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  1. We're All in Atlanta Now

    Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the "prosecutors" in Immigration Court) to take charge of the Immigration Courts and the "prosecutors" offices for the entire United States. A third Atlanta OCC attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).

    If you're feeling down about Georgia exports, here's something to love.

    Before we get to those attorneys, let's first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.

    It's true that the Office of the Chief Counsel ("OCC") and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.

    For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.

    Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.

    Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC's position again points to an agency willing to put “winning” ahead of justice.

    With this background in mind, let's turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.

    Tracy Short - ICE Principal Legal Advisor
    : Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he "oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States." These are the attorneys who serve as "prosecutors" in Immigration Court, among their other tasks. According to his ICE biography, "From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel." Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.

    While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.

    James McHenry - Acting Director of the Executive Office for Immigration Review ("EOIR")
    : In a move characterized as "unusual" by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation's immigration court system. Judge Schmidt notes that, "While Judge McHenry has stellar academic and professional credentials, and is an 'EOIR vet,' having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ." In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.

    Indeed, Judge Schmidt's characterization of Judge McHenry as an "EOIR vet" seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.

    Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.
    Whether Judge McHenry's "acting" role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country's immigration court system, with hundreds of judges and support personnel to oversee.

    Gene Hamilton - Counsel to DHS Secretary
    : Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration's travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.

    So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country's immigration system. Given their backgrounds and experience (or lack thereof), it's difficult to be optimistic about how that system will fare under their watch.

    Originally posted on the Asylumist:
    Tags: asylum, atlanta, trump Add / Edit Tags
  2. Letters of the Week: July 17 - July 23

  3. Think Trump is the first president to be hard on undocumented immigrants? Think again. Nolan Rappaport

    I found the following video clip while doing research for my next article, which will be on Trump's legal immigration plans. You might be surprised by who is making these remarks.

    Or if you would rather just read the statement ----

    All Americans, not only in the States most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers. That's why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens. In the budget I will present to you, we will try to do more to speed the deportation of illegal aliens who are arrested for crimes, to better identify illegal aliens in the workplace as recommended by the commission headed by former Congresswoman Barbara Jordan. We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.

    Posted by Nolan Rappaport
  4. California 'sanctuary state' bill is illegal, but also ineffective. By Nolan Rappaport

    © Getty

    Activist Dolores Huerta claims that California needs to enact the California Values Act, Senate Bill 54 (SB 54), as a counterweight to Texas’s draconian law banning sanctuary cities in that state and President Donald Trump’s “xenophobic agenda to deport millions of people.”

    I disagree. While I can understand why Huerta dislikes Texas’s sanctuary city law, it is an exaggeration to call it “draconian.” And Trump is just enforcing immigration provisions that were written by Congress and signed into law by previous presidents. If those laws are xenophobic, the solution is to lobby Congress to change them.

    Making California a sanctuary state will not stop Trump’s enforcement efforts. But it would violate federal law and make California ineligible for certain types of federal grants.

    Legislative Counsel’s Digest of SB 54.

    SB 54 would repeal existing law which requires the police to notify U.S. Immigration and Customs Enforcement (ICE) when there is reason to believe that a person arrested for a violation of specified controlled substance provisions may be an alien.

    It would, with some exceptions, prohibit state and local law enforcement agencies from using their resources to investigate, detain, or arrest persons for immigration enforcement purposes.

    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 an 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.

  5. Hawaii Federal Judge Enjoins Administration From Banning Muslim Grandparents of US Citizens or Refugees with Resettlement Agency Ties. Roger Algase

    Update, July 14, 8:54 pm:

    In reaction to the Hawaii federal District Court decision described below further limiting the scope of the president's six country Muslim ban order to permit grandparents of US citizens and refugees with ties to US resettlement organizations into the United States, Attorney General Jeff Sessions has vowed to appeal the ruling to the US Supreme Court.

    POLITICO reports Sessions' statement as follows:

    "By this decision, the district court has improperly substituted its policy preferences for the national security judgments of the Executive Branch and the directive of the Supreme Court."

    A reading of the rationale for the Hawaii District Court's decision, as quoted below, shows no intention on the part of that court to "substitute its own policy preferences" but merely to strike down an irrational distinction which the administration made, without any foundation, justification, or sanction from the Supreme Court, to exclude grandparents of US citizens from the list of relatives who are exempt from the ban for reasons that cannot possibly be linked to national security, but have everything to do with the often announced intention of the president and his openly Islamophobic top advisers, Stephen Bannon and Stephen Miller, to keep as many Muslims from entering the United States as the courts will let them get away with.

