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Lory D. Rosenberg on Appeal Matters

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  1. Let's Get Clear About Credible Fear

    I strongly caution against anyone indulging in skepticism or cynicism in response to this week’s reports that the DREAM 9 satisfied the credible fear test. For that matter, restraint and neutrality is far preferable to the inappropriate and possibly biased comments reportedly made by at least one Immigration Judge, and this admonishment applies to anyone else tempted to opine on the merits of a case without knowing the details and before the case has been presented.

    Asylum from Mexico? That’s right. According to the latest government reports, out of 558 defensive asylum applications ultimately decided during the period, 49 defensive asylum applications claiming persecution in Mexico -- just under 9% - were granted.[1] See The U.S. Department of Justice Executive Office for Immigration Review Office of Planning, Analysis, and Technology, Immigration Court Statistics from FY 2010, issued in February 2013.[2] While not among the highest percentages of reported asylum grants, and very likely an under-representation of the claims that should be granted, this number reveals that persecution in Mexico is being acknowledged and asylum claims are being granted.

    The credible fear test is a very low level inquiry and is intended to be so. Contrary to a plethora of uninformed news reports circulating online, it is not a grant of asylum or temporary asylum. All it means is that the applicant has provided information that indicates a significant possibility that the applicant can demonstrate a well-founded fear of persecution in a merits hearing before an Immigration Judge. Accordingly, an applicant's expression of a fear of return on the basis of sharing a status or characteristics articulated in the refugee definition is generally adequate.

    The USCIS website defines credible fear as follows: Q. What is a Credible Fear of Persecution?
    A. A “significant possibility” that you can establish in a hearing before an Immigration Judge that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country. See http://tinyurl.com/crediblefear

    The Immigration Court Practice Manual, Chapter 7, p 110, defines the credible fear standard, as: (i) Credible fear standard. -- “Credible fear of persecution” means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (“restriction on removal”) under INA § 241(b) (3). The credibility of the alien’s statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e) (2), 1003.42(d).”

    Accordingly, the "significant possibility" is determined by the officer "taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, [such] that the alien could establish eligibility for asylum under §208.” Wesem, Asylum and “Credible Fear” Issues in U.S. Immigration Policy, p. 4, CRS (June 29, 2011) (citing INA §235(b) (1) (B) (v); 8 U.S.C. §1225). In short, the credible fear standard is a pre-screening mechanism in which the burden of proof is easier to meet than the well-founded fear of persecution standard required to obtain asylum. Id.

    It is important to remember that eligibility for asylum is established by demonstrating a well-founded fear of persecution, which is a 10% chance that the individual will be persecuted on account of race, religion nationality or membership in a particular social group. INS v Cardosa-Fonseca, 480 U.S. 421 (1987). The Board of Immigration Appeals (BIA) decision in Matter of T-M-B-, 21 I & N Dec. 775, 777 (BIA 1997) concluded that “an applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future, [but must] produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or imputed protected ground.” Thus, in itself, the well-founded fear standard, as specified in the governing statute and interpreted in the controlling precedent decisions of the BIA, is quite inclusive.

    It cannot be emphasized enough that every asylum case is different and depends on the specific facts and circumstances that are unique to each case. As the BIA has observed, “It is clear that to a large degree the meaning of "well-founded fear" can in fact only be determined in the context of individual cases. Whatever words may be used in a definition, the approach must still be to assess each case independently on its particular merits.” Matter of Mogharrabi, 19 I. & N. Dec. 439, 442 (BIA 1987).

    An Immigration Judge who expresses skepticism towards the as-yet unheard claims of the DREAM 9 - and the unheard claims of other potential asylum applicants, or who engages in making cynical comments prior to an application being filed, should be monitored carefully and consistently for signs of pre-hearing bias or lack of impartiality in asylum cases coming before him or her. Nevertheless, although such expressions may be offensive or imprudent, they do not always mean that the IJ is prejudging every asylum case or incapable of fairly hearing a case and rendering a reasoned decision.

    An attorney who believes that the IJ is exhibiting bias or lack of impartiality during a hearing, however, always should raise the issue in a request for clarification or an in the form of an objection on the record, and at a minimum, ask the IJ to explain any statement or ruling that suggests such inappropriate pre-judgment. If the IJ fails to control his or her expressions of bias or pre-judgment, the attorney can make a motion on the record or in writing, asking the IJ to recuse himself or herself, although recusal motions rarely are granted.

