________________________________________


    About the Author
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson



    Updated 11-13-2016 at 10:46 PM by ImmigrationLawBlogs

Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: