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Letters of the Week: June 30 - July 4

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  1. Nolan Rappaport's Avatar
    In our ILW Letter to the Editor discussion last week, Roger Algase said, among other things, that "IIRIRA was one of the most important immigration laws in America's entire history - rammed through by Republicans without discussion or debate as an attachment to a veto-proof military spending bill only a month before the 1996 presidential election." According to Roger, "IIRIRA will go down along with the late 19th and early 29th century Chinese exclusion laws and the racist 'Nordics only' Immigration Act of 1924 as one of the most anti-immigrant laws in our history. The only difference is that IIRIRA, the God's late 20th century contribution to America's sorry history of anti-immigrant hate, is still on the books." It's great to see someone talking about IIRIRA again. I hope Roger's comments renew interest in it.

    I have more than a casual interest in IIRIRA. In 1997, I was detailed to the Democratic staff on the House Judiciary Committee from the Board of Immigration Appeals as an Executive Branch Immigration Law Expert to analyze IIRIRA and write an IIRIRA Fix It bill. Does Anyone remember "Fix 96!" I went through all of the provisions in IIRIRA and met weekly with the immigration groups to discuss ways to fix them. Then I wrote the Restoration of Fairness in Immigration Law Act (The FAIRNESS Act), which was introduced by Rep. John Conyers. I knew the FAIRNESS Act wasn't going to be enacted. My hope was that its provisions would be used in future immigration reform bills, but to my knowledge, only one bill has done that, the Save America Comprehensive Immigration Act that I wrote for Rep. Sheila Jackson Lee. A transcript for the hearing on that bill is available on the Internet. http://www.gpo.gov/fdsys/pkg/CHRG-110hhrg38766/html/CHRG-110hhrg38766.htm

    Nolan Rappaport
  2. ImmigrationLawBlogs's Avatar
    Any attempt to fix or change the harsh provisions of IIRIRA deserves the greatest respect, and that is certainly due to Nolan Rappaport for his efforts.

    My humble suggestion is that any real immigration reform must begin with the repeal of IIRIRA, or at least many of its provisions, including the court-stripping, unlawful presence bar, mandatory deportation for any one of a long list of aggravated felonies, many of which crimes are not aggravated and some of which are not felonies at all, and the I-864 affidavit of support, requirement, to begin with.

    These and other provisions of IIRIRA were enacted as part of a "backlash" against the influx of non-white immigrants since 1965, influenced by inflammatory, openly racist publications such as Peter Brimelow's book "Alien Nation".

    Maybe there were some good, or at least less harmful provisions included in IIRIRA, but if there were any, they do not seem to be a great deal in evidence today.

    Roger Algase
    Attorney at Law.
  3. Nolan Rappaport's Avatar
    Thanks, Roger.

    Of course I agree with you about the need to fix the problems IIRIRA created. An immigration reform bill isn't comprehensive without the IIRIRA fixes. You have highlighted some of the worst of them. There are more. But all of the fixes can be found in Rep. Jackson Lee's bill.

    Members have taken provisions from that bill already. For instance, Sen Kerry took the key border security provisions and added them to the Kennedy/McCain immigration reform bill with an amendment.
  4. linda grays's Avatar
    Why are our own politicians allowing massive illegal aliens to run America for their own purpose! Just turning American in to another country to benefit them!
    These 100s of illegal alien children are coming here because they were told to come here by relatives and friends who are already here illegally!

    Obama wants to fix our immigration system by giving America to millions of another country's poor, instead of enforcing immigration laws we already have, by making it much stronger. Why can our broken immigration system be fix by enforcing immigration laws instead of giving America away to lawbreakers??? Now our open borders flood gate is wide open, leaving millions of more illegal children and adults to just come to America whenever they want, many of them claiming asylum to keep them selves here in America! Since Obama do not want to go along with congress, he wants to handle illegal immigration on his own by doing an executive order on an amnesty or legalization for millions of illegal aliens who are running America already on their illegal status, This is not going to help our massive immigration problem at all, it will make it much worse!!

