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Update: August 12, 10:23 pm
The Hill reports that on August 12, Alberto Gonzalez, former Attorney General under President George W. Bush, has spoken out in support of using executive power to grant relief from deportation. See Ex-Bush attorney general backs executive action on immigration (August 12).
The Hill writes:
"But Gonzalez said the country should not let the 'souls of innocent children' be caught in a constitutional fight, citing the massive influx of young migrants who have crossed the border in recent months.
'This is not just a classroom exercise or court room drama', he said. 'This is a real world exercise involving human beings.'"
However, the same article reports that while Gonzalez said that border children should be given their day in court, they should not be released from custody before their deportation hearings, which could be months or years away.
The former AG might wish to take a closer look at the TVPRA, which requires that the best interests of the children be taken into account in any custody or detention arrangements pending their hearings. Holding them in lengthy detention or custody just to make the point that, in the former AG's words, the US "will enforce those laws to secure our borders", is a prime example of using the children as pawns in a legal battle over immigration which Gonzalez condemns in the previous quote cited above.
The following is my original post:
The hysterical and hypocritical accusations that President Obama is running an "imperial presidency" and should be impeached for using administrative power to grant relief from deportation ignore the fact that the doctrine of prosecutorial discretion in removal proceedings was already being used by his predecessor, George W. Bush. On October 24, 2005, William J. Howard, Principal Legal Advisor to ICE, issued a memo entitled simply: Prosecutorial Discretion.
The memo began by pointing out that OPLA (Office of the Principal Legal Advisor) was handling 300,000 removal cases in the immigration courts alone, not to mention 42,000 appeals to the BIA and 12,000 motions to reopen each year with only about 600 attorneys, allowing an average of only 20 minutes to prepare each case. The memo also stated that
"...we must prioritize our cases to allow us to place greatest emphasis on our national security and criminal alien dockets."
Sound familiar? The memo continued:
"...the universe of opportunities to exercise prosecutorial discretion is large."
The memo went on to give examples in which using prosecutorial discretion not to initiate removal proceedings, or to terminate proceedings already begun, might be appropriate. These included, among others,: immediate relatives of military service personnel, clearly approvable I-130/I-485 Adjustment of Status, and, significantly, sympathetic humanitarian factors. On this latter point, the memo stated:
"Deferred action should be considered when the situation involves sympathetic humanitarian circumstances that rise to such a level as to cry for an exercise of prosecutorial discretion."
The memo concluded:
"Prosecutorial discretion is a very significant tool that sometimes enables you to deal with the difficult, complex and and contradictory provisions of the immigration laws and case involving human suffering and hardship. It is clearly DHS policy that national security violators, human rights abusers, spies, traffickers both in narcotics and people, sexual predators and other criminals are removal priorities. It is wise to remember that cases that do not fall within these categories sometimes require that we balance the cost of an action versus the value of the result. Our reasoned determination in making prosecutorial discretion decisions can be a significant benefit to the efficiency and fairness of the removal process."
Many of the same politicians who are now threatening President Obama (who has deported people at a much faster rate than his predecessor) with impeachment over the use of executive power in removal proceedings were serving in Congress when this memo was issued less than 10 years ago. I do not recall that any of them were calling for President Bush to be thrown out of office for using his power to grant relief from deportation then.
Therefore, the furor over "executive overreach" in President Obama's DACA program (which will soon no doubt be called "Obamnesty" by immigration foes - I am surprised that they haven't thought of that yet!), is phony from alpha to omega.
If a Republican president were in power (such as George W. Bush, who was given to issuing signing statements claiming the right to ignore laws that he didn't like), no one would be hearing a word about an immigration-related "imperial presidency" - at least not from that side of the aisle.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been serving employment-based and family-based immigrants from many parts of the world for more than 30 years. His email address is email@example.com
Updated 10-20-2014 at 07:52 AM by ImmigrationLawBlogs
Around the beginning of June, 2014, I posted a series of comments relating to a determination made by the USCIS Texas Service Center that one of my clients had allegedly committed fraud or willful misrepresentation in connection with an I-140 self-petition for EB-1 extraordinary ability classification. The fraud finding was made without the slightest justification, without any prior notice or opportunity to rebut the charges, and was based on an egregious mischaracterization of the evidence in the case. See, for example, my ilw.com comments for June 6, 2014 and June 9, 2014.
I am happy to report that after my filing appropriate motions, the TSC, though a different examiner, has now issued a new decision specifically finding that there was no basis for the fraud determination and withdrawing that decision, while reopening the entire case in order to give the petitioner an opportunity to submit more evidence of eligibility for the requested EB-1 benefit.
I want to express my sincere thanks and appreciation to New York Senator Kirsten Gillibrand and her immigration counsel, Michael Eatroff, for their help in bringing this matter to the attention of a TSC supervisor. Their help was invaluable in having the TSC review and withdraw the unsupported fraud accusation, which could have destroyed the career in the US of someone who only "fault" was producing work which leading experts in the person's field have judged to be of extraordinary ability, as well as making an important original contribution to the field in question.
