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  1. Will Muslim Americans be put in internment camps if more 9/11 attacks occur? by Nolan Rappaport



    Those who cannot remember the past are condemned to repeat it. While the possibility of internment camps for Muslim Americans may sound farfetched, it happened to Japanese Americans in World War II. Understanding how it happened to the Japanese Americans might help us to prevent it from happening again.


    A series of attacks by radical jihadist terrorists like the ones in Europe probably would not result in the internment of Muslim Americans, but an ongoing series of attacks as horrific as 9/11 would be a different matter. The fear and anger that would produce would be hard to control.


    The events leading to the internment of Japanese Americans began at 7:55 a.m. on December 7, 1941, when hundreds of Japanese fighter planes attacked the American naval base at Pearl Harbor near Honolulu, Hawaii. The Japanese fighter planes destroyed almost 20 American naval vessels, including eight large battleships, and more than 300 airplanes. They also killed more than 2,000 Americans soldiers and sailors, and wounded another 1,000. Later that day, President Franklin D. Roosevelt issued a proclamation authorizing the removal of Japanese enemy aliens from the United States. The next day, he declared war on Japan. And four months later, he sent 16 B25 bombers on a secret mission to show that we could strike the interior of Japan. They bombed factory areas, oil storage facilities, and military installations in Tokyo.


    The Japanese American interments were not directed at the entire Japanese American population. Approximately 275,000 Japanese immigrants settled in Hawaii and on the mainland of the United States between 1861 and 1940, but the Japanese in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast. Although the Japanese farmers worked less than 4% of California’s farmland in 1940, they produced more than 10% of the total value of the state’s farm resources, which I think explains why civilian lobbyists from California joined the American military leaders in pressuring Congress and President Roosevelt to remove the Japanese Americans from the West Coast. The military leaders expected a Japanese invasion on the West Coast and were afraid that the Japanese Americans would provide behind the lines assistance to the invading army. Their views prevailed. On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which forced all Japanese Americans, regardless of loyalty or citizenship, to leave the West Coast. Congress implemented the order on March 21, 1942, by passing Public Law 503.


    The government relocated more than 120,000 people to internment camps located across the country. Approximately 70,000 of them were American citizens. The government made no charges against them, and they could not appeal their incarcerations. All of them lost their personal liberties; most also lost homes and property. The internments included more than 300 Italian Americans and more than 5,000 German residents.


    The internments were challenged in court and the case ultimately was heard by the U.S. Supreme Court. In Korematsu v. United States, 323 U.S. 214 (1944), Fred Korematsu, a United States citizen, argued that he had been imprisoned in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty or disposition towards the United States. The Court found that to cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the West Coast because of hostility towards him or his race. He was excluded because we were at war with the Japanese Empire, and American military authorities feared an invasion of our West Coast. They decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be removed from the West Coast temporarily, and Congress, reposing its confidence in this time of war in our military leaders, determined that they should have the power to do it.


    It is conceivable that a similar argument could be made to put Muslim Americans in internment camps in the midst of an ongoing series of horrific terrorist attacks, but it seems extremely unlikely that the internments would be directed at the entire Muslim population.


    The Japanese American interments were not directed at the entire Japanese population. The Japanese Americans in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base at Pearl Harbor near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast, which is where the perceived invasion threat existed.


    In contrast, putting the entire population of Muslim Americans in internment camps on the basis of a threat from a few terrorist organizations probably would be viewed by the courts as racism. It would be farfetched to claim that most or even many Muslim Americans would actively support terrorist attacks on America.


    The interments almost certainly would have to be limited to Muslim Americans who might actually be terrorists or terrorist supporters. This would be similar to the way our Justice Department limited the National Security Entry-Exit Registration System (NSEERS) program, which was established after 9/11 to identify terrorists as quickly as possible. NSEERS only applied to males 16 years of age or older who were nationals or citizens of specified countries. Nevertheless, even the interment of a relatively small number of Muslim Americans without evidence of terrorist involvement would run counter to American values. Moreover, it could alienate the Muslim community, and their help would be needed to identify and locate the terrorists.

    Published originally in Huffington Post
    http://www.huffingtonpost.com/entry/57ec0d3be4b0972364deaa05?timestamp=1475119421314

    ___________________________________________________________________________________

    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. Does anyone really know how many undocumented aliens there are?



    Pew Research Center (PEW) is the gold standard for estimates on the number of undocumented aliens living in the United States. According to PEW, the overall number of undocumented aliens has held steady since 2009. But are the PEW numbers really reliable? What methodology does PEW use to calculate them? Fortunately, PEW explains its methodology on its website. Its estimates are based on a residual estimation methodology that compares a demographic estimate of the number of immigrants lawfully residing in the country with the total number of immigrants as measured by a survey. The difference is assumed to be the number of unauthorized immigrants. This is easier to understand in the form of an equation.