    While this may not be apparent on the surface of Sessions' remarks, his own well publicized support (in a 2015 immigration "Handbook" for Congressional Republicans) for returning to the dark, bigoted days of the infamous 1924 "Nordics only" immigration act, also raises well-justified suspicions that Trump's Muslim ban is also just the first step in a wider administration policy aimed at major cutbacks in non-white immigration from all over the world.

    On a lighter note, if readers will forgive a brief aside from the immigration area, Reuters reports that Trump has now hired Washington lawyer Ty Cobb, who is said to be related to his namesake, one of America's most famous baseball players of all time, to take charge of White House attempts to deal with the cascading Russia scandals relating to alleged attempts to compromise our electoral system, among many other allegation of possible wrongdoing involving Russia by Trump or the people around him.

    Ty Cobb is no doubt a top lawyer, but what is his batting average?

    My original comment appears below.

    In a rebuke to the Trump administration's attempt to interpret the Supreme Court's June 26 decision temporarily allowing it to uphold parts of the president's six Middle Eastern and African Muslim country citizen's entry ban order ("Muslim ban", for short, not the misleading and inadequate term "travel ban" often used by the media and, recently, by the president himself) as widely as possible, Judge Derrick Watson of the United States District Court for the District of Hawaii issued an injunction on July 13 which prohibits the federal government from barring grandparents of US citizens from entering the US pursuant to the Muslim ban on the grounds that they allegedly lack "close ties" with the United States within the meaning of the above Supreme Court ruling.

    The District Judge also enjoined the administration from enforcing the ban order against refugees who have contracts with US resettlement agencies. For the story and a link to the full decision of the Court in this case, Hawaii v. Trump, see:

    With regard to the ban on grandparents of US citizens on the grounds that a grandparent is allegedly not a close relative, the Court held that this interpretation was unreasonable and was contradicted by Supreme Court precedent. The Court cited the Supreme Court case of Moore v. City of E. Cleveland, 431 U.S. 494, 503-04 (1977) where the High Court stated that the:

    "tradition of uncles, aunts, cousins and especially grandparents sharing a household with parents and children has roots equally venerable and equally deserving of constitutional recognition."

    The District Court also cited a plurality opinion in Travel v. Granville, 530 U.S. 57, 63-65 (2000), where the Supreme Court stated:

    "[D]emographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household...In many cases, grandparents play an important role."

    Finally on this point, the District Court, in refreshingly plain language for a judge, stated:

    "Equally problematic, the Government's definition represents the antithesis of common sense....Indeed, grandparents are the
    epitome of common close family members."

    One could also legitimately ask whether distinguishing between grandparents, who are excluded, and parents in law or step relatives, who are permitted to enter the US based on the administration's definition, makes any sense whatever in an executive order that is ostensibly based on national security considerations.

    Has the president made a finding that grandparents of US citizens are more at risk of committing terrorist acts than in-laws or step relatives of US citizens?

    This only goes to show that it is not only the administration's distinction between grandparents and other types of close relatives that makes no sense, but that the entire Muslim ban order, on its face, makes no sense either.

    The purported rationale for the ban order was that the government needs to improve and refine its "vetting" procedures for immigrants from the six targeted countries. But reviewing and enhancing screening and databases for admission of foreign citizens is something that, according to government statements, is going on all the time anyway.

    Where, within the four corners of Trump's current six country Muslim ban executive order, or its seven country predecessor, is there any showing that the danger to America from terrorist acts by citizens of the targeted countries is so urgent and acute as to justify banning almost the entire population of these countries, comprising nearly 200 million people, from entering the United States while the "review" of "vetting" procedures (which of course will last as long as Donald Trump is in office as president - everyone knows that the "temporary" ban is only a cynical joke)?

    Even without looking behind the surface language of Trump's Muslim ban, as the proponents of absolute presidential power over admissions to the US argue that the courts lack the power to do, it is obvious that the ban itself, solely on its face makes little or sense at all - unless the fundamental objective is to prevent as many Muslims as possible from entering the US - including but by no means limited to grandparents.

    Roger Algase
    Attorney at Law

    Updated 07-14-2017 at 09:42 PM by ImmigrationLawBlogs

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