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Knowing that an alien in the United States who is charged with being deportable has a statutory right to a hearing before an immigration judge and that there is a backlog crisis in our immigration courts, I predictedthat President Donald Trump would not be able to deport millions of undocumented immigrants.
Since then, the backlog has gotten even higher. As of the end of January 2017, it was 542,411 cases and the average wait time for a hearing was almost 700 days.
Even if the immigration judges did not receive any additional cases, it would take them more than two-and-a-half years to catch up.
But President Trump has finessed his way around this problem by implementing a little-known expedited removal provision in his executive order (EO), ďBorder Security and Immigration Enforcement Improvements.Ē The provision is section 235(b)(1)(A)(iii)(II) of the Immigration and Nationality Act (INA).
Read more at --
Published originally on The Hill.
About the author.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
Updated 02-24-2017 at 05:41 PM by ImmigrationLawBlogs
The following has been revised and expanded as of February 24 at 8:00 am:
More chilling news reports are coming in about the fear, panic and despair among Latino immigrants throughout America being caused by Donald Trump's stepped-up deportations. These reports make the comparison with the expulsions and other persecution of Jews in 1930's Germany seem much less far fetched than one would like to think. (See my blog comment in the February 23 Immigration Daily.)
In one report, a Mexican man who was being deported to one of the most dangerous, drug cartel infested areas, committed suicide right after arrival at the Mexican side of the border, in a grim reminder of the Polish Jews who did the same thing after being sent back to Poland from Nazi Germany in 1938 (as mentioned in an article which I quoted from on February 23).
According to another horrifying story which one would think more typical of North Korea than the United States of America, a Salvadorean woman with a who has a pending appeal from denial of her application for political asylum, and who was awaiting surgery for a brain tumor, was tied up and dragged off her hospital bed by immigration agents and taken back to the detention center where she was being held.
Another story reports that ICE refused to permit either lawyers or her family to see her while she was in the hospital.
In a third incident, which shows how fragile the rights of US citizens are also in a period of government repression against immigrants, CBP agents stationed themselves that the exit to a domestic flight landing in New York from San Francisco to check the documents of every passenger who was getting off the plane, US and foreign citizen alike.
Allegedly, CBP was only looking for one particular passenger on the flight who was subject to a final deportation order (and was not actually on the plane). But one wonders what would have happened to any American citizen on the plane who did not happen to have a US passport or birth certificate in his or her possession. One also wonders what might have happened to any foreign citizen travelling with proper ID but without proof of current legal status in the US.
One is again reminded of a well known government agency in 1930's Germany which was also very good at doing random document searches and taking people without the right papers into custody (from which many never returned). This agency was known in German as the Geheime Statspolizei, or "Secret State Police" in English.
Meanwhile, schools across America are trying to deal with fears among children o being deported, and some are taking steps to bar ICE agents who do not have warrants from entering the schools. See, Washington Post December 26, 2016:
Schools warn of increased student fears due to immigrant arrests, Trump election
(Sorry, I do not have a link - please go to Google for access.)
One point is clear: the worst fears of those who warned during the presidential campaign that Trump's election could lead to mass deportation of up to 11 million men, women and children in America, but who were not always taken seriously by the media or the public, are now becoming reality. See an August, 2016 article by Chicago attorney and former AILA president David Leopold entitled:
The shocking reality of Trump's plan to deport millions
(Sorry, I do not have a link, please go to Google to access this article too.)
In a grim warning about how dangerous Trump's mass deportation could be to the rights of American citizens and the foundations of our democracy itself, Leopold writes the following in his article:
"Would our citizens be coerced into becoming immigration informants? Would Americans rat on their neighbors, friends or relatives out of a misguided feeling of patriotism, or, perhaps worse, vengeance and retribution?"
Leopold might also have added that American citizens, too, may in the not too far distant future feel pressure by the government to report unauthorized immigrants under fear of criminal prosecution for not doing so under INA Section 274, which makes it a federal felony to "harbor" or "assist" anyone staying in the United States without legal permission.
In Donald Trump's America, we may be hearing much more about this up to now infrequently used statute, which I will be writing about in more detail in a forthcoming comment.
Forcing American citizens to report and turn in immigrants, if this takes place, as it easily could as part of Trump's mass deportation agenda, would also bring up chilling memories of what happened to German citizens who tried to protect Jews in their country between 1933 and 1945.
Roger Algase is a New York immigration lawyer and graduate of Harvard College and Harvard Law School. For more than 35 years, he has been representing mainly skilled and professional immigrants in work visa and green card cases.
Roger's email address is email@example.com
Updated 02-24-2017 at 05:14 PM by ImmigrationLawBlogs
Earlier this week, DHS Secretary John Kelly issued a memorandum describing how DHS plans to implement President Trump's policies concerning "Border Security and Immigration Enforcement Improvements." Here, I want to discuss how this memo could affect the asylum system.
