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  1. Deportation Without Due Process? by Nolan Rappaport



    Our immigration court system is in the midst of a crisis. The number of cases awaiting resolution reached 496,704 as of the end of June 2016, and the flow of new cases exceeds the number of cases completed each month so that the backlog will continue to grow. The end of June figure represents an average backlog of 1,819 cases for each of the 273 immigration judges. It would take about 2.5 years to clear up this backlog even if there were no new cases coming in. The House Subcommittee on Immigration and Border Security held a hearing on this on December 3, 2015. The solution considered at the hearing was to increase the number of immigration judges. Certainly, that would help, but I do not believe that the supply of qualified lawyers is big enough to make a sufficient increase. Even if it were possible, the resulting increase in decisions from the immigration court would greatly increase the backlog at the Board of Immigration Appeals. An alien who is dissatisfied with the decision of an immigration judge can appeal the decision to the Board of Immigration Appeals, and his deportation will be postponed while the appeal is pending.
    [/SIZE]


    The Board faced a similar backlog crisis in 1999 during the Administration of Bill Clinton. Unsuccessful attempts were made to handle the backlog by adding Board members and increasing support staff. When it became apparent that a different approach was needed, Attorney General Janet Reno changed the regulations governing the Board to reduce the number of cases that would receive a full review by creating a “streamlining panel.” Cases that can be disposed of quickly are directed to the streamlining panel for expedited processing by a single Board member. The rest of the cases are directed to a merits panel where they will be reviewed by three members. On the streamlining panel, a staff attorney reviews the file, prints out a form order that affirms or reverses the judge’s decision, and then a member signs the decision or sends it back to the staff attorney for a different disposition.


    I predict that something similar will be done to reduce the caseload of immigration judges. The obvious choice would be a modified stipulated removal program. Stipulated removal permits an alien in removal proceedings who does not want to fight deportation to waive his right to a hearing. When an alien has agreed to stipulated removal, an immigration judge will sign a deportation order without a hearing if he is satisfied that the requirements for a stipulated removal order have been met.


    I asked Wayne Stogner, a retired immigration judge, about this practice. He told me that stipulated removal orders were not common in his court, but he could recall times when 25 or so stipulated removal orders would be handed to him in chambers. The aliens were not present when he reviewed the orders. He only signed stipulated removal orders when he was satisfied from reviewing the documents that the aliens knew their rights and that their agreement to stipulated removal was voluntarily, knowingly, and intelligently made.


    Stipulated removal was authorized by section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which amended the Immigration and Nationality Act (INA). Initially, the implementing regulations specified that immigration judges could only accept such stipulations from individuals who were represented. In 1997, this language was amended by the Clinton Administration to allow the immigration judge to accept stipulations from unrepresented aliens.


    Former President Bill Clinton signed IIRIRA into law. It was included in a larger bill. In those days, it was possible to oppose “illegal” immigration without being called a racist or a bigot. When his chief of staff, Leon Panetta, gave a briefing on IIRIRA, he said, “We were able, I think, as a result of this negotiation to be able to modify — eliminate the large hits with regards to legal immigrants while keeping some very strong enforcement measures with regards to illegal immigration.” Moreover, Bill’s formal statement at the signing ceremony includes the following comment.

    This bill, ... includes landmark immigration reform legislation that builds on our progress of the last three years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system—without punishing those living in the United States legally.


    The pertinent part of the stipulated removal provision, section 240(d) of the INA, reads as follows:

    (d) Stipulated Removal. The Attorney General shall provide by regulation for the entry by an immigration judge of an order of removal stipulated to by the alien (or the alien’s representative) and the Service. A stipulated order shall constitute a conclusive determination of the alien’s removability from the United States.

    The essential elements of a stipulated removal order are specified in, 8 C.F.R. § 1003.25, which provides that the stipulation must include an admission that all factual allegations contained in the charging document are true; a concession of deportability or inadmissibility; and a waiver of the right to appeal the order. The objective of the regulation is to make sure that the alien knows what he is doing when he signs a stipulated removal agreement.


    The stipulated-removal program was rarely used until President George W. Bush ramped up immigration enforcement in 2004. From 2004 to 2010, more than 160,000 aliens were deported on the basis of stipulated removal orders. I was not able to find more recent statistics.


