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  1. Members of Congress Write President Obama on behalf of the #DREAM9

  2. Letters of the Week: Jul 29 - Aug 2

    Please email your letters to or post them directly as a comment below.
  3. If Immigration Law Were a Person It Would Sing: ....

    by , 07-29-2013 at 02:58 PM (Angelo Paparelli on Dysfunctional Government)
    If Immigration Law Were a Person It Would Sing: "Oh Lord, Please Don't Let Me Be Misunderstood"
    by Angelo Paparelli

    [Blogger's Note: An earlier version of this post mistakenly suggested that the article discussed below offering the views of an immigration lawyer was written by that lawyer. It was not; rather it was written by a reporter who quoted the lawyer. This blogger regrets the error.]

    The power of online and social media to whip up a frenzy of vituperation in the immigration ecosystem surfaced vividly once again this week.

    The first trigger event was action by nine Dreamers -- six who'd been deported to Mexico and three who left the U.S. and entered Mexico willingly. Protesting the Obama Administration's mass deportation and detention policies, the DREAM9, as these youthful activists are called, immediately approached the U.S. border and asked Customs and Border Protection officials to allow them in.

    The second trigger was an article by a reporter who interviewed a well-regarded immigration lawyer and quoted the lawyer as describing the DREAM9 action as a "publicity stunt" and "flippant" behavior, when the focus should be on enacting comprehensive immigration reform. He also expressed doubt that the three Dreamers who left the U.S. would qualify for readmission under the asylum laws or humanitarian parole.

    All sorts of nastiness ensued. Some protested that the lawyer had no right to criticize since he is not a Dreamer, while others suggested to these critics that the lawyer, as a citizen, has a higher right to speak under the First Amendment than undocumented protesters and their equally paperless supporters. Both sides on this spat are wrong -- the First Amendment applies to everyone in the United States.

    The DREAM9 have reportedly been denied parole into the United States (the discretionary power of the government to admit individuals on a case by case basis under § 212(d)(5)(A) of the Immigration and Nationality Act for urgent humanitarian reasons or significant public benefit). Shuttled off to the Eloy, AZ detention center as civil detainees, the DREAM9 sit in custody or solitary confinement, while they prepare to request asylum in the United States and participate in a hunger strike to protest detention conditions generally.

    As this dust-up shows, there have been collateral damage and casualties in this war of words, not the least of which are our nation's deservedly maligned, and mostly misunderstood immigration laws, as well as our tradition of activism and civil disobedience to spur changes in law and policy. The lawyer (whom I respect) is right to consider the fine points of immigration law, but wrong to publicly prejudge the outcome of their requests for asylum and humanitarian parole since he is not privy to the facts.

    Certainly, a case can be conceived of compelling humanitarian grounds and significant public benefits upon which to grant humanitarian parole or asylum. They have lived, been educated and are like the everyday Americans among whom they grew up. Crime in Mexico, especially kidnappings of wealthy Mexicans or American tourists or those perceived as such have been acknowledged by the U.S. Department of State ("The number of kidnappings and disappearances throughout Mexico is of particular concern. Both local and expatriate communities have been victimized. In addition, local police have been implicated in some of these incidents").

    Moreover, throughout American history our immigration laws have reflected the political sentiments of the times -- from the Alien and Sedition Act, the Chinese Exclusion Act, and our modern day Immigration and Nationality Act, a McCarthy-era law focused on preventing Communists from entering the country, to the Cuban Adjustment Act and the Chinese Student Protection Act. Immigration law and politics are inextricably bound, as these Dreamers know well, given the Obama Administration's use of executive power to create the program known as DACA (Deferred Action for Childhood Arrivals) just in time to favorably influence the 2012 presidential election.

    No less than voting, political protests and civil disobedience put pressure on the system, not just on the President. House leaders Cantor and Ryan have changed their tune to recognize a benefit for Dreamers. They now acknowledge the unfairness of depriving innocent youth who've lived like Americans their whole life a path to legality.

