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Former House Speaker, and Donald Trump adviser, Newt "The Brain" Gingrich recently made plain what Mr. Trump has been arguing for months: The new Administration is planning "straight-out war" against the federal bureaucracy. But in my time, there are two things that I've learned about ideological wars: (1) The casualties are flesh-and-blood human beings, and (2) Everyone involved thinks that G-d is on his side.
"Sidekick to a bully" is not a job title many government lawyers relish.
In this case, Mr. Gingrich was speaking specifically about the troubled Department of Veterans Affairs, which he accused of various sins amounting mostly to half-truths (or perhaps whole lies). But we've seen a pattern with Mr. Trump's appointments. For example. the new head of the Department of Energy wanted to eliminate that agency in 2012. The leader of the Environmental Protection Agency doubts human-influenced climate change and will likely prevent that organization from issuing regulations to protect public health. And the new Secretary of the Department of Housing and Urban Development will be Dr. Ben Carson, whose main qualification seems to be that he lives in a house.
But the situation for the Departments of Justice and Homeland Security are a bit different, at least in terms of those agencies' oversight of our nation's immigration laws. In those cases, it's more likely that Mr. Trump will be ramping-up enforcement at the possible expense of other immigration functions (like processing immigration benefits).
Senator Jeff Sessions will lead the DOJ as Attorney General. He is known for his opposition to immigration reform and his belief that legal immigration to the United States should be reduced. So how will Senator Sessions's appointment affect DOJ in terms of immigration enforcement? DOJ administers the nations Immigration Courts and the Board of Immigration Appeals ("BIA"), and (within some limits) interprets our immigration laws. As Attorney General, Mr. Sessions has the power to narrow precedents favorable to non-citizens. He can do this directly, by issuing Attorney-General opinions, which supersede decisions made by the BIA. He can also do it indirectly, by appointing ideologically like-minded Judges and BIA Members. DOJ also administers the Office of Immigration Litigation ("OIL"), which defends BIA decisions in the federal courts. Mr. Sessions could order OIL to take more hard-line stances, and he could push litigation that reflects his restrictonist viewpoint.
How would this be different than what we have now? The atmosphere for aliens in immigration proceedings has never been easy. That's particularly true for aliens convicted of crimes. But at least in most cases, I have found that Judges, BIA Board Members, and OIL attorneys are reasonable, and do their best to follow the law. Sometimes that means deporting people who are very sympathetic; other times, it means allowing people to stay who they believe should be deported. The problem comes when we have DOJ attorneys who are more concerned with ideological ends than with due process. We saw this most clearly when Attorney General John Ashcroft purged liberal (or supposedly liberal) BIA Board Members at the beginning of the George W. Bush Administration. Perhaps we will see a similar reshuffling in the months ahead.
For fair-minded attorneys, Judges, and Board Members at DOJ, that's a frightening prospect. Are their jobs in jeopardy? Will they be forced to take positions contrary to their conscious, or contrary to their interpretation of the law? Many immigration benefits--such as asylum--contain a discretionary element. Will the ability to exercise discretion be intolerably curtailed?
It's still unclear whether attorneys and officers at the Department of Homeland Security will face the same potential dilemmas as their DOJ counterparts. The new Secretary for DHS will be retired Marine Corps General John Kelly, who is widely viewed as non-ideological. Under the DHS ambit are several agencies that impact immigration, including U.S. Immigration and Customs Enforcement ("ICE"), which is basically the immigration police and prosecutors, and U.S. Citizenship and Immigration Services ("USCIS"), which administers immigration benefits, including asylum. We have yet to learn who will lead these agencies, and probably the choices for those posts will have more effect on the officers and attorneys "in the trenches" than General Kelly, who is overseeing the entire agency.
Currently, DHS attorneys, Asylum Officers, and ICE officers have a fair bit of discretion in handling cases, especially cases where the alien has no criminal record. DHS attorneys often can decide whether to keep an alien detained, they can offer prosecutorial discretion, and they can decide how aggressively to pursue an individual's deportation or whether to agree to relief. Asylum Officers also have a fair bit of discretion to determine credibility and decide on relief.
