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Blog Comments

  1. ImmigrationLawBlogs's Avatar
    No one who has read the Compact would suggest looking through it for suggestions on how to deal with migration problems. Don't believe me? Read it and see for yourself.

    I am not withdrawing from the comment I made in my article. The Compact addresses problems that need to be dealt with. But it fails to provide feasible solutions.

    Nolan Rappaport
  2. ImmigrationLawBlogs's Avatar
    I am not in the slightest way advocating that Congress should scrap our current immigration laws and adopt the Compact in toto or that the US should even join the Compact, once it is fully developed.

    I will only repeat Nolan's own statement above that the Compact "addresses problems that need to be resolved."

    By continuing to participate in the Compact drafting process the US might have been able to make a useful contribution to doing that.

    However, Nolan is unquestionably right when he writes at the beginning of his article that the Compact is in many respects, "inconsistent with Trump administration immigration principles".

    I certainly agree with Nolan about that statement. As to what the Trump administration immigration principles actually are, I have written numerous comments about that topic in my own Immigration Daily blogging posts, including the latest one which appears in the same July 20 issue as Nolan's comment does.

    I am sure that the parents of the almost 3,000 forcibly separated children, including, according to one report, a 3-month old baby, who were torn away from their parents based on one of the Trump administration's immigration principles which Trump was forced to abandon by enormous public pressure across the political spectrum, including publicly announced disapproval by Trump's own First Lady, would have some comments to make about the Trump administration's immigration principles also.

    However, following the UN Compact's humanistic immigration principles with regard to families, parents and their children- admittedly very different from the immigration principles of the Trump administration - would unquestionably have have avoided the disaster which took place at the Mexican border in May and June of this year - and which the administration is now making efforts to remedy -even though it will be known to future generations as one of the darkest moments in America's entire immigration history.

    Following the Compact's humanistic family-centered immigration principles would also help to prevent another brewing Trump administration disaster - namely the virtual elimination of most family immigration visas by reported DHS plans to change its regulations regulations in order to distort and vastly inflate the meaning of the "Public Charge" grounds of inadmissibility- without consulting or getting any permission from Congress as a president is supposed to do - and as Nolan agrees the president is supposed to do.

    In his above cited article, Nolan also warned against eliminating family immigration. Maybe the Compact contains a few immigration principles worth paying some attention to, even (or precisely because) they conflict with those of the Trump administration.

    I have written about the DHS reported plans to destroy most of America's family immigration system (and the Diversity visa) by using "Public Charge" as a pretext in more detail in my own Immigration Daily blogging comments.

    Roger Algase
    Attorney at Law
    Updated 07-21-2018 at 12:42 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Roger compares the UN's compact which would require a change in American law and the way we secure our borders to Trump proposing a change in our laws to adopt a Canadian-style point system.

    I don't understand that comparison. Trump is doing what he is supposed to be doing in a democracy to change the law. He is making his proposals to Congress, which has the authority to make the changes he is requesting.

    And Roger asks why there should be an objection to considering the proposals in the UN compact as a basis for amending our immigration laws. The compact is a poorly written, sophomoric plan to revise the way the member nations secure their borders, issue immigrant visas, and so on.

    As I said in my article, the compact identifies problems that need to be addressed, but it doesn't offer sensible solutions.

    Moreover, even if Trump agreed with the compact, he wouldn't have the authority to comply with it.

    The most he could do would be to encourage Congress to repeal the Immigration and Nationality Act and replace it with a new immigration bill that would please the UN.

    Roger, I will only make one request. Read the compact before you make any more statements about Trump's decision not to follow it.

    Nolan Rappaport
    Updated 07-20-2018 at 11:06 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    As I read Nolan's article, it quite clearly says that the UN's proposal should not be considered because it conflicts with US "sovereignty". He also gives numerous examples above as to what he sees as conflicts between the UN Compact and US immigration law and then suggests rejecting the compact because it would "usurp" Congressional control over our immigration system - i.e. conflict with our laws.

    I note that when Trump and his Congressional allies proposed changing our laws to adopt a Canadian-style point system, even though Nolan wisely disagreed with Trump's and his allies' ultimate objective of drastically limiting family immigration, Nolan had no objection in principle to the idea of America's looking to a foreign point system as a model for our own law.

    http://thehill.com/blogs/pundits-blo...-a-blessing-to

    Why should there be any objection to considering some of the proposals in the UN compact as a possible basis for amending our immigration laws - which our own president apparently despises in their present form anyway?

