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  1. Letters of the Week: June 27 - July 1

    Please email your letters to or post them directly as a comment below.
  2. No Difference Between Hillary and Trump on Immigration? Think Again. Roger Algase

    Some people have been arguing, on and no doubt elsewhere, that there is no real difference between Hillary Clinton and Donald Trump on immigration policy, so that it makes sense to throw away one's vote entirely by casting a ballot for Libertarian Party candidate Gary Johnson or Green Party candidate Jill Stein.

    (If one is really determined to throw one's vote away, I can suggest a more creative and interesting way to do this than by voting for this year's equivalents of Ralph Nader and Patrick Buchanan in 2000 - in terms of chances of getting elected, not in terms of policy. If one lives in Texas, for example, one could show up at the polls with a university issued student ID instead of a gun permit.

    That would have the same effect in enabling that person to have his or her vote make any difference in determining who will win the presidency in November as voting for Johnson or Stein would do.)

    The theory that Hilalry is no different from Trump on immigration is based on some negative statements that Hillary has made in the past about Central American refugees and supporting deportation in order to "discourage" unauthorized immigration. Admittedly, those were not good statements and they did sound a lot like what Donald Trump is saying now.

    Moreover, just as Trump's record on some non-immigration issues that are beyond the scope of this comment is not exactly unblemished - think Trump University and Atlantic City Taj Mahal - Hillary is not without her detractors on some aspects of her background.

    We can expect to hear a lot this summer and fall in the way of attempts by Trump and his supporters to distract attention from the very real and profound differences between him and Hillary Clinton on immigration by playing the 20-year old game of making scurrilous personal attacks on her that have nothing to do with policy positions on immigration or any other issue - going back to all the old, long-discarded canards about Hillary and her husband - - Paula Jones, Whitewater, Vince Foster, Benghazi and other mostly imaginary scandals, or even ones that may be more real, but still hyped and exaggerated for political reasons, such as Hillary's emails - maybe one of the most yawn-inducing scandals ever among average American voters. Monica Lewinsky - where are you now that Hillary's detractors really need you?

    But let's get back to immigration policy and the idea that there is no real difference between Hillary and Donald in this regard - that both are equally anti-immigrant. Nothing Hillary has ever said can even remotely compare to Trump's repeated attempts to demonize Mexican and Muslim immigrants as "criminals" and "terrorists", as well as, more recently, even attacking American-born children of such immigrants or American citizens in general of who share the same "heritage" or religious belief.

    Hillary has never engaged in demagogic rants that we "won't have a country" if (non-white) immigration continues, or that we need to "take back our country" from (non-white) immigrants. However, just in case there is still anyone left who seriously thinks that there is no difference between Hillary and Donald on immigration, Hillary has now clarified the most essential differences between in a June 24 op-ed in the Arizona Republic newspaper.

    For a link to Hillary's full oped, see:

    Hillary introduces her proposals, which center on a) comprehensive immigration reform to avoid breaking up families, as opposed to Trump's deportation "task force" (which Senator Cruz onece aptly called "jackboots"), b), breaking down barriers instead of building walls, and c) bringing more legal workers into the formal economy in order to create jobs and boost wages, as follows;

    "And while our system fails to provide certainty to immigrant families, political figures like Donald Trump turn them into scapegoats for many of the challenges facing American families today. His bigotry and fear-mongering may be an attempt to divide our country..."

    Hillary also writes

    "When he [Trump] praises local figures like Gov. Jan Brewer, he's endorsing their heartless and divisive policies. And when he speculates about ending birthright citizenship,, he's suggesting undermining the Constitution and tearing American children away from the country they know and love."

    Admittedly, more specifics from Hillary Clinton on her immigration plans would be welcome. But does this mean that there is no difference on immigration between her and Donald Trump?

    Think again.

    Roger Algase
    Attorney at Law

    Updated 06-27-2016 at 06:35 AM by ImmigrationLawBlogs

  3. All Checks but No Balances — The Systemic Failure to Protect EB-5 Investors

    by , 06-24-2016 at 12:43 PM (Angelo Paparelli on Dysfunctional Government)

    Several widely-publicized actions by the Securities Exchange Commission (SEC), and the inevitable litigation that has piled on in consequence, have pressure-tested the EB-5 ecosystem and found it defective. Simply stated, the system too likely and too often fails. Sadly, many EB-5 investors, after writing half-million-dollar or greater checks, ultimately have learned that no balances remain in their capital accounts and no green cards land or stay in their own and their family’s wallets.