    Unauthorized Immigrants (U) = Survey, Total Foreign Born (F) - Estimated Lawful Immigrant Population.


    The lawful resident immigrant population is estimated by applying the demographic methods to counts of lawful admissions which are obtained from the Department of Homeland Security (DHS) Office of Immigration Statistics, with projections to current years, when necessary. Some of the statistics on lawful residents should be very reliable. DHS grants Lawful Permanent Resident status and other forms of lawful status and keeps records of the grants. But it has been estimated that 40% of the undocumented alien population entered as nonimmigrant visitors of various types. This includes aliens who entered as nonimmigrant visitors for pleasure and did not leave when their admission periods expired and other categories of nonimmigrants who violated the terms of their admissions. DHS does not know at any given time how many of the nonimmigrants are still in lawful status.


    The foreign born population includes anyone who is not a U.S. citizen at birth, including those who become U.S. citizens through naturalization. PEW estimates of the total foreign born population are based primarily on government census surveys. It currently relies on the U.S. Census Bureau’s American Community Survey. This survey includes questions on race, place of birth, citizenship, and when a person came to live in the United States. It is a nationwide survey designed to provide communities with reliable and timely demographic, housing, social, and economic data every year. About 3.5 million housing unit addresses are selected annually. That may sound like a large number, but it is less that 2% of the more than 180 million addresses in the United States. And the United States population in 2015 was estimated to be 321,418,820 people. These addresses cover every county in the nation. The forms are mailed to the selected addresses, not to individuals. For 2015, the American Community Survey selected 3,540,307 addresses in its survey of housing units and had 2,305,707 final interviews. The American Community Survey also selected 206,630 group quarters facilities, such as college dormitories, nursing homes, and prisons; and had 161,865 final interviews at these locations.



    PEW also has relied on statistics from the March Supplement to the Current Population Survey. But PEW has dropped that survey because the American Community Survey provides a much larger sample size. In 2014, it produced statistics on 360,000 foreign born individuals, and the March Supplement only provided statistics on 26,000 foreign born individuals. PEW has replaced its March Supplement estimates from 2005 onward with American Community Survey-based estimates.


    I have several concerns about PEW’s reliance on the American Community Survey. First, I would be very surprised if many households with an undocumented alien are willing to participate in a government survey of any kind; and this one includes questions about race, place of birth, citizenship, and when a person came to live in the United States. An undocumented alien would not have to be paranoid to be suspicious about why those questions are being asked. I encourage you to read a sample of the form and judge for yourself. Second, I do not understand how PEW can make a reliable estimate of the total foreign born population on the basis of a survey that is sent to such a small portion of our population, particularly in view of the fact that the surveys are spread out across every county in the United States, which makes it unlikely that a reliably representative sampling is taken anywhere. In fact, roughly 35% of the 3,540,307 mailings did not result in a final interview. The surveys at group facilities are even less impressive. Who are these people who would not participate in the survey? How different would the results have been if they had participated?


    The problem is not that PEW is using questionable statistics for estimating the lawful immigrant population or that its source of statistics for estimating the foreign born population is unreliable. Math was one of my majors in college. Philosophy was the other. I know that estimates based on such statistics typically are not very reliable. The problem is that PEW’s estimates on the number of undocumented aliens in the United States are being used to make important policy decisions. For instance, the illegal immigration situation is much different if PEW is right that the population of undocumented aliens has remained steady since 2009, than it would be if the population actually has increased from five million to 33 million. Another example is legalization. Estimates for the resources and funding needed for a legalization program are based on PEW’s estimate of how many undocumented aliens there are. The bottom line is that we need to find a more reliable way to estimate the population of undocumented aliens.


    Published originally in Huffington Post.
    http://www.huffingtonpost.com/entry/...=1474689173130


    About The Author
    Nolan Rappaport
    was detailed to the House Judiciary Committee as anExecutive Branch Immigration Law Expert for three years; he subsequentlyserved as the immigration counsel for the Subcommittee on Immigration, BorderSecurity, and Claims for four years. Prior to working on the Judiciary Committee,he wrote decisions for the Board of Immigration Appeals for twenty years. Healso has been a policy advisor for the DHS Office of Information Sharing andCollaboration under a contract with TKC Communications, and he has been inprivate practice as an immigration lawyer at Steptoe & Johnson.






