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Who are Illegal? Children Seeking Asylum or People Blocking Buses? By Roger Algase

Rating: 5 votes, 5.00 average.

The latest development in the ongoing battle over immigration is the July 1 protest by an anti-immigrant crowd in Murrieta, California, which blocked ICE buses from transporting Central American children to a housing facility in that town and forced the buses to be rerouted to a different location.

Even under the latest strict standards, many thousands of the more than 50,000 unaccompanied children from El Salvador, Guatemala and Honduras who have arrived at the US border since last October would arguably be able to show a credible fear of gang violence in their countries, if afforded the opportunity to pursue asylum claims which they are entitled to do under our laws.

See Immigration Policy Center: Mexican and Central American Asylum and Credible Fear Claims: Background and Context, May 21, 2014.

For access to some recent Immigration Judge decisions granting asylum in cases involving a credible fear of gang violence in Central America, see U.S. Committee for Refugees and Immigrants: Gang-Related Asylum Resources:

Therefore, many of these children would in all likelihood be determined to have the legal right to remain in the US in any kind of fair agency or judicial proceeding.

With respect to the protesters, however, 18 U.S.C. Section 111 makes anyone who "forcibly assaults, resists, opposes, impedes, intimidates or interferes with" a federal officer or employee in the performance of his/her official duties guilty of s federal misdemeanor.

The buses carrying the Central American children were obviously under the direction and control of federal ICE officers or employees. According to a July 3 report in The Hill: Dem: GOP to blame for bus protest, ICE cited safety concerns in connection with the incident. Protection was also required from police officers standing between the buses and the angry protesters shouting anti-immigrant slogans, according to many other news reports.

Arguably, this alone would be enough to meet the definition of "forcibly", which is an essential element of the above federal crime. See U.S. v. Walker, 835 F.2nd 983, 987 (2d Cir., 1987).

But whether or not the protesters who blocked the buses and forced them to reroute actually crossed over the line of criminal conduct, they clearly came very close to that line.

Who are the ones showing greater respect for our laws, young children coming to our border to pursue asylum claims which in a great number of cases would in all likelihood turn out to be valid, or protesters who impede and intimidate federal officers or employees from performing their official duties, all in the name of preventing "illegal" activity by these same children?
Roger Algase is a New York Attorney and a graduate of Harvard College and Harvard Law School. He has been practicing employment and family-based immigration law for more than 30 years.

His practice includes H-1B and O-1 work visas; and green cards through labor certification, extraordinary ability and opposite or same sex marriage, as well as other immigration and citizenship cases. His email address is

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Updated 07-04-2014 at 07:06 AM by ImmigrationLawBlogs

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  1. Intecon's Avatar
    I would like to know who or what group is orchestrating this mass influx of minors seeking political assylum, and for what ultimate purpose? I simply cannot believe it is an individual effort.
  2. Intecon's Avatar
    As to the question, "who are illegal" . . . I wonder what trumps, 18 U.S.C. Section 111 or the US Constitution? – the rights under the law for the ICE agents to do their job as assigned, or the rights of citizens of the United States to peacefully protest government action?

    Regarding "forcibly"? . . . that's a vague term and needs clarification, and has been clarified in federal case law, however, I do not have time to research it.
  3. ImmigrationLawBlogs's Avatar
    I agree with the above comment that "forcibly" is a term of art as far as the law is concerned, and since I am not a criminal lawyer, I do not claim to have expertise in this field.

    However, according to the 1987 2nd Circuit Walker case, which I cited in my post, "forcibly", as used in this statute, includes speech or conduct which would, from an objective as opposed to subjective viewpoint, put a reasonable federal officer or employee in reasonable fear of harm if he/she carries out official duties.

    In the bus demonstration situation, the fact that the crowd was shouting hostile slogans, police protection was necessary and that, according to an ICE spokesman, a safety issue was involved, might be enough to meet the "forcibly" test under the statute and make the demonstrators, or at least their ringleaders, criminally liable in the unlikely event that the federal government decided to prosecute them.

    However, even aside from the technical issue of whether their conduct met the definition of a "forcible" act, the fact that the buses had to be diverted away from their destination because of the protest makes the demonstration something quite different from merely being a peaceful exercise of First Amendment rights.

    I am not aware of any court decision holding that conduct preventing a federal officer or employee from performing official duties is Constitutionally protected, even if it does not amount to "forcible" conduct under this statute.

