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National Journal reports that Guatemala, Honduras and El Salvador, the three countries which most of the unaccompanied children apprehended at the US border come from, are not well prepared to take them back after they are sent home from the US. See Returned Migrants Face Bleak Future, August 18
The NJ writes:
"The US isn't currently deporting unaccompanied minors at a rapid rate, but it's an issue that will come up again in Congress after the August recess. And immigration analysts, nonprofit workers and researchers are concerned.
'Transporting planeloads of kids is just setting the system up for failure', said Amy Thompson, an immigration policy analyst. 'I mean, there's really no system in place now.'"
The article continues:
"In Honduras, buses filled with families and unaccompanied minors caught in Mexico arrive in the country about 3 times per week, according to Juan Sheenan, Catholic Relief Services country representative in Honduras.
Quickly they're processed. The new arrivals are interviewed. Afterward, some head straight home to their communities; others stay in the shelter for no more than two to three days.
But if the children are sent back in droves, Honduran officials likely won't have the resources to address the return of myriad planes filled with children...
More staffing, medical supplies, food and shelter would be needed, and all that costs money. Claims of potential for abuse or violence of a child is returned to their [sic] home community should be investigated, Sheenan said."
Similar lack of resources also affect children sent back to Guatemala and El Salvador, even though some rudimentary programs now exist.
"But in all three countries, more services would be needed to provide a safety net at home if the US begins deporting unaccompanied minors swiftly, and it takes time to establish sustainable programs."
It is understandable that the US needs to protect its borders and enforce its laws. Our political leaders no doubt also need to protect their seats in Congress.
But should not America's immigration policies also take into account the need to protect the lives and welfare of the tens of thousands of children seeking refuge at our border, with or without their families? Is just loading them onto planes and sending them home as fast as possible really a solution?
Updated 08-20-2014 at 09:14 AM by ImmigrationLawBlogs
It is a sad reality that the legal doctrine placing broad (or "Plenary") power over immigration in the hands of the "political branches" of the federal government, with minimal supervision by the courts, originated in one of the worst periods of prejudice against foreign citizens based on race. I refer to the era of the Chinese exclusion laws in the late 19th and early 20th centuries.
While it would be unthinkable today to base immigration laws overtly on race (such as, for a hypothetical example: "No person of Amazonian Indian descent shall be admitted to the United States"), it was only as recently as 1965, less than 50 years ago, that the "national origins" quotas in the Immigration Act of 1924, which placed tight restrictions on immigration from countries outside of Northern Europe (unless they were in the "Western Hemisphere"), were abolished.
Even as recently as 2013, in S.744, which was, admittedly with considerable justification, regarded as an immigration "reform" bill, a provision was inserted which would have abolished the Diversity Visa program ("Green Card lottery". This was an obvious attempt to reduce immigration from Africa, which is major beneficiary of this program.
This is not the place to go into a detailed discussion of the shameful history of the Chinese exclusion laws. It is sufficient to note that their purpose was to make it as difficult as possible for persons of Chinese descent to enter the US, and as easy as possible to expel those who were already in this country with as little legal protection as possible.
One of the most famous Supreme Court cases of that period, which is still frequently cited as a basis for upholding broad Congressional/Executive power over immigration, is Fong Yue Ting v. United States 149 U.S. 698 (1893).
In that case, all Chinese living in the US were required by statute to obtain a "certificate of residence" (arguably a predecessor of today's green card), from an immigration official, based on proof that they had actually resided in the US for a certain required period of time.
Congress had set no standards or procedures for obtaining this certificate, and everything was left to the executive branch to decide (in anticipation of today's broad executive power over immigration). Anyone who failed to apply for or was unable to obtain such a certificate, which could be denied for any reason, was subject to summary deportation unless he or she, in a proceeding before a judge, could: a) show that failure to obtain the certificate was due to accident, sickness or some other unavoidable cause and, b) produce least one white witness to attest to the person's having resided in the US.
The US Supreme Court held that there was nothing in the Constitution to invalidate this law: The majority opinion went so far as to state:
"Congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country by executive officers, without judicial trial or examination, just as it might have authorized such officers absolutely to prevent his entrance into the country."
It is noteworthy, however, that this blatant assertion of quasi-dictatorial power over immigration on the part members of an unpopular minority (or what Virgil refers to, in the case of the ancient Trojans, as a genus invisum) did not go unchallenged by other Justices in that case.