    It's way too soon to critique the methods used by the DREAM9 and their supporters when immigration policy arguments are in flux. I commend them for their bravery and for their willingness to shed light on the whole rotten detention and removal system that needs to be reformed from its core. Criticizing these kids distracts from the real targets of criticism -- the dysfunctionality of the immigration laws, the prison-industrial complex and the border-focused government-contractor giveaway.

    Or as another respected immigration lawyer reminded me, Frederick Douglas said:

    Let me give you a word of the philosophy of reform. The whole history of the progress of human liberty shows that all concessions yet made to her august claims have been born of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being, putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there is no progress. Those who profess to favor freedom and yet deprecate agitation are men who want crops without plowing up the ground; they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters.

    Updated 07-29-2013 at 03:44 PM by APaparelli

  4. Past President of AILA Calls #DREAM9 Protest a "Publicity Stunt"

    by , 07-29-2013 at 10:13 AM (Matthew Kolken on Deportation And Removal)
    In an act that has unleashed both shock and outrage, David Leopold, Past President and [past] General Counsel of AILA, characterized the courageous acts of the #DREAM9 protesters as a “publicity stunt” that hinders reform. He explained that he was “bothered” by the #DREAM9’s protests because they were “being flippant about U.S. law and U.S. policy.” In essence, that they should move to the back of the bus, sit there quietly, and enjoy the ride.

    He then took it a step farther, stating that [at least 3 of] the #DREAM9 have little chance of obtaining asylum in the United States because: “it is only granted to people who can prove well-founded fear of persecution based on several traits such as gender, sexual orientation, political opinion, religion or nationality.”

    Leopold’s statements [do not not necessarily paint a complete picture of the law of asylum]. Specifically, asylum may be granted in the absence of a well-founded fear of persecution if an individual is able to demonstrate “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution,” or there is a reasonable possibility the individual may suffer other serious harm upon removal to that country. 8 C.F.R. § 208.13(b)(1)(iii)(A) and (B).

    It should be noted that the other serious harm standard does not require a prospective fear to be based on a protected ground for asylum, and provides an immigration judge with the authority to take a look at the totality of the circumstances in determining whether a favorable exercise of discretion is warranted on a case-by-case basis. In determining whether an applicant has established a reasonable possibility of other serious harm, adjudicators should focus on current conditions that could severely affect the applicant, such as civil strife and extreme economic deprivation, as well as on the potential for new physical or psychological harm that the applicant might suffer. Matter of L-S-, 25 I. & N. Dec. 705 (BIA 2012).

    So that clears that up.

    Now, although Leopold has every right under our constitution to form and communicate an opinion, it is inexcusable for any competent immigration lawyer to make sweeping generalizations about the merits of an individual's asylum claim without first having command of ALL of the facts. As former Board of Immigration Appeals Judge Lory D. Rosenberg has articulately stated: “it does a disservice to the development and practice of asylum law to suggest that the determination of what may constitute unacceptable harm done to human beings by any government is so clear-cut or easily made, or that fears of persecution may be so easily dismissed. Shame on any immigration attorney whose desire to make a political point would belie the complexity and variability of these necessarily case-by-case asylum determinations.”

    Moreover, Leopold's statements are dangerous as they may serve to poison these kids' ability to present an application for asylum, or to receive a favorable exercise of discretion regarding humanitarian parole, as the public relations war is as significant a battle as the legal one.

    Which brings me to the next question, did Leopold make these statements out of an innocent ignorance of the law, or did he have more deviant motivations: to provide political cover for an administration that he has a propensity to defend at all costs?

    I’ll let you be the judge.

    Author's note (July 29, 2013 @ 7:15 pm): A second edit was made out of professional courtesy to amend the qualifying adverb "patently" from the qualification of Mr. Leopold's statements relating to his interpretation of law.

    Author's note (July 29, 2013 @ 4:02 pm): David Leopold has contacted with objections to this post.