    Roger Algase
    Attorney at Law
  4. Retired INS's Avatar
    I am a retired immigration officer. During my 39 years (30 with INS and 9 with USCIS) I thought I understood asylum as someone fleeing persecution because of race, religion, ethnicity, political opinion, or membership in a group - all of which had to be persecuted by the applicant's native country government. I used to sign denials of claims from El Salvador when people fled because of poverty or violence by rebels. When did the rules change to allow these unaccompanied minors to qualify for asylum? TPS would seem more appropriate.

    I rode on detention buses taking aliens from Philadelphia to Brownsville, Texas. I agree that the federal agents have a duty to do and the demonstrators are out of control. That said, nobody is going to prosecute them unless someone is hurt.
  5. ImmigrationLawBlogs's Avatar
    In response to the above comment by Retired INS, there has been some evolution in asylum law with regard to Central American gang violence. The US Committee for Refugees and Immigrants lists a number of recent IJ decisions granting asylum to young people who had been threatened with or been the victims of gang violence, which the governments of the countries concerned are unable or unwilling to provide protection against.

    The link is:

    Roger Algase
    Attorney at Law
    Updated 07-04-2014 at 06:54 AM by ImmigrationLawBlogs
  6. Retired INS's Avatar
    Thank you for the update - does that mean asylum must be claimed in a hearing before an IJ, or will the USCIS Asylum Office grant cases where the government is not the persecutor?
  7. ImmigrationLawBlogs's Avatar
    Since the substantive legal standards for showing credible fear of persecution are the same, regardless of forum, I do not see any reason why the USCIS Asylum Office should refuse to grant asylum, if warranted by the evidence, on the same grounds that an IJ would.use as a basis for granting asylum. However, I have never handled a gang violence related asylum case myself, so unlike Retired INS, I admittedly have no personal experience with this issue.

    Roger Algase
    Attorney at Law
    Updated 07-04-2014 at 10:35 AM by ImmigrationLawBlogs
  8. Retired INS's Avatar
    My experience wit asylum was 30 years ago before the asylum offices were created. We once took asylum claims at the end of the day, after doing adjustment of status and citizenship interviews. I was an immigration inspector, an INS criminal investigator, instructor at the INS Academy, Port Director in Laredo, Texas, Officer in Charge in Fresno, CA and finally USCIS Field Office Director in Fresno. I try to follow the law, but I am no longer an expert in asylum. I do remember the case of a DEA drug informant who was murdered by the Mexican cartel. His Mexican wife fled to San Diego and was denied asylum because it was not the Mexican government who was after her. However, a gay Mexican who was beaten by Mexican police did qualify for asylum because of membership in a social group persecuted by his government.
  9. ImmigrationLawBlogs's Avatar
    Retired INS, your experience with asylum goes back further than mine. My first asylum cases were heard either by Immigration Judges, or by an asylum officer.

    With the exception of one IJ in Newark NJ, there was not as much knowledge of or sensitivity to asylum issues in Immigration Court as I understand to be the case today. At least that was my experience.

    Roger Algase
    Attorney at Law
  10. Someone12's Avatar
    It's so refreshing to hear ole Rog castigate American citizens...people who have a right to be in this country, while trying to get us to shed tears over the waves of illegals using some phony excuses of alleged violence to get a free pass to America (of course, ole Rog won't be doing any paperwork for free, will you?)...why is it you dislike American citizens so much? Oh yea...because we aren't contributing to your billable hours....tell you what...if you think 50,000+ brats should be allowed entry to the US, as well as other benefits, why don't you wander on down to the border and take in a half dozen or more, into your home ...and then you feed and clothe them...because I don't want to...just like all immigration attorneys, it's all about the money....
  11. Retired INS's Avatar
    I was an immigration officer for 39 years. I arrested and deported illegal aliens from dozens of countries in all parts of the world. I was taught by Border Patrol instructors to always treat illegal aliens with respect. I signed denials of asylum cases because the claims did not comply with the restrictions of the law. I believe in obeying the law and I enforced it to the best of my ability. I found that illegal aliens from Mexico and Central America were much easier to work with than their counterparts from the Eastern Hemisphere. I could chase a Mexican for a mile, but once I caught him he gave up and sang all the way back home. Not so with other illegal aliens.

    I may disagree with President Obama's use of deferred action to allow illegal alien children to stay, but I respect his point of view.
  12. ImmigrationLawBlogs's Avatar
    Someone12, I am neither attacking American citizens in general nor defending foreigners who break our laws.

    We're talking here only about a small, specific group of American citizens who may have committed a federal crime against officers of the law engaged in transporting children who may have every legal right to remain in this country.

    If looks as if you are trying to defend people who may be breaking the law, just because they are Americans, while attacking children who may be in compliance with the law, just because they are not American citizens.