    According to the American Immigration Council, the vast majority of the 160,000 aliens who agreed to stipulated removal orders between 2004 and 2010, were in detention and were not represented by an attorney. Consequently, it is doubtful that their agreements really were voluntarily, knowingly, and intelligently made.


    There were strong objections to the streamlining panel too.

    Published initially on Huffington Post.
    http://www.huffingtonpost.com/entry/57e01aebe4b053b1ccf2a109?timestamp=1474393272060


    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 twenty 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.
  2. Potentially Ineligible Individuals Have Been Granted Citizenship

    by , 09-20-2016 at 07:12 AM (Matthew Kolken on Deportation And Removal)
    The Office of the Inspector General has issued a report that determined that U.S. Citizenship and Immigration Services (USCIS) approved applications for naturalization for at least 858 individuals who committed fraud or a material misrepresentation by failing to disclose that they had been previously ordered deported or removed under another identity. The error was blamed on the unavailability of digital fingerprint records.

    The following explanation was given:

    The digital records were not available because although USCIS procedures require checking applicants’ fingerprints against both the Department of Homeland Security’s and the Federal Bureau of Investigation’s (FBI) digital fingerprint repositories,neither contains all old fingerprint records. Not all old records were included in the DHS repository when it was being developed. Further, U.S. Immigration and Customs Enforcement (ICE) has identified, about 148,000 older fingerprint records that have not been digitized of aliens with final deportation orders or who are criminals or fugitives. The FBI repository is also missing records because, in the past, not all records taken during immigration encounters were forwarded to the FBI. As long as the older fingerprint records have not been digitized and included in the repositories, USCIS risks making naturalization decisions without complete information and,as a result, naturalizing additional individuals who may be ineligible for citizenship or who may be trying to obtain U.S.citizenship fraudulently.

    As naturalized citizens, these individuals retain many of the rights and privileges of U.S. citizenship, including serving in law enforcement, obtaining a security clearance, and sponsoring other aliens’ entry into the United States. ICE has investigated few of these naturalized citizens to determine whether they should be denaturalized, but is now taking steps to increase the number of cases to be investigated, particularly those who hold positions of public trust and who have security clearances.

    Click here to read the full report and the recommendations.
  3. INA 212(f): Trump's path to dictatorship over immigrants and US citizens? Pt. 2. Roger Algase


    First, I want to thank the readers who took the time to read my comments on this subject in Part 1 posted on the morning of September 19, and to share their reaction.

    One theme that seems to have been common to more than one of the people who wrote comments is that INA Section 212(f), which gives the president broad powers to exclude immigrants based solely on his/her own determinations is primarily an anti-terror statute.

    One comment, for example, describes the law as giving the president power to exclude immigrants who are a "danger" to the US. In reality, the word "danger" or "dangerous" appears nowhere in this provision, which I quoted in full in Part 1 of my comments.

    The operative words in the statute are much broader, namely immigrants who are "detrimental to the interests" of the United States.

    Of course, this obviously includes immigrants who are a "danger", but it goes far beyond that. A president could find that immigrants are "detrimental" to the interests of the United States for almost any reason that he or she could conjure up - economic, social, or (and I know that some people don't like it when I use this word) racial.

    It may be taboo among some people to bring up this subject now, but for most of our history, race was not only not taboo when crafting immigration laws, but it was considered essential.

    This was certainly true when the first Chinese exclusion law was enacted in the 1880's, and it was true when the "Nordics -only" Johnson-Reed immigration act was enacted in 1924. This is to name only two of the most famous (or infamous) immigration laws in America's history that were openly based on racial considerations.

    This is why 1965 was one of the most momentous years in our entire immigration history, because that was the year when Congress abolished the 1924 law and, for the first time in more than 80 years (or perhaps the first time ever) instituted an officially race-neutral immigration system to America.

    That is why it is disturbing, to say the least, to read Trump's August 31 immigration speech and see his references to "outmoded", "fifty-year old" immigration laws which, in his view, need to be revisited.

    Another feature in Trump's Arizona speech also relates to the extremely broad scope of INA Section 21(f). This is the notion that there are allegedly too many immigrants; that we need to cut immigration down to "historical" levels.

