If you follow the news about immigration, you probably know Stephen Miller. He’s a Senior Policy Advisor to President Trump, and he’s supposedly the nefarious driving force behind many of the Administration’s most vicious anti-immigrant policies.
Last week, Dr. David S. Glosser–Mr. Miller’s uncle and a retired neuropsychologist who volunteers with refugees–penned a powerful article refuting his nephew’s raison d’etre: Stephen Miller Is an Immigration Hypocrite. I Know Because I’m His Uncle. The article discusses the immigration history of Mr. Miller’s family, and points out that the policies espoused by Mr. Miller would have prevented his own ancestors from escaping persecution in Europe. Here’s Dr. Glosser’s money shot:
Trump and my nephew both know their immigrant and refugee roots. Yet, they repeat the insults and false accusations of earlier generations against these refugees to make them seem less than human. Trump publicly parades the grieving families of people hurt or killed by migrants, just as the early Nazis dredged up Jewish criminals to frighten and enrage their political base to justify persecution of all Jews. Almost every American family has an immigration story of its own based on flight from war, poverty, famine, persecution, fear or hopelessness. Most of these immigrants became workers, entrepreneurs, scientists and soldiers of America.
Can you guess which one is Stephen Miller?
It’s a powerful piece, in part because of Dr. Glosser’s relationship to Stephen Miller, and in part due to the juxtaposition of these two men. Dr. Glosser speaks from his personal experience dealing with refugees. He sees the story of his parents and grandparents in the stories of modern-day refugees. He has absorbed the lessons of the past, particular with regard to ethnic and religious demonization. Mr. Miller, on the other hand, seems inured to the suffering of his fellow humans and immune to the lessons of history. I have never heard him articulate a fact-based justification for his cruel policies. But he persists in advocating for those policies nevertheless. Mr. Miller’s background and how it influences (or fails to influence) his thinking are important questions, as is the “grim historical irony” of his views.
Here, however, I want to discuss a different question: Is it accurate to call Mr. Miller and the President hypocrites because their policies would have blocked their own ancestors from immigrating to the United States? A second, perhaps more important question, is this: Why does the first question matter?
A hypocrite is a person who pretends to be something that he is not. It’s an epithet often used for politicians who claim to be virtuous and honest, but who, in reality, are the opposite. The word derives from the Greek “hypokrites,” which means “actor,” and there’s a long and rich history of contempt for hypocritical politicians (Dante, for example, relegates the hypocrites to the eight circle of hell, which is pretty close to the bottom).
I don’t think that Mr. Miller or Mr. Trump are hypocrites simply because their immigration policies would have blocked their own ancestors from coming to the U.S. They may be bigots and bullies, whose policies are based more on falsehood than fact, but that is not hypocrisy. Indeed, Mr. Trump has repeatedly articulated his disdain for Muslims, Mexicans, people from “shit-hole countries,” etc., and so the fact that he enacts policies to exclude such people seems perfectly consistent with his world view. He and Mr. Miller may hold ignorant and racist views, but that does not make them hypocrites.
Why does any of this matter?
Aside from the fact that words should be used properly (or as Inigo Montoya might say, “You keep using that word. I do not think it means what you think it means”), it seems wrong to try to limit what people can do by shaming them as hypocrites based on their ancestry. Is the decedent of slave owners a hypocrite if she supports Affirmative Action? Would a Native American be a hypocrite if he became an immigration lawyer? Is the daughter of a candy store owner acting hypocritically if she becomes a dietician? You get my point. We are who we are because of, and in spite of, our progenitors. But I don’t think we should be condemned for the choices we make that are not consistent with the choices they made.
Further, with regards to a complex topic like immigration policy, labels such as “hypocrite” seem inapplicable and designed to shut down–rather than encourage–discussion. Even a person who personally benefited from U.S. refugee policy, for example, has a right to oppose the admission of additional refugees. Economic and political circumstances change, as does the population of refugees seeking admission to our country. Maybe you support admitting some types of refugees (those like you) and oppose admitting others. Such a position is likely based on ignorance of “the other,” but I don’t think it is necessarily hypocritical.
So condemn Mr. Miller for his bigotry and his lies. Call out the irony of his policies, which would have blocked his own ancestors from finding refuge in our country. But don’t call Stephen Miller a hypocrite. Sadly, he is exactly what he purports to be.