I also want to commend and express my appreciation to the Texas Service Center for its willingness to take a closer look at the facts of the case and for issuing a new decision which should ensure that this petition will be decided on the actual merits rather than on the basis of entirely misplaced accusations of wrongdoing.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years.
His practice is concentrated in H-1B and O-1 work visas, J-1 training visas, and green cards through labor certification and extraordinary ability, as well as through opposite or same sex marriage. His email address is firstname.lastname@example.org
Updated 08-30-2014 at 09:23 PM by ImmigrationLawBlogs
In a New York Times article, As U.S. Speeds the Path to Deportation, Distress Fills New Family Detention Centers (August 5), Julia Preston describes the gross violations of due process and fundamental human rights of the border children and their families which the Obama administration is engaging in as part of its efforts to show how tough it is on illegal immigration. Preston reports that children from Central America who arrive at the border with or without their families are being held at remote locations which are not set up to hold young children for a long time and are difficult for their lawyers to reach.
Even when lawyers are able to make it to the detention centers, they are not always allowed inside and are not able to file basic court documents. Preston describes the conditions at one such center, located in Artesia, New Mexico:
"Five immigration officers based in the center are interviewing migrants to assess their fears of persecution, and in a makeshift courtroom, immigration judges far away are hearing asylum cases via video teleconferencing. But lawyers who have made the long drive to Artesia, which is 240 miles from Albuquerque and 200 miles from El Paso, have discovered that there is no protocol to let them in and no means to file even basic court documents.
'They just set up this big deportation mill in the middle of nowhere', said Olsi Vrapi, an immigration lawyer based in Albuquerque. One woman he was assisting had her asylum claim swiftly denied by a judge while an associate from his office was standing outside the center, waiting to be let in."
"Families in Artesia face an uphill fight to avoid deportation. Lisa Brodyaga, a lawyer based in the Rio Grande Valley, is representing a Salvadorean woman, detained with her 11-year old daughter, whose police officer husband has refused to join forces with criminal gangs. The woman, whom Ms. Brodyaga identified only as O, to protect her privacy, had given a detailed account of her flight from gang members who camped out on the roof of her house and harassed her family in the food store, threatening to assault 'that which you hold most dear' - her daughter.
With space tight at the center, asylum officers interviewed the woman and her daughter together, Ms. Brodyaga said, and then ruled their fears were not credible."
"The few migrants who have qualified for release have been told they would not be allowed to post bond. According to court documents, government prosecutors argued that releasing any detainees from Artesia 'further encourages mass migration' and would 'create significant adverse national security consequences.'
Laura Lichter, a former president of the American Immigration Lawyers Association who helped mobilize a corps of lawyers to head to Artesia, said immigration officials appeared to be going through the motions of legal review. 'The perception', she said, 'is that people come there to get deported.'"
The callous indifference to the best interests of these vulnerable children, which the TVPRA makes paramount, as well as the travesty of justice and basic human rights which Preston describes in this article in the finest tradition of investigative reporting, shame America at its very foundations.
I wish to thank my distinguished colleague, Nolan Rappaport, for bringing this article to my attention. I apologize for not currently having access to the link, but for readers who do not subscribe to the New York Times, the article can be easily located through Google.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years.
His practice is concentrated in H-1B and O-1 work visas, J-1 training visas, and green cards through labor certification and extraordinary ability, as well as through opposite or same sex marriage. His concern with the legal rights of minor children began with the publication of his article: The Right to a Fair Trial in Juvenile Court , 3 Journal of Family Law 292 (1963).
Updated 08-06-2014 at 09:32 AM by ImmigrationLawBlogs
The Guardian reports that Meriam Ibrahim, a Sudanese woman who had been sentenced to death as an "apostate" from Islam because she married a Christian, and who had given birth in prison while in chains, arrived in the US on July 31 with her husband and their two children.
The report mentions:
"Sudan initially blocked Ibrahim from leaving the country even after its highest court overturned her death sentence in June. The family took refuge at the US embassy in Khartoum and after eventually leaving the country she met Pope [Francis] in the Vatican."
This courageous woman, who was compared to Rosa Parks in a speech by the mayor of Philadelphia, will live in Manchester New Hampshire, which has a Sudanese community of about 500 people.
Manchester itself has not been entirely free from the xenophobia and nativism toward refugees that is now creating conflict between hard right and even harder right representatives in the House over how many thousands of young people to deport, and how quickly. See POLITICO: House GOP in disarray. Border fight delays recess (July 31)
Three years ago, the New York Times reported that resistance to accepting more refugees was growing in that city, which had taken in more than 2,000 from various countries in the past decade and that the mayor of that city was calling for a halt to allowing any more to settle there. See: After Taking In Refugees for Years, New Hampshire City Asks for a Pause (November 25, 2011).