In his dissenting opinion, Justice Field compared the assertion of unlimited power to expel Chinese living in the US with the persecution of Jews which was then taking place in Russia. He stated:
"Within three years Russia has banished many thousands of Jews and apparently intends the expulsion of the whole race - an act of barbarity which has aroused the indignation of all Christendom."
Unfortunately, he could not have known at that time that far worse was to take place in the century to come.
But, earlier in his same dissent, Justice Field was eerily prescient in anticipating the dilemma facing more than 50,000 border children today:
"The existence of the power this stated [in the first quoted passage above] is only consistent with the admission that the government is one of unlimited and despotic power so far as aliens domiciled in the country are concerned. According to this theory, Congress might have ordered executive officers to take the Chinese laborers to the ocean and put them into a boat and set them adrift, or to take them to the borders of Mexico and turn them loose there; and in both cases without any means of support; indeed, it might have sanctioned toward these laborers the most shocking brutality conceivable. I utterly repudiate such notions, and reply that brutality, inhumanity and cruelty cannot be made elements in any procedure for enforcement of the laws of the United States." (Bold added.)
It is easy to understand why anti-immigrant groups such as the Center for Immigration Studies (CIS) are so fond of quoting this and other Chinese exclusion law cases as a basis for arguing in favor of mass deportation of unwanted immigrants without due process of law, as mentioned in my previous post.
But is it not time to revisit these old Supreme Court cases, which are no more relevant to than 21st century American values of racial justice and equality than was the now long since overruled decision in Plessy v. Ferguson (1896) which upheld racial segregation in the schools?
However, as long as these decisions are still the law, there is nothing in them inconsistent with the idea of using broad executive power over immigration to allow immigrants to stay in this country instead of throwing them out.
In the meantime, the above quote from Justice Field's dissent of 121 years ago should be posted in the ICE border children's detention facility at Artesia, New Mexico, and every other immigration facility and courtroom in America.
It should also be posted in the White House and the halls of Congress.
Updated 08-19-2014 at 10:36 AM by ImmigrationLawBlogs
The following post has been revised and updated as of 10:15 am on August 18 to include a discussion of the legal basis for expanding work visa and green card availability, not only granting relief from deportation as in my original comment.
Now that it is becoming more likely that President Obama will use executive power to expand the number of people eligible for relief from deportation, the scope of and basis for this power is coming under more scrutiny from legal analysts and other commentators on both sides of the immigration divide.
Nor would expanded executive action necessarily be limited to deportation. POLITICO reports on August 18 that the White House is also talking with business leaders about using his executive power to make green cards and work visas available to more workers in industries such as high-tech, agriculture and construction. See Exclusive: White House meets with big biz on immigration.
Up to now, most of the discussion concerning executive action has been focused on the relatively narrow principle of prosecutorial discretion, a doctrine which, as its name implies, has its origins in criminal law and, at least for immigration purposes, is based on the practical reality that the government does not have the resources to deport every single last one of the estimated 11 million aspiring immigrants who are in the US without legal status (to the great chagrin of the Tea Party and other immigration opponents).
However, many people are asking whether the doctrine of prosecutorial discretion, which almost by definition is meant to be exercised on a case-by-case basis, is strong enough to support exempting (or "deferring") entire classes of people from deportation, as the president has done in the DACA program and is reportedly considering doing for an even wider group or groups of unauthorized immigrants. Moreover, the doctrine of prosecutorial discretion. also by definition, is useful only with regard to decisions about whether to take action against immigration law violators. It does not provide authority for expanding the reach of legal visas or green cards.
As the media have certainly not failed to notice, there are many voices, and not only coming from the Tea Party, being raised to question whether the courts would go along with any extensions of DACA through executive action. The same concerns are also being raised with regard to using executive action to expand legal immigration, such as recapturing unused green cards or making adjustments in existing work authorization programs. (See the above POLITICO article.)
But what if there is already an older, broader and more universally accepted legal doctrine in existence, one which has been recognized by the Supreme Court repeatedly for more than a century, which would justify the president in extending, not only protection against deportation, but work authorization and green cards though the legal immigration system to expanded groups of people without any likelihood of court interference?
There is of course, such a doctrine. It is called Plenary Power over immigration. In essence, this doctrine holds that immigration policy can only be determined by the "political branches" of the federal government, namely Congress and the executive, not the judiciary.
