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Blog Comments

  1. ImmigrationLawBlogs's Avatar
    Jason, I don't see this situation the way you do. I wrote decisions for the Board for 20 years, so I am very familiar with the AG's authority to set precedents for the Board. There is an office within the Department that does the analysis and writes the decision for the AG. It handles difficult policy issues of all kinds for the AG. I had a friend in that office. He got a phd in philosophy at MIT before he went to law school. Extremely bright. It's a very high level policy office. I think you will realize that when you read their decision. Which isn't to say that I expect you to agree with it.

    The AG normally doesn't use that authority. I only know of it happening when the Board is screwing up badly. I could give you examples if you are interested.

    Incidentally, I don't recall an AG requesting amicus briefs before. Sessions is going out of his way to make sure that his staff gets as much input as possible from interested parties. I mean other than the alien and the gov't attorneys who handled the case.

    If you are planning on submitting a brief, don't get caught up in the facts of the case. This isn't about that case. The case is just the vehicle that Sessions is using to clarify asylum law in an area that the Board has failed to clarify adequately.

    I don't know what Sessions intends to do in the current situation, but I can make a good guess. The immigration judges have caused a major problem with asylum cases. The results of an asylum application vary widely depending on which judge the alien draws. You probably would think it's great that many judges grant asylum in a high percentage of their cases and terrible that many deny asylum in a high percentage of their cases. But I think you will agree that this is a problem, and the Board has not done anything about it.

    The Board should be providing guidance on asylum law and making sure that the judges are applying the law properly. In fact, that's the reason for having a Board.

    I think Sessions has selected an asylum claim that the judges are not handling properly so that he can have his staff write a precedent that will provide the judges with the guidance they need to handle the cases properly. In other words, do what the Board should already have been doing with all of the asylum issues that come up frequently. If I am right Sessions will continue to certify cases for his review until the judges are applying the law correctly.

    Incidentally, the Board is not a statutory body. It was created by the AG's office with regulations. If Sessions can't get the Board to do provide the judges with the guidance they need, there's a good possibility that he will eliminate the board by promulgating new regulations to replace it with some other type of appellate body.

    I don't mean the Article One court system the judges and now the Federal Bar Association have been advocating for more than a decade. I am absolutely sure that he is not going to favor rewarding the board members or the judges with higher status and more pay as federal judges.

    Nolan Rappaport
    Updated 03-14-2018 at 10:20 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    I wonder if the judges know that their work is reviewed by staff level attorneys at the Board of Immigration Appeals who have been evaluated largely on the basis of productivity for many decades now.

    Nolan Rappaport
  3. JDzubow's Avatar
    My dear Noah, your ignorance of my motivations are matched only by your ignorance of our immigration laws.
  4. JDzubow's Avatar
    It's an interesting questions - maybe it could be used to curtail an LPR's right to free speech. I dare say, you and I both may have said things that could be deemed detrimental to US foreign policy, at least according to some people's interpretation...
  5. ImmigrationLawBlogs's Avatar
    Any suggestions on how answer question 47 on the I-485 form, which asks whether the applicant intends to do anything that would be detrimental to US foreign policy? Of course our own president would never dream of doing something horrible like that, such as insulting or offending a US ally - so, of course he would have no problem with that question if he were an immigrant applying for a green card!

    However, at a recent telephonic USCIS public engagement session I asked a USCIS representative if any guidance on what this question means had been issued to the agency's adjudication officers.

    The answer was that no such guidance had yet been issued.

    Roger Algase
    Attorney at Law
  6. JDzubow's Avatar
    Judging by your comment, the US already has plenty of uneducated, irresponsible clowns. Ironic, isn't it?
  7. ImmigrationLawBlogs's Avatar
    Where is the the logical connection? They are here, and, according to statistics, the people whom immigration opponents like to call, pejoratively, "illegal aliens", are more law abiding than Americans.

    The fact that illegal Mexican and other immigrants may be less dangerous to society and public safety by committing fewer crimes than American citizens, does not give the illegal immigrants any right to be present in the United States.

    But it does mean that while they are here, American society is less at risk of criminal activity from that group than from native born Americans.

    Roger Algase
    Attorney at Law
  8. ImmigrationLawBlogs's Avatar
    I don't think undocumented aliens are demonized, but I know others disagree wth me. In any case, the problem with saying that immigrants commit fewer crimes is that no one I am familiar with is expressing concern over "immigrant" crime. The complaints are about crimes committed by aliens who are here unlawfully, and enforcement-minded advocates will point out that if they weren't here, they wouldn't be committing any crimes.

    Nolan Rappaport
  9. ImmigrationLawBlogs's Avatar
    While Trump's letter doesn't specifically say: "Abolish all US asylum laws", it certainly seems to be moving quickly in that direction.

    And asylum is not the only benefit that Trump and the white supremacists who seem to be the only people he listens to on immigration policy want to restrict or abolish as the price for agreeing to any from of DACA legislation.