    No one is suggesting that Congress should turn its law-making responsibilities over to the United Nations. That would be absurd.

    Roger Algase
    Attorney at Law


    Updated 07-20-2018 at 10:51 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    There is only one problem with Nolan's argument that any international immigration principles and proposals that might conflict with US law should be thrown out. Donald Trump has said (in a June 30 tweet) that America's immigration laws are the "dumbest anywhere in the world".

    http://www.foxnews.com/politics/2018...the-world.html

    If our own president has such contempt and disdain for his own country's immigration laws, what reason is there to reject considering some of the ideas, principles and suggestions made by the United Nations merely because they might be inconsistent with our own laws - for which our own Chief Executive has so little respect?


    It is also worth noting that when some US immigration opponents think that certain aspects of our own law are too friendly to immigrants, they have no hesitation in urging the US to imitate foreign law.

    This issue has come up recently in two contexts - first with regard to birthright citizenship, where some immigration opponents have pointed to more restrictive foreign laws as a model for America to follow.

    The other context relates to the alleged conflict between a family based system, which Trump and his Congressional supporters say they oppose (except when the First Lady's European parents arrived here recently with their green cards); and a so-called "merit-based" immigration system (which the Trump administration is actually trying to sabotage in the US with recent actions against H-1B and other high skilled employment-based visas).

    Trump's supporters are pointing to the laws of Canada, Australia and other countries in arguing that the US should change its laws to bring them closer to foreign laws.

    Therefore, Nolan's argument to the effect that no foreign laws or proposals are worth considering if they conflict with existing US law (whatever merit there may or may not be to this proposition) is being undercut by Trump himself and many of his supporters in their zeal to do away with immigrant protections and immigrant rights which are in our current laws.

    Roger Algase
    Attorney at Law
    I stopped reading Roger's comment after I finished the first sentence, "There is only one problem with Nolan's argument that any international immigration principles and proposals that might conflict with US law should be thrown out."

    That is a gross distortion of what my article is about. My point is summed up nicely in this paragraph. I think it is the fourth one.

    Ambassador Nikki Haley, the U.S. representative to the UN, explained in a press release that, “The global approach in the New York Declaration is simply not compatible with U.S. sovereignty.” America decides how best to control its borders and who will be allowed to enter.

    Nolan Rappaport
    Updated 07-20-2018 at 10:27 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    There is only one problem with Nolan's argument that any international immigration principles or proposals that might conflict with US law should be thrown out. Donald Trump has said (in a June 30 tweet) that America's immigration laws are the "dumbest anywhere in the world".

    http://www.foxnews.com/politics/2018...-in-world.html

    If our own president has such contempt and disdain for his own country's immigration laws, what reason is there to reject considering some of the ideas, principles and suggestions made by the United Nations merely because they might be inconsistent with our own laws - for which our own Chief Executive has so little respect?

    It is also worth noting that when some US immigration opponents think that certain aspects of our own law are too friendly to immigrants, they have no hesitation in urging the US to imitate foreign law.

    This issue has come up recently in two contexts - first with regard to birthright citizenship, where some immigration opponents have pointed to more restrictive foreign laws as a model for America to follow.

    The other context relates to the alleged conflict between a family based system, which Trump and his Congressional supporters say they oppose (except when the First Lady's European parents arrived here recently with their green cards); and a so-called "merit-based" immigration system (which the Trump administration is actually trying to sabotage in the US with recent actions against H-1B and other high skilled employment-based visas).

    Trump's supporters are pointing to the laws of Canada, Australia and other countries in arguing that the US should change its laws to bring them closer to the allegedly "Merit-Based " Point System of these foreign laws.

    Therefore, Nolan's argument to the effect that no foreign laws or proposals are worth considering if they conflict with existing US law is being undercut by Trump himself and many of his supporters in their zeal to do away with immigrant protections and immigrant rights which are in our current laws.

    Roger Algase
    Attorney at Law
    Updated 07-20-2018 at 10:19 PM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    I haven't read this document yet but only casually glanced through it. However, two passages from Section 15 on pages 4 and 5 of the Compact caught my eye. I respectfully suggest, every DHS, DOJ and DOS staff member who is in any way connected with immigration activities or policy should be required to recite these two passages at least once every day while facing the American flag with hand over his or her heart.

    The only exception would be for Donald Trump, Jeff Sessions and Stephen Miller, for whom once a day would not be nearly enough but every hour on the hour would be more appropriate.

