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  1. Prosecutorial Discretion for Removal Cases May be Coming to an End

    by , 01-27-2017 at 08:55 AM (Matthew Kolken on Deportation And Removal)
    I just received a report that yesterday a conference call was scheduled among Offices of Chief Counsel to discuss President Trump's new executive orders with respect to guidance for requests for prosecutorial discretion for individuals in removal proceedings. As of the writing of this blog there is no new news to report, however instructions may be issued as early as today or Monday, but it is my understanding that prosecutorial discretion is still being exercised by Office of Chief Counsel.

    That said, there are also reports nationwide that certain local ICE offices have put a hold on processing prosecutorial discretion requests. I will keep you posted as new information becomes available.

    Update: I just received a report that in Miami local Office of Chief Counsel is no longer considering prosecutorial discretion requests, nor are they willing to join in joint motions to reopen old deportation cases.

    Update: All prosecutorial discretion requests are now currently on hold in Buffalo until further notice.

    Updated 01-27-2017 at 11:21 AM by MKolken

  2. President Trump's Immigration Orders: Some Preliminary Thoughts

    During the first week of his Administration, President Trump has signed two "executive orders" on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.
    This is how it looks when America compromises its values.
    The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client--and a lawful permanent resident based on asylum--was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend's client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending--and minor--criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion--closing certain cases where the alien has no criminal issues and has equities in the United States--has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

    Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:

    • Don't panic. The President has the power to issue executive orders ("EOs"), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
    • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can't just be thrown out of the country. Even an expedited process usually takes months.
    • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing--see below) any crimes.
    • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from "countries of particular concern" (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO's seem to temporarily suspend immigration benefits for people from those nations.
    • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
    • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for "extreme vetting." Since we don't really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
    • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.

    In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.

    The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone's guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from "countries of particular concern." The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.

    The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end "sanctuary" jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply "information needed for adjudications" of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.

    So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump's actions (spoiler alert: They are terribly damaging to our national interests and our country's character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

    Originally posted on the Asylumist:
  3. Are Trump's Orders to Deport Non-Criminal Immigrants, and Bar Muslims and Refugees, a Return Toward 1924 Europe-Only Quotas? Roger Algase

    The following comment has been updated and revised as of 9:48 am on January 28.

    The week which ended on January 27, 2017 could well go down as one of the darkest periods in America's immigration history in the past century. On this day, Donald Trump announced that he has signed, or is about to sign an executive order containing one of the most drastic restrictions against immigrants based on ethnicity and religion, not on individual merit or conduct, since the infamous national origins quotas of the Johnson Reed Immigration Act of 1924.

    Taken together, all of Trump's executive orders affecting immigration during this past week can be looked at as the first two prongs of a three-pronged attempt to change America's entire system of immigration and citizenship back to the Europeans-only ideology of the 1924 law.

    The first prong of this policy, evident in his order redefining the term "criminal alien" to include unauthorized immigrants who have merely been charged with a crime, but not convicted, will make it much easier to deport millions more people under the pretext of "getting rid" of "criminal" immigrants than would otherwise be the case. See below.

    The second prong is barring immigrants from selected Muslim countries and all refugees from anywhere in the world from our shores, as Trump did on January 27.

    The third, and most likely inevitable, prong will be attempting to take away birthright citizenship for millions of non-white American-born children.

    Trump's latest executive order, handed down in the most authoritarian manner allowed by our law, namely by presidential decree without any required consent by or even consultation with Congress, will bar all refugees from everywhere in the world for at least the next four months from coming to the United States (do not be surprised if this winds up being extended for four years - or longer). Syrian refugees will be barred indefinitely.

    Trump's latest order will also bar all immigrants from certain Muslim, mainly Arab, countries of the Middle East and Africa until further notice (most likely, no doubt, during the rest of Trump's presidency) This list can be extended and no one should be surprised if it is, again by authoritarian executive decree.

    For more on the contents of the order, see:

    This goes far beyond what any reasonable observer could say is needed for national security, especially with regard to refugees, who have a generally peaceful, law abiding record in the US.

    To the contrary, it shows every sign of being part of a larger agenda, one which has been openly hinted at by close Trump advisors such as Attorney-General designate Jeff Sessions (in a January 2015 immigration "Handbook" which I have mentioned a number of times in recent comments), and also in Trump senior adviser Stephen Bannon's Breitbart News, which I have also mentioned in at least one recent comment.

    This larger agenda is nothing less than a rollback to the 'Nordics-only" national origin quotas of the above 1924 statute, which was the foundation of America's immigration system before the 1965 immigration reform law which has come under so much criticism from Trump's supporters on the Alt-Right.

    First, it is important to say a word or two about the authoritarian, almost monarchical way that these momentous changes in the immigration system based on racial equality and religious freedom that America has had for the past half-century are being made in only the space of a week, as the tolerance and commitment to immigration diversity America has had since 1965 starts to disappear at lightning speed before our very eyes.

    At the outset, it is noteworthy that these momentous immigration decrees are being handed down on the basis of one-man decision making only.

    The new president, so far, is not even bothering with the formality of presenting the content of these orders to Congress, or even discussing them with Congressional leaders or private organizations involved with immigration either pro or against, at least according to any news reports that I have seen.

    While Donald Trump is not required to do so, as he already has the legal power to make drastic changes in immigration on his own, this contrasts with the actions of even Vladimir Putin, who at least went though the motions of submitting his immigration proposals to the Russian Duma (parliament) in 2013.

    Or, to refer to an older historical precedent, Rome's first emperor, Augustus, often submitted his decrees to the Roman Senate for confirmation even though it was clear that the Senate had no real power.

    In my January 26 comment, I discussed Trump's, radical, single handed change in determining who is a "criminal alien" for purposes of prioritization of deportation proceedings among the unauthorized immigrant population, currently estimated at 11 million men, women and children.

    Specifically, I showed that according to a degree signed o January 25, Trump is now giving priority for deportation, not only to unauthorized immigrants who have been convicted of a crime, but those who have merely been charged with a crime, or even those who have not been charged with anything but who may have allegedly engaged in conduct which could in theory form the basis of criminal charges.

    Thus, by one stroke of a pen, Trump has overturned, at least for the above mentioned purpose of priority for deportation among unauthorized immigrants, almost 2,000 years of Western legal tradition, going back at least to the 4th century A.D. time of the Roman emperor Julian, that a person accused of crime is innocent until proven guilty.

    Returning to the topic of Trump's latest announcement regarding about to be issued executive orders, are Muslim immigrants, especially those who are ethnically Arabs, about to become direct successors to the unwanted Jewish immigrants of the 1930's?

    According to a 2006 study by a University of Sydney student, Sikeli Neil Ratu

    Anti-Semitism and American Refugee Immigration Policy during the Holocaust

    the arguments that were used in order to support legislation and policies barring Jews seeking to refuge from Nazi Germany bear a close, and very disturbing, resemblance to the arguments that are being used to day to justify Donald Trump's expected ban on primarily Syrian and other Muslim refugees, as well as immigrants from a number of Arab countries.

    (Sorry, I do not have a link to the above article. It can easily be found through Google.)

    For another description of the full scope of Trump's expected executive orders, which make a mockery of the most fundamental American values of racial equality and religious freedom, see:

    To be continued.

    Roger Algase
    Attorney at Law

    Updated 01-28-2017 at 01:36 PM by ImmigrationLawBlogs

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