    As an alternative to recusal, a wise attorney who is concerned about the IJ's potential for actual bias or lack of impartiality can have a third party attend and observe each hearing with the permission of the applicant. Then, at the end of any hearing, master or merits, both the attorney and the third party can prepare contemporaneous sworn affidavits stating what occurred and what they observed. These documents can be held until it becomes necessary to use them in an appeal or motion, or for some other action.

    The blurring of political and legal lines in the DREAM 9’s action and the political statement they seek to make is permissible and appropriate. This duality is not an excuse for immigration defense lawyers to ignore our roles, or for IJs to forget their duties of actual impartiality and to project the appearance of impartiality.

    The credible fear inquiry, as a pre-screening exercise, is meant to cast a broad net and not summarily exclude potential asylum seekers from consideration. Notably, it is not the only means to limit unfounded claims from being presented and unduly taking up the Immigration Court's time. The statute expressly sanctions those who submit frivolous asylum claims, but there is no suggestion whatsoever that recourse to these penalties would be applicable here. Nevertheless, should anyone worry that the credible fear standard is too broad, be assured that such sanctions can be readily invoked, if by chance, an asylum claim lacking an underlying credible fear of persecution slips through the cracks.


    [1] A 2012 Los Angeles Times article reported that “Last fiscal year, 4,042 Mexicans sought asylum [affirmatively] . . . more than triple the number of applications five years earlier. During the same period, the agency approval rate increased slightly — to 9% from 7%. Molly Hennessy-Fiske, Los Angeles Times October 28, 2012,
    http://articles.latimes.com/2012/oct...sylum-20121028

    [2] Prior reports indicate that “In 2009, the U.S. received some 2,816 defensive asylum requests from Mexico with 62 approved and 366 denied. In 2008, the figure was 3,459 with 72 approved and 250 denied, according to the Justice Department.” Nicholas Casey, Wall Street Journal, March 9, 2011, http://tinyurl.com/asy2010

    Updated 08-09-2013 at 08:46 PM by Lrosenberg

  2. Let's Get Clear About Credible Fear

    I strongly caution against anyone indulging in skepticism or cynicism in response to this week’s reports that the DREAM 9 satisfied the credible fear test. For that matter, restraint and neutrality is far preferable to the inappropriate and possibly biased comments reportedly made by at least one Immigration Judge, and this admonishment applies to anyone else tempted to opine on the merits of a case without knowing the details and before the case has been presented.

    Asylum from Mexico? That’s right. According to the latest government reports, out of 558 defensive asylum applications ultimately decided during the period, 49 defensive asylum applications claiming persecution in Mexico -- just under 9% - were granted.[1] See The U.S. Department of Justice Executive Office for Immigration Review Office of Planning, Analysis, and Technology, Immigration Court Statistics from FY 2010, issued in February 2013.[2] While not among the highest percentages of reported asylum grants, and very likely an under-representation of the claims that should be granted, this number reveals that persecution in Mexico is being acknowledged and asylum claims are being granted.

    The credible fear test is a very low level inquiry and is intended to be so. Contrary to a plethora of uninformed news reports circulating online, it is not a grant of asylum or temporary asylum. All it means is that the applicant has provided information that indicates a significant possibility that the applicant can demonstrate a well-founded fear of persecution in a merits hearing before an Immigration Judge. Accordingly, an applicant's expression of a fear of return on the basis of sharing a status or characteristics articulated in the refugee definition is generally adequate.

    The USCIS website defines credible fear as follows: Q. What is a Credible Fear of Persecution?
    A. A “significant possibility” that you can establish in a hearing before an Immigration Judge that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country. See http://tinyurl.com/crediblefear
    The Immigration Court Practice Manual, Chapter 7, p 110, defines the credible fear standard, as: (i) Credible fear standard. -- “Credible fear of persecution” means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (“restriction on removal”) under INA § 241(b) (3). The credibility of the alien’s statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e) (2), 1003.42(d).”

    Accordingly, the "significant possibility" is determined by the officer "taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, [such] that the alien could establish eligibility for asylum under §208.” Wesem, Asylum and “Credible Fear” Issues in U.S. Immigration Policy, p. 4, CRS (June 29, 2011) (citing INA §235(b) (1) (B) (v); 8 U.S.C. §1225). In short, the credible fear standard is a pre-screening mechanism in which the burden of proof is easier to meet than the well-founded fear of persecution standard required to obtain asylum. Id.