    The passages I am referring to run as follows:

    First:

    "The Global Compact ensures that the human rights of women, men, girls and boys are respected at all stages of migration, their specific needs are properly understood and addressed and they are empowered as agents of change."

    Second:

    "The Global Compact promotes existing legal obligations in relation to the rights of the child, and upholds the best interests of the child at all times, as a primary consideration in all situations involving children in the context of international migration, including unaccompanied children and separated children."

    The
    horrendous, brutal and inhuman treatment of Central American and other non-white children who were separated from their parent and have now been reunited during their period of incarceration, however brief it may have been for some of the fortunate few who are now no longer separated, is reported in the July 15 Washington Post. See:

    Immigrant kids held in shelters describe being separated from their parents

    Why should these innocent children have been treated with such heartless sadism, even if their parents tried to enter the US contrary to law?

    As The Post's article shows, many of these children, although now reunited, may be scarred for life by what they went through in Donald Trump's America - something that this president will have to answer history for as long as America's history continues to be written.

    As for the Compact itself, on first glance, it appears as a wonderful goal to strive for in all matters regarding immigration, and Nolan should be thanked and appreciated for bringing it to everyone's attention.

    Roger Algase
    Attorney at Law
    Updated 07-15-2018 at 10:33 AM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Since I am not an asylum expert, I would ask if Nolan can clarify one point for me, as follows: Is an expedited removal proceeding the same as a Section 208 credible fear determination interview?

    My understanding was that expedited removal applies to people who don't have asylum claims and who meet certain standards for being removed that have nothing to do with asylum, such as being within 100 miles of the border, being in the US for only a short time, etc.

    Nolan also says "forget about Section 208" and then launches into a description of how a Section 208 credibility fear determination interview is conducted.

    Yes, these interviews may be cursory. But they are still mandated by Section 208, if I am reading the English language (my native tongue) correctly.

    Third, Nolan says that there will be uniform guidance on the issue of discretion to deny asylum claims which will apply across all enforcement agencies, including DHS and the DOJ.

    It is true that the USCIS memo, by its terms, is binding on that agency only, not on other branches of DHS such as ICE or CBP.

    Nor, of course, is it binding on the DOJ, including immigration judges.

    But, reading that memo, it appears to track Sessions' A-B- decision so closely that it would appear to be at least to prelude to the uniform guidance that Nolan mentions.

    And, on the issue of using unlawful entry as an excuse to deny asylum as a matter of discretion, the July 11 memo seems to hew pretty closely to BIA precedent by quoting from an old BIA decision (not an AG decision) putting some limits on how far unlawful entry can be used as as a grounds for denying otherwise valid asylum claims.

    This may provide some uniformity in asylum determinations (relating to this issue, it least), but this move toward uniformity does not seem to be in the direction of telling immigrants who enter unlawfully to make asylum claims to forget about asylum and seek some other relief, which as I understand it, seems to be the main point of Nolan's entire article.

    Roger Algase
    Attorney at Law


    Roger asks, “My understanding was that expedited removal applies to people who don't have asylum claims and who meet certain standards for being removed that have nothing to do with asylum, such as being within 100 miles of the border, being in the US for only a short time, etc.”

    It's apparent that I am not going to be able to explain expedited removal proceedings in brief comments. Consequently, I am providing a link to a CRS report that provides that information.

    https://fas.org/sgp/crs/homesec/R43892.pdf

    Roger says, “Nolan also says "forget about Section 208" and then launches into a description of how a Section 208 credibility fear determination interview is conducted.

    Yes, these interviews may be cursory. But they are still mandated by Section 208, if I am reading the English language (my native tongue) correctly.”

    This is why I told him to forget section 208. It sets forth the requirements for an asylum grant. It has nothing to do with expedited removal proceedings other than the fact that the alien asylum seeker in such proceedings has to establish a credible fear of persecution using the section 208 requirements.

    Roger says, “Third, Nolan says that there will be uniform guidance on the issue of discretion to deny asylum claims which will apply across all enforcement agencies, including DHS and the DOJ.

    It is true that the USCIS memo, by its terms, is binding on that agency only, not on other branches of DHS such as ICE or CBP.”

    The memo is just binding on USCIS employees who handle asylum cases, but it is still an excellent source of guidance for everyone else who deals with asylum cases because it explains Session’s recent decision on domestic violence persecution claims and provides guidance on applying it to asylum cases.