As a practical matter, this doctrine gives the executive branch almost complete control over immigration enforcement, not only because Congress has delegated so much responsibility for immigration to the executive, but because of something known as the "Chevron" doctrine, to be discussed later on, which requires the courts to defer to agency "expertise".
Ironically, the one of the most powerful and well-documented arguments in favor of using Plenary Power as support for broad executive branch discretion over immigration enforcement comes from the notoriously anti-immigrant organization, Center for Immigration Studies ("CIS", not to be confused with USCIS) in a February 2009 report by Jon Feere entitled Plenary Power: Should Judges Control US Immigration Policy?
As this report makes clear, the purpose of upholding executive (and Congressional) power over immigration and keeping the courts out of this area was to make it easier for the government to deport more people, faster, and with less interference from judges. It is unlikely that the author of this report would have imagined that it could be used to support expanded presidential power to grant relief from deportation, or to make legal work visas and green cards available to more people.
But even though the Plenary Power doctrine, which originated in one of the most shameful periods, if not the most shameful, in all of American immigration history, that of the late 19th century Chinese exclusion laws, was originally intended to make it easier to stop immigrants from entering the US or to send them back to their country of origin, there is no reason why the same doctrine cannot be used to allow millions of people who are currently here without status to stay and work legally in the United States, and to make legal visas and permanent residence more inclusive.
I will discuss the Plenary Power doctrine and the CIS analysis in more detail in an upcoming post. In the meantime one could ask whether CIS (and its head, Mark Krikorian, who also, until recently, served as a volunteer English teacher for immigrants preparing for the citizenship exam before being summarily removed from those duties) may one day be hailed by future generations of immigrants as pioneers in developing a legal basis for allowing millions of otherwise deportable people to become Americans, or at least to remain in the US, and making legal work visas and green cards available to even more people. There must be some room left at the base of the Statue of Liberty for their names to be inscribed.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing employment and family immigration law for more than 30 years; now concentrating in H-1B and O-1 work permits, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases. His email address is email@example.com
Updated 08-18-2014 at 09:15 AM by ImmigrationLawBlogs
Update: August 16, 6:40 am
My apologies to everyone who appreciates classical literature for misspelling Charybdis on the original version of this post. The following is the corrected version:
One of the best known stories in all of Western literature is Homer's great epic poem: the Odyssey, whose hero, Odysseus, is delayed for 20 years by an almost endless series of obstacles in returning from the Trojan war to his kingdom in Ithaca. While I do not have any knowledge which would would indicate that USCIS includes classical literature as a required segment in its officer training programs, the attitude of delaying or obstructing even the simplest requests from its "customers" for as long as possible is not at all unfamiliar at that agency. One might even think that the Odyssey was part of its officers' manual.
I recently received a notice from the USCIS Texas Service Center reopening an I-140 petition which had previously been approved (more than two years ago) and then revoked. Having this petition (for EB-1 extraordinary ability classification) reopened under circumstances which should greatly increase chances of receiving a fair final decision based on all the evidence, was itself a battle which may have had some points in common with Homer's other great epic, the Iliad. But that is a different story, which I have written about in other posts relating to this same case. This post is about Odysseus, not Achilles.
The TSC notice stated that it was reopening its previous I-140 revocation decision in order to give the petitioner a chance to submit more evidence showing that she had met the requirements for the above classification. I will not discuss the details here, except to say that gathering the evidence is a major undertaking which will require additional letters and other supporting documents from the US, Canada, Europe and Japan, to supplement the more than 200 documents which were previously submitted and which had led to the petition's being approved more than two years ago, before being revoked earlier this year because the TSC apparently changed its mind about how to interpret the applicable legal requirements.
(To put it more simply, one might say that the TSC, following the example of Bill Clinton, had revoked the original I-140 approval "because it could". or that, paraphrasing John Kerry, the TSC was "for the petition before it was against it".)
To return to the topic, the decision to reopen the petition and ask for more evidence, among other things, quoted 8 C.F.R. Section 103.5(a)(5), which in relevant part reads:
"(ii) Service Motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown." (Original italics.)
While the above regulation is phrased in terms of a "brief", the above decision made numerous references to additional evidence which the petitioner would need to submit in order to show that she was qualified for the requested benefit. Therefore, the decision was equivalent to a Notice of Intent to Revoke the petition (NOIR), in which an extension of time may also be granted at the discretion of a Service officer, and it is reasonable to interpret the word "brief" in the above regulation as including additional evidence.