    Stripped of cash and cards, an unacceptable number of EB-5 investors find out that they have been fleeced. This calamity is not necessarily attributable to the ever-present moral hazard of failing to thoroughly investigate a proposed investment, and imprudently placing at-risk funds into an unsound business opportunity. Rather, the flaw lies in structural and process failures of malfeasant government officials and market participants to take care that EB-5 investors are adequately protected from errant or unscrupulous promoters, developers, regional-center principals and migration agents, and from sundry Ponzi schemers, garden-variety fraudsters and sophisticated con artists.

    No EB-5 stakeholders and the ecosystem itself cannot continue to thrive if too many investors are defrauded of money and the promised permanent residency. Clearly, a healthy, sustainable EB-5 ecosystem cannot endure without meaningful investor protections and reliable safeguards that promote real job creation.

    Why is this happening?

    Culprit number one — thoughtless lawmakers. The successive Congresses that crafted and amended the EB-5 program surely must have known that some degree of fraud, waste, and abuse are the inevitable byproducts of all government programs. Yet, lawmakers never included investor protections in the enabling EB-5 legislation. Even more appalling, our legislators should have foreseen that foreign investors, many of whom lack rudimentary English fluency or business savvy, would at once be dazzled by the allure of a green card and likely unaware of the risk that the U.S. government’s own EB-5 program would be unsafe.

    The Immigration Act of 1990, the law that ushered in the EB-5 program, and follow-on amendments, never authorized federal immigration administrators to debar from program participation blatantly out-of-compliance regional centers, developers, hucksters and their co-conspirators, or to protect investors from the harsh consequences of clearly foreseeable fraud and financial crimes. On the contrary, Congress knew from the outset that some deals will likely go south because scoundrels might hoodwink investors, or because other investments involve business plans with little likelihood of actual success.

    Nonetheless, from inception, the law has provided that conditional residency would end and EB-5 investors brought before immigration judges in deportation proceedings if investments were not sustained — something that’s hard to do if one has been swindled — or the requisite jobs were not created.

    Congress should also have known that securities law enforcers and immigration administrators would probably not quickly uncover the shenanigans hiding in some unregistered investments whose job-creating worthiness — by legislative design — would only be determined some two years hence.

    Regrettably, Congress never provided for a real-time, on-the-scene watchdog to protect investors’ interests and make sure that promised actions supposedly leading to job creation for U.S. workers would actually happen.

    Culprit number two — unaware and insensitive bureaucrats. As the SEC has acknowledged, it arrived several years late to the EB-5 program, having been oblivious for too many years to the Commission’s established statutory duty to protect investors in all securities transactions, including EB-5 deals. While SEC enforcement of EB-5 investments has fortunately intensified in the last few years and months, the Commission most often will likely play only an ex post facto enforcement role in punishing wrongdoers and trying to make investors whole once a deal has already failed or investors have been hurt, unless a whistleblower or grieving investor surfaces sooner.

    So too have immigration administrators been derelict. Regulations of the legacy agency, the Immigration and Naturalization Service (INS), and the current Department of Homeland Security immigration components — U.S. Immigration & Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) — offer defrauded investors no relief or even the possibility that discretion might be favorably exercised. To be sure, USCIS has tasked its Fraud Detection and National Security Directorate to make unannounced site visits to projects and regional centers and called for investor interviews when the issue of removing conditions on residency are to be ultimately adjudicated. These actions, however, have yet to occur in great numbers, may not be efficacious, or may just be too little too late.

    Culprit number three — EB-5 market participants. The construction, lending and escrow industries — sectors especially active in EB-5 projects — have long been accustomed to the salutary, sentinel effect of meaningful oversight. Money doesn’t move from one contracting party to another unless predetermined and mutually agreed conditions are satisfied. The ever-present risk that funds or assets will be stolen, lost or wasted, or that desired outcomes might not be achieved, can be eliminated or mitigated if a real-time watchdog monitors contract compliance and fulfillment. The same safeguard could readily be applied for the protection of EB-5 investors and the assurance of job creation — but until now EB-5 market players seemed not to care. Instead, conflicts of interests continue to abound in the EB-5 industry and wrongdoers still go undetected until it’s too late.

