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  1. Goodlatte's immigration reform bill has room for compromise. By Nolan Rappaport

    © Greg Nash

    Congressman Bob Goodlatte’s (R-Va.) immigration bill, the Securing America’s Future Act (SAFA) may be the last chance this election year to pass a bill that would help the Dreamers. It needs more support, but he should be able to get it from the Democrats.

    First, however, he needs to overcome the negative impression some Democrats have of him and his bill, which is expressed in this commentthe ACLU made when SAFA was introduced:

    “This bill should be viewed for what it is — an obvious attempt by longtime anti-Dreamer lawmaker Rep. Bob Goodlatte and his allies to derail a legislative solution for Dreamers.

    “The policies in the new legislation are a collection of hardline provisions designed to sabotage, rather than advance, the possibility of a bipartisan breakthrough.”

    The best approach may be to revise SAFA to include a statutory DACAprogram with a legalization program that would not become available until the bill’s enforcement measures are implemented. Also, Goodlatte should remove enforcement measures that are not needed to prevent a recurrence of what happened the last time the Republicans agreed to a legalization program.

    The Immigration Reform and Control Act of 1986 (IRCA) legalized 2.7 million people, but 10 years later, there were 5 million new undocumented aliens. The enforcement measures that were supposed to prevent illegal immigration in the future were never implemented.

    from SAFA:


    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.

  2. Washington Post: Trump Admin. Plans to Destroy USCIS Impartial Decision-Making. Same as With FBI/Russia and CIA/Torture? Roger Algase

    On March 17, former CIA Director John O. Brennan tweeted the following about Donald Trump's latest alleged attempt to interfere with the functioning of the FBI, which is supposed to be an independent law enforcement agency, and force it to support his political agenda - in this case squelching the Robert Mueller investigation into the administration's alleged corruption, and/or collusion with Russia to sway the 2016 election.

    "When the full extent of your venality, moral turpitude and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history."

    It is not necessary to agree with this strong assessment in order to be concerned about Trump's reported attempts to influence or control government agencies which, in theory, are supposed to be independent of the White House and devoted to enforcing the laws as they are written and objectively interpreted - as shown in the administration's vindictive firing of an Andrew McCabe, an FBI official who was under attack by the president, only one or two days before McCabe would have qualified for retirement benefits for his 20-year government service. For more details, see:

    It is a shame that the same John Brennan, instead of also speaking out against the attempt by Trump, who openly supported the use of torture during his presidential campaign, to compromise the independence and integrity of the CIA by picking an alleged torturer, Gina Haspel, as that agency's new chief, instead tried to defend the indefensible in her case.

    See the March 16 article by Vincent Warren, executive director of the Center for Constitutional Rights in The Guardian:

    Gina Haspel should be arrested - not put in charge of the CIA

    But, while the above events clearly do not directly relate to immigration policy, the same pattern of forcing independent government agencies to become agents for Trump's political agenda, and to show "loyalty" to him personally, rather than to the laws and institutions of the United States, may also be affecting the integrity of the USCIS.

    The Washington Post reports that there is a similar battle looming behind the scenes which could, conceivably destroy the independent decision-making powers of the USCIS to determine who is qualified for approval for legal immigration benefits such as work permits and green cards. See, March 16:

    U.S. Immigration agency to more closely monitor caseworkers, documents show

    The Post reports that Trump's new USCIS director, L. Frank Cissna, who only just recently sent an unmistakable warning sign that USCIS might no longer feel obligated to protect the interests of today's mainly non-European immigrants - see my earlier post on this issue

    may now be trying to set up a special unit within that agency to oversee the work of immigration adjudicators who are considered to be too "lax", i.e. too immigrant-friendly, in their decision-making. See:

    For a direct link to the Post's story, see the following article in The Hill (which also reports a claimed denial of the Post's story by USCIS sources - what a surprise! who could have guessed that the agency would try to deny this story?)!

    To be continued.

    Updated 03-18-2018 at 09:23 AM by ImmigrationLawBlogs

  3. Anti-Immigrant Autocrat and Trump Admirer Victor Orban is Destroying Democracy in Hungary. Will This be a Model for the US? Roger Algase

    The Guardian reports that in a fiery speech this week before thousands of cheering supporters, Hungary's right wing nationalist prime minister, Viktor Orban, who was also one of Donald Trump's earliest supporters among European politicians, and who has made Hungary the first country in the EU to build a border fence against immigrants, blasted African and Muslim immigrants as invaders who were leading to his country's destruction. Among other things, Orban said:

    "The countries that don't stop immigration will be lost."

    A spokesman for Orban also said last week that:

    "We are against the idea that migration is good or that it is a human right."

    These statements clearly correspond to many similar ones that Trump has made about non-European immigrants - calling them "criminals", "rapists" and "terrorists"; claiming that the Africa, Asia and Latin-America friendly diversity visa lottery sends the "worst people" to the US; and stating that that if America continues President Obama's (allegedly liberal) immigration policies, we "won't have a country".