    There are already more legal and illegal immigrants working, who have jobs, then legal American citizens do in their own country! If millions of illegal alien get amnesty, it will steal be more of them having jobs then American citizens, our Americans jobs will continue to not have that much diversity! and the majority of American blacks will still continue to be jobless more then any other race!! Americans are already tired of seeing nothing but the majority of Hispanics working in our American jobs, and they are left jobless, and are having problems of getting jobs in their own country. What is this president doing to America and his citizens??? When will he stop to illegal immigration? why is he out to prove his point when it comes to illegal immigration in America?? We are having problem with illegal immigration in America because of him, he do not know or want to say no to illegal immigration!! Once he corrupt America with all his executive orders on an amnesty, regardless of all the good things he says about illegal immigration being good for our economy, he will actually hurt America and it citizens, America will be so terrible corrupted, and there will be no turning back. He will just be giving America to other countries especially Mexico, Americans will be left drowning in their own country, just left to endure in this big mess, in a terrible corrupted America, America will literately be taken over by other Mexico and other countries!!!! eventually another country's poor will take over our president, congress period, turning America into another 3rd world country!

    America is doomed and will be doom with what Obama want for illegal immigration in this country America! It will get or continue to be out of control, our immigration system will never get fixed. Right now again America is being corrupted and run by massive illegal immigration and their silly advocates.
    Obama is selling out his own Americans, he is also slapping Americans in their faces and is forcing this massive illegal immigration on them.....
  5. Olga's Avatar
    In 1942 Through Executive Order the U.S and Mexico signed the "Bracero Program, in which the U.S. Allowed over 5 million Mexican workers to come to the United states and work our fields to supplement the war effort, This Executive order was not signed into law until 1952, 10 years later and at that point in time we had well over 10 million Mexican workers here in the United States. There also was no restriction on resettlement from any one in the western hemisphere , even though in 1952 the McCarran-Walter Act a national quota system was instituted.

    So if the President Roosevelt did that in 1942 I believe that President Obama can do what he stated. Remember he is a teacher of Constitutional Law. He will stay within his limits and accomplish what he wants to do. His back has been to the wall for all these years and now he can do what he wants. There really is nothing the republican party can do outside of cry on TV.
    Aloha from Hawaii Orcafound@aol.com
  6. Harry DeMell's Avatar
    ILW has gone on record in an editorial dated July 1, 2014 that President Obama should use executive action to ?reform? our immigration system. I would like to remind them and all ILW readers that executive action got us into our latest crisis and that having more half thought out plans will only deepen our crisis. Evidently our leaders in Washington don?t understand the difference between what seems a good idea and the right course for America.

    No one seems to remember 1980, President Carter and the Mariel Crisis.

    In 1980 a political crisis occurred in Cuba that was precipitated by problems in the Cuban economy and some 10,000 Cubans who tried to obtain asylum at the Peruvian Embassy in Havana. President Carter, with little forethought made what seemed like an invitation to those Cubans. 125,000 came. President Carter and his party lost the 1980 election in a landslide.

    I state this because there seems to be some idea in the professional immigration community that our government knows what it is doing in this area. They don?t. In many ways we have a new Mariel Crisis.

    I support some relief for the DACA children but by unilaterally granting DACA relief 2 years ago President Obama pulled a Jimmy Carter and acted from the gut without thinking the problem through. By granting relief the way it was granted sent a message to the world that if you can just get your child into the United States, American compassion will rule the day and relief will come at the end of the day. I wish it could be true but taken to its logical conclusion DACA and CIR could encourage millions to enter the United States.

    By telling the world that we will grant relief to anyone who comes here we are setting the United States up as a country with open borders. Easily one hundred million people would come if our borders were open the way they were in the 19th century. Some could imagine many times that number. This is not good for America or the world.

    An analogy can be made to a lifeboat that has enough food to save the ten people on board. If another ten are picked up the boat will capsize or all twenty will starve.

    I would argue that the White House knows as much about ?immigration reform? as I do about brain surgery. The first part of the Hippocratic Oath a doctor takes is to do no harm. I wish every elected official had to take that same oath in order to be elected.

    Another part of that oath is to do what is best for the patient and not for the doctor. I am sick of hearing what?s good for the Republican or Democrat parties. The parties should only exist to further an agenda that is good for America. If they can?t do that it?s time for new political parties. If the only argument for CIR or some other relief, is that the parties will attract new voters to perpetuate their existence then the argument fails.

    It is no argument for me that this CIR needs to be passed because one party or the other will fail to have a majority in the future.

    We, the immigration professional community need to have integrity. We have forgotten what that word means. It means doing the correct thing when no one is looking. It means as much or more to do the right thing when everyone is looking as they are now. Sometimes that means making enemies.

    I suggest some in the White house read Profiles In Courage by John F. Kennedy. It details some stories about Americans who did the right thing for America and were willing to suffer the consequences. Is there anyone left in our government who is willing to show that type of courage and integrity?