    It is important to remember that eligibility for asylum is established by demonstrating a well-founded fear of persecution, which is a 10% chance that the individual will be persecuted on account of race, religion nationality or membership in a particular social group. INS v Cardosa-Fonseca, 480 U.S. 421 (1987). The Board of Immigration Appeals (BIA) decision in Matter of T-M-B-, 21 I & N Dec. 775, 777 (BIA 1997) concluded that “an applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future, [but must] produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or imputed protected ground.” Thus, in itself, the well-founded fear standard, as specified in the governing statute and interpreted in the controlling precedent decisions of the BIA, is quite inclusive.

    It cannot be emphasized enough that every asylum case is different and depends on the specific facts and circumstances that are unique to each case. As the BIA has observed, “It is clear that to a large degree the meaning of "well-founded fear" can in fact only be determined in the context of individual cases. Whatever words may be used in a definition, the approach must still be to assess each case independently on its particular merits.” Matter of Mogharrabi, 19 I. & N. Dec. 439, 442 (BIA 1987).

    An Immigration Judge who expresses skepticism towards the as-yet unheard claims of the DREAM 9 - and the unheard claims of other potential asylum applicants, or who engages in making cynical comments prior to an application being filed, should be monitored carefully and consistently for signs of pre-hearing bias or lack of impartiality in asylum cases coming before him or her. Nevertheless, although such expressions may be offensive or imprudent, they do not always mean that the IJ is prejudging every asylum case or incapable of fairly hearing a case and rendering a reasoned decision.

    An attorney who believes that the IJ is exhibiting bias or lack of impartiality during a hearing, however, always should raise the issue in a request for clarification or an in the form of an objection on the record, and at a minimum, ask the IJ to explain any statement or ruling that suggests such inappropriate pre-judgment. If the IJ fails to control his or her expressions of bias or pre-judgment, the attorney can make a motion on the record or in writing, asking the IJ to recuse himself or herself, although recusal motions rarely are granted.

    As an alternative to recusal, a wise attorney who is concerned about the IJ's potential for actual bias or lack of impartiality can have a third party attend and observe each hearing with the permission of the applicant. Then, at the end of any hearing, master or merits, both the attorney and the third party can prepare contemporaneous sworn affidavits stating what occurred and what they observed. These documents can be held until it becomes necessary to use them in an appeal or motion, or for some other action.

    The blurring of political and legal lines in the DREAM 9’s action and the political statement they seek to make is permissible and appropriate. This duality is not an excuse for immigration defense lawyers to ignore our roles, or for IJs to forget their duties of actual impartiality and to project the appearance of impartiality.

    The credible fear inquiry, as a pre-screening exercise, is meant to cast a broad net and not summarily exclude potential asylum seekers from consideration. Notably, it is not the only means to limit unfounded claims from being presented and unduly taking up the Immigration Court's time. The statute expressly sanctions those who submit frivolous asylum claims, but there is no suggestion whatsoever that recourse to these penalties would be applicable here. Nevertheless, should anyone worry that the credible fear standard is too broad, be assured that such sanctions can be readily invoked, if by chance, an asylum claim lacking an underlying credible fear of persecution slips through the cracks.


    [1] A 2012 Los Angeles Times article reported that “Last fiscal year, 4,042 Mexicans sought asylum [affirmatively] . . . more than triple the number of applications five years earlier. During the same period, the agency approval rate increased slightly — to 9% from 7%. Molly Hennessy-Fiske, Los Angeles Times October 28, 2012,
    http://articles.latimes.com/2012/oct...sylum-20121028

    [2] Prior reports indicate that “In 2009, the U.S. received some 2,816 defensive asylum requests from Mexico with 62 approved and 366 denied. In 2008, the figure was 3,459 with 72 approved and 250 denied, according to the Justice Department.” Nicholas Casey, Wall Street Journal, March 9, 2011, http://tinyurl.com/asy2010
  3. Let’s Be Clear About Persecution, Prosecution and The Need For Protection

    The dire need for protection from threatened and actual persecution continues to be one of the most pervasive and essential human needs worldwide. The United States is no stranger to treaties and statutes that constitute our commitment to extend such protection when an individual’s home country cannot or will not provide it. [1]

    Unfortunately, neither the history of U.S. immigration and refugee law, nor the specific track record created by individual asylum cases conducted before particular immigration judges and appealed to the Board of Immigration Appeals, is the most commendable or consistent when it comes to compliance with asylum principles. Instead, the principle of asylum as a humanitarian protection against persecution is too often honored in the breach.