    Not surprisingly, in view of their similar opposition to non-European immigrants and efforts to build border walls to keep them out, Trump and Orban have also expressed warm admiration and support for each other.

    Moreover, not only Stephen Bannon's Breitbart News, but other US right wing media also, have been effusive in their praise of Orban and his regime, even to the point of condemning efforts by Trump's own State Department (under its now ousted head, Rex Tillerson) to help preserve what small vestiges of a free press might still exist in that country.

    And this is the main point. Under Orban, who is not only opposed to non-white immigrants, but whose statements and actions are also causing anxiety among the native-born Jewish population, which well remembers the Nazi extermination of almost all of Hungary's Jews in WW2

    Hungary no longer has a free press, or any other of the workings of a democratic society.

    The New York Times reports, that, soon after taking power as prime minister:

    "...Mr Orban and his lieutenants began a legislative on the Hungarian Constitution, curbing civil society..."


    "First, (Orban) moved simultaneously to curb the Hungarian media and the judiciary. Next came the erosion of the country's checks and balances, which has helped Mr. Orban share the spoils of power with close friends and important businessmen."

    The Times continues:

    "And then, came the electoral process. The restructuring of Hungary's election system, including a redrawing of the electoral map, has helped him remain in power, even has his party has won fewer votes.

    'The election law does not correspond to democratic features,' said Imre Voros, a founding member of the Hungarian constitutional court, 'and Hungary is therefore not a democratic country.'"

    It will not come as any surprise that many readers will see a strong resemblance between the above developments in Hungary and similar ones in Donald Trump's America.

    True, there are some differences. Unlike Trump, Orban has not made "jokes" about becoming president for life, as Trump did in a recent statement (was it really a joke?) about wanting to emulate China's current leader.

    Orban, again unlike Trump, has not yet ordered a North Korean or Soviet-style military parade to be held in his honor. Nor has Orban, so have as is known, appointed a reported torturer as head of his country's main intelligence agency, as Trump has just done. See my March 14 post about Gina Haspel's alleged activities at a CIA "black site" torture prison in Thailand. See also the following NY Times report:

    But the resemblances between the two leaders are clear and unmistakable - enough to show that demonizing, scapegoating, excluding and deporting immigrants en masse because of their skin color and/or religion as a policy is on a collision course with democracy - both in Europe and the United States.

    Roger Algase
    Attorney at Law

    Updated 03-16-2018 at 10:29 AM by ImmigrationLawBlogs

  4. 2017 OCAHO Decisions – Why So Few

    By: Bruce Buchanan, Sebelist Buchanan Law

    Office of Chief Administrative Hearing Officer (OCAHO) was incredibly quiet in calendar year 2017 issuing only 5 substantive decisions against employers in I-9 penalty cases. Why so few decisions? Did employers stop committing any I-9 violations? Did employers stop appealing decisions by Immigration and Customs Enforcement (ICE)? The answer to both questions is no.

    The answer is that there has been such turnover of Administrative Law Judges (ALJs) at OCAHO that very few cases have been heard by OCAHO. In 2016, ALJ Ellen K. Thomas retired and ALJ Stacy Paddack transferred to another agency after less than two years at OCAHO. In late 2016, James McHenry was named an OCAHO ALJ. However, his tenure was short-lived as less than six months later, he was named Acting Director of EOIR and in January 2018, he became the permanent Director of EOIR. So, after ALJ McHenry issued four OCAHO I-9-related decisions in first five months of 2017, only one such decision issued the rest of 2017. In the last nine months, ALJs have been “detailed from other agencies.

    The rest of my 2017 yearly review will be published by LawLogix in the coming weeks. So, look for it there.
  5. Attorney General Seeks to Limit Asylum... Or Something

    The Attorney General, Jefferson Beauregard Sessions, has been busy "certifying" cases to himself in order to (apparently) reduce protections for certain asylum seekers. I want to talk about two cases in particular, but first, let's talk about the process that Mr. Sessions is following.

    "Oh Magoo, you've done it again!"

    The decisions in question involve cases that were before the Board of Immigration Appeals ("BIA" or "Board"), the administrative appellate body that interprets the nation's immigration laws. The BIA has been called (sometimes derisively) the "Supreme Court of immigration law." The BIA is not actually a court in the normal sense of the word (and, by the way, neither are the Immigration Courts). Instead, it is an office within the U.S. Department of Justice. The leader of the Department of Justice is the Attorney General ("AG"). So in essence, the BIA derives its power from the AG, who is the ultimate "decider" when it comes to BIA cases.

    What has been happening recently is that Mr. Sessions has been "certifying" cases from the BIA to himself. Basically, this means that he is taking the cases from the BIA and changing the Board's decisions. In a sense, this is nothing new--previous AGs have done the same thing on occasion. But the concern here is two-fold: Substantively, the AG seems to be moving towards limiting the scope of asylum protections in some types of cases, and procedurally, the AG's actions do not comport with due process of law, at least as that concept is understood in non-totalitarian countries.