    I would ask the editorial board of ILW to re-examine their positions. Is ILW here as a forum for ideas and information or does it go alone with the crowd? The fact that my occasional articles are published shows the former.
  7. Nolan Rappaport's Avatar
    The Bracero Program was a disaster. The abuses of that program were exposed in the CBS documentary Harvest of Shame, which aired in November of 1960. That documentary convinced President John F. Kennedy that Braceros were ?adversely affecting the wages, working conditions, and employment opportunities of our own agricultural workers.? Consequently, the Kennedy Administration attempted to revise the Bracero Program to prevent Mexican workers from depressing U.S. farm wages. In October 1961, President Kennedy, ?reluctantly? signing a bill to extend the Bracero Program through December 31, 1963. He said, ?The adverse effect of the Mexican farm labor program as it has operated in recent years on the wage and employment conditions of domestic workers is clear and cumulative in its impact.? President Kennedy ordered the U.S. Department of Labor to ?prescribe standards and to make the determinations essential for the protection of the wages and working conditions? of U.S. workers. Bracero admissions began to fall when President Kennedy ordered the Department of Labor to enforce Bracero the regulations. Farmers lobbied Congress to preserve the program, but lost. The Bracero program was ended on December 31, 1964.

    I strongly recommend watching the entire original broadcast of the Harvest of Shame documentary at, http://www.youtube.com/watch?v=yJTVF_dya7E

    Also, although I hate to keep plugging my work, if you want to know more about the Bracero Program, see my article, "Harvest of Shame Revisited." http://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2013/06/28/nolan-rappaport-harvest-of-shame-revisited.aspx
  8. Nolan Rappaport's Avatar
    I remember the Cuban boat lift. I wrote the decisions on the boat lift fine cases for the Board of Immigration Appeals with my friend, retired immigration judge Wayne Stogner. I have a vivid recollection of President Carter being asked what he was going to do about the undocumented Cubans who were being brought to the United States. He said, "We will continue to welcome them with open hearts and open arms." Or something very close to that. Apparently, no one had told him that the Justice Department was fining carrier's $1,000 a person for brining the Cubans to the US without documents and seizing their ships when they couldn't pay the fines. No, I haven't written an article on this.
  9. ImmigrationLawBlogs's Avatar
    This may make some people feel uncomfortable, but there is a strong likelihood that many thousands of the Central American children who have been showing up at our border may have the legal right to stay in America because of a credible fear of gang violence and other forms of persecution.

    This is something that even the anti-immigrant side recognizes, which would explain why House Judiciary Committee Chairman Bob Goodlatte (R-VA), no friend of comprehensive immigration reform, recognized when he called for a change in the asylum laws to make them tougher as I mentioned in a recent Immigration Daily post).

    We are inundated with cries from the right wing that our immigration laws are not being enforced.

    But sometimes enforcing our immigration laws means letting people in and letting them stay.

    There are compelling arguments that this may apply to many thousands of the UAC's from Central America whose presence at our borders is so unwelcome in certain quarters.

    I have the greatest respect for Nolan Rappaport and Harry DeMell, both of whom are great legal scholars, even though I am often on the opposite side from them. But I fail to see what either the Mariel or the Bracero Program has to do with the issues involved in immigration reform today. They are now part of our immigration history, not our present.

    Someone mentioned the 19th century. In that century, there was no shortage of people who argued that America made a mistake in letting in so many people who were frying to escape from the Irish potato famine.

    No person in his/her right mind would make such an argument now.

    Roger Algase
    Attorney at Law
    Updated 07-03-2014 at 11:47 AM by ImmigrationLawBlogs
  10. Nolan Rappaport's Avatar
    Roger is right that the boat lift and the bracero program have nothing to do with the main subject. I was replying to references to those topics in some of the comments.

    The bracero program, however, is very important with respect to the inclusion of an agricultural worker program in a comprehensive immigration reform bill. It offers valuable lessons on how to prevent such a program from exploiting foreign workers, which by the way, hurts the workers who are not part of the program, which is why president Kennedy opposed it.
  11. Nolan Rappaport's Avatar
    Roger indicates in his previous comment that fear of gang violence can be the basis for a persecution claim. I don't think he is right. See Matter of S.E.G., 24 I&N Dec. 579 (BIA 2008). http://www.justice.gov/eoir/vll/intdec/vol24/3617.pdf
  12. ImmigrationLawBlogs's Avatar
    Nolan, all of us know as lawyers that there is a time gap between the law and reality, and the BIA case that you cite is a good example of this in the gang violence related asylum field.

