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W.H. Says Most C.A. Kids Not Eligible For Asylum. How Can It Tell? By Roger Algase

Rating: 14 votes, 5.00 average.

The White House is apparently so anxious to cater to right wing politicians who are eager to exploit the humanitarian crisis involving thousands of Central American children at the US border that it is now engaging in predicting the outcome of asylum hearings which these children are entitled to by law. (See Section 235, Trafficking Victims Reauthorization Protection Act of 2008).

The Hill and Huffington Post both report that on July 7, White House Press secretary Josh Earnest stated:

"It's unlikely that most of these kids will qualify for humanitarian relief...It means they will not have a legal basis for remaining in this country and will be returned."

As the early 20th century humorist Dorothy Parker was reported to have said when President Calvin Coolidge, who was famous for being taciturn and saying as little as possible, died: "How can they tell?"

To be sure, there is an active debate now taking place about the extent of executive authority over immigration enforcement, but, so far as I am aware, no one has yet claimed that the president has the power to see into the future and predict the outcome of proceedings in Immigration Court or any other court.

This makes it somewhat curious, to say the least, that the White House is so confident that these children will be unsuccessful in their claims for asylum, withholding of deportation or other relief based on the threat of gang violence in counties such a Guatemala, Honduras and El Salvador.

It is true that if the children's chances of success were based entirely on federal court decisions from a decade ago, The White House might have a good argument.

In an August 2007 report: Seeking Asylum from Gang-Based Violence in Central America: A Resource Manual, the Capital [sic] Area Immigrants' Rights Coalition (CAIR) lists a discouraging array of federal court decisions, mainly from the various circuit courts of appeal, holding that persecution by Central American gangs was not political persecution, that inaction by the police was not governmental inaction, and that the class of people facing threats of violence, i.e. youngsters refusing to join gangs or who had been victims of gang violence, was not a "social group" for asylum law purposes.

The "logic" behind some of these decisions would have no doubt embarrassed even the ancient Greek sophists. However, the CAIR report also cites a number of decisions from the same period when more enlightened immigration judges, who were arguably closer than the federal appeals court judges to the facts on the ground because the hearings were conducted in front of the IJ's, had no hesitation in granting asylum in a number of gang violence cases. Some of these decisions, as well as more recent ones, will be discussed in an upcoming post.

The link to the CAIR report is

http://www.ailf.org/lac/GangResourceManual.pdf www.ailf.org

Even though the CAIR report is now seven years old, I recommend it to everyone seriously interested in learning more about the legal rights of the tens of thousands of Central American children who are now showing up at our Southern border.


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Updated 07-09-2014 at 07:51 AM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    There is virtually no difference between President Obama's immigration policy, and that of right wing extremists. I don't see him catering, so much as walking in step.
  2. Someone12's Avatar
    Gee Rog....why not just eliminate all visas and put the entire planet on the VWP? Oh...wait...I know...instead, you and the other band of greedy practitioners at AILA want unlimited waves of people to arrive in the US, so you can charge them obscene sums of money to fill out papers on their behalf....why have visa categories if everyone and anyone can just wander across our borders, make some bogus claim of asylum or whatever? These 50,000+ brats do not belong in MY country....they need to be shipped back to whatever cesspool of a country they came from.
  3. ImmigrationLawBlogs's Avatar
    To Someone12:

    Why don't you go back first, my friend, to wherever your own forebears came from? You might be happier there than in a country which owes its greatness and its values, if not its entire existence, to immigration.