    Roger says, “And, on the issue of using unlawful entry as an excuse to deny asylum as a matter of discretion, the July 11 memo seems to hew pretty closely to BIA precedent by quoting from an old BIA decision (not an AG decision) putting some limits on how far unlawful entry can be used as a grounds for denying otherwise valid asylum claims.”

    Sessions isn’t going to revise the entire body of Board asylum precedents. In fact, his decision on domestic violence just reinstates the Board precedents on that subject that were in effect until the poorly written precedent he reverses was issued. See my article, “Domestic abuse decision doesn't change asylum law, just applies it correctly” (June 15, 2018),

    Roger says, “This may provide some uniformity in asylum determinations (relating to this issue, it least), but this move toward uniformity does not seem to be in the direction of telling immigrants who enter unlawfully to make asylum claims to forget about asylum and seek some other relief, which as I understand it, seems to be the main point of Nolan's entire article.”

    No, that isn’t the main point of my article. My article is a warning to Trump and Sessions that although they can deny asylum applications from aliens who enter without inspection as a matter of discretion, they can’t avoid an evaluation of their persecution claims to determine whether they are eligible for mandatory relief under withholding of deportation or the CAT convention.

    Incidentally, I expect them to exercise that discretion in an executive order based on section 212(f) using the recent Supreme Court travel ban decision as authority, not in individual proceedings. The benefit is that it would reduce the motivation to make illegal entries by depriving the aliens who enter that way of any possibility of remaining here lawfully on the basis of their persecution claims. The best they could hope for would be deportation to a third country where they won’t be persecuted.

    Nolan Rappaport
  9. ImmigrationLawBlogs's Avatar
    Since I am not an asylum expert, I would ask if Nolan can clarify one point for me, as follows: Is an expedited removal proceeding the same as a Section 208 credible fear determination interview?

    My understanding was that expedited removal applies to people who don't have asylum claims and who meet certain standards for being removed that have nothing to do with asylum, such as being within 100 miles of the border, being in the US for only a short time, etc.

    Nolan also says "forget about Section 208" and then launches into a description of how a Section 208 credibility fear determination interview is conducted.

    Yes, these interviews may be cursory. But they are still mandated by Section 208, if I am reading the English language (my native tongue) correctly.

    Third, Nolan says that there will be uniform guidance on the issue of discretion to deny asylum claims which will apply across all enforcement agencies, including DHS and the DOJ.

    It is true that the USCIS memo, by its terms, is binding on that agency only, not on other branches of DHS such as ICE or CBP.

    Nor, of course, is it binding on the DOJ, including immigration judges.

    But, reading that memo, it appears to track Sessions' A-B- decision so closely that it would appear to be at least to prelude to the uniform guidance that Nolan mentions.

    And, on the issue of using unlawful entry as an excuse to deny asylum as a matter of discretion, the July 11 memo seems to hew pretty closely to BIA precedent by quoting from an old BIA decision (not an AG decision) putting some limits on how far unlawful entry can be used as as a grounds for denying otherwise valid asylum claims.

    This may provide some uniformity in asylum determinations (relating to this issue, it least), but this move toward uniformity does not seem to be in the direction of telling immigrants who enter unlawfully to make asylum claims to forget about asylum and seek some other relief, which as I understand it, seems to be the main point of Nolan's entire article.

    Roger Algase
    Attorney at Law

    Updated 07-13-2018 at 07:57 AM by ImmigrationLawBlogs
  10. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I refer to USCIS Guidance Memo PM-602-0162 dated July 11, 2018, which is now available online, entitled:

    "Guidance for processing Reasonable, Credible Fear, Asylum and Refugee Claims in Accordance with Matter of A-B- "


    The Memo states in relevant part (on pages 7 and 8):

    "Of particular note, the BIA has held that unlawful entry 'is a proper and relevant discretionary factor' and can even be a 'serious adverse factor, but should not be considered in such a way that the practical effect is to deny relief [asylum] in virtually all cases'"

    (Italics in above quoted part of the Memo added.)

    Doesn't this just issued USCIS guidance memo directly contradict Nolan's apparent point (if I understand him correctly) that the Trump administration is planning to instruct asylum adjudicators to deny asylum as a matter of "discretion" in all cases where the applicant has entered the US illegally?

    And if he is planning to do so, does the president to have the authority to overturn all these BIA (and perhaps also judicial) precedents by executive fiat?

    If he does, then America may be coming even closer to the verge of dictatorship in the "Donald Trump Era" of immigration than I have been contending.

    Nolan argues that there may be viable alternatives to asylum for certain immigrants who may have a reason to fear persecution.