    The first case I want to discuss is Matter of E-F-H-L-, 27 I&N Dec. 226 (AG 2018). In that case, the AG vacated a 2014 BIA decision (also called Matter of E-F-H-L-) and returned the matter to the Immigration Judge (the letters in the case name refer to the alien's initials). The 2014 case stands for the proposition that an asylum applicant is entitled to a hearing on the merits of her application, including an opportunity to provide oral testimony and other evidence, "without first having to establish prima facie eligibility for the requested relief." In other words, the case is widely viewed as re-affirming the right to a hearing, even if the asylum claim, as articulated by the applicant, is legally insufficient.

    In civil litigation, there is something called "failure to state a claim." Judges routinely dismiss lawsuits if they determine that a litigant's claim--even if taken as true--does not entitled the litigant to relief. In our adversarial system, this makes sense. Why waste a court's time (or the jury's time) adjudicating the facts of a case if those facts do not entitle the claimant to any relief? And why not do the same thing for asylum applicants?

    The main objection is that many asylum applicants are unrepresented, and do not know how to articulate their claims effectively. Only in the course of testimony might an applicant's claim become apparent (and that is especially true in a case like E-F-H-L-, where there is a complicated "particular social group" analysis). Most Immigration Court hearings are fairly truncated affairs to begin with, and so further curtailing an applicant's ability to present his case makes it even more likely that overworked judges will take the easy route and dismiss an asylum claim before the applicant is able to fully develop his case. The result, of course, will be that legitimate asylum seekers are denied protection.

    So it is concerning that Mr. Sessions has vacated E-F-H-L-. But what comes next is not yet clear. The case has been returned to the Immigration Court for further decision-making, and as I read the case, it seems unlikely that the Judge or the BIA would need to rule on E-F-H-L-'s right to a full hearing. According to the AG's decision, E-F-H-L- married a U.S. citizen and withdrew his asylum claim. If that is true, there is little reason to think we will hear anything more about this particular case.

    The problem, though, is that the AG presumably vacated E-F-H-L- for a reason. I expect the reason is that he wants to create a new standard (in a different alien's case) for adjudicating asylum claims. What this standard will be, we do not yet know, but given Mr. Sessions's jaundiced view of asylum seekers, I'm not feeling optimistic. Whatever he does, Mr. Sessions is limited by the statute and by the courts, and so hopefully, it will not be as bad as we fear.

    The second case I want to discuss is Matter of A-B-, 27 I&N Dec. 227 (BIA 2018). Mr. Sessions has certified that BIA case to himself and requested new briefs (legal arguments) from the parties and from amici (interested organizations). The question Mr. Sessions wants briefed is this:

    Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

    We don't know, but presumably the goal here is to block asylum seekers who fear harm from "private criminal activity." This might, for example, block people fleeing harm from gangs in Central America, or victims of domestic violence. It potentially affects other types of asylum claims as well.

    The main problem is that Mr. Sessions has asked for briefing on a question that is vague. He has not given us the facts of the case, thus making it difficult to write an effective brief, since cases are fact specific. He even tried to hide the name of the attorney representing A-B-; perhaps in an effort to block advocates from learning more about the case.

    This is not how due process works, and I imagine that whatever decision the AG issues in A-B- will be vulnerable to review by the federal appellate courts, which tend to look askance at such blatant (and amateurish) violations of due process.

    That the Attorney General of the United States would engage in such obvious procedural misfeasance is very concerning. Since we don't know what the AG is really asking for, his request for amici briefs is completely disingenuous. Indeed, even if you favor limiting the scope of asylum, you should be concerned when our country's top law enforcement officer demonstrates such contempt for the rule of law.

    Where the AG is heading with all this, we shall see. The widespread belief among advocates is that in anticipation of DACA and TPS ending, Mr. Sessions is planning to roll back protections for certain asylum seekers, specifically people facing harm from gangs and also victims of domestic violence. But he could also be targeting LGBT asylum seekers who fear community (as opposed to government) persecution, victims of female genital mutilation, and victims of terrorist groups, among others.

    Finally, it’s difficult not to see the irony here. For years, advocates for asylum seekers have been litigating to expand protections for a wider range of persecuted individuals, particular women, who often face harm not contemplated by the people (mostly white men) who came up with the definition of “refugee” after World War II. However, by pursuing litigation—rather than legislation—we have left ourselves vulnerable to a restrictionist Administration that now seeks to contract that definition.

    Don’t get me wrong—I certainly don’t blame advocates for our current woes; we tried and failed legislatively at least once. But I do hope that if the pendulum swings back, and the public mood becomes more favorable, we will try again to create a refugee law that is more in-tune with the types of harm individuals face today. Until then, we are stuck litigating our clients’ cases in an uncertain environment, against an Attorney General who has little interest in playing by the rules.

    Originally posted on the Asylumist:
    Tags: asylum, sessions Add / Edit Tags
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