    His first objection is stylistic, as he wishes to have the word "former" included before his former position as General Counsel. It should be noted that my use of the word "Past" attached to both his former position as President of AILA, as well as to his recently vacated position as General Counsel.

    His second objection is that my reference to his assessment of the viability of the #DREAM9's chances for asylum only applies to three of the nine individuals. It should be noted that a fair interpretation of the article is that Mr. Leopold made a general appraisal of the law of asylum, and his assessment was not case specific.

    The third objection relates to the author's use of the adverb "patently" to qualify the word "false." The author employed the common usage of the word "patently" which is: openly, plainly, or clearly: i.e., a patently false statement. The author was not inferring specific intent.

    Updated 05-03-2016 at 08:43 AM by MKolken

  5. Will Racial Divisions Doom CIR? By Roger Algase

    Despite criticism of racist remarks about Latino immigrants by Representative Steve King (R-Iowa) coming from a few influential House Republicans (see my recent posts), immigration reform is still facing major obstacles in the House. Charlie Cook sums the situation up in his July 25 National Journal article: So Much for Immigration Reform as follows:

    "It's hard to be optimistic about the prospects for comprehensive immigration reform when you talk to House Republicans. My conversations suggest that if anything passes the House, it will most likely be small, bite-sized morsels of largely noncontroversial ideas - lowest common-denominator items that bear little resemblance to the sweeping immigration measure that passed the Senate on June 27."

    Cook also writes:

    "But all of this high-minded stuff - that Republicans need to get the immigration issue off the table if they want to win and hold a Senate majority or win the White House - matters little to many GOP House lawmakers who sit in very white, very conservative congressional districts and who have much more to fear from a conservative primary challenger than from a Democrat."

    The reality facing reform in the House may be even more pessimistic, because Cook's comment assumes that there will be a Senate-House conference. But this is something which many anti-immigrant Republicans are opposed to in principle, as Bill Kristol and Rich Lowry showed in their recent joint editorial urging the House to "put a stake through the heart" of immigration reform.

    The clear picture that emerges from this is of an immigration reform movement held hostage to race. Ronald Brownstein, in another National Journal article, writes about America's racial divisions n the wake of the Trayvon Martin Killing: Americans Are Once Again Divided by Race, July 25.

    But as his own words make clear, these divisions go far beyond the reaction to the acquittal of George Zimmerman after a trial with only one non-white juror:

    "Like a lightning flash in a stormy sky, The Trayvon Martin case has illuminated the depth of the impasse between white and nonwhite America. But a similar dynamic looms less visibly behind Washington's standoff between a Democratic coalition that relies on overwhelming support from minorities and a Republican coalition still almost entirely dependent on the votes of whites, especially older ones.

    Both developments tell the same challenging story: Even as America experiences its most profound demographic change in more than a century, our society is increasingly fracturing along racial, generational and partisan lines."

    Brownstein also writes:

    "In their unwavering opposition to Obama on issues ranging from health to immigration, House Republicans are systematically blocking the priorities of the diverse (and growing) majority coalition that reelected him."

    Even more ominous for the supporters of immigration reform is the possibility that the Republican whites-only strategy may actually work. This idea is no longer limited to the Ann Coulter far right hate fringe, but also finds support in a column by Harry J. Enten, a US political analyst for Britain's left wing The Guardian: Why the Republican coalition will still work in 2016 (July 25).

    Enten's article starts off with the headline:

    "Predictions of demographic doom for the GOP are wishful; polling shows that winning big with white voters can deliver"

    Immigration reform supporters cannot assume that their battle was won in the 2012 election. Efforts to restrict voting by racial minorities, younger Americans and the less well off are already being redoubled in red states such as Texas and North Carolina in the wake of the Supreme Court's decision throwing out the heart of the 1965 Voting Rights Act. The fight for immigration reform is just beginning.

    Posted by Roger Algase
    July 29, 2013
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