If you add up all the people with pending asylum cases at the Asylum Offices, Immigration Courts, and Board of Immigration Appeals, there are over one million souls waiting in limbo. Many will be waiting for years. During that time, some applicants will inevitably become eligible to obtain legal status in the U.S. through other means. Here, I want to discuss the possibilities for a green card for those with a pending asylum case.
We’ll start with the easiest and most common path to a Green Card for asylum seekers already in the country: Marriage to a United States citizen. In a future post, I will cover other ways asylum seekers might obtain residency in the U.S., such as marriage to a lawful permanent resident, sponsorship by an employer, and the Visa Lottery.
There are plenty of good-looking U.S. citizens just waiting to marry you!
As a preliminary matter, I should say that the rules discussed here apply not only to spouses of U.S. citizens, but also to other “immediate relatives” of U.S. citizens. Immediate relatives are (1) spouses, (2) unmarried children of U.S. citizens where the child is under 21 years old, and (3) parents of U.S. citizens where the U.S. citizen child is over 21 years old.
Second, I should note that under U.S. immigration law, same-sex marriage is allowed, and such couples are treated the same as heterosexual couples for purposes of immigration.
With that out of the way, let’s talk about obtaining a Green Card by marrying a U.S. citizen. Not everyone who marries a citizen is eligible to obtain a Green Card, but most people are. If you entered the country lawfully (usually with a visa), you have not been ordered deported, and you have no serious criminal issues, you are most likely eligible to adjust status (i.e., obtain your Green Card without leaving the U.S.) based on the marriage. Check with a lawyer to be sure you are eligible, as there is no sense starting the processing (and paying a lot of money), if you are not legally able to get your Green Card.
Cases at the Asylum Office: The process of applying for a Green Card varies depending on whether you have a case pending with the Asylum Office or the Immigration Court. Normally, for Asylum Office cases, we file the I-130 (petition for alien relative), the I-485 (application for a Green Card), and accompanying forms and evidence with USCIS. This includes filing for a work permit and Advance Parole, which will allow you to work and travel while the Green Card application is pending (when you pay for the I-485, the fee includes these applications as well).
If you are lucky, USCIS will process the case normally and you will get a Green Card. If the marriage is less than two years old, you will receive a Conditional Permanent Resident card that is valid for two years. Prior to the card’s expiration, you will need to file another form to obtain the lawful permanent resident card. If the marriage is more than two years old, you should receive the lawful permanent resident card, which is valid for 10 years. Once you have the temporary or permanent Green Card, you can inform the Asylum Office and close your case.
Some Green Card applicants are not so lucky, and their cases get delayed. If that happens, we contact the Asylum Office and tell them about the pending Green Card. In some mysterious way, they sometimes help move things along (it may be that the Asylum Office has a file that USCIS needs to adjudicate the marriage case). If that doesn’t work, we can try withdrawing the asylum case to pursue only the Green Card case, but at least in my opinion, it is preferable to keep the asylum case alive until you have the Green Card in hand.
Cases in Immigration Court: The process is different for people in Court (or before the BIA). For one thing, you don’t normally file the I-130 and the I-485 together. Instead, the U.S. citizen spouse files the I-130 petition alone. The purpose of this form is to get USCIS to “approve” the bona fides of the marriage (in other words, to agree that the marriage is true).
In contrast to I-130 cases where the alien is not in Immigration Court, the burden of proof is higher, meaning you need to submit stronger evidence that the marriage is real. Technically, you are asking for a bona fide marriage exemption (USCIS suspects that people in Court may get married in order to avoid deportation, and so such cases are flagged for extra attention). In practice, while USCIS often asks for a formal declaration from the couple that the marriage is bona fide, the standard of evidence is not discernibly different than in “regular” I-130 marriage cases.
Once the I-130 is pending, we typically inform the Court and give them a copy of the I-130, the supporting evidence, and the I-130 receipt. Depending on the stage of the case, we often ask the Immigration Judge for a continuance, so that USCIS has time to process the I-130 petition. If there is a processing delay from USCIS, we sometimes contact the DHS attorney and ask whether they can help facilitate the I-130, which they usually agree to do. This can sometimes magically move things along at USCIS.
Once the I-130 is approved, we inform the Court and can then try one of two paths to get the Green Card. Either we ask the Judge to terminate proceedings so the person can “adjust status” (i.e., obtain a Green Card) with USCIS, or we ask the Immigration Judge to grant the Green Card in court. Often, the Immigration Judge will make this decision for you. But if you have a choice, you should know that there are advantages and disadvantages to each approach.
