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  1. Deportations of Children Detained in Inhuman Conditions Continue. By Roger Algase

    The Los Angeles Times reported on August 21 that almost 300 women and children were recently deported from immigration detention centers at Artesia, New Mexico and Karnes, Kansas and sent back to Central American countries from which they had fled to escape from gang violence and other intolerable conditions.

    See: Nearly 300 women, children, deported from immigration detention centers


    Because the children were with their mothers (presumably) they were not protected by the TVPRA, referred to my other recent posts. That statute protects only unaccompanied children from summary deportation without a formal immigration court hearing.

    But I have yet to find a law which permits or contemplates the inhuman conditions that both mothers and children are now facing while they are detained by ICE.

    The LA Times describes these conditions as follows:

    "Aside from having to contend with a few cases of chicken pox, the facility [at Artesia] and other similar centers have been plagued by other difficulties. For instance, the Department of Homeland Security's inspector general report has cited various other problems - inadequate amounts of food, inconsistent temperatures and unsanitary conditions - at various immigration holding facilities for children.

    Also, immigration officials have been accused of not allowing the children due process as the U.S. speeds up the processing of thousands of single parents with children who have fled Central America and entered the US."

    In a previous post, I quoted an extract from the dissenting opinion of Justice Field in the US Supreme Court case of Fong Yue Ting v. US 149 U.S. 698 (1893) a barbaric relic from the days of the Chinese exclusion laws which, without too much exaggeration, could be described as bearing the same relationship to immigration law that Dred Scott v. Sandford 60 U.S. 393 (1857) has to civil rights law.

    Except that the Fong case, unlike Dred Scott, is still cited as authority today to justify arbitrary actions of the federal government toward minorities in our society.

    In my previous post, I cited Justice Field's dissenting statement in Fong that cruelty and inhumanity have no place in the enforcement of the laws of the United States. He was referring, of course, specifically to the immigration laws.

    That statement was made more than 120 years ago. The time is long overdue to put it into practice now.

    Updated 08-24-2014 at 10:07 AM by ImmigrationLawBlogs

  2. Is Sending Children Home To Be Killed An Impeachable Offense? By Roger Algase

    The following post, dated August 21 at 9:26 am, is a completely revised version of a comment which I posted earlier in the morning of the same day:

    In my August 20 post I wrote about reports that the three Central American countries where most of the unaccompanied children seeking refuge in the US come from, Honduras, Guatemala and El Salvador, are largely unprepared to take back these children after they are deported (after what in some cases can only be called Kangaroo proceedings in which their lawyers are not even allowed into the detention center where the children are being held and where their hastily improvised "immigration court hearings" are taking place).

    But, according to the Huffington Post, citing a Los Angeles Times report, the criminal gangs in these countries are not losing any time in killing deported children as soon as they return. See: Children Deported To Honduras Are Getting Are Getting Killed: Report (August 20).

    The Huffpost writes:

    "As a debate continues to rage in the US over whether to treat the influx of unaccompanied minors at the border as refugees to summarily deport them. The Los Angeles Times reports that minors deported to Honduras over the last month are being killed.

    A Morgue director in the Honduran City of San Pedro Sula told the Los Angeles Times that 'at least five, perhaps as many 10' children killed there since February had been deported from the United States.

    'There are many youngsters who only three days after they've been deported, are killed, shot by a firearm,' Hector Hernandez of the San Pedro Sula morgue, told Times reporter Cindy Carcano. 'They return just to die.'" (Emphasis added.)

    What does this say about our nation's respect for its own laws and justice system, at least when those laws are meant to protect and save the lives of people who belong to unpopular and discriminated against immigrant groups, which America has always had, going back to the Irish in the mid-19th century and Asians in the late 19th century, down to Latin American, black and Muslim immigrants today?

    It may be an "inconvenient truth" for the Obama administration, which seems to wish that the TVPRA would suddenly disappear almost as much as the Tea Party does, that this law has not been repealed and is still on the books. It is the law of the land.

    As I mentioned in my August 20 post, the TVPRA provides specific and clearly spelled out protections to UAC ("border children") from countries other than Mexico (and oh yes, Canada, and perhaps also the Russian Aleutian Islands - if they are "contiguous" enough), before the children can be deported from the US.

    These protections include: 1) hearings before an immigration judge with the right to an attorney (as long as the government doesn't have to pay); 2) appointment of independent child advocates to "effectively advocate for the best interests of the child"; 3), issuance of both procedural and substantive regulations assuring that court hearings for asylum and other relief will take into account the best interests of the child; and, 4) arguably most important of all, prohibition against repatriating the children without at least some minimal safeguards to protect them against violence and persecution upon their return to their countries.

    In other words, the TVPRA's purpose of protecting border children against being arbitrarily sent back to the danger of harm and possible death in their home countries is not based on a technicality or a stray word or two here and there, as some of the law's detractors have suggested. To the contrary, the TVPRA lays out a full system of protection for the border children against exactly what the Obama administration is doing now - sending them home to the likelihood of danger and death without the slightest regard for their best interests, and in violation of even the most elementary Constitutional and statutory requirements of fundamental fairness and due process.

    Especially when children who have no means to protect their rights are involved, this is a betrayal of America's entire system of justice - of everything that America stands for.

