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  1. Federal Judge Halts Trump's Attempt to Betray Over 100 Iraqi Christians by Deportation Back to Danger or Death. Roger Algase

    The Guardian reports on June 22 that a federal judge in Detroit, Mark Goldsmith, has put a temporary hold on attempts by ICE to deport over 100 Iraqi Christians, many of whom have minor criminal convictions for which the finished served their sentences long ago, to Iraq, where they face danger of severe persecution, or even death at the hands of ISIS.

    The Detroit area Iraqis are now being incarcerated far away from their homes and their attorneys at an ICE detention center in Youngstown, Ohio, in an evident betrayal of Trump's campaign promises to protect Christians and other Middle Eastern religious minorities from persecution.

    http://www.theguardian.com/us-news/2...troit-ice-raid

    See also: POLITICO, June 13:

    http://www.politico.com/story/2017/0...istians-239511

    Also, see my June 14 ilw.com comment on Trump's raids against Iraqi Christians.

    What could have possibly caused Trump to turn against a group of people who are arguably the most vulnerable of any in America to the same religiously inspired terrorist persecution and murder that Trump is now using as an excuse to justify his Muslim entry ban orders?

    The immediate reason, as also reported in the media, was Iraq's decision to reverse its previous policy of refusing to accept deportees from the US, as part of an apparent deal to be taken off the original list of seven Muslim countries whose citizens were banned from entering the United States.

    But there is a strong argument to be made that the deeper reason is Trump's own glorification of his mass deportation policies and evident desire to create a legacy as the president who expelled more Middle Eastern, Latino, Asian and black immigrants from America than any other U.S. president in history.

    As the great Iraqi poet, Al-Mutanabbi, wrote over 1,000 years ago:

    Wa taazumu fi 'ayn assaghir assagharuha,

    Wa tasgharu fi 'ayn al azim al-azaimu.

    "Small people think that their small deeds are great,

    While those who are great look upon their great deeds as small."


    (I apologize for any imperfections in transliteration or translation - I am not a classical Arabic scholar.)

    Few people (other than, no doubt, top Trump administration officials such as Stephen Bannon and Jeff Sessions, who have both advocated a return to the Europeans-only policies of the infamous Johnson-Reed "national origins" immigration act of 1924) would argue that the president's attempt to expel up to 11 million unauthorized immigrants from America, no matter what the cost might be in human suffering, puts him among the second group of people whom this famous medieval Iraqi poet described above.

    To be continued.


    Updated 06-23-2017 at 05:23 AM by ImmigrationLawBlogs

  2. Criminal Prosecutions Referred by DHS Continue to Fall under Trump

    by , 06-22-2017 at 11:22 AM (Matthew Kolken on Deportation And Removal)
    Via Syracuse University's TRAC:

    The latest available data from the Justice Department show that during April 2017 the government reported 4,434 new criminal prosecutions as a result of referrals by the immigration and customs components in the Department of Homeland Security. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is down 17.5 percent over the previous month and down 42.9 percent from a year ago in April 2016. See Table 1.



    Table 1. Criminal Prosecutions Referred by
    Immigration and Customs Components of DHS
    Number April 2017 4,434
    Percent Change from previous month -17.5
    Percent Change from April 2016 -42.9
    Number December 2012 (peak) 10,708
    Percent Change from Peak -58.6

    The number of prosecutions include those referred by Customs and Border Protection, Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, and joint task forces of DHS with state and local authorities. The long term trends, along with the month-to-month variation driven largely by seasonality in apprehensions along the southwest border, is shown more clearly in Figure 1.

    Since the latest data track prosecutions through April 2017 they do not as yet reflect the impact of the new priorities Attorney General Jeff Sessions promulgated in his April 11, 2017 memorandum to federal prosecutors calling for stepped up use of criminal sanctions in the immigration area.


    Click here for more of the report.

    Updated 06-22-2017 at 11:27 AM by MKolken

  3. Trump's Muslim Entry Ban Orders Were Issued in Good Faith - If You Believe That Life is Just a Bowl of Cherries. Roger Algase

    Many years ago, I heard the following joke:

    An American who is seeking the true meaning of life hears that a certain sage living at the top of a mountain in the Himalayas has the answer. So the American decides to visit him.

    After a long and arduous trip, full of danger and difficulty, the American finally reaches the top of the mountain and comes face to face with the sage.

    "Tell me, Oh Sage, what is the true meaning of life?",


    the American asks.

    The sage goes into deep meditation, for what seems like hours, and finally addresses the visitor.

    "Life", the Sage answers, "is just a bowl of cherries."

    The American visitor is outraged.

    "What are you talking about?" the visitor asks,

    "After all the trouble and expense I went through to come here, nearly risking my life, just to see you, are you now telling me that life is just a bowl of cherries? What kind of scam is that?"

    The Sage looks at the visitor with a very puzzled expression. Finally he says:

    "Do you mean to say that life
    isn't just a bowl of cherries?"

    This story comes to mind every time I see someone claim that Donald Trump's Muslim ban executive orders were not issued in bad faith.

    Anyone who thinks that either the first version of the ban order, which Trump now states that he regrets having withdrawn, or the current version which is now before the U.S. Supreme Court, meets the standard of being "facially legitimate and bona fide" set forth in Justice Blackmun's majority opinion in Kelindienst v. Mandel (1972), and also meets the requirement of being free from an "affirmative showing of bad faith" announced by Justice Kennedy in his plurality opinion in Kerry v. Din (2015); or who contends that the courts had no power to look behind the face of these orders into the issue of whether the president issued them in good faith, might just as well argue that life is just a bowl of cherries.