If you decide to go with USCIS, which is probably the more common choice, the first step is to get the Judge to terminate proceedings (be sure that you get an order “terminating” proceedings, not an order to “administratively close” proceedings, which keeps jurisdiction with the Judge and blocks you from obtaining a Green Card from USCIS). When we tried this in the past, the DHS attorneys and the judges were amenable to termination, as that makes life easier for them. However, in a recent case, the DHS attorney would not agree to terminate proceedings until we completed the I-485 and provided proof that we paid the fee. The problem is, the fee has to be paid in a particular way for cases in Immigration Court. We paid the fee and received the receipt. After that, the case was terminated. We then tried to use the fee receipt to “pay” for the I-485. In the past, USCIS has accepted the fee receipt in lieu of payment, but this time, they refused, and so my client had to pay the fee a second time ($1,225!). Next time I have a case like this, I will ask that proceedings be terminated without the fee receipt, which will hopefully avoid the problem of paying double fees.
Once the case is terminated, the applicant can adjust status with USCIS. It is pretty common to see delays in such cases, where the person was previously in removal proceedings. But ultimately, everyone who does this seems to end up with a Green Card, and it is easy to get a work permit and travel document (Advance Parole) while the case is pending with USCIS.
Alternatively, you can ask the Judge to schedule an Individual Hearing to approve the Green Card in court. This can be faster (depending on the Judge’s schedule), and should avoid the problem of double fees, but it is more difficult to get a work permit while you are waiting (you can try to use the I-485 fee receipt to “pay” for the EAD, but as we found out, that does not always work). Also, you cannot travel outside the U.S. until the Green Card is granted (if a person in Immigration Court leaves the U.S., he has effectively deported himself). Once the Judge approves the Green Card, you will need to make an Info Pass appointment to obtain the physical card.
Some Exceptions: Not everyone who enters the country illegally, or who has a criminal conviction or a deportation order, is ineligible to get a Green Card through marriage to a U.S. citizen. However, if you fall into one of these categories, you would want to talk to a lawyer about your eligibility.
For people who entered illegally, there is a law called INA 245(i) that allows certain people to pay a fine and obtain their Green Card despite the unlawful entry. To qualify, you would have had to be present in the U.S. since at least December 20, 2000 and have had a family member or employer file an immigrant petition or labor certification for you (or possibly a parent) prior to April 30, 2001. There are other requirements too, and so you would want to discuss the specifics of your case with a lawyer. Also, potentially you can leave the U.S. with a provisional waiver and obtain your Green Card overseas. This can also be problematic, especially for asylum seekers who cannot go to the U.S. embassy in their home country, and so you would want to check with a lawyer before trying this option.
For people with a criminal conviction, there are possible “waivers” available. A waiver is basically a form (usually with a steep fee) that asks the government to forgive your crime and allows you to obtain your Green Card. Many waivers require that you have citizen or resident relatives (parent, child or spouse) in the U.S. and that the relative(s) show that they would suffer some type of hardship if you were deported. Again, you would want to talk to a lawyer about this.
People with a deportation order, or some other type of immigration issue (such as the J-1 two-year home residency requirement) might also be eligible to adjust status. But especially for people with a deportation order, it is very important to talk to a lawyer. Part of the Green Card process involves an interview with USCIS, and there have been many recent examples of people with deportation orders being detained by ICE at their I-130 interviews. A lawyer can’t stop you from being detained, but she can evaluate the likelihood of a problem, and help you weigh that risk against the possibility of a successful outcome.
For most asylum seekers who marry a U.S. citizen, the likelihood of obtaining a Green Card is quite high. However, the process can be bureaucratically challenging. For all these reasons, if you can afford a lawyer to get you through the system, that is probably a good idea.
In a future post, I will discuss some other paths to residency for asylum seekers, Stay tuned.
Being an immigration attorney at a time when immigrants are under assault means that people often ask me what they can do to help.
Frankly, I am usually at a loss about how to answer this question. There are many ways to help, depending on what you mean by “help” and where your interests and abilities lie. The problem is, there is no magic bullet to solve our current difficulties. But there are things that people can do, both on the individual level and the collective level. I will discuss a few of those ideas here.
“I would have gotten away with deporting them all if it weren’t for you meddling kids.”