    Moreover, to see highly intelligent judges spinning their wheels over arcane issues such as the technical definition of a "social group", while children are being terrorized, raped and killed by gangs which the governments of their countries are unable to control is almost enough to make one ashamed to be a member of the legal profession.

    I would like to ask how anyone could read a decision such as the one you cite without wanting to bang one's fist down on this table and shout at the computer monitor.

    Thank you for sharing this atrocious decision so that more immigration judges, hopefully, will know what not to do when these cases come into their courtrooms.

    Fortunately, the law has evolved in the few short years that have gone by since this abysmal decision. The website of the US Committee for Refugees and Immigrants: Gang Related Asylum Resources, lists a number of recent Immigration Judge decisions granting asylum based on a credible fear of Central American gang violence.

    The published link to this article is:

    www.refugees.org/resources/for-lawyers/asylum-research/gang-related-asylum-resources/immigration-judge.html

    (I hope this link works.)

    Roger Algase
    Attorney at Law
    Updated 07-04-2014 at 06:28 AM by ImmigrationLawBlogs
  13. Nolan Rappaport's Avatar
    The technical definition of "social group" is not an arcane issue. It is one of the essential element of the statutory burden of proof for asylum.

    (B) 4/ BURDEN OF PROOF-
    (i) IN GENERAL- The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A) . To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

    I want to help the unaccompanied children too, but I don't think asylum law is the way to do it if their claims are based on a generalized fear of gang violence. As for the Board precedent I cited, it is not a secret. You should expect immigration judges to know about it. Certainly the Board knows about it. If you are going to base a persecution claim on fear of gang violence, you are going to need to distinguish that decision. What would you tell a client about his odds on prevailing with such a claim?
  14. ImmigrationLawBlogs's Avatar
    I would tell such a client that there are at least some recent decisions by immigration judges that take a more enlightened view toward fear of gang violence as a basis for asylum, as mentioned in the link cited above.

    Didn't it also take time for fear of female genital mutilation to be accepted as a basis for asylum?

    Nolan, I am looking forward to the day when the BIA decision you have cited will be as accurate a statement of asylum law as Plessy v. Ferguson (1896) now is of the laws concerning racial segregation in schools.

    Admittedly, this has not yet happened. But it is not going to take almost 60 years for the decision you cite to become outmoded. It might not even take another 60 weeks from now for that to happen, as the tens of thousands of brave Central American children arriving at our borders to pursue their rights to have asylum claims heard under our laws force our immigration system to focus on the reality of gang violence in their countries, instead of trying to waive it away with legal sophistry of the type in the decision you cite.

    However, I will agree with you on one point. The definition of a social group does not have to be as arcane as the above decision would make it seem.

    It is actually very simple: children who are threatened with violence by gang members. There is your social group. Voila!

    Roger Algase
    Attorney at Law
    Updated 07-05-2014 at 05:49 AM by ImmigrationLawBlogs
  15. Nolan Rappaport's Avatar
    Roger, I am wondering whether we have been talking about the same thing. In the situation we have been discussing, the persecution being alleged is "gang violence." The legal question I have been talking about is whether the 50 some thousand unaccompanied aliens can establish eligibility for asylum by showing a well founded fear that they will suffer gang violence on account of race, religion, nationality, membership in a particular social group, or political opinion. The "enlightened" judges you talk about made such findings, e.g., the alien was a family member of a Salvadoran police officer involved in anti-gang efforts; the aliens were women who have been the victim of gang rape; male siblings of those murdered by gangs who resist active recruitment efforts by the same gang; was targeted by MS-13 after his brother was murdered for refusing to join the gang; members of their small family group that has been targeted for gang violence; and family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses without compensation.* I don't know whether they were right, but it's apparent that they were following precedent when they made such findings, not expressing a new, more enlightened view of the law.

    My point is that I don't think many of the unaccompanied children will be able to establish that the gangs have any interest in them on account of one of the five enumerated grounds. For most, maybe even almost all of them, their fear of gang violence is based on the possibility of being an innocent, unintended victim of gang violence, e.g., being caught in the cross fire during a shoot out. I don't want to return them to an environment in which they face that danger, but I don't think asylum is an appropriate way to save them from it. We need to think of a better way to help them.
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