    Having to resort to appeals via petitions for review in Article III courts in the federal circuit court system often is the only way that genuine asylum seekers can vindicate their claims and obtain the protection we have promised them.

    Which is why it is at best, curious, and at worst, appalling, that anyone who represents asylum seekers or claims to have strong ties to the immigration law community would choose to ignore the reality of persecution in its many forms, and resort to a linear, narrow concept of persecution to make a political point regarding the potential prosecution of Edward Snowden in the United States should he be returned to U.S. jurisdiction.

    Looking to federal circuit court decisions, it becomes immediately clear that, indeed, the line between persecution and prosecution is neither clear nor universally agreed upon by those examining and adjudicating asylum claims. Furthermore, the historical record reflects that persecutors are likely to take advantage of holding official governmental positions to cloak their actions, just as some government prosecutors may deliberately or negligently engage in self-serving or persecutory conduct that falls outside the laws they seek to enforce.

    As a former immigration appeals judge who examined thousands of appeals from both grants and denials of asylum in the United States, I can attest that there is no clear cut line between persecution and prosecution. For asylum purposes, detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, torture, or conduct that threatens any of these harms are included within the contours of persecution. Ahmed v. Gonzales, 467 F.3d 669 (7th Cir. 2006). Indeed, the statutory asylum definition, adopted from international treaty language, specifically refers to certain types of harm and mistreatment that a government cannot or will not control and it is the government in the asylum seeker’s country that many times is the bad actor and inflicts the persecution.

    Our law books are replete with decisions of United States federal courts illustrating this undeniable reality, as the following cases compiled by my fellow blogger, attorney Matthew Kolken, illustrate.

    For example, fear of prosecution under lawfully enacted but excessively harsh or brutally administered laws may entitle an alien to asylum or withholding of removal if the asylum seeker shows that the prosecution is based on a statutorily-protected ground and that punishment under that law is sufficiently extreme to constitute persecution. Scheerer v. U.S. Atty. Gen., 445 F.3d 1311 (11th Cir. 2006).

    In another case, the Third Circuit Court of Appeals found that punishment which an asylum seeker would likely face upon his return to China, resulting from China's prosecution of him for violating security laws by remaining in United States without authorization and failing to report suspicions that other Chinese citizens in a delegation he led would remain in United States, was sufficiently severe to constitute “persecution,” within the meaning of statutes governing asylum and withholding of deportation. Chang v. I.N.S., 119 F.3d 1055 (3d Cir. 1997). The court’s conclusion was based on evidence that violations of exit laws alone could result in years of punishment and that those expressing political opposition to the government faced imprisonment and torture.

    Furthermore, prosecution may constitute persecution subject to the production of evidence that criminal charges were improperly motivated and/or the individual would receive an unfair trial. Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004). Accordingly, as the Fourth Circuit Court of Appeals found, where the motive underlying purported criminal prosecution is illegitimate, such prosecution is more aptly called “persecution,” for purposes of the asylum claim. Menghesha v. Gonzales, 450 F.3d 142 (4th Cir. 2006).

    In other, unreported cases in the Fifth and Sixth Circuit Courts of Appeal respectively, evidence of the government’s intent to arrest and prosecute an asylum seeker, and evidence that an asylum seeker may be tortured if he is returned to face criminal prosecution, was found to warrant grants of protection. Qisheng Zhang v. Holder, 443 F. App'x 163 (6th Cir. 2011); Adam v. Gonzales, 156 F. App'x 635 (5th Cir. 2005).

    While still on the Second Circuit Court of Appeals, Justice Sonia Sotomayor ruled that:

    Retaliation for opposition to government corruption may, in appropriate circumstances, constitute persecution on account of political opinion within meaning of the asylum statute. . . no less than opposition to other government practices or policies, [it] may have a political dimension when [the opposition] transcends mere self-protection and represents a challenge to the legitimacy or authority of the ruling regime.

    See Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (citing Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004). See also Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir.2004) (holding that a journalist raised "indisputably political issues" when she accused a local political leader of "organizing a cadre of `terrorism, repression, and extortion,' of `misappropriation of public money,' . . . and of making his political office `an office of corruption.'"). In other words, a challenge to government authority that triggers retaliation, even under established government laws, may amount to persecution.