    Is there also a viable alternative to democracy in the United States of America?

    I also do not understand where "expedited removal" comes in with respect to asylum seekers. Are they still not entitled to a "credible fear" determination by an immigration officer under INA Section 208, no matter how "undocumented" or unlawful their entry to the US may have been?

    Is Nolan arguing that the unlawful entry gives the interviewing officer unlimited discretion to determine that the applicant lacks "credible fear"?

    That would not be a reasonable reading of either INA Section 208 or the above July 11, 2018 USCIS guidance memo, I respectfully submit.

    Roger Algase
    Attorney at Law
    Roger refers to USCIS Guidance Memo PM-602-0162 dated July 11, 2018


    I have not read the memo yet and don’t have time to do it tonight, but I may be able to answer Roger’s questions anyway.


    According to Roger, the memo says, "Of particular note, the BIA has held that unlawful entry 'is a proper and relevant discretionary factor' and can even be a 'serious adverse factor, but should not be considered in such a way that the practical effect is to deny relief [asylum] in virtually all cases'"


    Doesn't this just issued USCIS guidance memo directly contradict Nolan's apparent point (if I understand him correctly) that the Trump administration is planning to instruct asylum adjudicators to deny asylum as a matter of "discretion" in all cases where the applicant has entered the US illegally?


    That’s not my understanding of Trump’s intention. I think the plan is to handle aliens who enter without inspection without taking them before asylum adjudicators. I wrote the article to warn him that the United States has treaty obligations that prohibit that kind of summary treatment of aliens who claim a fear of persecution or torture. The courts will use those treaties to stop him, and this time the Supreme Court isn’t going to save him.


    And if he is planning to do so, does the president to have the authority to overturn all these BIA (and perhaps also judicial) precedents by executive fiat?


    That’s not the way it works. The BIA created the mess we are in by failing to reign in judges who grant most of their asylum applications or the judges who deny most of them.

    The main reason to have a BIA is to maintain uniform application of the law. They haven’t done that, and they have made matters worse by issuing poorly written precedents. Read the AG’s decision on domestic violence as a persecution ground if you don’t know why I mean.


    But presidents don’t fix problems like this. It’s AG Sessions responsibility. He has complete, absolute power over the Board. The authority they operate under was given to the AG by the Immigration and Nationality Act. That authority was delegated to the BIA by regulation and the entire EOIR operation can be shut down by withdrawing those regulations.

    Sessions is trying to handle the BIA’s responsibilities by writing precedent decisions clarifying asylum law and providing directives to USCIS, CBP and ICE. Other methods will follow.


    BIA members and immigration judges who are unwilling or unable to follow his precedents and other directives will be fired. Ashcroft fired five Board members while I was working there.


    Roger also asks, “I also do not understand where "expedited removal" comes in with respect to asylum seekers. Are they still not entitled to a "credible fear" determination by an immigration officer under INA Section 208, no matter how "undocumented" or unlawful their entry to the may have been?”


    Before expedited removal proceedings, when aliens appeared at a port of entry and asked for asylum, they were allowed to enter and released on a promise to return for their hearings, never to be seen again.

    To stop that, IIRIRA created expedited removal proceedings. Under this system, aliens are kept in mandatory detention until they have a credible fear determination. If they establish a credible fear, they are let in for a hearing and released on a promise to return.

    Currently, there is a two year wait for a hearing. Guess how many of these aliens ICE will be able to find two years from now when hearings can be scheduled for them? But the ones who can't pass the credible fear test won't be allowed in.

    There are two groups of undocumented aliens who are subject to these proceedings, aliens who asks for asylum at a port of entry and aliens who enter without inspection and are caught by the border patrol near the border.

    The directive to USCIS is a different matter. USCIS handles what they call affirmative asylum applications. These are applications that aliens who are not in removal proceedings file on their own initiative.

    The other kind is called defensive. These are submitted to immigration judges in removal proceedings for relief from deportation.

    The aliens who appear at a port of entry will be given credible fear determinations in expedited removal proceedings……but there is a limit of how many of them can be processed in such proceedings and that limit has been exceeded. That’s why CBP is sending officers into Mexico to take undocumented aliens out of line and tell them to come back another time.

    This problem is likely to get much worse as the number of aliens appearing at ports of entry for asylum increases.

    Because they are in Mexico and have no entry documents, there is nothing they can do about it.

    Finally, Roger says, “Is Nolan arguing that the unlawful entry gives the interviewing officer unlimited discretion to determine that the applicant lacks "credible fear"?”