    Roger Algase
    Attorney at Law.
  4. Someone12's Avatar
    At least I have biological parents - I believe that immigration attorneys are the end result of a petri dish dropped on the floor of a latrine....how do you sleep at night, thinking of creative ways to sell out Americans to cheap labor from overseas? Oh yes....I almost forgot....billable hours...imagine charging $4000 to fill out an I-129 and a cover letter with 'facts' derived from one's imagination....if the public only knew how long it really takes to complete that form...you should turn in your blue passport, as you have no common genetic link to American citizens...no wonder you and others of your ilk whine incessantly whenever a move is made to reduce visa fraud....you don't want the facts to be discovered, because if they were, your clients might not get a visa....yea Rog....we are all impressed with your constant blather about how everyone and anyone should be given access to the United States of America...as long as you can be first in line to toss a business card their way, and prepare to charge them beaucoup dollars in order to nudge them ahead of others who are trying to immigrate legally........
  5. ImmigrationLawBlogs's Avatar
    Just a friendly reminder to Someone12 that this site is intended only for serious comments by people who have a genuine interest in discussing immigration law.

    Roger Algase
    Attorney at Law
    Updated 07-08-2014 at 07:24 PM by ImmigrationLawBlogs
  6. Someone12's Avatar
    My comments are serious....and they are focused on immigration law and immigration attorneys....every opinion need not be one agreed upon by all, or are you going to challenge my First Amendment rights, since I am an American citizen...one of those folks you apparently despise so much, because I am not contributing to your welfare. I have a genuine interest in warning others not be taken in by the self serving opinions of immigration attorneys....maybe you don't like that....too bad.
  7. ImmigrationLawBlogs's Avatar
    Someone12, you are free to say whatever you like on this or any other site. My amicable suggestion is that you might feel more at home on one of the hundreds, if not thousands, of right wing extremist hate sites where your obscene rants against immigrants and their lawyers would be more appropriate than on this one.

    Roger Algase
    Attorney at Law
  8. Someone12's Avatar
    I get it...you are unhappy when somebody like me points out the facts about immigration attorneys; perhaps you should find a site in which your rants against American citizens might find some followers (likely, AILA is the only site....the bottom of the pond)...remind us all again why you charge upwards of $4000 to complete forms a precocious 12 year old could do in less than an hour?
  9. Someone12's Avatar
    still no response ..... for those who may not be familiar with the particular form referenced, called the I-129, it is often used for those seeking H1Bs, L1s and some other immigrant/humanitarian categories....it is a 'rea'l challenging document, with such focused fill-in-the-circle' questions as 'is the beneficiary qualified for (x)? Y N (circle one)...and other equally simple questions....for this, a company or individual gets a bill for $4000? The form is laughably simple....but immigration attorneys try to sell the public about how complex our immigration laws are, and why their overpriced services are needed by the public....take a look online at this form....ask yourself how long it might take you to complete it...my guess is the first time, perhaps 90 minutes....two hours tops....but the tab a company or individual faces reflects 10-14 billable hours for this 'work'....oh yes, I forgot there is also a boiler plate cover letter, complete with exaggerated claims on the alleged qualifications of said beneficiary, with the prose so lame and recycled so often, plus 50-75 pages of blather that has little to do with the actual case.... it's sad....sad to think that USCIS contracts the 'adjudication' out to stay-at-home housewives, who are paid more for approvals than for denials...so the typical immigration attorney has an audience that is more than receptive to double speak...(and 98% of the 'work' done on an H1b, etc, is likely carried out by a paralegal or legal secretary who pushes electronic buttons to complete this form in about 9 minutes (with a bit of practice)...
  10. ImmigrationLawBlogs's Avatar
    The above is one of the most ignorant comments anyone could imagine. I have been handling H-1B cases for more than 25 years. H-1B is one of the most complicated areas of immigration law, which is itself one of the most technical and complicated areas of law in our entire system.

    A number of years ago, when the US Department of Labor first published its regulations on how to determine prevailing wages, which is only one part of filing an H-1B case, the regulations on that issue alone came to over 100 pages.

    In addition, one could almost set up an entire library of decisions by the USCIS Administrative Appeals Office (AAO) and the federal courts about whether a given H-1B job is a "specialty occupation" for H-1B purposes, whether the H-1B worker's education/experience is equivalent to a bachelor degree in or related to the specialty occupation at issue, whether the H-1b sponsor's business can support someone working in the offered H-1B position and what happens when someone interrupts H-1B employment or changes to a new H-1B employer.