    What all these cases, and many others, illustrate, is that there is no definitive or fixed line differentiating prosecution from persecution, particularly in politically charged circumstances. Snide remarks (made by a colleague of mine) about first-year law students aside, it does a disservice to the development and practice of asylum law to suggest that the determination of what may constitute unacceptable harm done to human beings by any government is so clear-cut or easily made, or that fears of persecution may be so easily dismissed. Shame on any immigration attorney whose desire to make a political point would belie the complexity and variability of these necessarily case-by-case asylum determinations.


    [1] See Immigration and Nationality Act, §§ 208(a), 243(h), 8 U.S.C. §§ 1158(a), 1253(h). See also 8 C.F.R. § 208.13(a).

    Updated 07-18-2013 at 04:05 PM by Lrosenberg

  4. Restricting Judicial Review Would Undermine CIR


    Judical review
    is an essential component of a fair and reasonable system of agency
    adjudication,and no more is this true than in the context of the proposed
    comprehensive immigration reform provisions that would afford lawful status to
    the some 11 million undocumented students, family members, relatives, neighbors,
    employees, employers, armed forces personnel, and other members of the U.S.
    community.
    The
    judicial review provisions in S.744 include a mechanism for review of
    individual denials in district court or the court of appeals under the
    Administrative Procedures Act ("APA") standards.   In addition,
    the bill provides for full review of pattern and practice violations and class
    action litigation in the district court, a mechanism that proved to be quite
    important in guaranteeing the legalization rights were observed and honored
    under the Immigration Reform and Control Act (IRCA, 1986).  
    What
    is Grassley 17?
    The
    Grassley 17 amendment is a misguided effort on the Senator's part to curtail
    and deny access to such judicial review for individual beneficiaries of the
    provisions of S. 744, as well as to eliminate the possibility of review of
    practices that have a broader impact on the program overall.
    Specifically,
    the Grassley 17 amendment would severely restrict review, providing only:
    1)
    review in the district court in DC and in no other district court, and
    2)
    review over challenges to the constitutionality of sections of the program and
    implementing regulations.
    In
    short, Grassley 17 would eliminate all judicial review of decisions relating to
    RPI and adjustment of status applications, including those relating to
    Dreamers, agricultural workers, and the spouses and children of all these
    individuals -- other than where the litigation would be brought for the purpose
    of challenging the constitutionality of the statute or the regulations.  
    Why Is Judicial Review Necessary?

    Judicial review is critical to any fair and reasoned implementation and enforcement of statutory provisions.  In the case of the new provisions included in S.744,  the RPI, Dream, and AgJobs classifications require the agency to assess applications and evaluate eligibility using new terms and new standards.   In implementaing new programs such as these, oversights, miswunderstandings and, let's be frank, mistakes are inevitable. 
    According to Grassley 17, if adopted, there will be no way to address an executive branch regulation, policy or practice that
    erroneously denies thousands of eligible people legalization. Gutting judicial review from S. 744 means that there would be no way to
    correct such errors, even if the regulation, policy or practice was manifestly
    inconsistent with the terms of the legalization provisions created by Congress.  Without judicial review, Congress's intent could be thwarted.   
    It is never wise allow an agency employee unfettered adjudicative authority to render a decision that can have such a drastic effect on the future of any individual, let alone 11 million.   Gutting judicial review places far too much unchecked power in the hands of a single
    agency employee, or at the middle management level.  A single error by a
    single agency employee will destroy the once in a life-time opportunity that Congress has
    chosen to make available to the individual.  
    By restricting judicial review to the DC district court
    only, Grassley 17 would be highly unfair to RPI applicants who are unable to
    travel to DC.  Undoubtedly, hundreds or thousands would forego judicial review, an outcome that no democratic, fairminded legislator should encourage or desire.  Moreover, as long as the DC District Court says
    a provision or regulation is constitutional, an individual can be deported even
    if the legalization denial was blatantly wrong under the standards created by
    Congress.
    This is an untenable proposal by Senator Grassley.   As the ACLU reminds us, In our justice system, it would be unprecedented to bar
    judicial review of administrative agencies' decisions involving individual
    interests of this magnitude.  Grassley 17 itself would be unconstitutional because it wouldn't provide review over
    non-constitutional legal claims or even non-systemic constitutional claims, as
    required by US v. St Cyr and other Supreme Court cases.
    Stay tuned for more discussion on the judicial review provisions in S.744, right here, where appeal matters.
     