    That would not be a reasonable reading of either INA Section 208 or the above July 11, 2018 USCIS guidance memo, I respectfully submit.”


    Forget section 208, Roger. It doesn’t apply in expedited removal proceedings the way you are suggesting. The immigration officer will decide whether an alien has a credible fear of persecution. If he decides that the alien doesn’t, he will write a very brief explanation which is reviewed by his supervisor. If the supervisor says no too, the alien can ask a judge to review the case, which just amounts to the judge looking at the written explanation and perhaps asking some questions. If the judge says no too, it’s over. The alien is tossed out of the country.

    Nolan Rappaport
    Updated 07-12-2018 at 10:44 PM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    I refer to USCIS Guidance Memo PM-602-0162 dated July 11, 2018, which is now available online, entitled:

    "Guidance for processing Reasonable, Credible Fear, Asylum and Refugee Claims in Accordance with Matter of A-B- "


    The Memo states in relevant part (on pages 7 and 8):

    "Of particular note, the BIA has held that unlawful entry 'is a proper and relevant discretionary factor' and can even be a 'serious adverse factor, but should not be considered in such a way that the practical effect is to deny relief [asylum] in virtually all cases'"

    (Italics in above quoted part of the Memo added.)

    Doesn't this just issued USCIS guidance memo directly contradict Nolan's apparent point (if I understand him correctly) that the Trump administration is planning to instruct asylum adjudicators to deny asylum as a matter of "discretion" in all cases where the applicant has entered the US illegally?

    And if he is planning to do so, does the president to have the authority to overturn all these BIA (and perhaps also judicial) precedents by executive fiat?

    If he does, then America may be coming even closer to the verge of dictatorship in the "Donald Trump Era" of immigration than I have been contending.

    Nolan argues that there may be viable alternatives to asylum for certain immigrants who may have a reason to fear persecution.

    Is there also a viable alternative to democracy in the United States of America?

    I also do not understand where "expedited removal" comes in with respect to asylum seekers. Are they still not entitled to a "credible fear" determination by an immigration officer under INA Section 208, no matter how "undocumented" or unlawful their entry to the US may have been?

    Is Nolan arguing that the unlawful entry gives the interviewing officer unlimited discretion to determine that the applicant lacks "credible fear"?

    That would not be a reasonable reading of either INA Section 208 or the above July 11, 2018 USCIS guidance memo, I respectfully submit.

    Roger Algase
    Attorney at Law
    Updated 07-12-2018 at 09:14 PM by ImmigrationLawBlogs
  12. ImmigrationLawBlogs's Avatar
    My original response to Nolan's above comment has been revised based on a July 11, 2018 USCIS guidance memo which may have appeared after Nolan's above article was written, since I do not see any reference to it in that article unless I have missed something. See below.

    Roger Algase
    Attorney at Law
    Updated 07-12-2018 at 09:12 PM by ImmigrationLawBlogs
  13. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Would the fact that granting asylum is discretionary insulate the administration from a lawsuit based on a claim that, in a specific instance, denial of asylum as a matter of discretion is an abuse of discretion or is arbitrary and capricious?

    Suppose an asylum claim is presented by someone who had been sentenced to death by a court in his/her home country for making a speech against the country's Leader?

    Suppose that the person had presented himself/herself at a legal border US crossing point and been turned away on the grounds that the post was "full" and only after that attempted to cross at an unauthorized point after receiving reliable information that his/her home country had sent agents to Mexico to try to kill the person.

    Asylum denial as a matter of discretion justified? Wouldn't this be a hard argument for even Donald Trump and Jeff Sessions to make?

    Roger Algase
    Attorney at Law
    It’s difficult to discuss asylum law with someone who knows so little about it.

    Roger asks, “Would the fact that granting asylum is discretionary insulate the administration from a lawsuit based on a claim that, in a specific instance, denial of asylum as a matter of discretion is an abuse of discretion or is arbitrary and capricious?”


    The discretion would be exercised in expedited removal proceedings, not in removal proceedings. The point of the regulation is to avoid hearings before the immigration court. And decisions in expedited removal proceedings are unreviewable unless there is a claim that the alien is an LPR, a US citizen, or has refugee status or some other form of legal status entitling him to enter the US.

    The Federal courts are explicitly denied such jurisdiction. The alien can't appeal to the Board of Immigration Appeals either.


    Then Roger asks, “Suppose an asylum claim is presented by someone who had been sentenced to death by a court in his/her home country for making a speech against the country's Leader?”