    What’s to be done?

    All three culprits can expiate their sins if they act together or at least separately to introduce a new participant in the EB-5 ecosystem — the independent fiduciary — a person or firm that would represent the interests of investors in trying to assure the ultimate return of principal, the maximization of profits (once job creation at the requisite level has been confirmed by USCIS), and the ultimate prize — unconditional permanent residence.

    An independent fiduciary would act much like a bank officer who decides whether agreed conditions have been satisfied before releasing progress payments of loan proceeds. The investors’ independent fiduciary could also perform:

    • an auditing function to confirm that required business and accounting records are maintained, and only permissible expenditures are paid,
    • corporate secretary/treasurer functions to make timely disclosures to investors of financial activities, monitor fund administration and job creation/hiring, give notice of the time, date and methodology for investors to vote on corporate matters, and report any significant developments or material changes to the business plan,
    • a watchdog function to confirm that insurance underwriter conditions are fulfilled and required permits and licenses are maintained; and
    • an education and information function to explain to investors the role and activities of the independent fiduciary, and formally confirm to government officials how EB-5 program requirements are met when and as they are due.

    Other loss mitigation safeguards could also be established. These include (a) the expanded availability and acquisition of EB-5 insurance to pay a form of indemnity (the return of the investment) if investor petitions are not approved or conditions on residence are not removed, (b) the addition of other traditional forms of insurance protection (e.g., fidelity bonds, and coverage for errors and omissions, business interruption, directors and officers liability and general liability), and (c) the use of letters of credit.

    Without eliminating moral hazard, Congress could provide in the forthcoming integrity measures that a regional center’s or project developer’s engagement of an independent fiduciary, purchase of particular types of insurance, and/or arrangement for a letter of credit would serve as a good-faith prohibition against the denial or loss of lawful permanent resident status in cases where the SEC, ICE or USCIS determines that EB-5 investors have been defrauded.

    USCIS could add similar protections in its (reportedly) soon-to-be-published EB-5 regulations. The agency could also specify by regulation or policy memorandum circumstances where the exercise of prosecutorial discretion should be exercised and of the full range of its parole authority and employment authorization are granted to defrauded but otherwise admissible EB-5 investors.

    Market players should also have “skin in the game” of protecting EB-5 investors. They should require the engagement of independent fiduciaries and procurement of appropriate insurance coverages or letters of credit that reduce but do not eliminate all investment risk so that USCIS’s at-risk capital requirements are nonetheless satisfied. Market participants should also recognize that risk reduction will add costs but likely generate overriding cost savings that will redound to the benefit of primary lenders, project developers and regional centers while also attracting migration agents, investment advisors and the EB-5 investors themselves. Ultimately and ideally, only deals with fiduciary and insurance protections will be marketable.

    * * *

    Checks and balances — the brainchildren of the Founding Fathers — established our constitutional form of government that has endured for centuries. One of these features is the protection of minorities against majority power. So too will a new system of checks and balances protect vulnerable EB-5 investors likely reduce the prospect that investors will write very sizable checks but yield no balances in their capital accounts or place green cards in their wallets.

    Updated 06-24-2016 at 12:48 PM by APaparelli

  4. Where Terror Victims Are Treated as Terrorists

    Let's say you own a grocery store in Mosul, Iraq. Your town is conquered by the Islamic State, and an IS fighter comes to your store, grabs your teenage daughter, puts a gun to her head, and threatens to rape and kill her unless you give him a glass of water. You pour a glass of water, hand it to your daughter, and she gives it to the fighter. Now, lets say that you, your daughter, and the IS fighter get to the United States and request asylum. Question: Who is barred from receiving asylum? (a) The IS fighter; (b) You; (c) Your daughter; (d) All of the above.
    If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.
    If you guessed "d", you win. By giving a glass of water to the IS fighter, you and your daughter have provided "material support" to a terrorist, and you are both barred from receiving asylum in the United States. Even though you gave the glass of water under duress to save your child's life. And even though it was only one glass of water (what we lawyers call "de minimis"). How can this be?

