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  1. Supreme Ct. Justices' Questions Show Real Reason for Muslim Ban is Bigotry, not "Trumped-Up" Security Window Dressing. Roger Algase

    The conventional wisdom, based on numerous instant armchair analysis articles by mainly non-lawyer journalists appearing immediately after the April 25 Supreme Court oral argument in the Muslim Ban case Hawaii v. Trump (which the media misleadingly insist on calling a "travel ban" even though the nearly 200 million Muslims who are banned from entering the US under the president's latest version of his executive order are free to travel anywhere else in the world that they wish), is that the narrowly divided Supreme Court will uphold Trump's order and that the crucial "swing" Justice, Anthony Kennedy, will vote with the "conservative" (another euphemism - "radical right wing" might well be more accurate) majority on this issue.

    This would resolve the only real question in this case by holding that the alleged "national security" justification for the ban put forward by the Trump administration is genuine, and that it "Trumps" the Constitutional right to freedom of religion by Muslim US citizens who would be adversely affected by upholding the ban, as they unquestionably would be - a point which did not appear to come out at the oral argument to any great extent.

    But when one recalls that during Trump's campaign there was talk, not only of banning the world's entire Muslim population from the US, but of conducting surveillance of Muslim Americans and even interning them, in an ominous throwback to what happened to Japanese-Americans during WW2 (shamefully, with the Supreme Court's approval), it becomes clear what could be at stake for the 3 million US citizens who happen to belong to the Muslim faith if the latest version of Trump's ban order is finally upheld.

    However, no matter how much the ban's supporters on and off the Court may wish to to hand the president a victory on one of his "signature" campaign issue, it became obvious during the oral argument that the "national security" reason that has been put forth for the ban is nothing but "Trumped-up " window dressing for the anti-Muslim bigotry that underlies the ban.

    The main task for the Solicitor General, Noah Francisco, was to persuade the Court to disregard Trump's numerous statements and actions, both as a candidate and after taking office as president, making clear beyond any possible doubt that the real reason for barring 200 million Muslims from entering the US on the basis of their nationality alone, and without any evidence of individual wrongdoing, was hatred of of Muslims and their religion, or what the 4th Circuit politely but accurately called "animus" on Trump's part.

    However, two hypothetical questions, one by Justice Kennedy and the other by Justice Kagan, showed the essential hollowness (and lack of required good faith - see Kleindienst v. Mandel, 1972) in the government's claim that Trump's Islamophobic statements as a "private citizen" should be ignored (without mentioning Trump's retweeting a British anti-Muslim hate video and appointing openly Muslim-hating top advisers such as Michael Flynn and Steve Bannon as president, to mention only a few similar actions).

    Justice Kennedy's hypothetical question was the following, as reported by George Mason University Law Professor Ilya Somin in his incisive article about the oral argument (not only the best I have read, but in my opinion, the only good one that I have seen previously):

    To be continued.

    Updated 04-26-2018 at 11:45 AM by ImmigrationLawBlogs

  2. ICE Responds to New York Governor Cuomo

    by , 04-26-2018 at 06:00 AM (Matthew Kolken on Deportation And Removal)

    U.S. Immigration and Customs Enforcement (ICE) sent this bulletin at 04/25/2018 07:39 PM EDT

    For Immediate Release For media inquiries about ICE activities, operations, or policies, contact the ICE Office of Public Affairs at (202) 732-4242.


    “As a native New Yorker who began my law enforcement career as a police officer in the state, I was disappointed to learn about Governor Cuomo's grandstanding today over the issue of immigration enforcement. The Governor's comments were inaccurate and an insult to ICE's sworn law enforcement officers who conduct their lawful mission professionally and with integrity. These brave men and woman leave the safety of their homes everyday to protect this great nation and our communities. ICE cannot and will not cease and desist from fulfilling our agency’s congressionally mandated mission of enforcing federal law.