Volunteer with a Non-Profit: There are plenty of non-profit organizations that assist refugees, asylum seekers, and immigrants, and they need plenty of help. Such organizations can be found throughout the U.S. (here is a link to a list of organizations in each state), and they provide all sorts of opportunities to volunteer: Teach English or other skills, spend time assisting organizations or individual immigrants, help with job searches, resumes or job counseling. People with specialized skills can provide specialized assistance. For example, those lucky enough to be lawyers (gag!) can take a case pro bono, or—for a less burdensome commitment—attend a group event where you assist with immigration forms. Some asylum seekers need forensic medical exams or psychological reports for their cases, and could use expert assistance. Others need mental health therapy, or assistance navigating the DMV, Social Security Office or school or university bureaucracies. Still others need help with housing or public benefits. Many people who are new to our country are lost, and someone familiar with “the system” can provide invaluable guidance.
Also, many faith-based institutions, such as churches, mosques, and synagogues, have programs to assist non-citizens. My synagogue, for example, has helped refugee families from Syria and Afghanistan to resettle in the Washington, DC area. Synagogue volunteers assist with babysitting and setting up the new apartments. Some religious institutions are involved in the sanctuary movement, offering living space to non-citizens in an effort to shield them from deportation (ICE has thus far declined to enter churches to detain people). Perhaps you could encourage your church or mosque to consider joining this movement.
Get Involved Politically: There are numerous opportunities here too, and not just at the federal level. A lot has been happening at the local and state levels (where it is often easier to have an effect). One group that supports pro-immigrant candidates is Immigrants List. A group that assists with impact litigation and public awareness is the American Immigration Council. Many local non-profits are also involved in advocacy for immigrants. You can find such groups here.
Reaching out to politicians can have an impact as well. During the Obama Administration, opponents of immigration famously mailed hundreds of bricks to Congress. This was a not-so-subtle message to “build a wall.” If the other side can advocate effectively, we can too. Congress needs to know that many Americans support our humanitarian immigration system. Unless we reach out to them, our representatives will only hear half the story. You can contacting your Senators here, and your Representatives here. You can find links to the different state legislatures here. You don’t have to be a U.S. citizen to contact your representative. Anyone can do it.
Contact the Media: There are many misconceptions about asylum seekers and refugees in the news. If you see an article or program that misrepresents such people, you can contact the journalists and let them know (contact info is often available on the journalist’s website). I think it is especially powerful for refugees themselves to engage in such advocacy. It’s very difficult for stereotypes to survive in the face of individual truths, and so when asylum seekers and refugees tell their stories, it can be quite influential. Also, if you ask in advance, journalists will usually agree to keep identity information confidential, so you can talk to them without fear that your personal information will be made public.
Take to the Streets: I’m of two minds about public protests. Sometimes, I think they are useless; other times, I think they are transformative. Of course, there are all sorts of protests from mass rallies to performance-art type events (and there was also our very own Refugee Ball back in January 2017). Such events can be inspiring and energizing for the people involved. They can also help coalesce disparate people into a unified group. Such events also send a message—to politicians and to the American public.
Hire an Immigrant: The government is making it easier to discriminate against non-citizens. And in any case, it’s never been easy to get a job when you’re new to America. So if you have the ability to employ someone, why not consider an immigrant?
What if the intended employee does not have work authorization? Some people–such as people with asylum–are eligible to work even without the employment authorization document (the EAD card). It is obviously not legal to employ someone who is not authorized to work, but for many asylum seekers, who often wait months for their EAD, the only way to survive is to work without permission. Such people are frequently mistreated by employers. Hiring such a person comes with a risk to the employer as well as to the employee, and as a lawyer, I can’t advocate for breaking the law. However, at least in my opinion, employing such people, paying them fairly, and treating them decently is an act of resistance against an immoral system.
Talk to People Who Disagree with You: Advocates for immigrants have failed to convince the American public about the rightness of our cause, or at least we have failed to convince enough of them to win a presidential election. Rather than talking at people who disagree with us (as we often see on social media and left-leaning news outlets), we should be talking with such people. Speaking respectfully with people, listening empathetically and asking questions, and explaining a pro-immigrant view will not win everyone over to our side. But it might win over some. And even if we talk to people who disagree with us, and they are not swayed, a respectful conversation can help open doors later on. Anti-immigrant views seem to thrive in our current divisive environment. Perhaps if we work to tone things down and help move our country towards a more rational debate, it will also help immigrants. This needs to be done in big ways, but it also needs to be done in small ways, one conversation at a time. If you want to educate yourself about immigration issues, a good (pro-immigrant) source is the American Immigration Lawyers Association, which has policy statements on various issues.
So those are some ideas. Like I said, there is no magic solution for our current situation. But by supporting immigrants, in big ways and small, it is possible for each one of us to make a difference.