    After the attacks of September 11, 2001, Congress greatly expanded pre-existing law in order to prevent terrorists from taking advantage of our immigration system. These laws include the rules relating to "material support," which one jurist has called "breathtaking in... scope," see Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (Acting Vice Chairman Osuna, concurring). The opinion continues:

    Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives

    . And anyone who provides any type of support to these "terrorists" is subject to the material support bar.

    The problem is that under these rules, lots of people meet the definition of a terrorist or a person who provided material support to a terrorist. And it's not just people like the shop owners from Mosul. Under our existing law, George Washington would be considered a terrorist. He led an armed rebellion against Great Britain. Ditto for the other founding fathers. Betsy Ross gave material support by sewing a flag for the rebels. There are more modern examples, of course. How about Nobel-prize winning author and Holocaust survivor Eli Wiesel, who was interned in a Nazi slave labor camp where he provided—you guessed it—material support to the Germans. And how about John McCain, who gave material support to the North Vietnamese by participating in a propaganda video (after being tortured while a prisoner of war). Indeed, even Luke Skywalker would be considered a terrorist under the current rules since he participated in armed resistance against the Empire.

    Maybe the picture I am painting is a bit too bleak. While there is no statutory exception for the material support bar, the Secretary of State and the Secretary of Homeland Security have the authority to waive certain Terrorism-Related Inadmissibility Grounds ("TRIG"). In that vein, DHS has issued group-based exemptions that allow people involved with certain "terrorist" groups to obtain status in the U.S. It is also possible to receive an individual exemption through a Byzantine (and sometimes infinite) process. If your application is being held because of TRIG, you can inquire about your case status at

    One government entity that does not have the authority to grant a TRIG exemption is the Department of Justice ("DOJ"). This is significant because the Immigration Courts are part of the DOJ. Thus, Immigration Judges cannot grant asylum cases where the alien is subject to TRIG, even when the alien provided material support under duress. In a depressing, but not particularly surprising decision last week, the Board of Immigration Appeals confirmed that there is no implied duress exception to the material support bar:

    [A]bsent a waiver [from the Secretary of State or the Secretary of Homeland Security], an alien who affords material support to a terrorist organization is inadmissible and statutorily barred from establishing eligibility for asylum and for withholding of removal under the Act and the Convention Against Torture, even if such support was provided under duress.

    Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The problem is that an alien can only get an exemption after he is ordered removed from the United States, and even then, there is no particular procedure to follow to request an exemption. It seems the best an alien (or his attorney) can do is to contact the DHS/ICE Office of the Chief Counsel and request consideration for an exemption. An exemption is only available if asylum would have been granted but for the TRIG issue. In other words, the alien needs to show that if it wasn't for the TRIG problem, the Immigration Judge would have granted him asylum (helpful hint to lawyers: If your client is barred from asylum solely due to TRIG, try to get the Judge to state that explicitly in her decision; this will help when applying to DHS for an exemption). If the Secretary of Homeland Security grants the exemption, the alien then needs to re-open his court case in order to receive asylum. Legend has it that DHS does sometimes grant exemptions, so it certainly is worth a try, but my guess is that this is a slooooow process.

    Blocking terrorists and their supporters from the U.S. is obviously an important goal--it protects our country and it protects our immigration and asylum system. However, the material support bar is much too broad. It fails to distinguish between terrorists and their victims. Worse, it treats victims as if they were terrorists. The recent ruling from the BIA underlines this sad fact. It also illustrates why the law needs to be changed. As we continue to work for immigration reform, I hope we will keep in mind those who have been victimized by terrorists and victimized a second time by our overly-broad anti-terrorism law.

    Originally posted on the Asylumist:
  5. Two Big Victories For Nationalism And Xenophobia in UK and US. Roger Algase

    June 23, 2016 will go down in history as a day when appeals to the ugliest passions of white majorities led to big victories for nationalism and xenophobia on both sides of the Atlantic. In Britain anti-immigrant feeling led to a narrow vote in favor the "Brexit" movement, which could lead to the breakup of the entire European Union, something that could have severe economic consequences world-wide, according to current reports.