The attorneys, officers, and Judges I know at DHS and DOJ are generally intelligent, caring individuals who do their best to follow and enforce the law without inflicting undo harm on individuals and families. They are aware of their power and their responsibilities, and they take their jobs seriously. Sometimes, I disagree with them on their interpretation of the law. Sometimes, I think their approach is unnecessarily aggressive. In some cases, we evaluate the merits of a case differently. While we do not always agree, I can see that they are performing an essential function by fairly enforcing our nation's immigration laws.
In speaking to some DOJ and DHS attorneys and officers since the recent election, I have seen a certain level of demoralization. Some people have expressed to me their desire to leave government service. While these individuals respect and follow the law--even when the results are harsh--they are not ideological. They do not hate immigrants (or non-white people, or Muslims) and they do not want to enable or contribute to a system that they fear will become overtly hostile to immigrants that President Trump considers undesirable. I suppose if I have one word of advice for such people, it is this: Stay.
If you are a government attorney or officer and you are thinking of leaving because you fear an overtly ideological Administration, you are exactly the type of person that we need to stay. As has often been the case in recent decades, an honest, competent bureaucracy is the bulwark against our sometimes extremist politics.
It's likely that if you are a government employee who is sympathetic to non-citizens, your job will get more difficult, the atmosphere may become more hostile. It will be harder to "do the right thing" as you see it. Opportunities for promotions may become more limited. Nevertheless, I urge you to stay. We need you to help uphold the law and ensure due process for non-citizens and their families. To a large extent, our immigration system is as good or as bad as the people who administer the law. We need the good ones to stay.
Originally posted on the Asylumist: www.Asylumist.com
Last time, I discussed the asylum case backlog from 2013: Why it happened, what (little) can be done to help, and DHS's justification for processing new cases before old cases. Today, I want to make some suggestions about how DHS might better handle this situation.
DHS has created a new, less humorous version of the old NPR gameshow.
First and foremost, DHS should provide better information about what is happening. While I imagine that DHS does not always know what is happening (after all, the backlog is unprecedented), it could be providing better information to the backlogged applicants. Some info that would be helpful: (1) An estimate of when the backlogged cases will be heard. Maybe DHS has no idea, but at least tell us something. Apparently, many new officers and support staff have been hired. Will some of these people be dedicated to backlogged cases (I've heard that at the San Francisco office one or two officers will be assigned to backlogged cases). Is there any sort of plan to deal with the backlog? Leaving applicants completely in the dark is the worst possible way to handle the situation; (2) If a particular Asylum Office has an "expedite list," it would be helpful to know the applicant's place in line and how many people are on the list. Is she the third person or the 200th person? This would at least give some idea of the wait time, especially if DHS updated each person's place in line as they move forward; and (3) It would be very helpful if the Asylum Offices explained why the backlog exists, what they are doing about it (hiring new officers), and what the applicants can do (apply for work permits, criteria to have a case expedited). While people like me can try to tell applicants what we know (and hopefully our information is more right than wrong), it is far better to hear it from the source. Each Asylum Offices has its own website, so it should be easy enough to publish this information.
Another thing the Asylum Offices could do to ease the pain of the backlog is to give priority to backlogged cases based on family reunification. As I noted last time, one justification for the backlog is that applicants can get their work permits while their cases are in limbo. Of course, the work permit is helpful (even crucial) for many applicants, but for people separated from spouses and children, reunification is the number one issue. This is especially true where the family members are in unsafe situations. I know that in a large bureaucracy, nothing is as simple as it seems, but why can't DHS prioritize expedite requests where the applicant has a spouse or child overseas?
A third possibility is to dedicate one or more Asylum Officers in each office to work on backlogged cases. As I mentioned, San Francisco will assign one or two Officers to deal with the backlog. What about the other offices? At least if we could see some progress--even a little--with the old cases, it would give hope to the people who are waiting.
Finally, once a backlogged case is decided, DHS should give priority to any I-730 (following to join) petition filed by a granted applicant. Family separation is a terrible hardship. At least DHS (and the Embassies) can make up for some of the delay already suffered by moving I-730s for these cases to the front of the line. These applicants and their families have already waited long enough.
In a perfect world, asylum cases would be processed in the order received. However, I understand DHS's concerns and the reasons for adjudicating new cases before old cases. By providing more information to backlogged applicants and by giving priority to people separated from their families, DHS can ease the pain caused by delay without implicating the policy concerns that brought us the backlog in the first place.
Originally posted on the Asylumist: www.Asylumist.com.