    * Appreciation to the ACLU for their analysis and comments in opposition to the Grassley 17.
     
  5. Appeal Does Matter And Politics Makes Strange Bedfellows by Lory D. Rosenberg, IDEAS Consultation and Coaching LLC

    On Tuesday, April 23, 2013, Judge
    Reed O'Connor  of the Texas District
    Court for the Dallas District entered an interim ruling and order in Crane v. Napolitano, a lawsuit brought
    by the ICE officer's union President Christopher Crane and other named
    individuals against DHS.  The lawsuit is
    an effort to frustrate DHS's implementation of the Deferred Action for
    Childhood Arrivals (DACA) initiative and exercise of prosecutorial
    discretion, and to subject those eligible for DACA to detention and removal
    proceedings.  Apparently, DHS has been
    defending the lawsuit on jurisdictional grounds, contending that it is nothing
    more than a federal employment dispute.
    The Court's April 23 decision postpones issuing a
    Preliminary Injunction. Rather, the Judge orders further briefing on the
    issues, commenting that DOJ has not presented it's interpretation of  INA section 235(b)(2)(A), entitled
    "Inspection of Other Aliens," the statute being held up by the ICE
    plaintiffs - and apparently accepted by the Judge -- as requiring mandatory
    enforcement and precluding the exercise of prosecutorial discretion by DHS. Not
    so.  In this battle, I stand with DHS
    leadership, albeit on the basis of arguments I developed and offer herein. 
    Having read through the decision of the court, and looked
    at the statute closely, I do not see how the interpretation accepted by the
    Judge can be applied to detain or place anyone eligible for DACA in removal
    proceedings under the statute being cited - at least for long.  This is because the statutory section
    includes an exception at INA § 235(b)(2)(B)(ii),
    expressly providing that it is inapplicable to a person to whom INA § 235(b)(1) applies.  
    In turn, INA § 235(b)(1)(A)(iii)
    exempts from the description of persons who shall be removed  a person who establishes "to the
    satisfaction of  an immigration officer,
    that . . .[s/he] has been physically present in the United States continuously for the
    2-year period immediately prior to" the officer's determination of
    inadmissibility under INA § 235(b)(1)(A).  Id. Thus, any putative detainee being
    targeted by ICE officers must be allowed an opportunity to demonstrate that
    s/he has accumulated more than 2 years continuous physical presence in the U.S.,
    and therefore is not properly included in the group to whom the INA 235(b)(2)(A)
    applies. See § INA 235(b)(2)(B)(ii). 
    Indeed, to qualify for DACA,
    an applicant must show that s/he has continuously resided in the United
    States for at least five years preceding the date of  Secretary Napolitano's June 15, 2012 Directive
    and was present in the United States on the date of the Directive.  Accordingly, every
    DACA applicant necessarily must establish more than a 2 year period of physical
    presence in the U.S.,  simultaneously satisfying
    the affirmative showing  of status required
    under subclause (II) of  INA § 235(b)(1)(A)(iii).   
    Therefore, none of the ICE plaintiffs are being diverted
    or prevented, as they claim, from acting in compliance with their sworn duty to
    detain and place in removal proceedings the "Other Aliens" whom they
    determine are seeking admission and not clearly and beyond a doubt entitled to
    be admitted.  See  INA § 235(b)(2)(A). 
    The somewhat remarkable, and I would argue, unfounded
    conclusions reached by the Judge in the absence of  an argument on the merits from DOJ, stimulated
    my curiosity and impromptu examination of Section 235 of the INA.  In my view, the operational consequences addressed
    by the District Court are not supported by the statutory scheme itself.   
    Although INA § 235(a)(1) provides that anyone present in
    the U.S.
    who has not been not admitted "shall" be deemed an "applicant for admission," INA § 235(b)(1)(A)(i) specifies that the treatment
    of  such applicants applies to arriving aliens or those described in clause (iii).  DACA applicants are not included in either of
    these subcategories. 
    In fact, the provision for "Application To Certain
    Other Aliens" described in clause (iii) subclause (I) permits the Attorney
    General General, in his sole and unreviewable discretion, to designate any or
    all of those noncitizens in subclause (II) for
    treatment under clause (i) or (ii) of INA§ 
    235(b)(1)(A).  As mentioned previously, subclause
    (II) covers a noncitizen who has
    not been admitted or paroled and who
    has not affirmatively shown to
    the satisfaction of the officer, continuous physical presence for the 2 year
    period prior to the officer's determination of inadmissibility.  Western
    Hemisphere (Cuban) entrants from countries with which the U.S. has no