    Those are not the American values of fairness and equality before the law that I grew up with, and which you might wish to bone up on a little yourself.

    As for an attorney's role, one of the things that makes this country so great is that everyone has the right to a lawyer, including, among others, American citizens who may be committing a federal crime and foreign children who may have every legal right to stay in this country.

    If you don't like these particular laws, you also have every right to try to get them changed by contacting your Congressional Representative or Senators. That is another thing that makes our country so great.

    Roger Algase
    Attorney at Law
    Updated 07-05-2014 at 03:55 AM by ImmigrationLawBlogs
  13. ImmigrationLawBlogs's Avatar
    Retired INS, all Americans, myself included, have the greatest respect for your long service to the United States and your extensive experience in enforcing our immigration laws and protecting our borders.

    I also appreciate your taking the time to read my comments and to share your experiences. Thank you for your contribution.

    Your references to "illegal aliens" are of course absolutely correct under current law, which uses the word "alien" to refer to non-US citizens almost more often than one can count.

    But I am personally looking forward to the day when the word "alien" will no longer appear anywhere in our immigration laws, regulations or decisions, and the phrase "illegal alien" an originally neutral term which is now being hijacked by the anti-immigrant right wing to be given a pejorative meaning that was never originally intended, will no longer be used either.

    The above should not be taken as criticism in any way. These terms are still part of our current official immigration vocabulary and are acceptable as such. I hope this will change in the future.

    At the risk of being considered too politically correct, I also hope this change will take place in my lifetime.

    Roger Algase
    Attorney at Law.
    Updated 07-05-2014 at 05:07 AM by ImmigrationLawBlogs
  14. Someone12's Avatar
    Sorry Rog....but you make your living from those who have refused to obey our laws, so trying to convince us (patriotic Americans) that a handful of folks, who are sick and tired of illegal aliens (yes, illegal aliens, your least favorite term for dirtbags who thumb their unwashed noses at our laws), trying to make fact out of fiction to gain numerous benefits to which they are not entitled, while your billable hours meter runs rampant....if Americans are defending their turf, they deserve praise, not castigation. But all immigration attorneys are the same....much like TV evangelists, you promise what you cannot deliver directly (visas or a front row seat in heaven) while fleecing the flock along the way.
    Sorry Rog, but most of us (who are not immigration attorneys, and thankfully there are only about 11,000 of you, but millions of us) are fed up with illegals sneaking into my country, or refusing to adhere to the terms of a visa, while claiming that American citizens should be taking care of them...really? where does some 'world order' say that?
    If Central America is a pit, that's not my problem. 50,000 brats showing up at our doorstep trying to gain entry to America, along with countless other benefits, will drain the pockets of American taxpayers ....meanwhile, what do we say to those waiting their turn to immigrate legally to the US, who are mostly outside the US? Tough? This whole thing makes a mockery of our visa laws, while 'noble practitioners' like you feel it's somehow your duty to take umbrage with those who have worked hard for themselves and their OWN children, only to watch their efforts begin to crumble when people like you prefer to jail Americans while allowing every illegal alien or would-be illegal alien access to this country....remind us all again...why won't YOU take in a half dozen or more of these brats to your home? Why should any of us shell out a dime to take care of people who don't belong here? The US of A does not owe a standard of living to the rest of the planet...a fact you and your brethren keep forgetting....but keep up the good fight, trying to find creative ways to allow illegal aliens to remain in this country, depressing wages for blue collar workers, bringing diseases to American children, over crowding our schools and draining the coffers of many states....yea....let's all give ole Rog and his band of greedy colleagues a round of applause for their fine work.....hmmm....sounds awfully quiet out there...
  15. Retired INS's Avatar
    I was an INS manager for 29 of my 39 years working as an immigration officer. I worked with many immigration attorneys, but never went to lunch with them. I was offered free lunches frequently, but I preferred to discuss business in my office where I could control the conversation and not feel indebted for a free meal. I can understand why many Americans have no sympathy for illegal aliens and most immigration attorneys. Unfortunately, there are too many myths that lead to wrong conclusions.

    Myth #1: If people would just wait their turn in the immigration line, there would be no problem.
    Facts: For 99% of foreign nationals, there is no waiting list to sign up for and wait your turn. That ended in 1965 when Congress ended the National Origins law, which had numerical limits (quotas) for immigrants depending upon nationality. That was replaced by a system of immediate relatives and specialized employment visas. So, if a Mexican national no immediate relatives (parents, spouse, siblings, or children) who are here legally, the only method of immigrating is having a job skill the U.S. Department of Labor will certify is in demand. Those who qualify are doctors, nurses, engineers, professional athletes, and other highly educated or highly skilled individuals.