    The evidentiary difference between asylum and withholding of deportation is the likelihood that the persecution will occur. If the alien has been sentenced to death by a court, it’s a virtual certainty that he will be executed if he is returned to it.

    In fact, as I explain in my article, which apparently Roger didn’t read very carefully, the burden of proof in asylum is just a well-founded fear. If the persecution is more likely than not, relief is mandatory under withholding of removal, i.e., he can’t be sent back to his country.

    Read my article again, Roger. You will find that I say that asylum can be denied as a matter of discretion, but that doesn't mean that DHS won't have to evaluate persecution claims....or torture claims. If an alien has a legitimate claim under withholding or the CAT, he will have a right to present it to an immigration judge at a hearing.



    The issue in Roger's hypothetical situation would be whether carrying out the court's sentence constitutes persecution, and if so, whether the court entered it to punish the alien for being in one of the enumerated groups. If the answer is yes, the alien would be entitled to a hearing before an immigration judge.

    Then Roger asks, “Suppose that the person had presented himself/herself at a legal border US crossing point and been turned away on the grounds that the post was "full" and only after that attempted to cross at an unauthorized point after receiving reliable information that his/her home country had sent agents to Mexico to try to kill the person.”


    If an undocumented alien is standing at the border asking for asylum….or anything else, he has no rights. That changes if the port of entry accepts him for expedited removal proceedings, but not by much.

    Nolan Rappaport
    Updated 07-12-2018 at 04:39 PM by ImmigrationLawBlogs
  14. ImmigrationLawBlogs's Avatar
    Would the fact that granting asylum is discretionary insulate the administration from a lawsuit based on a claim that, in a specific instance, denial of asylum as a matter of discretion is an abuse of discretion or is arbitrary and capricious?

    Suppose an asylum claim is presented by someone who had been sentenced to death by a court in his/her home country for making a speech against the country's Leader?

    Suppose that the person had presented himself/herself at a legal border US crossing point and been turned away on the grounds that the post was "full" and only after that attempted to cross at an unauthorized point after receiving reliable information that his/her home country had sent agents to Mexico to try to kill the person.

    Asylum denial as a matter of discretion justified? Wouldn't this be a hard argument for even Donald Trump and Jeff Sessions to make?

    Roger Algase
    Attorney at Law
  15. ImmigrationLawBlogs's Avatar
    The above is not to say that betrayal is always such a bad thing in the immigration context. Hopefully, one day, Donald Trump will betray supporters such as Ann Coulter, Rush Limbaugh and Rep. Steve King (not to mention former KKK leader David Duke) and many others who are hoping to see him follow through with an avowedly white supremacist, Europeans only, agenda for both admitting legal immigrants and enforcement activities against unauthorized ones.

    Trump may have shown a few, but not very many, signs of such "betrayal" yet. His latest avowedly white nationalist rant, reported in the July 13 Washington Post, that Europe is losing its "culture" through (legal) Muslim immigration does not provide much reassurance along this line.

    Roger Algase
    Attorney at Law


    Updated 07-16-2018 at 10:19 PM by ImmigrationLawBlogs
  16. ImmigrationLawBlogs's Avatar
    I will, however, mention one point where I entirely agree with Matt's criticism of Obama. Obama, and the Democrats, have a long history of betraying promises they have made to immigrants and immigrant communities. Trump has never made any such promises (unless the immigrants in question happened to be from "Countries like Norway") and therefore it is much harder to accuse him of betrayal.

    However, before going too far with any possible "Trumpbama" comparisons in immigrant persecution and abuse, we should also ask ourselves which president established DACA and which one is trying to cancel it; which president granted TPS to hundreds of thousands of non-white immigrants and which president is taking it away; and which of the two presidents supported legal immigration as opposed to the one who is fighting so hard to eliminate legal visas that have benefited millions of mainly non-European immigrants, such as extended family and Diversity Visa green cards, to mention only two.

    The Obama - Trump comparison on immigration only works up to a certain point.

    Roger Algase
    Attorney at Law
    Updated 07-16-2018 at 10:18 PM by ImmigrationLawBlogs
  17. ImmigrationLawBlogs's Avatar
    With the highest respect to Matt as an immigration expert and distinguished advocate for immigrant rights, and without in any way trying to excuse Obama's past abuses or engage in an argument over numbers, should not the focus now be on the president who is actually calling the shots on immigration, rather than on one who no longer has any power to influence immigration policy?

    Again, I am not trying to defend Obama, only to focus on what is happening right now.