The above is in contrast to a Request for Evidence ("RFE"), which is governed by a different regulation which does not allow for an extension of time. No doubt for this reason, most RFE's provide 90 days to answer. The above decision provided only 30.
With the above as background, now let the Odyssey begin:
Shortly after receiving the above decision, I sent an email message to the TSC's customer service section addressed to a young woman who is in charge of asking and responding to inquiries there. For privacy reasons, I will not mention her name, but I can say that she is one of the friendliest and most helpful immigration information officers I have encountered in my entire immigration law practice going back more than 30 years. If all immigration officers had her willingness to help people calling and emailing in with questions about their cases, our work as immigration lawyers would be a good deal easier.
Moreover, this same information officer had helped me at the time of the original NOIR in this case, when I first came in as the substituted attorney in the I-140 petition (Oy Veh!, as they say in Law Latin - see below).
Specifically, she had sent my request for an additional extension of time to answer the initial NOIR (issued in October, 2013), to a TSC supervisor who had responded almost immediately (with a denial, but at least I got an answer - a previous extension had already been granted before I came into the case.)
I thought that it would be easy to get a fast up or down answer from a TSC supervisor this time too, but this time it was not so easy. More than a week after making my request, I called the TSC customer service section, and spoke to the same ever-friendly and considerate information officer a couple of times. She said that this time, there had been no response from an officer or supervisor to my request, and she could not tell if there would ever be a response at all.
She advised me to send the extension request in writing directly to the officer who had issued the latest decision (whose ID number was included), but said that it would take at least a week, if not longer, for my letter to reach him/her. Of course, I am following her suggestion, but my experience in sending letter to USCIS Service Centers up to now has been more like that of astronomers looking for light to come out of a black hole.
However, she also suggested that I call the general USCIS customer service number, (800) 375-5283, to ask for an extension of time to answer by phone. She said that was the proper way to do this.
This sounded quite reasonable, especially since, before I came into this case, the petitioner had contacted this number directly (with the help of a friend, not an attorney) and had no problem in receiving a 30 day extension to answer the previous NOIR in this case. Now we come to the story of Scylla and Charybdis in the Odyssey, updated courtesy of USCIS.
Based on the TSC information officer's suggestion, I called the USCIS 800 customer service number to ask for an extension of time. I was told that my call would have to be "escalated" to the level handling attorney inquiries. After transfer, I was advised by voicemail that there would be a considerable waiting time to speak to an officer at this level, but I could arrange to be called back.
I elected to use this option, but as soon as an officer finally called me back, the phone was cut off. I went through this procedure a second time, and the phone was cut off again as soon as an officer called me back.
The third time I called, I finally got to speak to a USCIS customer service officer at the attorney inquiry level, but I was told that my G-28 attorney's notice of appearance was not in the computer system (which still showed only the G-28 from a previous attorney in this case) and that I would have to work this out with the TSC. I explained that my G-28 had been on file with the TSC ever since late 2013 when I first came into the case and I had been receiving messages and notices from the TSC as the attorney of record ever since. (In fact, I have a good-sized collection of these, all addressed directly to me.)
The USCIS customer service officer said that the problem probably came up because when I filed my G-28, I must have done so in connection with answering the NOIR (in January, 2014 - all of which papers were subsequently lost by the TSC and had to be replaced by duplicates in April, 2014 with the help of the office of New York Senator Kirsten Gillibrand, for whose assistance I am very grateful) and if a G-28 from a substituted attorney is filed in the same envelope along with an answer to a service notice, it will not get into the USCIS computer system. Therefore, I needed to send yet another G-28 to the TSC, (which already has me listed as attorney of record) in a separate envelope. Who knows when that will ever be acted on?
Therefore, instead of going back to the Scylla of the TSC, I decided to call Charybdis, namely the USCIS 800 number, a fourth time to see if could talk with a more helpful officer there.
Finally I got to speak with an officer who, to his credit, seemed to understand my problem and was willing to spend a good deal of time on the phone (and with his supervisor) seeing if there was a way that I could be recognized as the attorney of record in the USCIS customer service office for the purpose of making the extension request even though it was not in the computer system. His guess was that this omission may have been the fault of an outside contractor.
Moreover, neither this officer nor his supervisor seemed to understand the difference between a Service motion to reopen or an NOIR, which allow extensions of time to answer, and an RFE, which does not allow for an extension, as mentioned above. But even after I explained this, the answer was the same: I would have to apply for the extension directly to the same TSC which had already told me that the correct way to do this was to call the USCIS 800 number.