I originally began the Asylumist for several reasons: I wanted to diversify and grow my law practice; I needed an outlet to complain about the asylum system (we lawyers love to complain), and I hoped the blog would serve as a forum to discuss asylum and related issues. After 8+ years, it’s time to take stock.
When I started the Asylumist in 2010, there were already plenty of blogs related to immigration (there still are), but there was no other blog that focused on asylum (there still isn’t, as far as I know). My main interest as an attorney has always been asylum, and so I felt a blog on the subject would be a good way to grow my business in that direction. Back then, I didn’t really know what a blog was. I viewed it as the equivalent of standing on a milk crate in the town square and yelling over and over, “I’m an expert!” Eventually, I figured, people would look at me and say, “That’s the expert.”
“I’m ba-aaack!”
In a sense, I was right. To the extent that I am known professionally, people view me as an expert on asylum, and that has helped to diversify my practice. In 2010, the majority of my asylum clients came from Ethiopia, Eritrea, and Afghanistan. These days, my clients come from all over (though perhaps this is more a testament to the sorry state of the world than anything else).
From a purely business perspective, however, I cannot say that the Asylumist has been a great success. First of all, no businessperson with any sense would consider asylum law as a profession. It simply isn’t that lucrative, especially when compared to other legal specialties. And so attracting more asylum clients is not necessarily a path to Easy Street. Also, the amount of time invested in managing a blog, at least my blog, is not even remotely commensurate with the business generated. I’d probably be better off handing out flyers in the subway.
But of course, none of the asylum lawyers I know went into human rights law for the money (except for the terrible ones). We practice asylum law because we believe it helps people. It is interesting. The clients are generally wonderful, intelligent, and accomplished people. Some of us view our work as an extension of our moral or religious values. So while it is not particularly remunerative, there are plenty of rewards for people practicing asylum law.
And in that sense, I think the Asylumist has been successful. It has allowed me to be part of the conversation on asylum. It has also allowed me–and others–to air our complaints about the system. In short, I am lucky to have had the opportunity to work on this blog, and I feel I have gained professionally and personally from the time invested here. I hope it has also been useful to the readers.
With all that said, I just wanted to note some changes that have been made and that are coming. The platform I had been using for the last eight years had become obsolete, and so it was necessary to change the format of the website. I should have made these changes years ago, but I am good at procrastination and bad at change. Anyway, better late than never. Implementing the updates took some time (hence we were down for a few days), but now we are back. We’re not done. There are still kinks to be worked out, and hopefully some bling to be added. The new website should be more user friendly, more accessible to mobile devices, and hopefully more secure.
These days, more than ever, asylum seekers and their supporters need to stand strong. Morality, justice, and history are on our side. I hope to continue to do my part in this great struggle. Thank you for reading and contributing. En la lucha, Jason
If you go to the White House’s official website, you will see this article: “What You Need To Know About The Violent Animals Of MS-13.” The article claims that the “violent animals of MS-13 have committed heinous, violent attacks in communities across America.” Indeed, the two-page article uses the term “animal” in reference to MS-13 gang members a total of 10 times. What to make of this?
The path of dehumanization always ends at the same place.
On the one hand, there is no doubt that MS-13 is a violent, criminal gang, that causes great misery in many communities, especially in Central America, but also in the U.S. I’ve met and represented many individuals who were victims of this gang. My clients have been attacked by machetes, shot, raped, threatened, and had family members murdered. For victims of MS-13, no language can adequately express their disgust and anger towards the gang.
But here, we are not talking about victims. We are also not talking about over-heated pundits on cable news. We are talking about the United States government. And when the United States government, and our President, refers to people–even criminals–as “animals” that is not simply hyperbole. It is a dangerous step towards fascism and genocide. And I do not mean this in any metaphorical or rhetorical way. Dehumanizing people–even bad people–has historically been a first step towards mass murder.
President Trump’s characterization of MS-13 gang members as “animals” reminds me of the Rwandan government’s rhetoric prior to the 1994 genocide. Tutsis were referred to as “cockroaches.” At the time, Rwanda was involved in a civil war, which pitted the Hutu-majority government against the Tutsi-majority rebels. The Rwandan government had reasons to speak ill of Tutsi rebels, and certainly those rebels were no angels. However, the demonization and dehumanization of the enemy went well beyond the rebel soldiers–it extended to all Tutsis.