    Does INA Section 212(f) give the president the power to find that law-abiding, hard working, tax-paying, productive legal immigrants who love their families just as much as Trump loves his own immigrant wife, along with his other family members, are "detrimental" to the interests of the US - simply because a president may think there are too many immigrants (especially non-white ones, which one has to suspect is a major concern among restrictionist legislators and organizations whose decades-long anti-immigrant rhetoric Trump, arguably, appears to have borrowed from in his Arizona speech)?

    Based on the plain language of this statute, the answer has to be "yes". The above consideration could certainly be a reason to bar any and all further immigration to the US under Section 212(f).

    This is an extremely broad and far-reaching statute - not just an anti-terror protection. And it is exactly the kind of law that Trump says he loves - and would like to use as president, according to his own statements as reported in the Washington Post on June 15. And, lest anyone accuse me of making "unsubstantiated" allegations about Trump. I will quote his exact statements as reported in that article.

    But first, i will quote Attorney Matt Kolken, whom the Washington Post, in the same article, reports as stating the following:

    "The immigration law was designed to give as much authority to the executive branch as humanly possible, and to preclude the judicial branch from being able to review these decisions".

    This is an entirely accurate assessment of Section 212(f), and also makes clear that this provision is not limited to dealing only with national security or terrorism issues, as some people mistakenly assume.

    Now, over to Donald Trump. This is what he has to say about Section 212(f), as quoted in the Washington Post (again, with apologies to any readers who may think that quoting Trump's own exact words about the immigration laws shows a lack of proper respect for America's potential next Leader and who seek to raise a Furor over that issue).

    First, Trump is quoted as follows on June 13:

    "The immigration laws of the United States give the president powers to suspend entry into the country of any class of persons. Now, any class - it really is determined and to be determined by the president for the interests of the United States. And it's as he or she deems appropriate."

    The WP also quotes Trump as saying the following on the same day, June 13:

    "The president has the right to ban any group or anybody that he feels is going to do harm to our country. They [the presidents] have an absolute right...And so the president of this country has the right to do this."
    st

    See:


    http://www.washingtonpost.com/news/f...ss-of-persons/


    Let me begin by defending Trump with regard to the above quotations against any possible accusation that he misrepresents or distorts the immigration laws. In this case, Trump's characterization of INA Section 212(f) is entirely correct - except for one little quibble:

    This section does not give the president authority to ban everyone from entering the US. The law only applies to "aliens" (a pejorative term for foreign citizens or immigrants, based on a Latin word which, among other things, means "strange" or "hostile", and which no longer belongs in our laws - if it ever did - and hopefully will one day be removed as part of a Comprehensive Immigration Reform law).

    But other than the fact that the president has no power under this law to bar US citizens from entering the United States, Trump is totally right about the content of this section, and especially in his use of the word "absolute" to describe the power it confers on the president to bar foreign citizens.

    But the word "absolute" in Trump's above quoted remarks, while "absolutely" accurate, should also be a matter of concern to those who care about America's democracy for exactly that reason.

    It is also noteworthy, that while Trump's above quoted interpretations of INA Section 212(f) were made in response to a horrific mass killing which of course raised serious concerns about terror and national security, the clear implications of his remarks go far beyond questions of publkic safety and security, and into the realm of "absolute" power, to use Trump's own word.

    For reasons that will be explained further in my next post, this could be well looked at as an example of Trump's entire presidential campaign in microcosm, one in which preying on fear of Muslim and other minority immigrants could become a stepping stone to seizing absolute power.
    ________________________________
    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 and ethnic/religious backgrounds obtain work visas and green cards.

    Roger's email address is algaselex@gmail.com

    Updated 09-20-2016 at 10:20 AM by ImmigrationLawBlogs

  4. Letters of the Week: September 19 - September 25

    Please email your letters to editor@ilw.com or post them directly as a comment below.
  5. INA 212(f): Trump's path to dictatorship over immigrants and US citizens? Part 1. Roger Algase

    Update: September 19, 9:07 am:

    The latest news reports are that the FBI is looking for a naturalized US citizen, originally from Afghanistan, as a possible suspect in the September 17 explosive device attacks in New York and New Jersey. According to The Hill, Donald Trump has lost no time in attempting to exploit this latest event for his own purposes.

    See:

    http://www.thehill.com/blogs/ballot-box/presidential-races/296576-trump-our-leaders-are-stupid

    This makes my following comments about what legal rights, if any, Trump would have to bar entire classes of immigrants, or even individual immigrants, from the US by presidential decree if he becomes president even more pertinent.