    If blaming Obama will help in reuniting all of the immigrant children who were torn away from their parents in the past two months at the border, some of whom were shackled and locked in cages by Trump's DHS according to news reports; or in preventing similar abuses in the future, than count me in among Obama's strongest critics too.

    Meanwhile, for the latest comment on what is actually taking place now, as opposed to admittedly important, but still past, history, see Alex Wagner writing in The Atlantic on July 11: She writes:

    "The Trump administration has, by design and disorganization, traumatized thousands of children and their parents fleeing desperate situations, and dealt with the ensuing crisis with a combination of turpitude, incompetence and foolhardiness."

    https://www.theatlantic.com/politics...making/564872/

    Yes, Obama had plenty of his own immigration disasters too. But who is in charge now?

    Roger Algase
    Attorney at Law
    Updated 07-16-2018 at 10:18 PM by ImmigrationLawBlogs
  18. MKolken's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Trump's numbers are much worse and cruelty more widespread and pervasive than under Obama.
    False. The abuses were just as widespread and pervasive. Democrats just didn't care to notice.

    Quote Originally Posted by ImmigrationLawBlogs
    And, bad as Obama certainly was, I don't recall any of his speeches accusing non-white immigrants of being "animals" or "infesting" the US as if they were rats or vermin.
    This is typical language of an Obama apologist: Obama wasn't a human rights violator because he said nice things.

    I really don't care what politicians say... I only care about what they do.
  19. ImmigrationLawBlogs's Avatar
    Nolan is correct in concluding that, under present circumstances, I am not a big supporter of America's 45th president or his administration. I might be more sympathetic to both if Trump had stuck more closely to the principles he set forth almost 20 years ago in a 1999 op-ed in the LA Times as a private citizen.

    In that op-ed, Trump criticized another well-known immigration opponent (and later unsuccessful presidential candidate) Patrick Buchanan, for trying to use attacks on immigrants and other minorities to gain political power.

    https://www.jweekly.com/2017/09/06/p...-pat-buchanan/

    Trump is now following in Buchanan's footsteps (minus, of course, Buchanan's antisemitism and outrageous attempts to defend Hitler, which Trump strongly condemned in that same op-ed), with, unfortunately, much greater success.

    Roger Algase
    Attorney at Law
    Updated 07-16-2018 at 10:18 PM by ImmigrationLawBlogs
  20. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Is Nolan saying that the issue of Trump's inhuman child separation policy issue has been resolved?

    That is not what the news reports are saying.

    https://www.cnn.com/2018/07/09/polit...ine/index.html

    Admittedly, however, despite evident failure by the Trump administration to keep proper records relating to the children and otherwise prepare for the eventuality that reunification would need to take place sooner or later, the DOJ is making efforts to comply with a court order and has already reunited at least a few of the youngest separated children.

    This shows that America is still functioning as a democracy in the Donald Trump era (though a far from perfect one).

    In a real dictatorship, judges who issue orders to the executive to do something against the ruler's will wind up in jail themselves - or dead.

    Thankfully, even though Trump has not included judges (or journalists, that other hallmark of free society) in general as being among his favorite people, America is not the Russia of Vladimir Putin or the North Korea of Jim Long Un (to mention two foreign tyrants whom Trump has arranged meetings with and praised more highly than many democratic leaders).

    America may be committing crimes against humanity with regard to young immigrant children of the "wrong" skin color (as a protester's sign claims as shown in the above CNN report) and otherwise heading toward dictatorship under Donald Trump.

    Fortunately, we are not there yet.

    Roger Algase
    Attorney at Law
    I didn't say that all of the children who were taken from their parents have been reunited. I said that Trump has stopped the practice of separating them. Reuniting them is another matter, and the Trump administration is doing that as quickly as it can.

    Roger is quick to seize on anything he thinks can be used to criticize Trump, but there is more involved in reuniting them than just how quickly it is down. Trump has to be sure that he is returning the kids to people who are really their parents.

    And in typical fashion, Roger has not responded to any of the points I made in my comment. His interest in these issues doesn't go much beyond finding things he can use to attack Trump or his AG.

    I would particularly like to know why he isn't upset about the fact that so many American children are being separated from parents who are in prison, which is what will happen to the alien parents in this situation if they are caught making a second illegal entry (for up to two years). I suspect it is because he hasn't figured out a way to blame Trump for that situation....yet.

    Nolan Rappaport
    Updated 07-10-2018 at 08:32 AM by ImmigrationLawBlogs
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