    Trump's list of immigration "Principles and Policies" also includes a few small details such as abolishing the (more or less) race and nationality neutral immigration system that America has had for the last half century, ever since the 1965 immigration reform law was enacted; and replacing it with the Eurocentric RAISE Act, which, under the pretext of adopting a skewed and distorted version of an immigration "point system" which has (in fairer and more open versions) worked well in Canada and other countries, would take our legal immigration system back toward the direction of the openly racist, "Nordics"-only National Origins Immigration Act of 1924 - which Adolf Hitler so admired, and which Trump's attorney general. Jeff Sessions also praised as a Senator in his immigration "Handbook" for Congressional Republicans as recently as in 2015, nine decades later.

    Roger Algase
    Attorney at Law
    Updated 10-12-2017 at 05:51 PM by ImmigrationLawBlogs
  10. JDzubow's Avatar
    I agree, Roger. And if you look at the numbers, it supports that idea - North Korea sent less than 70 people to the US last year, and the Venezuela "ban" covers only a very small number of people affiliated with the government. The other countries are majority Muslim. Take care, Jason
  11. ImmigrationLawBlogs's Avatar
    There is not the slightest reason to believe that the new Muslim ban is any less motivated by the white supremacist ideology and religious discrimination at the basis of the Trump administration's immigration agenda than the earlier versions of this ban were. The basic premise of this administration is that if an immigrant does not come from Europe, he or she should be presumed to be a criminal, a terrorist, someone who will lake jobs away from American workers, or if not working, will be a drain on America's economy or public assistance system, and is therefore undesirable and unwelcome in this Nation of White Immigrants.

    Roger Algase
    Attorney at Law
  12. JDzubow's Avatar
    I am calling him and the Administration liars because they are lying about the HHS study. If they wanted to reduce refugee admissions to zero, but did it honestly, I would disagree with that decision, but I would recognize that he reached it honestly. In this case, he did not. Take care, Jason
  13. ImmigrationLawBlogs's Avatar
    The INA leaves it up to the discretion of the president to decide how many refugees to admit...if any. It is not productive to call him a liar when he states the reasons for his discretionary determination. Keep poking him in the face with a stick, and he will stop all refugee admissions for the remainder of his time in office.

    Or do you think calling him a liar is going to make him want to be more generous to refugees? Can you recall anyone responding well to being called a liar?

    Nolan Rappaport
  14. JDzubow's Avatar
    Nolan - This is a pretty basic point in asylum law (see Matter of Pula). Misrepresentation of that sort is a discretionary factor, but ordinarily would not result in denial of asylum. To then, later on, require a waiver after USCIS has effectively forgiven the (alleged) fraud, especially when the I-602 waiver is easily obtained, seems a complete waste of everyone's time. There is no basis to rescind the asylum, and so the whole effort is a wasted exercise.

    Noah - This is a tired old argument. I suppose you think doctors favor disease and police want to see more crime - all to justify their jobs. Maybe in your little world, money is the only motivating factor, but for most of us, there are many other things - like justice and human rights - that matter much more.
  15. ImmigrationLawBlogs's Avatar
    You say, "The issue is, if a person comes to the United States and applies for asylum within 90 days of arrival, he might be considered to have lied about his “immigration intent” in order to obtain a U.S. visa. In other words, requesting asylum (and thus asking to stay permanently in the United States) is not consistent with coming here on most NIVs, which require that you promise to leave the U.S. at the end of your authorized stay."

    I don't understand why that is wrong. Are you saying that it is okay for someone to enter the United States on a visitor's visa with the intention of applying for asylum after being admitted?

    Would you be okay with other misrepresentations too? What if someone has a job interview here and comes as a visitor for pleasure with the intention of staying permanently if he gets the job? Of if someone enters on a student visa with the intention of doing construction work here? Or if someone comes on a visa to be a doctor in a medically underserved area and he isn't really a doctor?

    When would you hold someone accountable for misrepresenting his intentions to get a visa?

    Also, what about coming here without a visa and getting an asylum hearing before an immigration judge by establishing a credible fear of persecution? If the person can't establish a credible fear, what reason is there to expect him to establish asylum eligibility before an immigration judge.

    Nolan Rappaport

    Updated 09-19-2017 at 06:34 PM by ImmigrationLawBlogs
  16. ImmigrationLawBlogs's Avatar
    I don't know whether Trump should have pardoned Joe Arpaio or not. Frankly, I haven't given it any thought. But I have thought about all of the drug traffickers that Obama pardoned before he left office. According to my values, many of them committed crimes that were a lot more serious than what Arpaio did.

    I don't doubt that some of them were given unnecessarily harsh sentences because of minimum mandatory sentencing requirements, but it's hard to believe that it was a good idea to put so many drug traffickers back on the streets. Have you looked a the list? Its published on the Justice Department website.