    Filling out the I-129 form is just the tip of the iceberg with H-1B. This is true of almost all immigration forms.

    Even after the I-129 form is filed, as almost every H-1B employer and practitioner knows, it is very common for USCIS to send a "Request for Evidence" ("RFE") challenging one or more aspects of the case. RFE's can often lead to denials if not properly answered.

    Again, this is true, not only for H-1B, but for many other employment-based immigration cases, as well as family-based ones.

    If Someone12 has an ax to grind against immigrants or immigration lawyers, he/she has the right to an opinion.

    But to claim that H-1B cases or most other immigration cases are so simple that one can prepare them in a few minutes without an experienced immigration lawyer's help is not only false, but dangerous and utterly irresponsible.

    It is the equivalent of telling the public that the best way to avoid being hit by an automobile is to wait for the light to turn red against one at a busy intersection and then put on a blindfold and cover one's ears before crossing the street.

    And I have not even mentioned the complex areas of law related to H-1B, such as dealing with USCIS site visits, i-9 record keeping, etc. which can lead to severe sanctions and sometimes large fines against H-1B employers whose only "offense" is trying to follow the law to the best of their ability.

    If Someone12 wants to campaign for simpler and more rational H-1B and other immigration laws that would enable lawyers to charge lower fees and get faster and more reliable results for their clients, he/she would certainly have my support, as well, I am sure, that of virtually every other immigration lawyer in America.

    Roger Algase
    Attorney at Law
    Updated 07-10-2014 at 11:24 AM by ImmigrationLawBlogs
  11. Someone12's Avatar
    No doubt the bureaucracy is a mess on the other side of petition adjudication - thanks mostly to politicians who want to straddle the fence, trying to please two different constituencies. However, the process up to and including adjudication is a joke. When the stay-at-home housewife, contracted by USCIS, receives a pile of applications on her doorstep every Monday, she is not going to review them one by one in great detail - a fact that most immigration attorneys are fully aware of...thus, the situation is ripe for 'questionable' ethics to override the 'system.' I do not believe that some at-home mom in Idaho has the background to sift through 100 pages of fluff, nor has the language skills to verify foreign documents, diplomas, etc from 29 different countries, including China. When said mom gets paid by the approval, well, it's no wonder that the H1b cap is reached in seconds each year. RFEs are likely randomly selected cases, just to make the adjudication process look like it's accomplishing something....but in reality, as you pointed out, it causes delays and rarely achieves the purported objective of identifying possible fraud. Sure, there are probably some 'well known' immigration attorneys whose propensity for exaggeration generates a disproportionate number of RFEs (with good reason), but in reality, few petitions are outright denied. Consular officers, adjudicating cases overseas, rarely have the time to put a questionable case under the microscope, since getting people out the door takes precedence over accurate decision making, again, opening up a weak link that is often exploited by immigration attorneys.
    The entire process has leaks from beginning to end. And the cost? Lost opportunity for American workers. Jobs given to unqualified foreigners. And I admit, I find it tiresome and a bit unpatriotic to hear AILA members clamor for a higher H1b cap or no cap at all, by blurring their real motivation for having an unlimited supply of such visas - which is having an unlimited supply of clients....they care nothing about American jobs being sold down the river for 60 cents on the dollar....they just want their $4000 a pop....and they attempt to rationalize their interest in lifting the H1b cap by proclaiming that by bringing in umpteen more thousands of foreign workers, why, gosh, that will magically generate American jobs....which is a load of manure...
    Personally, I think it's an outrage that an employer not be forced to seek out qualified Americans for a position before handing it over to some cousin of somebody else....which is not a choice you have either.
    But the basics of producing an H1b package I believe is incredibly simple...and not time consuming....if the applicant/beneficiary is indeed qualified for the job (and assuming the job itself is a specialty occupation, not one whose requirements have been recast using semantics to create the illusion that the job in question is indeed a specialty occupation...having spent nearly two years working as a paralegal for an immigration attorney, I've seen the sleaze that can take place...when I began to realize what was going on, that's when I left...I could not ethically be a part of the such behavior....and having been tasked to produce H1b packages, I know how fast I could churn them out....and no doubt you've had more practice than me....but statistically they are not nearly as complicated as you would have people believe, at least not if you have a system in place to pump them out using a formulaic approach....
  12. ImmigrationLawBlogs's Avatar
    Someone12 has obviously never read an RFE, or a denial decision, or an AAO appellate or federal court decision in an H-1B case (or most likely any other immigration case). If he had, he would not be writing such ignorant nonsense.