Some readers may ask: why not just put my client, the petitioner, on the phone directly with the USCIS 800 number officer and let her make the extension request?
The only problem with this is that the petitioner is out of the US and unable to reach the USCIS 800 number. By the time she returns, the 30-day deadline to answer will have almost passed.
I will keep readers advised about continuing developments in this ongoing epic saga. I can only hope that it will not take as long for USCIS to grant the extension request as it took Odysseus' wife, Penelope, to finish her weaving.
Updated 08-16-2014 at 06:07 AM by ImmigrationLawBlogs
It is axiomatic that President Obama does not have authority to increase the number of H-1B visas directly without Congressional approval, as pointed out by Immigration Attorney Tahmina Watson in her article: Three Ways Obama Can Take Executive Action for Business Immigration. (Immigration Daily, August 13).
However, there may be one simple step that the president could take to grant at least temporary relief to foreign students who have graduated from US universities and are adversely affected by the H-1B visa shortage. This would be to extend the length of the current 12-month post-completion practical training ("OPT") period to a total of 29 months for all F-1 graduates, not just those in the STEM (science, technology, engineering and math) fields.
There has never been any question about the executive branch's authority to grant practical training work permission to foreign students, and to determine the length of time for such permission, without the need for Congressional Approval. See: The Programmers Guild, Inc. v Chertoff. Civil Case No. 08-2666 (US District Court, District of NJ, August 5, 2008).
In that decision, the District Court denied a motion for a preliminary injunction brought by the plaintiffs, who were individuals and organizations purporting to represent US computer programmers and engineers, against the DHS for its extension of the OPT period for STEM graduates for the above 17 month period.
The court pointed out that the executive branch had changed the practical training time periods in the past, going as far back as 1947 (when the period was fixed at 18 months). The court held:
"In addition, the Plaintiffs are unlikely to succeed in their claim because the DHS had authority to promulgate the IFR [17 month STEM graduate OPT extension]. Congress granted the Secretary of the DHS statutory authority to 'establish such regulations...as he deems necessary for carrying out his authority under the provisions of [the Immigration and Nationality] Act.'...Congress also conferred regulatory authority upon the DHS to set the time period in which nonimmigrants can remain in the country. This means that the DHS is within its authority to promulgate the IFR."
The District Court also discussed the policy reasons for the STEM extension of OPT, stating:
"As discussed in the previous section, a preliminary injunction would cause extreme hardship lawfully present guest students, such as being forced out-of-status and facing deportation."
The decision continues:
"The government also has a compelling interest in being able to create necessary extensions to ease rigid time line requirements in order to maximize the efficiency of its programs. Since the federal government has the 'responsibility... to regulate immigration', it is essential to allow it a degree of flexibility to do so."
The court also raised serious doubts about whether the plaintiffs had standing to sue for an injunction even if the DHS exceeded its authority. It also found that the plaintiffs had failed to show irreparable harm from the DHS policy of allowing more foreign workers in the US through means of the 17-month OPT extension.
The District Court's subsequent dismissal of the entire complaint for lack of standing by the plaintiffs to bring the lawsuit was affirmed by the 3rd Circuit Court of Appeals in Case Number 08-4642.
Therefore, on the basis of this decision, there can be little doubt that any OPT extension that the administration might choose to grant for any class of F-1 students would be likely to be upheld in a federal court.
However, if, for policy reasons, extending OPT for an additional 17 months to all US college graduates is considered inadvisable, another option would be to extend OPT only for graduates in fields associated with "specialty occupations", i.e. those which qualify for H-1B. While this might no doubt come under criticism alleging that the president was seeking to do something indirectly which he lacks the authority to do directly, namely increase the number of H-1B visas, it would be difficult to argue with the fact that the executive does have the authority to extend OPT for any class of F-1 visas holders it chooses, and for virtually any period of time.
What are you waiting for, Mr. President?
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been practicing employment-based and family-based immigration law for more than 30 years. His practice includes H-1B and O-1 work visas; and green cards through labor certification (PERM), extraordinary ability (EB-1) and opposite or same sex marriage, as well as other immigration and citizenship cases. His email address is firstname.lastname@example.org
Updated 08-14-2014 at 11:30 AM by ImmigrationLawBlogs