It is reassuring to know that Manchester, and America, still have room for Meriam Ibrahim and her family despite the voices of intolerance that are seeking to take away the right of vulnerable Central American children to apply for asylum in the US from intolerable conditions in their own countries. It is all too easy to forget that Meriam Ibrahim's husband, Daniel Wani, was once a child refugee in America, having fled to this country to escape civil war and becoming a US citizen before returning to live in South Sudan, as The Guardian also reports.
If Daniel Wani had not been granted refuge in the US as a child and become a US citizen, one has to wonder whether his wife would now be safely in America, free from the danger of being re-arrested and executed because of her religion.
Updated 08-01-2014 at 05:56 PM by ImmigrationLawBlogs
In my July 29 post, I showed that an overly restrictive interpretation of one of the most often used grounds for claiming asylum in the United States - showing that fear of persecution is based on membership in a particular social group (PSG) - has been regularly used by the Board of Immigration Appeals (BIA) to deny asylum claims based on fear of gang violence in Central America over the past 30 years. As I also mentioned, the alleged difficulty of overturning these decisions is now being used by immigration opponents as an excuse for advocating a change in the current law (TVPRA) guaranteeing an asylum hearing before an immigration judge to unaccompanied children (UAC's) from every country in the world (except for Mexico and, for some reason, Canada) who arrive at the US border and can show a credible fear of persecution in their home countries at their initial screening by a DHS officer.
The argument for changing the law in order to turn UAC's away without a hearing is based on the theory that almost all of them would lose at their asylum hearings and ultimately be deported anyway for the above reason.
However, some immigration opponents are apparently not satisfied with attempting to change the law in order to take away the right to an automatic removal hearing for UAC children from countries such as Guatemala, Honduras and El Salvador, with their powerful gangs and high homicide rates, who pass the initial screening.
Even if the BIA or the federal appellate courts (which in some cases are showing more openness than the BIA to claims that refusal to join or remain in a gang is a valid basis for PSG membership - at least if the gang is located in East Africa rather than Central America - see my July 29 post), were to abandon the restrictive approach to the PSG issue, these same immigration opponents apparently want to make sure that fewer Central American children will pass the initial screening required by the TVPRA.
Accordingly, with some signs of support from the Obama administration itself, immigration opponents in the House are trying to weaken another pillar of asylum law - namely the "credible fear" doctrine. See POLITICO: Johnson said to favor asylum law change (July 30).
Evidently, House Judiciary Committee Chairman Bob Goodlatte (R-VA), whom some immigration supporters had hoped (without much basis) would turn out to be a Knight in Shining Armor riding to the rescue of immigration reform less than a year ago, is worried that even the BIA's long standing unreasonably narrow PSG standard (which my colleague Nolan Rappaport thinks may take many years to change - I respectfully disagree with him, as I will discuss in an upcoming post) will not be enough to stop as many Central American border children (UAC's) from being granted asylum as Goodlatte would like to see sent home.
POLITICO reports that Goodlatte and Rep. Jason Chaffetz (R-Utah) have introduced a bill that seeks to tighten the credible fear standard by requiring UAC's to show that they have a credible fear of persecution according to a preponderance of the evidence in the initial screening, not just before an immigration judge.
This would make it harder, if not impossible, for Central American border children to pass the initial screening test for asylum hearings.
POLITICO quotes Goodlatte as sayibng that 92 per cent of asylum applicant are clearing the initial screening hurdle and gaining the right to asylum hearings before an immigration judge. If his proposed change goes into effect, the number may rapidly drop toward zero, because immigration judges are trained to determine whether someone has meet this strict legal standard. DHS border screening officers have no such expertise.
Therefore, Goodlatte's proposal amounts to another way of abolishing the TVPRA's guarantee of a full asylum hearing to Central American border children who can show a credible fear of persecution.
The even bigger danger in Goodlatte's proposal is that it could spill over into the way credible fear is interpreted in all asylum cases, not just the ones involving Central American children seeking refuge from gang violence.
POLITICO quotes Eleanor Acer of Human Right First as saying:
"A statutory change to the credible fear standard would undermine this country's global commitment to the persecuted and put lives at risk..."
And the same report quotes Law Professor Bill Ong Hing of the University of San Francisco as follows:
"You don't want to make a mistake when it comes to asylum...To me it's really disappointing to talok about setting up in a way that you don't find credible fear in so many cases."
"I'm very disappointed in the Obama administration. They're buying into the rhetoric of the critics of the border [children] that these kids couldn't possibly have valid claims for asylum..."
Even for those who (unlike myself) believe that most of these these children will be ultimately unsuccessful in showing that they have a credible fear of persecution or that they are members of a PSG, letting them have their day in court as provided for in our current law is the best way to uphold the values of America's justice system and its commitment to protecting people from every part of the world who are in danger of persecution in their own countries.
These protections need to be made stronger, not weaker.
Updated 07-31-2014 at 07:38 AM by ImmigrationLawBlogs