    Huffington Post writes:

    "The pro-Brexit vote in the U.K. is a cry of defiance by what's left of the Anglo-American white tribal faith, and the decision to leave the European Union should send a shudder through those who think that Donald Trump is a xenophobic, racist nationalist who has no chance to win the U.S. presidency...

    Trump is riding the same tide of anti-globalism that propelled the likes of Boris Johnson and Nigel Farage in the U.K. against waves of immigrants...against Muslim claims that terrorism has nothing to do with their religion...

    Trump. if he is anything substantive, is a scream of defiance by white America...against the new multicultural global country and world."

    On the same day as the Brexit vote in Britain, another "scream of defiance" by white Americans against Latino immigrants, namely the US v Texas lawsuit by 26 states seeking to block President Obama's DAPA/Expanded DAPA - see

    was upheld in a deadlocked 4-4 US Supreme Court leaving in place a Fifth Circuit US Court of Appeals decision affirming a US District Court Injunction by a notoriously anti-immigrant judge, Andrew Hanen, against proceeding with these programs.

    By leaving the injunction in place, the Supreme Court's decision does not require the deportation of a single immigrant who would otherwise be protected by these two initiatives, but it does deny work permits or other "affirmative" benefits to such immigrants in what immigration opponents no doubt hope will lead to "self-deportation" among affected immigrants who will now be unable to work or obtain drivers licences.

    The above Latin Post (May 17) article quotes Congressional Hispanic Caucus Chairwoman Linda Snachez (D-Calif) as follows, speaking about a House Resolution supporting the anti-DAPA/DACA lawsuit:

    "What I find is that the Latino community is being used for political purposes...We are being demonized, we are being marginalized and we see a frightening level of hateful rhetoric and vile hate speech aimed at our community..."

    The above quote says everything we need to know about the U.S. v. Texas DAPA/Expanded DACA lawsuit.

    The danger in the frenzy of xenophobia that emerged in order to carry the day in both Britain and the US is that it will affect not only immigrants, but also the children of immigrants, in an excess of nationalism that could lead to Apartheid-style, o even Nuremberg-style laws, discriminating against native-born citizens of these two countries on the basis of their ancestry. See: Slate,

    Donald Trump's next generation bigotry

    (Sorry, I do not have a link - please go to

    Slate's William Saletan, writing in the above article, states:

    "When Trump went after Judge Gonzalo Curiel three weeks ago, calling him biased and underhanded, because of his 'heritage', many Americans cried foul. It's one thing to campaign against illegal immigration or even legal immigration,they noted. It's quite another to challenge someone born in this country based on his ancestry."

    With regard to Trump's (totally unfounded) claim that Hillary Clinton wants to bring in "hundreds of thousands" of refugees from the Middle East without any way to screen them or "prevent their children from radicalizing", Saletan writes:

    "Trump wasn't just arguing, as he has in the past, that the refugees couldn't be vetted,. He was claiming that even if they were vetted, they still had to be kept out of the country because their offspring might someday become terrorists."

    For any one with any sense of U.S. immigration history, this cannot help but remind one of arguments that were made by the Know-Nothings more than 150 years ago that Irish immigrants should not be let into America because their children would become alcoholics, or even worse, Catholics; that Chinese immigrants should be excluded beginning in the 1880's because their children would never assimilate to American culture; that, over 100 years ago, Jewish and Italian immigrants should be excluded because their children would become thieves or gangsters; and during WW2, that Japanese-Americans should be locked up because they and their children would be disloyal to the US by reason of their ancestry.

    Once again, Donald Trump and his white nationalist supporters are showing us that racial hatred and discrimination may begin with attacks on minority immigrants, but they do not end there. Inevitably, just as British citizens may suffer severe economic and other consequences from the anti-immigrant mania that lead to Brexit, American citizens who may have Latino, Muslim or other non-white immigrant ancestry could be on the way to becoming second-class citizens in Donald Trump's America.

    Roger Algase
    Attorney at Law

    Updated 06-24-2016 at 11:20 AM by ImmigrationLawBlogs

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