    My original post appears below:

    If Donald Trump becomes president, could he reduce America's present complex immigration law system, which has been described as being second only to the tax laws in complexity, to a simple one of rule by decree?

    The answer is yes, at least to the extent of 50 per cent. The president might not be able to decide by executive fiat which immigrants to admit to the United States, but he or she certainly has the power to exclude any immigrants or classes of immigrants that he or she determines to be "detrimental to the interests of the United States".

    INA Section 212(f) provides, in relevant part, as follows:"

    (f) Suspension of entry or imposition of restrictions by the president - Whenever the president finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period of time suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

    It is is hard to imagine any power that could be broader than this. One might argue that the above provision could not be used to exclude individual immigrants who might attract Trump's ire for any reason.

    For example, former Mexican president Vincente Fox, whose scathing attack on Trump as a potential Latin American style dictator was reported in the Washington Post on September 13 (link to be provided) would probably not be very high on Trump's list of visitors or immigrants who who would be welcome in the US, judging by the comments that Trump has made against so many of his American critics as "losers", "mediocre", "not very bright", "crazy", etc.

    If Trump were to order that Fox should be refused a visa under the above INA provision, could Fox argue that this law applies only on "classes of aliens" , not individuals seeking admission? Well he might, but in what forum?

    The US Supreme Court has made clear that foreign citizens do not have any constitutional right to seek admission to the US on their own behalf, and arguments that the rights of Americans are harmed by refusing admission to any given foreign citizen or citizens have not been welcomed with any great enthusiasm in that Court so far.

    See Kleindienst v. Mandel (1972) and Kerry v. Din (2015).

    Alternatively, Trump might deny Fox (or any other foreign citizen who speaks out against him) admission to the US on the grounds that the person belongs to a "class" of immigrants who do not "respect" America (i.e. its president, Donald Trump) or "American values", i.e. whatever Trump wants to say or do.

    Arguably, there might be a precedent for this in Trump's own August 31 Phoenix immigration address in which he proposed to bar anyone who doesn't support American "values" from entering the US.

    But a more apt precedent would be in the actions of certain rulers in countries other than the US (and for whom Trump has had at least some kinds words), such as Russia's Vladimir Putin, Nortn Korea's Kim jong Un and Saddam Hussein of Iraq, all of whom have made clear that they do not welcome dissenting voices.

    However, I do not want anyone to misunderstand me. My concern about what i see as a possibility that Trump might use Section 212(f) to rewrite our immigration laws by personal decree is not limited to whether or not he might choose to ban certain individual immigrants who might rub him the wrong way, as in the above example.

    A much bigger concern is whether Trump might use this section to justify his proposed Muslim ban, thereby holding over a billion members of a major world religion responsible for a few despicable terrorist acts (including the latest NYC/NJ attacks this past weekend which are now under investigation as possible terrorism by an alleged suspect born in Afghanistan - see my update above).

    But, under INS Section 212(f), the president would have even greater
    power than anyone has imagined. For just one example, suppose Trump, who has already announced his intention to abolish legal H-1B work visas and labor certification green cards, decides to use this 212(f) to do so?

    A lot easier (for him) than going through Congress, which would now become irrelevant.

    Or suppose, taking advantage of possible suspected terror attacks such that those now under investigation in New York and New Jersey, Trump cuts off all immigration, except possibly from Europe, where his wife and grandparents came from - in a return to the spirit of the bigoted 1924 "national origins" Johnson-Reed immigration act, in order to please his white supremacist followers?

    Would this be impossible? Not if one pays close attention to Trump's August 31 Phoenix speech in which, by clear and obvious implication, he criticized the 1965 immigration reform law which abolished the "Nordics only" quotas of the 1924 immigration law.

    Moreover, if Trump (or any future possibly authoritarian chief executive) gains the power to rewrite our immigration laws by executive diktat, will the rights of American citizens be safe from being taken away by the simple stroke of a presidential pen?

    To be continued in a forthcoming post.
    _________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing immigration law, most of this time concentrating in H-1B, labor certification, and other skilled and professional work visas and green cards, for more than 35 years. Roger's email address is algaselex@gmail.com

    Updated 09-20-2016 at 07:56 AM by ImmigrationLawBlogs

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