    Nolan Rappaport

  17. JDzubow's Avatar
    I am not as pessimistic as Nolan about this - I do not think Trump will be able to push millions of cases into expedited removal. I do think many aliens will be able to show that they have been in the US more than 90 days, and so I doubt expedited removal will make a big dent in the undocumented population. Take care, Jason
  18. ImmigrationLawBlogs's Avatar
    Nolan refers to the use (by the 4th Circuit and other federal courts) of Trump's campaign statements showing obvious and open hostility toward Muslims because of their religion as "character assassination". How could quoting the president's own exact words be construed as "character assassination" (unless Nolan means to say the the president is "assassinating" his own character)?

    One could also mention, as Nolan does not, that it is not only Trump's pre-election statements which any reasonable person (or judge) would conclude show intense animosity to all Muslims, not just those who support terrorist groups, but also his actions as president in appointing openly Islamophbic advisers such as Michael Flynn, Steve Bannon and Steve Miller, among many other similar actions one could mention.

    Closing one's eyes to the obvious reality of Trump's animosity toward Muslims in general, and his evident belief that their religion itself is a danger to the United States, or at least is inconsistent with US values and ideals (an only slightly less obvious form of religious bigotry - many Americans used to say the same thing about Jews and Catholics, and a few still do), with all of these negative implications for the constitutional rights of millions of Muslim US citizens to the free exercise of religion, is not the way to preserve an independent court system - or a democracy.

    Roger Algase
    Attorney at Law

    Updated 07-28-2017 at 08:43 AM by ImmigrationLawBlogs
  19. ImmigrationLawBlogs's Avatar
    Jason Says, "Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement."

    How easy do you think it is going to be for aliens in expedited removal proceedings to persuade an ICE enforcement officer that they have been in the US for more than two years? They are in mandatory detention and are not allowed to have legal representation. How do you think they are going to gather the documentary evidence they will need? They won't be able to produce witnesses. There won't be a hearing for testimony of any kind. And they are going to be held at large detention centers that will be spread across the country. They may not even be entitled to notify friends or relatives that they are being detained, let alone telling them where they are being detained. And they may not be allowed any visitors even if friends or relatives manage to locate them.

    As for legal challenges, the Immigration and Nationality Act (INA) limits expedited removal proceeding legal challenges to cases in which the alien can establish lawful status, e.g., that he is a citizen or an LPR. The only way to stop challenge the proceedings themselves would be to challenge the constitutionality of the expedited removal proceedings provisions in the INA, and that will be much more difficult than using character assassinations based on campaign statements to establish that an executive order Trump issues is based on religious discrimination.

    The reason for this is that IRRIRA, the Act that established the proceedings, also established a statutory definition for entry, i.e., lawful admission. This means that undocumented aliens in expedited removal proceedings have not entered the US. They wouldn't be undocumented if they had made a lawful entry. And the Supreme Court has defined due process for aliens who have not entered the US yet to be whatever Congress chooses to give them, which in this case is expedited removal proceedings.

    I predict that Trump will give the bum's rush to millions of undocumented aliens during his presidency, and millions more if he gets a second term or another enforcement minded republican follows him.

    And, this will fix the backlog crisis in the immigration courts. Trump will have the aliens in removal proceedings shifted to expedited proceedings and the backlog crisis will disappear.

    Nolan Rappaport

    Updated 07-27-2017 at 10:05 PM by ImmigrationLawBlogs
  20. ImmigrationLawBlogs's Avatar
    Arguably, with all the restrictions and limitations on Trump's Muslim ban orders that have been imposed by the federal courts, including the Supreme Court, one might say that the ban has now shrunk to the size where one could drown it in a bathtub.

    But, beyond the almost theater of the absurd technicalities of whether a given applicant for a visa or admission to the US is a grandparent, in-law or step-relative to a US citizen, and therefore either banned from or allowed to enter the United States during the next three months, one can also argue that Trump has already accomplished the main purpose of his ban, which is to demonize and stir up hatred against all Muslims as potential terrorists and fifth columnists including US citizens and permanent residents, as part of his drive to seize absolute power in the United States, just as another democratically elected leader (also with a minority of the popular vote) did in 1933 by using the Jews as his scapegoats.

    Of course the details of Trump's ban are important to people from the six Muslim countries who are seeking entry to the US, and to refugees from all over the world, many of whom are also Muslims.

    So, no doubt, were the details of the Nuremberg laws important to Jews of Germany in 1936.

    But all Americans need to go beyond the details of the president's ban orders and the minutiae of the court decisions regarding them, in order to focus on their larger purpose.

    In this regard, even though no one could reasonably accuse Trump of supporting genocide, extermination, or anti-Semitism, there are lessons from the 1930's period in Germany that no American who cares about preserving our democracy can ignore.

    Roger Algase
    Attorney at Law
    Updated 07-06-2017 at 10:44 AM by ImmigrationLawBlogs
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