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This will be the first in s series of comments discussing how mass deportations resembling those contemplated by Donald Trump's executive orders targeting all of America's esimated 11 million unauthorized immigrants, not just ones with real or alleged criminal histories, have been carried out in other countries and societies at various times in recent history.
A look at these these historical precedents will show that, regardless of the countries involved or the details of which type of government they had, mass deportations have always been associated with police state repression incompatible with the norms, or even the existence, of democracy.
By way of introduction, I will begin with a chilling February 25 report in the New York Times which should cause great concern, not only in immigrant communities throughout America, but among every American citizen who is concerned about our the preservation of our freedom and the survival of our democracy.
This report describes the sense of pleasure that some immigration enforcement agents repertedly feel at being "unshackled" from previous Obama-era restrictions as to which categories of immigrants they could arrest and throw into shackles themselves. According to the Times:
"Two officials in Washington said that the shift - and the new enthusiasm that has come with it - seems to have encouraged pro-Trump political comments and banter that struck the officials as brazen, or even gung-ho, like remarks about their jobs becoming 'fun.' Those who take less of a hard line on unauthorized immigrants feel silenced, the officials said."
This brings back disturbing memories of another police agency which was established more than 80 years ago in Germany with a mandate to carry out its work without restraints of any kind by the courts or administrative bodies. This agency was known in English as the Secret State Police, or in German, Geheime Staatspolizei, more commonly referred to as the Gestapo.
According to the above site, The History Place, the Gestapo was entirely free from legal restrants of any kind:
"On February 10, 1936, the Nazi Reichstag passed the 'Gestapo Law' which included the following paragraph: 'Neither the instructions nor the affairs of the Gestapo will be open to review by the administrative courts.' This meant that the Gestapo was now above the law and there could be no legal appeal from anything it did.
Indeed, the Gestapo became a law unto itself."
The Gestapo agents no doubt thought that their work was "fun", too. As the same site relates:
"The Gestapo prison center in Berlin (the Columbia-Haus) became notorious as a place where pedestrians strolling outside the building could hear screaming coming from inside."
Will we, before long, be hearing stories in America about how ICE agents, or guards employed by the private prison system, which Jeff Sessions' DOJ has now ordered to be revived and expanded,
are having "fun" or being enthused by the cries and tears of anguish and despair of millions of Latino, Asian, Middle Eastern and black immigrants, most of whom are law-abiding, productive members of our society whose only "crime" is not having the right legal documents, being wrenched away from their spouses, children, parents or other close family member or friends to be handcuffed, thrown into prison and held there indefinitely without any hope of release before they are finally expelled from Donald Trump's America?
On this note I will now turn to a history of previous mass expulsions of targeted minority populations which can give us a good idea of what we can expect from the present administration in Washington now, and in the coming years.
Attorney at Law
To be continued.
Updated 02-26-2017 at 02:08 PM by ImmigrationLawBlogs
There are more indications that Trump's central argument to the 9th Circuit and other federal courts when the DOJ tried to uphold his January 27 Muslim travel ban was bogus and in bad faith.
According to POLITICO (which was among the many news media banned from a February 24 White House press conference because of opposition to Trump), the AP is now reporting that the DHS has drafted a memo (admittedly "incomplete" in its words) refuting Trump's claims that citizens of the seven, (close to 99 percent Muslim) countries pose a special threat of terrorism in the US.
In the words of the POLITICO report:
"A draft [DHS] document obtained by the Associated Press concluded that citizenship is an 'unlikely indicator' of terrorism threats to the US and that few people from the countries that Trump listed in his travel ban have carried out attacks or been involved in terrorism-related activities in the US since Syria's civil war started in 2011."
Go to the above link for the full POLITICO story.
What is the Constitutional remedy when a United States president, allegedly, misrepresents to or acts in bad faith in a federal court about something as vital as America's national security, an issue which Trump's DOJ claimed in front of the 9th Circuit and other federal courts was the sole and essential basis for the travel ban order?
Does not a certain word beginning with the letter "I" come to mind?
Attoerney at Law
Updated 02-25-2017 at 10:20 PM by ImmigrationLawBlogs
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 firstname.lastname@example.org
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.