    The one argument makes about the same amount of sense as the other - i.e. none at all.

    I will discuss the above two definitive Supreme Court cases in more detail in my next comment.
    _______________________________

    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants receive work visas and green cards.

    Roger's main areas of practice include H-1B specialty occupation, O-1 extraordinary ability and J-1 trainee work visas; and green cards through labor certification (PERM) and through opposite sex or same sex marriage. Roger's email address is algaselex@gmail.com

    In his many years of immigration law experience, Roger has found that careful planning, thorough knowledge of the law and persistent efforts based on mutual collaboration and understanding between lawyer and client are the keys to success. Immigration is not just a bowl of cherries.


    Updated 06-22-2017 at 01:34 PM by ImmigrationLawBlogs

  4. SCOTUS Rules on When a Naturalized Citizen May Lose their Citizenship

    by , 06-22-2017 at 10:16 AM (Matthew Kolken on Deportation And Removal)
    The Supreme Court has issued a decision relating to when a naturalized citizen may be automatically stripped of their citizenship in the context of a criminal proceeding for fraud based on an immaterially false statement.

    Maslenjak v. United States
    :

    1. The text of §1425(a) makes clear that, to secure a conviction, the Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” specifies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law,naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtaining of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.

    The Government’s contrary view—that §1425(a) requires only a violation in the course of procuring naturalization—falters on the way language naturally works. Suppose that an applicant for citizenship fills out the paperwork in a government office with a knife tucked away in her handbag. She has violated the law against possessing a weapon in a federal building, and she has done so in the course of procuring citizenship, but nobody would say she has “procure[d]” her citizenship “contrary to law.” That is because the violation of law and the acquisition of citizenship in that example are merely coincidental:The one has no causal relation to the other. Although the Government attempts to define such examples out of the statute, that effort falls short for multiple reasons. Most important, the Government’s attempted carve-out does nothing to alter the linguistic understanding that gives force to the examples the Government would exclude.Under ordinary rules of language usage, §1425(a) demands a causal or means-end connection between a legal violation and naturalization.

    The broader statutory context reinforces the point, because the Government’s reading would create a profound mismatch between the requirements for naturalization and those for denaturalization: Some legal violations that do not justify denying citizenship would nonetheless justify revoking it later. For example, lies told out of“embarrassment, fear, or a desire for privacy” (rather than “for the purpose of obtaining [immigration] benefits”) are not generally disqualifying under the statutory requirement of “good moral character.”Kungys v. United States, 485 U. S. 759, 780; 8 U. S. C.§1101(f)(6). But under the Government’s reading of §1425(a), any lie told in the naturalization process would provide a basis for rescinding citizenship. The Government could thus take away on one day what it was required to give the day before. And by so unmooring the revocation of citizenship from its award, the Government opens the door to a world of disquieting consequences—which this Court would need far stronger textual support to believe Congress intended. The statute Congress passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization. Pp. 4–9.

    2. When the underlying illegality alleged in a §1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship. Because the entire naturalization process is set up to provide little room for subjective preferencesor personal whims, that inquiry is properly framed in objective terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.

    If the facts the defendant misrepresented are themselves legally disqualifying for citizenship, the jury can make quick work of that inquiry. In such a case, the defendant’s lie must have played a role in her naturalization. But that is not the only time a jury can find that a defendant’s lies had the requisite bearing on a naturalization decision, because lies can also throw investigators off a trail leading to disqualifying facts. When relying on such an investigation-based theory, the Government must make a two-part showing. Initially,the Government must prove that the misrepresented fact was sufficiently relevant to a naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation. Kungys,485 U. S., at 774, n. 9. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. The Government need not show definitively that its investigation would have unearthed a disqualifying fact. It need only establish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774. If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way§1425(a) requires. This demanding but still practicable causal standard reflects the real-world attributes of cases premised on what an unhindered investigation would have found.

    When the Government can make its two-part showing, the defendant may overcome it by establishing that she was qualified for citizenship(even though she misrepresented facts that suggested the opposite). Thus, whatever the Government shows with respect to a thwarted investigation, qualification for citizenship is a complete defense to a prosecution under §1425(a). Pp. 10–15.3. Measured against this analysis, the jury instructions in this case were in error. The jury needed to find more than an unlawful false statement. However, it was not asked to—and so did not—make any of the necessary determinations. The Government’s assertion that any instructional error was harmless is left for resolution on remand.Pp. 15–16.821 F. 3d 675, vacated and remanded.

    KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in the judgment.

    Updated 06-22-2017 at 10:47 AM by MKolken

  5. The BIA on Firm Resettlement

    One of my professional goals in life is to get a published decision from the Board of Immigration Appeals ("BIA"). It won't be easy--the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation's Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.

    I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.


    Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are "persuasive," meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.


    My case centered on a legal construct called "firm resettlement." An alien who has been "firmly resettled" in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client's husband had been a high-ranking member of his country's government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum--hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge ("IJ") denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.


    During the pendency of the BIA appeal, the home government assassinated my client's husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.


    On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.


    DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government's argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.


    Ultimately, the BIA accepted one of several arguments we presented. The Board held:


    The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution.... Given respondent's situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

    Id.
    (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar "aliens who had already found shelter and begun new lives in other countries." Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).


    It seems to me that the Board's emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude--like the DHS attorney and the IJ in my case--that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.


    I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced--where the country of resettlement is unsafe--is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country's Immigration Judges.


    Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can't help but think that if the BIA would publish more decisions--especially in cases where there is no existing precedent--our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as "the highest administrative body for interpreting and applying immigration laws," and if it would publish more cases.

    Originally posted on the Asylumist: www.Asylumist.com.
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