    “Reflecting our commitment to public safety, since September 2016, ICE has arrested nearly 5,000 criminal aliens in New York—individuals with a criminal conviction in addition to their violation of immigration laws
    . Many of these arrests were conducted at large in the community, which ICE is increasingly forced to do due to sanctuary policies in the state that prevent us from taking custody of criminal aliens in the secure confines of a jail. The Governor supports these policies at the expense of the safety of the very same communities he took an oath to protect.

    "Through Operation Matador, an operation focused on dangerous MS-13 gang members and associates in New York, ICE has arrested 484 individuals for both criminal and/or immigration violations. ICE has increased our resources and assistance upstate to assist local law enforcement in opioid and fentanyl investigations and dismantling cross border crime.

    “With respect to the cases the Governor mentioned, Ravi Ragbir, arrested in Staten Island, is a convicted aggravated felon in addition to his immigration violations. Marcial DeLeon-Aguilar, also a criminal alien, arrested in Rome, New York, is a three-time prior deportee who has felony criminal convictions for reckless aggravated assault and illegal re-entry- also a felony.

    “In each targeted enforcement action in which these specific individuals were sought, ICE officers acted professionally and within their legal authorities under federal immigration law.

    "ICE will continue to protect New York communities against public safety and national security threats and it is false and offensive for the Governor to say otherwise."

  3. Justice Department Reverses Course on Suspending Legal Assistance Program for Detained Immigrants

    by , 04-26-2018 at 05:39 AM (Matthew Kolken on Deportation And Removal)
    Via the Washington Post:

    After objections from immigration lawyers and lawmakers, Attorney General Jeff Sessions said Wednesday that he would not suspend a legal-aid program for detained immigrants while it undergoes a review.

    The government-funded Legal Orientation Program, launched in 2003 under President George W. Bush, was created to ensure that immigrants know their rights and legal options in court. It serves more than 50,000 detained immigrants facing deportation proceedings each year.

    Sessions, an immigration hawk, said the U.S. immigration courts had planned to suspend the program starting as early as next week. At a budget hearing before a Senate appropriations subcommittee, he signaled that he had received questions about pausing the program from lawmakers in both parties, including the subcommittee’s chairman, Sen. Jerry Moran (R-Kan.), and its ranking Democratic member, Sen. Jeanne Shaheen (N.H.).

    Click here for more.
  4. Undocumented Transgender Woman Taken into Custody After Filing For Protective Order

    by , 04-25-2018 at 02:33 PM (Matthew Kolken on Deportation And Removal)
    Via NPR's Latino USA:

    In February of 2017, an undocumented transgender woman named Estrella González filed a protective order in an El Paso County courthouse. The judge granted her a protective order. Shortly after the protective order was granted, she was approached by immigration enforcement agents who had been waiting for her. She is facing federal charges as a result of her apprehension.

    Click here for more.
  5. The What and the Why of Torture Convention Relief

    When a person applies for asylum, she generally seeks three different types of relief: Asylum, Withholding of Removal under INA § 241(b)(3), and relief under the United Nations Convention Against Torture.


    Of the three, asylum is the best--if you win asylum, you can remain permanently in the United States, you can get a travel document, you can petition to bring certain immediate family members to the U.S., and you can eventually get a green card and become a U.S. citizen.

    But some poor souls do not qualify for asylum. Perhaps they filed too late, or maybe they are barred due to a criminal conviction or for some other reason. Such people may still be eligible for Withholding of Removal ("WOR") under INA § 241(b)(3) or relief under the United Nations Convention Against Torture ("CAT"). I've written previously about the benefits (or lack thereof) of WOR. Today I want to discuss CAT: Who qualifies for CAT? How does it differ from asylum and WOR? What are its benefits?

    To qualify for CAT, you need to show that it is "more likely than not" that you will face torture at the hands of your home government or by a non-state actor with the consent or acquiescence of the home government. If you fear harm from a terrorist group, for example, you likely cannot qualify for CAT, unless the group is controlled by the government or acting with government sanction.

