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  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state that the promise not to use application information for immigration enforcement purposes can be “modified, superseded, or rescinded at any time without notice” and was not intended to be relied upon in any legal proceedings.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

  3. Schumer is wrong; if Hillary Clinton is elected, immigration reform will be impossible. by Nolan Rappaport

    WASHINGTON TIMES

    In an interview with CNBC’s John Harwood, Senator Charles Schumer said that his Schumer-McCain immigration reform bill passed the Senate by a vote of 68-32. According to Schumer, in the next congress, the mainstream conservatives in the Senate and House, who are a majority, will say to the 50 congressmen on the hard right who seem to tie things in a knot, to go take a hike. Schumer, Clinton, and Ryan have all said that they will support immigration reform and some kind of international tax reform if it is tied to a large infrastructure program.

    The Senate has passed two major immigration reform bills, but both were opposed by a majority of the Senate Republicans. On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611, with a vote of 62 yeas and 36 nays. Only 23 Republican senators voted for it; the other 32 Republicans and four Democrats voted against it. On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. This time, only 14 of the Republicans voted for it; the other 32 voted against it. As could have been expected, both bills were dead on arrival when they reached the Republican-controlled House of Representatives.

    I am only aware of one successful immigration reform bill that had such one-sided political support, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which was an extremely harsh Republican bill. Ironically, IIRIRA was signed into law as part of a larger bill by Hillary’s husband, Bill. Bill’s formalstatement at the signing ceremony explicitly acknowledged that he was in favor of strengthening the rule of law by cracking down on illegal immigration. The pertinent part of his statement reads as follows:

    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 obstacle to comprehensive immigration reform today is that the Democrats and the Republicans have very different attitudes towards legalization. The Democrats believe that the 11 or so million undocumented aliens in the United States should have lawful status because they deserve it and it is the right thing to do. The Republicans, however, believe that the undocumented aliens are in the United States in violation of our laws and should be deported.

    But there is a way around that deadlock, the wipe-the-slate-clean deal that was the basis for the passage of the last comprehensive immigration reform bill thirty years ago, the Immigration Reform and Control Act of 1986 (IRCA). Faced with the realization that the 2.7 million undocumented aliens in the United States at that time were never going to be deported, which is just as true about the 11 million undocumented aliens we have now, the Republicans agreed to legalize the undocumented aliens who were already in the United States in return for an enforcement program and a secure border that would prevent a new group of undocumented aliens from taking their place. The Democrats got their legalization program but the promised enforcement program was never implemented and the border was never secured. By the beginning of 1997, the 2.7 million legalized aliens had been replaced entirely by a new group of undocumented aliens.

    I believe that the Republicans would agree to the same deal now if they were assured that this time, they would get border security and interior enforcement before a legalization program is implemented. The problem is that the Republicans would never trust Hillary Clinton to implement interior enforcement and without interior enforcement, border security is impossible. Knowledge that an undocumented alien will not be deported once he has reached the interior of the country is a powerful magnet that will draw undocumented aliens here from all over the world. This would be particularly true of aliens who can come here under the Visa Waiver Program.

    At a Democratic Presidential Debate on March 9, 2016, Hillary Clinton said that if she is elected, she would not deport any undocumented alien children and she would only deport undocumented adult aliens who have criminal records. As president, she would enforce the immigration laws humanely by focusing resources on detaining and deporting immigrants who pose a violent threat to public safety. And she is still making these promises.

    Ironically, immigration reform would be possible if Donald Trump is elected. If he tries to carry out his promise to deport the 11 million undocumented aliens, which already has been whittled down to deporting the criminals “and then we’ll see,” he will come to the same realization that previous Republican leaders have faced. It can’t be done. The Donald, however, is a proud man and he sees himself as a great deal maker. I would expect him to view bringing the two parties together on a comprehensive immigration reform bill as a great challenge. Being an experienced businessman, as opposed to being a politician, I would expect him to look for a compromise that would meet the essential needs of both parties instead of trying to achieve an outcome that would advance the agenda of his party. And he could be counted on to implement enforcement provisions and secure the border. My prediction is that the outcome would be a second Immigration Reform and Control Act, IRCA of 2017.

    Published originally in Huffington Post
    http://www.huffingtonpost.com/entry/...=1476841945194

    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 10-19-2016 at 05:55 PM by ImmigrationLawBlogs

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