In the same vein, perhaps the strong language against MS-13 can be justified. After all, many gang members have committed vicious crimes. But just as rhetoric against Tutsi rebels ultimately harmed innocent Tutsi civilians, the impact of the President’s words will stretch well beyond members of the MS-13 gang. Here’s more from the White House website—
Recent investigations have revealed MS-13 gang leaders based in El Salvador have been sending representatives into the United States illegally to connect the leaders with local gang members. These foreign-based gang leaders direct local members to become even more violent in an effort to control more territory
So does this mean that all people from El Salvador are suspect? Are they all “animals”? And when we are selecting people for dehumanization, how do we know where to stop? How do we know who is actually a member of the gang? What about people forced into the gang who are trying to escape, or people who simply look like gang members (whatever that means), or former gang members? Where is the due process in the dehumanization?
And if you think that mere words are not dangerous, or they can be dismissed as “Trump being Trump,” let’s remember how the Nazis engineered the mass killing of millions of Jews and other “undesirables” during World War II. From the U.S. Holocaust Memorial Museum—
Exploiting pre-existing images and stereotypes, Nazi propagandists portrayed Jews as an “alien race” that fed off the host nation, poisoned its culture, seized its economy, and enslaved its workers and farmers. This hateful depiction, although neither new nor unique to the Nazi Party, became a state-supported image
The Nazis portrayed the Jews as a threat to the Fatherland. Jews were not people; they were aliens. There was even “evidence” for the threat: Some Jews were wealthy; others were Marxist. These vile stereotypes existed long before the Nazis, but when they were adopted by the German government, they led to genocide.
In our own time, many commentators and activists have been dehumanizing non-citizens. These modern-day blood libels have always been disgusting and disgraceful. But when the President and the U.S. government get into the act, it raises the danger to a whole new level. And we are seeing that play out now, most recently in the government’s decision to rip apart parents and children who arrive at the border seeking asylum (in many case from–ironically–MS-13). Could we tear families apart and separate children from their parents if we viewed these people as human beings? This is dehumanization in action, and the harm it will cause is very real.
Let’s not mince words about what is happening here. The White House, the President of the United States, and the U.S. government are referring to human beings as “animals.” And when governments negate the humanity of people–even people deemed undesirable–it puts us on a path where the only destination is death. All of us have a responsibility to bring back humanity and decency to our country. Let us resolve to do what we can before it is too late.
My law partner and I are adjunct professors at GW Law School, where we teach Asylum and Refugee Law (yes, we are basically one-trick ponies). This week, we learned that a scheduled debate called “Immigration 2018: Words Matter” was effectively canceled after one of the panelists was dis-invited due to his affiliation with the Center for Immigration Studies (“CIS”), an organization that some consider a hate group.
Andrew Arthur: Master debater
The event was billed as a “debate on the words used in the immigration debate.” Panelists were to discuss “words and phrases like maras, chain migration, criminal alien, and others.” The controversial panelist was Andrew Arthur, a Resident Fellow at CIS, and a former Immigration Judge (and a GW alum). However, Judge Arthur’s association with CIS proved controversial and ultimately led to the dis-invitation.
I can’t really discuss the situation at GW, as I don’t know all the details. Instead, I want to talk more generally about why it is so important for immigrant advocates to engage with groups like CIS.
Let’s start with the organization itself. CIS bills itself as “low-immigration, pro-immigrant.” It wants to restrict the number of foreigners we allow into the United States. In contrast, the Southern Poverty Law Center has labeled CIS an anti-immigrant hate group due to its founder’s alleged ties to white supremacists and because it circulates writings by supposed white nationalists and anti-Semites.
As you might guess, I’m not a huge fan of CIS either, and I have found some of their writers to be intellectually dishonest and needlessly divisive (though at least one of their writers thinks I’m a babe, which is quite flattering). However, my overall observation of the organization is that it is making important contributions to the immigration debate, and that its policy positions are generally within the mainstream of our society (unfortunately). For these reasons, I believe CIS’s viewpoints deserve serious attention from those of us who care about immigration policy. Also, I’m skeptical of the SPLC’s designation of CIS as a hate group. While I support the SPLC and believe it does vital work, I think designating CIS as a hate group is a stretch.
Further, even if you have a lower tolerance for hate than me, and you believe CIS is a hate group, that does not seem a good enough reason to exclude its writers from the immigration debate. CIS is in-like-Flynn with the current Administration, and so its views really can’t be ignored. Also, there are many Americans—including many in the main stream media–who do not view CIS as a hate group, and who pay attention to its opinions. Thus, we need to listen to the organization’s views in order to better understand people who seek to restrict immigration.