    Updated 09-26-2016 at 04:23 PM by ImmigrationLawBlogs

  3. Deportation Without Due Process? by Nolan Rappaport



    Our immigration court system is in the midst of a crisis. The number of cases awaiting resolution reached 496,704 as of the end of June 2016, and the flow of new cases exceeds the number of cases completed each month so that the backlog will continue to grow. The end of June figure represents an average backlog of 1,819 cases for each of the 273 immigration judges. It would take about 2.5 years to clear up this backlog even if there were no new cases coming in. The House Subcommittee on Immigration and Border Security held a hearing on this on December 3, 2015. The solution considered at the hearing was to increase the number of immigration judges. Certainly, that would help, but I do not believe that the supply of qualified lawyers is big enough to make a sufficient increase. Even if it were possible, the resulting increase in decisions from the immigration court would greatly increase the backlog at the Board of Immigration Appeals. An alien who is dissatisfied with the decision of an immigration judge can appeal the decision to the Board of Immigration Appeals, and his deportation will be postponed while the appeal is pending.
    [/SIZE]


    The Board faced a similar backlog crisis in 1999 during the Administration of Bill Clinton. Unsuccessful attempts were made to handle the backlog by adding Board members and increasing support staff. When it became apparent that a different approach was needed, Attorney General Janet Reno changed the regulations governing the Board to reduce the number of cases that would receive a full review by creating a “streamlining panel.” Cases that can be disposed of quickly are directed to the streamlining panel for expedited processing by a single Board member. The rest of the cases are directed to a merits panel where they will be reviewed by three members. On the streamlining panel, a staff attorney reviews the file, prints out a form order that affirms or reverses the judge’s decision, and then a member signs the decision or sends it back to the staff attorney for a different disposition.


    I predict that something similar will be done to reduce the caseload of immigration judges. The obvious choice would be a modified stipulated removal program. Stipulated removal permits an alien in removal proceedings who does not want to fight deportation to waive his right to a hearing. When an alien has agreed to stipulated removal, an immigration judge will sign a deportation order without a hearing if he is satisfied that the requirements for a stipulated removal order have been met.


    I asked Wayne Stogner, a retired immigration judge, about this practice. He told me that stipulated removal orders were not common in his court, but he could recall times when 25 or so stipulated removal orders would be handed to him in chambers. The aliens were not present when he reviewed the orders. He only signed stipulated removal orders when he was satisfied from reviewing the documents that the aliens knew their rights and that their agreement to stipulated removal was voluntarily, knowingly, and intelligently made.


    Stipulated removal was authorized by section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which amended the Immigration and Nationality Act (INA). Initially, the implementing regulations specified that immigration judges could only accept such stipulations from individuals who were represented. In 1997, this language was amended by the Clinton Administration to allow the immigration judge to accept stipulations from unrepresented aliens.


    Former President Bill Clinton signed IIRIRA into law. It was included in a larger bill. In those days, it was possible to oppose “illegal” immigration without being called a racist or a bigot. When his chief of staff, Leon Panetta, gave a briefing on IIRIRA, he said, “We were able, I think, as a result of this negotiation to be able to modify — eliminate the large hits with regards to legal immigrants while keeping some very strong enforcement measures with regards to illegal immigration.” Moreover, Bill’s formal statement at the signing ceremony includes the following comment.

    This bill, ... includes landmark immigration reform legislation that builds on our progress of the last three years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system—without punishing those living in the United States legally.


    The pertinent part of the stipulated removal provision, section 240(d) of the INA, reads as follows:

    (d) Stipulated Removal. The Attorney General shall provide by regulation for the entry by an immigration judge of an order of removal stipulated to by the alien (or the alien’s representative) and the Service. A stipulated order shall constitute a conclusive determination of the alien’s removability from the United States.

    The essential elements of a stipulated removal order are specified in, 8 C.F.R. § 1003.25, which provides that the stipulation must include an admission that all factual allegations contained in the charging document are true; a concession of deportability or inadmissibility; and a waiver of the right to appeal the order. The objective of the regulation is to make sure that the alien knows what he is doing when he signs a stipulated removal agreement.


    The stipulated-removal program was rarely used until President George W. Bush ramped up immigration enforcement in 2004. From 2004 to 2010, more than 160,000 aliens were deported on the basis of stipulated removal orders. I was not able to find more recent statistics.


    According to the American Immigration Council, the vast majority of the 160,000 aliens who agreed to stipulated removal orders between 2004 and 2010, were in detention and were not represented by an attorney. Consequently, it is doubtful that their agreements really were voluntarily, knowingly, and intelligently made.


    There were strong objections to the streamlining panel too.

    Published initially on Huffington Post.
    http://www.huffingtonpost.com/entry/57e01aebe4b053b1ccf2a109?timestamp=1474393272060


    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.
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