    Once again, the words of Justice Field in his dissenting opinion in Fong Yue Ting v. US 149 U.S. 698 (1893), a case in which the Supreme Court majority had trashed the US Constitution in order to uphold the anti-immigrant hate and prejudice which gave rise to the Chinese exclusion laws, ring down through the more than 120 years which have elapsed since that time:

    "I utterly repudiate all such notions, and reply that brutality, cruelty and inhumanity cannot be made elements of any procedure for the enforcement of the laws of the United States".

    In that case, unfortunately not only for Mr. Fong, the plaintiff in that case who was arbitrarily thrown out of the United States after having resided here legally for more than a decade because of his inability to obtain a white witnesses or witnesses to confirm his period of residence, but for the future development of American immigration law up until the present time, the above was a minority opinion and the "brutality, inhumanity and cruelty" which Justice Field referred to were held by the majority to be legal.

    But in the case of today's border children, summarily expelling them with only a charade of legal process is expressly forbidden by law, namely the TVPRA.

    Is the administration's use of "brutality, inhumanity and cruelty", not to enforce one of our immigration laws, but to violate it, openly and directly, grounds for impeachment?

    I am only asking that question. I do not presume to have an answer. But it might be possible that some other people, on the president's side of the aisle, could start asking this question too, if the death toll among deported children continues to grow.
    Roger Algase is a New York lawyer and graduate of Harvard Collage and Harvard Law School who has been practicing employment-based and family-based immigration law for more than 30 years. His practice is centered on H-1B and O-1 work visas, and green cards through labor certification, extraordinary ability and opposite sex or same sex marriage, among other immigration and citizenship cases. His email address is algaselex@gmail.com

    Updated 08-21-2014 at 10:05 AM by ImmigrationLawBlogs

  3. Home Countries Unprepared To Take Children Deported (Against US Law). By Roger Algase

    Update: August 20, 12:05 pm:

    i would also like to mention that while there are reasons to have reservations about Nolan Rappaport's proposal to turn unaccompanied border children (UAC) over to the UN for refugee screening in a third country or countries, it is still a step in the right direction and more in keeping with the spirit of TVPRA Section 235(c)(5), discussed at the end of this post, than mass expulsions would be.

    Nolan's main fear, from the standpoint of the children's welfare, is evidently that under long standing BIA precedent decisions going back almost 30 years, and which the BIA is now backing away from very slowly, if at all, the overwhelming majority of the children would lose their asylum claims in immigration court and then be deported back to their countries of origin.

    But Nolan apparently overlooks a section of the TVPRA which is clearly meant to provide protection to the children against this eventuality by changing these restrictive BIA policies.

    Section 235(d)(8) states:

    SPECIALIZED NEEDS OF UNACCOMPANIED ALIEN CHILDREN-Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the pri
    sncipal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both the procedural and substantive aspects of handling unaccompanied alien children's cases. (Emphasis added.)

    This provision not merely invites, but directs, the Obama administration to change the restrictive doctrines, especially those relating membership in a particular social group, which have prevented children from being granted asylum in the past based on gang violence or related claims. It is time to enforce this provision, instead of expelling UAC children en masse.

    Where are the regulations, Mr. President?

    The previously updated version of this post follows:

    This post has been updated as of 11:15 am, August 20 in order include a discussion of the effect of TVPRA Section 235(c)(5) on any attempt that is now being made, or might be made in the future by the Obama administration to rush unaccompanied Central American border children back to their countries without first ensuring their safety and welfare on arrival back home.

    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.

    NJ concludes:

    "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?

    And a rush to mass deportation of unaccompanied border children would also violate the spirit and intent, as well as the actual provisions of TVPRA Section 235(c)(5), which has the title:


    This section provides, inter alia, as follows:

    (A)REPATRIATION PILOT PROGRAM- To protect children from trafficking and exploitation, the Secretary of State shall create a pilot program, in conjunction with the Secretary of Health and Human Services and the Secretary of Homeland Security, nongovernmental organizations, and other national and international agencies and experts, to develop and implement best practices to ensure the safe and sustainable repatriation and integration of unaccompanied alien children to their country of nationality or of last habitual residence, including placement with their families, legal guardians, or other sponsoring agencies. (Emphasis added.)

    (B) Assessment of Country Conditions - The Secretary of Homeland Security shall consult the Department of State's Country Reports on Human Rights Practices...in assessing whether to repatriate an unaccompanied child to a particular country.

    Where is the Subsection (A) pilot program? Are the required Subsection (B) consultations being made prior to deportation?

    Therefore, any rush to deport unaccompanied border children back to the three "Northern Triangle" countries of Central America without making sure that they will be safe and properly cared for upon their return would not only be inhuman, but illegal under the TVPRA.

    Granted, if Congressional conservatives are successful in gutting the TVPRA, then mass expulsion of border children without regard to the conditions in their home countries might no longer be illegal.

    It would merely be inhuman.

    Updated 08-23-2014 at 06:38 AM by ImmigrationLawBlogs

  4. Did S. Ct. Justice Predict Border Children's Problems 121 Years Ago? By Roger Algase

    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

  5. Plenary Power and Executive Action for Work Visas and Removal Relief. By Roger Algase

    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 algaselex@gmail.com

    Updated 08-18-2014 at 09:15 AM by ImmigrationLawBlogs

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