    Myth #2: Legal immigrants are those who obey the law.
    Facts: Most legal immigrants broke the law before qualifying to immigrate legally, or the person who petitioned for them broke the law. The concept of legal immigrants patiently waiting in their home country for a green card does not comply with reality. Besides supervising INS enforcement officers, I also supervised the benefits section of immigration. Tens of thousands of legal immigrants were approved by officers working for me. We estimated that between 70% to 90% of those immigrants broke the law at some point before qualifying to immigrate. Many came here legally but stayed longer than authorized. Others came illegally, but later married an American and got a visa. Many of those who eventually became citizens then petitioned to bring in their parents. The parents may have waited patiently back home, but their turn would never had come if their son or daughter had not broken the law before immigrating. The entire concept of legal immigrants being those who did it the right way is misguided.

    I could go on about other myths, but this is enough. Yes, there are bad immigration attorneys, but most of the problems come from immigration consultants in California. These are almost always legal Hispanics who take advantage of illegal Hispanics.
  16. ImmigrationLawBlogs's Avatar
    I agree, especially about the immigration "consultants", or "notarios" as many of them call themselves. However, while they may be legal as to their immigration/citizenship status, they are definitely illegal in terms of giving legal advice without a license. And they are found not only in California. There is no shortage of them here in New York and no doubt many other places as well.

    I also think that it is a good point to mention that many "legal" immigrants have violated the immigration laws at some point before becoming legal.

    Fortunately, there is an element of reason and humanity in many of our immigration laws and regulations that allow many people who have run afoul of the immigration laws to get into, or back into, legal status under certain conditions.

    However, some Congressional Republicans have tried to change the law to make every immigration violation, no matter how trivial, a criminal offense.

    One example was the notorious "Sensenbrenner" immigration bill which actually passed the GOP controlled House in 2006, but never made it to the Senate.

    That is the kind of fundamental intolerance that is destroying all hope for immigration reform in Congress now.

    Roger Algase
    Attorney at Law
    Updated 07-05-2014 at 12:32 PM by ImmigrationLawBlogs
  17. Retired INS's Avatar
    My oldest daughter was press secretary for Congressman Chris Cannon about 10 years ago. Congressman Cannon introduced the Dream Act in the House of Representatives. He was a Utah Republican and was voted out of office with the help of Tom Tancredo from Colorado. Tancredo also lied about Section 245i and helped keep it from returning. I am a conservative Republican but I think this was a huge mistake. It wouldn't have been a problem had it not been for the 1996 law which makes it extremely difficult for those who entered without inspection. Prior to 1994 (when 245i allowed EWIs to adjust status by paying a fine), these applicants returned to their home country and picked up an immigrant visa. Now, they can be married to an American citizen and have citizen children, and still be punished.

    During California's Proposition 187 in 1994 I never heard the truth told by either Republicans or Democrats. How can we rationally debate immigration if the truth never gets out? I was taught by old timer Border Patrol Agents who worked in the 1940s, 50s, and 60s. They enforced the law by were generally kind to those they arrested. They taught me to be respectful of basic human rights. This kindness can still be found in many Border Patrol Agents, but is lacking in politicians who want the law enforced. Too bad.
  18. federale86's Avatar
    This is from the same guy who advocates illegal aliens attack and intimidate anyone who opposes illegal immigration and who supports illegal aliens invading the House of Representatives and blocking doors and hallways.
  19. Lynn A. Bloxham's Avatar
    To Roger: I appreciate your even handed work and I think you must be a very dedicated attorney. One thing you have pointed out, a number of times, as have other immigration attorneys is the ever changing, almost arbitrary, contradictory rules and regulations with which you as an attorney have to deal. The system is so fraught with problems it must need to be scrapped and a simple, fair easy to navigate system developed. (In my libertarian mind completely Open Borders, but I would settle now for simple justice.)

    I know many Conservatives are concerned about the increased costs, and that is a legitimate concern. However, I would suspect that an appeal for private organizations to step up to the plate rather than all be paid for at direct taxpayer expense would be a better solution. However there are many more areas of waste than feeding children. The hatred is appalling.

    What concerns me is that there seem to be many people who are exhibiting a terrible hatred toward particularly those from South of the Border; people who are usually hard working, honest and moral. There are some organizations who are deliberately fomenting hate and use false information to do so. Their so-called research and studies are not to be trusted. One must ask of groups such as CIS, FAIR, NumbersUSA, Stormfront, V Dare, etc. "What is your actual agenda?" I think I know what it is and I do not like it.
    Thanks to the reasoned people who commented and used their experience to spread truth also.
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