First, for people granted asylum or who have obtained their residency (green card) or citizenship through asylum, the memo has essentially no effect. The only possible exception is that DHS plans to expand the Fraud Detection and National Security Directorate (affectionately referred to as the FDNS), and if DHS somehow discovers that a previously-granted case was, in fact, fraudulent, it could reopen that person's case. Also, given the Trump Administration's stepped-up enforcement, it is a good idea to carry proof of lawful status with you at all times, just in case you are stopped by the authorities (and in many cases, non-citizens are actually required by law to carry proof of immigration status).
Shade-enfreude (defined): The pleasure one gets knowing that someone with a darker skin tone is in pain.
For people with asylum cases currently pending--before the Asylum Office or the Immigration Court--the memo also has little effect. As I have written here before, a person with a pending asylum case cannot be deported from the United States without due process of law, meaning a hearing before an Immigration Judge and an appeal. So while the atmosphere for asylum seekers has become more toxic, the substantive law and procedure remains largely the same. As mentioned above, you should carry proof of your pending status (work permit, asylum receipt, court order) with you at all times.
One possible issue for people currently in the system is more delay. The DHS memo directs USCIS "to increase the number of asylum officers and FDNS officers assigned to detention facilities located at or near the border with Mexico to properly and efficiently adjudicate credible fear and reasonable fear claims and to counter asylum-related fraud." The memo also envisions a "joint plan with the Department of Justice to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants." Assigning more Asylum Officers and Immigration Judges to the border (either by physically sending them there or by having them adjudicate cases remotely), obviously means that those adjudicators will not be available to work on the hundreds of thousands of cases in the backlog, and that could mean more delay. In addition, the memo calls for hiring thousands more immigration officers, and for stepped up enforcement and detention. If all that happens, many more people will be channeled into the Immigration Court system, and unless more judges (lots more judges) are hired, the influx of people into the system will cause further delay. On the other hand, the memo also calls for expanded use of "expedited removal," which may end up removing certain cases from the system and cause the remaining cases to move more quickly. How all this plays out, only time will tell.
Another possible issue for people with pending asylum cases is the increased focus on fraud. The Immigration and Nationality Act and the REAL ID Act, along with the Code of Federal Regulations, and case law set forth the standards for evaluating credibility. The DHS memo calls for "enhancing" asylum referrals and credible fear determinations. While this would not directly impact people with pending asylum cases (as asylum referrals and credible fear determinations occur prior to a case being sent to Immigration Court or to the Asylum Office), it might signal DHS's intention to subject asylum cases to greater scrutiny. Also, of course, expansion of the FDNS points towards a greater focus on asylum fraud, which could impact pending cases (personally, I think DHS should be doing more to combat asylum fraud, as long as they are doing so effectively, as I discuss here).
For people inside the United States who plan to seek asylum here, but have not yet filed, the memo may affect you. If you entered lawfully with a visa, you should be able to apply for asylum as before. Indeed, even if you entered unlawfully, you should be able to seek asylum as before. However, if you entered the U.S. without inspection or based on some type of fraud (how broadly "fraud" will be interpreted is not yet known), and you are detained by ICE (Immigration and Customs Enforcement) before you file for asylum, you could be subject to "expedited removal." People crossing the border illegally who get caught or who surrender to ICE agents may also be subject to expedited removal.
People facing expedited removal are permitted by law to request asylum. If they indicate a fear of harm in their country, the law requires that an Asylum Officer perform a "credible fear interview" where the person must demonstrate a "significant possibility" that they could establish eligibility for asylum. If they meet this standard, their case will be referred to an Immigration Judge for an asylum hearing. If they do not demonstrate a "significant possibility" of winning asylum, they can be removed immediately from the United States (subject to limited review by an Immigration Judge). The DHS memo indicates that the government will greatly expand the use of expedited removal, though the details of the plan have not yet been released.
As you might imagine, there are some major problems with the expedited removal process. For one, ICE officers often fail to inform aliens of their right to seek asylum (or ignore their requests to seek asylum). If this happens, people with a legitimate asylum claim may be removed from the United States before they have an opportunity to claim asylum or have a credible fear interview. The expedited removal process is quite fast and there is little chance to retain counsel and defend yourself, and no opportunity to see an Immigration Judge. In addition, the DHS memo seeks to expand the use of expedited removal and raise the evidentiary bar for credible fear interviews. All this will make it more difficult for asylum seekers who are subject to expedited removal from asserting their claims. I plan to write another post on this topic, but I will first wait for DHS to clarify its position on expedited removal (in the mean time, if you want to learn more, check out this excellent practice advisory by the American Immigration Council).
Per its campaign promises, the Trump Administration is ramping up immigration enforcement efforts. People who have won asylum, or who have already filed, are largely insulated from those efforts, and without Congressional action, it is likely to remain that way. But if you are in the United States and you plan to file for asylum, you should do so soon (at least before your lawful status expires). Remaining here lawfully is the best way to protect yourself from the Administration's enforcement efforts.
Originally posted on the Asylumist: www.Asylumist.com.