    diplomatic relations who arrive  by
    aircraft at a port of entry are not subject to the terms of the mandate to
    remove in INA § 235(b)(1)(A).  
    To my knowledge, no Attorney General  has designated that the "applicant for
    admission" status is to be extended to someone physically present in the United States
    for more than 2 years. Thus, unless the Attorney
    General orders that persons determined to have accumulated  more than 2 years physical presence be
    treated as arriving aliens notwithstanding the determination,  once the determination has been made, such
    individuals arguably are not subject to INA Section 235, period.
    Furthermore, any noncitizen who is treated as being
    subject to inspection as an "applicant for admission" under INA § 235(b)(1) may express an intent to apply for asylum or a
    fear of persecution under subparagraph (A)(ii) of  INA § 235(b)(1) and
    will be referred for a credible fear hearing. 
    In the event of mass detentions of 
    individuals deemed to be applicants for admission, a greatly increased
    number of such referrals certainly would clog the DHS system with respect to the
    processing of credible fear interviews. 
    EOIR would experience a similar impact with respect to review of
    credible fear determinations being sought before Immigration Judges.
    As for INA§ 235(b)(2), as noted above, subparagraph
    (B)(ii) excepts those to whom paragraph (1) applies. Notably, it is paragraph
    (b)(2)(A) that contains the language providing that a person seeking admission
    who is not  "clearly and beyond a doubt entitled to be admitted...shall be detained for a proceeding under
    section 240."(emphasis added).  The dispute in the
    litigation over the interpretation of "shall" in this paragraph really
    is a straw man, because the paragraph simply is inapplicable to any qualified
    DACA applicant or beneficiary.
    I agree that yes, the fact that a person with more than 2
    years physical presence is not subject to treatment as an "applicant for
    admission" does not necessarily exempt that person altogether from being
    served with an NTA and placed in removal proceedings pursuant to the statute.
     However, the argument being made by the ICE officers and their attorney Kris
    Kobach is that INA § 235(b)(2)(A) applies and is mandatory. Therefore, the
    argument goes, there is no discretion not
    to detain such individuals and  to
    refrain from placing them in removal proceedings. That is incorrect. 
    INA § 235(b)(2)(A) does mandate that the persons to whom it
    applies "shall" be detained and processed for removal.  But, as
    I have demonstrated, that section does not apply to DACA applicants or
    beneficiaries. 
    In
    contrast, the DACA program is based on the legitimate discretionary choice
    being made by Secretary Janet Napolitano and Deputy John Morton not to detain and place them in removal
    proceedings and to defer any such removal as a matter of prosecutorial
    discretion.   The ICE officers may not like that choice, but if  INA §  235(b)(2)(A) does not apply, they cannot complain that
    they are being forced to act contrary to the statute and in violation of the
    oath they took to enforce the INA as they are claiming in their lawsuit.
     Moreover, as the District Court itself notes, even if an injunction were
    to issue, DHS would not be stripped of its authority and prosecutorial discretion
    under other sections of the INA to terminate removal proceedings or take other
    actions to prevent DACA applicants and status holders from facing removal. 
    Finally,
    it is true that the lawsuit appears to be limited to the District Court for the
    particular Texas
    district in which it was filed. And the DOJ appears to be focused on arguing
    that it is in actuality an employment dispute over which the District Court has
    no jurisdiction.  While I understand
    that DOJ may be pursuing a strategy of challenging jurisdiction on the basis
    that the plaintiffs complaint is nothing more than a federal employment
    dispute, it seems imperative that a comprehensive interpretation of the statute
    and authoritative argument - contrary to that being pushed by the plaintiffs -
    be provided to the District Court. [1]
    The
    arguments I am making haven't been made, but they are ones that might be made
    if the DOJ decides to engage the plaintiffs directly and defeat their efforts
    to frustrate the DACA program on it's merits.  And if that were to happen,
    I believe the plaintiff's position would be exposed as a bogus effort to
    achieve the ICE officers' and their attorney Kris Kobach's nativist and
    restrictionist goals.  




    [1] I wonder whether interested citizens and/or DACA
    beneficiaries have standing to present a motion to intervene, or at least file
    an amicus brief on behalf of DHS defendants?

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