    However, there is one nugget of truth buried in all his ranting and raving - many, if not most, line immigration examiners are totally unqualified to understand, let alone make intelligent decisions about the H-1B or other immigration cases that reach their desks.

    But does that mean that most of these officers automatically approve H-1B or other cases simply because they are not intellectually equipped to challenge them?

    I don't know what planet anyone who could make such an ignorant and biased statement is living on.

    Roger Algase
    Attorney at Law
  13. Someone12's Avatar
    more blather coming from an individual who makes his living selling out American jobs...yes, I've read many such decisions, and read countless petition applications, written by immigration attorneys whose propensity for exaggeration is unmatched...what AILA members really want is for their word to be the gold standard, that all petitions submitted by any one of them should be instantly placed at the front of the processing queue and then rubber stamped 'approved'...whether the beneficiary is actually qualified for said benefit is not important....those kind of details are not considered relevant by most practitioners --- after all, as I mentioned earlier, selling out American jobs to anyone with a pulse is what they do...and they are not happy when limits are placed on their greed....that's why they want the H1b visa cap lifted...that's why they want those 50,000 brats to have to fill out some forms, why they want 11,000,000 to be given a paper path to even more benefits...so they can rack up the billable hours faster than they can deposit the checks,.....hello Mr John Q Public...immigration attorneys are not your friend, nor ally ....they are working hard to take job opportunities away from you and sell you down the river for $400 per hour...wake up America, and don't buy into their attempts to have you wring your hands in support ...they are trying to deflect your attention from the fact that your pockets are going to be picked.
    Take a moment and think about what they do to 'help' America:
    they find creative ways to assist visa cheats to remain in the US - often through bogus, paid for marriages to USCs;
    rewrite job descriptions to make it appear that some alien is actually qualified for a job;
    create weepy tales that an alien commits to memory to bolster his or her already bogus asylum claims;
    and the list goes on and on....and who loses? American citizens...who gains? immigration attorneys....do they care? I don't believe so.
    They seem to believe (or want USCICS to believe) that their client is either (a) innocent of overstaying or committing fraud, but if he/she did, (b) their client merits a waiver because he or she did not rob a bank in the last thirty days, but if they did rob a bank, (c) they were coerced into doing it by some nebulous gang members, who held them down while the tattoos were being applied, then forced them to commit said crimes, but then (d) they should be given asylum because of a fear of something....what baloney.
  14. Someone12's Avatar
    Just talking to an old friend of mine, a retired consular officer (no doubt, somebody you don't like....he has two strikes against him - (1) he is an American citizen and (2), he was somebody who had no love for you and others from AILA...he told me something I thought was quite amusing....a friend of his, retired from the old INS (before DHS) told a group of consular officers and INS folks at a happy hour overseas....'ya know, in order to become an immigration attorney, you have to have either (a) never taken an ethics course or (b) if you foolishly signed up for one, you could not have passed the course!!!!'.....sounds about right. He also said that immigration attorneys chose this particular aspect of the 'legal profession' because (a) they lacked the quick intellect to be trial lawyers and (b) could not run fast enough to catch up with departing ambulances.......
  15. ImmigrationLawBlogs's Avatar
    Someone12, if you want to tell lawyers' jokes, can't you at least pick ones that are funny? I know a much funnier lawyer joke than yours, but for various reasons, I can't post it on this site. Besides, it is not about immigration lawyers, just about lawyers in general, so I suppose you wouldn't be interested in it anyway.

    Roger Algase
    Attorney at Law
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