I’m not arguing that we need to engage with all individuals or groups that seem hateful. Some people are simply beyond the pale (David Duke, Richard Spencer) or exist merely to provoke reactions rather than advance any real policy agenda (Ann Coulter, Milo Yiannopoulos). Such people have little to contribute to any real discussion on immigration (or anything else), and exist mostly just to promote themselves. Giving them a platform is not productive. But that’s not CIS, and when we fail to engage with legitimate and/or influential organizations, the quality of our national debate is diminished.
There are other reasons to engage with CIS as well. For one, when we fail to engage, we effectively abandon the field to the opposition. While it may seem a principled stand to refuse to debate with a “hate group,” that’s not how the majority of Americans–who only pay periodic attention to immigration issues–will interpret the situation.
Indeed, we need to be present when groups like CIS distort the facts, which they sometimes do, and we also need to articulate alternatives to their restrictionist policy proposals. We cannot correct the record or advocate for our own vision unless we are part of the conversation.
There’s also the matter of scoring political points. While I dislike the sophistry of cheap “point scoring” in our political debates, this is still part of the equation. Dis-inviting a group like CIS only plays into the organization’s hands. What will they and their allies say about a dis-invitation? Frankly, it doesn’t look good, and it tends to bolster right-wing tropes about “snowflakes” and “PC campus culture.”
Finally, there’s the issue of safety. Some people (immigrants, for example) might feel targeted by CIS, and perhaps this is a reason to avoid engagement with the organization. In fact, CIS does target immigrants in its policy proposals (the “pro-immigrant” part of its mission statement notwithstanding), and so there is some justification for this concern. But in my opinion, individuals who feel targeted by CIS need to understand the organization’s policy positions so that they can help refute those positions. Such individuals also need to explain to CIS how its work hurts real life people. Another aspect of this is that many of CIS’s proposals would harm the weakest members of our society, and so we need to engage with the organization in order to stand up when defenseless people are bullied.
In the end, I don’t think we have anything to fear from engaging with CIS. We “pro-immigrant” advocates largely have logic, humanity, and American values on our side. The hard work lies in engaging with those who disagree with us, and hopefully moving our nation in a better direction.
In his book, American Homicide, Professor Randolph Roth of Ohio State University argues that homicide rates correlate closely with four distinct phenomena: political instability; a loss of government legitimacy; a loss of fellow-feeling among members of society caused by racial, religious, or political antagonism; and a loss of faith in the social hierarchy. He examines 400 years of American history and concludes that these four factors best explain why homicide rates have gone up and down in the United States and in other Western countries, and why the United States today has the highest homicide rate among affluent nations.
“Don’t make me angry. You wouldn’t like me when I’m angry.”
Prof. Roth recently elaborated on his theories in the Washington Post. He writes–
When we lose faith in our government and political leaders, when we lack a sense of kinship with others, when we feel we just can’t get a fair shake, it affects the confidence with which we go about our lives. Small disagreements, indignities and disappointments that we might otherwise brush off may enrage us — generating hostile, defensive and predatory emotions — and in some cases give way to violence.
He goes on to detail the varying homicide rates for different communities within the U.S., and how those homicide rates track with the particular community’s faith in our governing institutions–
The homicide rate peaked for African Americans during the Nixon administration, at 43 per 100,000 persons per year, when their trust in government was at its lowest and their feelings of alienation were highest. And it peaked for white Americans in 1980, at 7 per 100,000 persons annually, when accumulated anger over busing, welfare, affirmative action, defeat in Vietnam and humiliation in Iran boiled over into the Reagan revolution.
During the 2008 election, Prof. Roth predicted that “the homicide rate in America’s cities would drop because of what [Barak Obama’s] candidacy would mean to African Americans and other minorities, who live disproportionately in urban areas.” Prof. Roth also “worried that the homicide rate would rise in the areas of the country most resistant to the idea of an African American president.” Data from President Obama’s time as president now seems to support the Professor’s prediction (at least according to Prof. Roth–and I believe him).
So what does this mean for immigrants and asylum seekers?
Maybe the answer is fairly obvious–If we demonize and disenfranchise non-citizens, we increase the likelihood that they will engage in violent behavior, and perhaps other anti-social or criminal conduct as well. And of course, this is a vicious cycle–the more we alienate such people, the more likely they are to engage in bad behavior, and the more they engage in bad behavior, the more we will alienate them.
We also have to remember who we are talking about. Many aliens already feel, well, alienated. Many asylum seekers and refugees have already suffered trauma and feel insecure and victimized. Adding to that sense of alienation by labeling them terrorists or rapists, and by treating them as criminals, will only increase the likelihood of anti-social behavior in this population.