    Of the applicants who fear torture, there are basically two categories of people who receive CAT: (1) Those who are ineligible for other relief (asylum or WOR) because there is no "nexus" between the feared harm and a protected ground, and (2) Those ineligible for other relief because of a criminal conviction.

    Let's talk about nexus first. "Nexus" is a fancy word for "connection." There has to be a nexus between the feared persecution and a protected ground. An alien may receive asylum or WOR only if she fears persecution on account of race, religion, nationality, political opinion or particular social group. In other words, if you fear that you will be harmed in your home country because someone hates your political opinion, you can receive asylum. If you fear harm because someone wants to steal your money, you probably don't qualify for asylum, since common crimes do not generally fall within a protected category (I've written a critique about the whole nexus thing here).

    In my practice, we sometimes encounter the nexus issue in cases from Eritrea. That country has a form of national service that is akin to slavery. People who try to escape are punished severely. However, fleeing national service does not easily fit into a protected category, and thus many Eritreans who face persecution for this reason cannot qualify for asylum or WOR. Such people are eligible for CAT, however, since the harm is perpetrated by the government and constitutes torture.

    Now let's discuss the other group that sometimes receives CAT--people with criminal convictions. Some crimes are so serious under the Immigration and Nationality Act ("INA") that they bar a person from asylum or WOR. For example, if you murder someone, you can pretty much forget about asylum or WOR. Drug crimes are also taken very seriously by the INA, as are domestic violence offenses. In fact, there is a whole area of law--dubbed "crimmigration"--that deals with the immigration consequences of criminal behavior. Suffice it to say that certain convictions will block you from asylum and/or WOR, and it is not always intuitive which crimes are considered the most serious under the immigration law.

    If you are ineligible for asylum or WOR due to a conviction, you will not be barred from CAT. The United States has signed and ratified the CAT, which basically says that we will not return a person to a country where she faces torture. So even the worst criminals may qualify for CAT relief.

    So what do you get if you are granted CAT?

    There are two sub-categories of CAT: Withholding of Removal under the CAT (which is different from WOR under INA § 241(b)(3)) and Deferral of Removal under the CAT. This means that the Immigration Judge will order the alien deported, but will "withhold" or "defer" removal to the country of feared torture. Of the two types of relief, Withholding is the more stable status. It is granted to people who do not qualify for asylum or CAT due to a nexus problem. It is also available to certain criminals, but not the most serious offenders. Deferral can be granted to anyone who faces torture in the home country, regardless of the person's criminal history. Deferral is--theoretically at least--more likely to be revoked if conditions in the home country change. In practical terms, however, there is not much difference between the two types of CAT relief.

    For both types of CAT relief, the recipient receives an employment authorization document ("EAD") that must be renewed every year. The person cannot travel outside the U.S. and return. She cannot petition for relatives to come to the United States. She can never get a green card or become a U.S. citizen (unless she is eligible for the green card some other way).

    CAT beneficiaries who are detained are not necessarily released. If the U.S. government believes that the person is a danger to the community or security of the United States, she can be kept in detention forever (in practical terms, this is pretty rare, but it is certainly possible).

    Also, sometimes ICE harassers CAT (and WOR) beneficiaries by ordering them to apply for residency in third countries. ICE officers know very well that third countries are not clamoring to accept people who we want to deport, so essentially, this is a pointless exercise. When my clients are in this situation, I advise them to comply with ICE's demands, and eventually (usually), ICE will leave you alone.

    CAT relief is certainly better than being deported to a country where you face torture. But for many people, it does not offer the security and stability of asylum. I view CAT as a last resort. We try to get something better for our clients, but we are glad it is available when all else fails.

    Originally posted on the Asylumist:
    Tags: asylum, cat, torture Add / Edit Tags
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