Whatever one wants to say about Donald Trump's latest two deportation and interior enforcement memos, including his plan to send asylum seekers from all countries, not just Mexico (ostensibly to wait in that country for US asylum hearings), one has to acknowledge that his plan is not without historical precedent.
(For a link to the memos, see the propublica.org article immidiately below.)
An article in propublica.org describes Trump's plan as follows:
"If present immigration trends continue, that could mean the United States would push hundreds of thousands of Guatemalans, Hondurans, Salvadorans, Brazilians, Ecuadorans, even Haitians into Mexico. Currently, such people are detained in the US and allowed to request asylum...
'This would say if you want to make a claim for asylum or whatever we'll hear your case but you are going to wait in Mexico,' a DHS official said."
How willing would Mexico be to accept all these non-Mexican asylum seekers? The above article continues:
"However, former senior Mexican and American immigration officials said it would very well create new security problems along the border, as authorities in each country push unwanted migrants back and forth...
Mexico is as likely to embrace the plan as it did the notion of paying for a wall. 'I would expect Mexico to respond with an emphatic "No," ' said Gustavo Mohar, a former senior Mexican immigration and national security policy official."
The above reference to pushing unwanted immigrants back and forth, recalls chilling memories of another group of unwanted people, Polish Jews, who were shunted back and forth between Germany and Poland during early stages of the Holocaust. A website based in the Czech Republic describes these events as follows:
After Poland cancelled the passports of all Polish Jews living in Germany and Austria because it didn't want them to return to Poland, and after talks between Germany and Poland failed,
"...the German foreign ministry handed the whole affair over to the Gestapo. which on 27 October 1938 started forcibly deporting Polish Jews over the border. In some places only the men were deported, since the Nazis expected that they would be joined by their wives and children all the same, while in other places women and children were deported as well.
How about that for an example of "family reunification"? The article continues:
"Those arrested included old people, some of whom died during deportation. There were also suicides. The arrested Jews were compelled, through threats and violence, to illegally cross the border with Poland. In all, approximately 17,000 people were expelled in this way."
And what was Poland's reaction? The article continues
"However, the Polish authorities refused to accept them, and so most had to live in for many long weeks in no man's land, or the Polish border area.".
The article goes on to describe how thousands of the deported Jews were forced to live in a Polish refugee camp before it was later disbanded and the Jews were finally allowed to reside in Poland. The article also states that the Nazis, after talks with the Polish authorities, also allowed a small group of Jewish men to return to Germany temporarily so that they could put their affairs in order.
Trump's administration might be more generous. A very few of the asylum seekers who can meet the stricter standards which Trump is also planning to impose may actually granted asylum by Trump's adjudicators or immigration court judges and allowed to return to live in the US. No one should expect the numbers of successful applications to be very large.
Trump, also, expects his administration to hold discussions with Mexico about his planned expulsion of Central American and South American immigrant to that country (just as Germany held discussions with Poland about the Jews) even though, according to USA Today (February 22) Mexico is vigorously resisting Trump's plan and is threatening to go to the United Nations to oppose it.
See: USA Today:
Mexico says no to Trump's new deportation rules
(I do not have a link - please go to Google to access this story.)
Is Germany's deportation of Polish Jews about to become the model for Trump's plans for hundreds of thousands of asylum seekers in America?
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards. Roger's email address is firstname.lastname@example.org
Updated 02-23-2017 at 05:25 PM by ImmigrationLawBlogs
by Chris Musillo
The Department of Stateís Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association. Charlie Oppenheim is the Department of Stateís Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month. This monthís Check In With Charlie featured predictions about EB2 and EB3 in most of the popular categories for readers of this Blog. Here are some of this monthís highlights:
Philippine EB-3 Ė As with last month, Charlie again offered his most optimistic predictions for this category. He said that he expects predicts future advancement at a pace of ďup to six months.Ē He expects that the Philippine EB-3 date should quickly move through 2012 and 2013, and quickly move into 2014. This is consistent with internal MU Law analysis, which sees this category progressing at least into 2013 by the summer of 2017.
India EB-2 Ė Charlie hopes that the India EB-2 category can progress at a pace of ďup to one month.Ē He cautions that an increase in EB-3 upgrades could slow the progression of India EB-2.
India EB-3 Ė There was no specific comment by Charlie. Mu Law expects that India EB-3 will progress at about the same 1-2 week rate as it has in prior months. The India EB-3 date may stall/stop in the summer of 2017, as the full allotment of numbers gets used. It will then recommence in October. This is normal. It happens every year. Read our FAQ on why the Visa Bulletin progression stops in August and September.
Worldwide EB-2 and EB-3 Ė EB-2 will remain current for the foreseeable future. Worldwide EB-3 will continue to move ahead steadily and be effectively current.
China EB-2 and EB-3 Ė These categories are the most difficult to predict because of the upgrade/downgrade phenomenon of EB-2 and EB-3. At present China EB-3 is 15 months ahead of EB-2.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.