Prof. Roth, writing after the massacre in Las Vegas, notes that “most mass murderers have been deeply affected by the distrust, disillusionment and enmity that pervade our society…. We have all played a part in creating them.”
If the violent outliers of our society in some ways reflect who we are, then the obvious solution is for us to do better. To be more civil, more inclusive, more compassionate. To disagree respectfully. To listen more and talk less. Frankly, it’s not all that difficult. It’s what teachers teach in our schools every day. It’s what we require in our workplaces. It’s what we see in our places of worship.
Unfortunately, it is not what we have in the immigration debate. Read the comments section of any news article about immigration and you’ll see what I mean. Politicians–most notably our Commander-in-Chief–have taken the visceral feelings about immigration and amplified them. This creates its own vicious cycle, and empowers extremists groups, like we saw in Charlottesville.
Prof. Roth’s work (and common sense) suggests that if you keep hammering away at vulnerable people, a few of them will eventually react negatively. Hopefully, this will not take the form of violent behavior, but the likelihood of a problem seems greater in such a toxic and threatening environment.
I do think there are things that ordinary people can do to help. Many individuals and organizations have been working to support immigrants, Dreamers, Muslims, and other targets of xenophobia. Giving people hope, and showing them that they are not alone, can mitigate the damage. Government attorneys, Immigration Judges, Asylum Officers and USCIS Officers who continue to do their jobs, and who enforce the law fairly and treat non-citizens with respect, also help counter the harm caused by haters.
Most research suggests that immigrants commit fewer crimes than native-born Americans, but if Prof. Roth’s theory is correct, the current Administration’s nativist language and policies might help cause an uptick in criminal behavior in our immigrant communities. And of course, if immigrant crime goes up, the Administration can use the increase to justify its anti-immigrant policies. It’s up to us–those of us who stand with immigrants–to continue offering them help and hope, and to try to break this cycle before it begins.
President Trump recently sent a letter to Congress laying out his “Administration’s principles for reforming our Nation’s immigration system.” In effect, this is what the President wants in exchange for agreeing to legalize DACA recipients (also known as Dreamers). Whether this is an opening bid or a final offer remains to be seen, but many Democrats and some Republicans seem to view the proposal as a non-starter.
Haggling over brown people? Where have I seen that before?
While the President’s letter covers a wide range of topics–from the border wall to hiring more ICE agents to eliminating the DV lottery–I want to focus here on the possible effects on our asylum system. Specifically, Section 1-C of the letter, Asylum Reform, lists the Administration’s ideas for “correcting the systemic deficiencies that created that [asylum] backlog.” Would that these ideas were so benign.
Below, I have listed the text of the President’s letter in bold, and added my comments (and complaints) in italics. Without further ado, here is the President’s proposal with commentary:
The massive asylum backlog has allowed illegal immigrants to enter and stay in the United States by exploiting asylum loopholes.It seems what the President means by “asylum loopholes” is the asylum process itself. But asylum is not a “loophole.” It is the law, which says that if a person is physically present in the U.S. and he fears persecution in his home country, he can apply for asylum and stay here until his case is adjudicated. An executive order from the President cannot nullify this, but Congress and the President together can change the asylum law. I have not seen any movement in that direction, at least not yet.
There are more than 270,000 pending cases in the asylum backlog before USCIS, and approximately 250,000 asylum cases before EOIR. Therefore, the Administration proposes correcting the systemic deficiencies that created that backlog.I don’t get to say this too often, but I agree with Trump! The backlog is way too large, and we need to reduce it. The Administration wants to hire 370 new Immigration Judges and 1,000 ICE attorneys. I’ve written before about some constructive and low-cost ideas for reducing the backlog. If anyone in the Administration is interested, you can see my thoughts here.
i. Significantly tighten standards and eliminate loopholes in our asylum system.It’s not clear which standards would be tightened and which loopholes eliminated. There are plenty of changes that could be made. Some might be productive (such as cracking down on notario and attorney fraud); others would likely result in eligible aliens being denied asylum and returned to face persecution (raising the evidentiary bar, for example). One area of concern for the Administration is asylum seekers at the border who arrive here and are then paroled into the U.S. Whether we could block such people without violating our treaty obligations (and our moral values) is an open question. Of course, Congress has the power to override treaties, but the unintended consequences of such a move might do (additional) damage to our standing in the world.
ii. Elevate the threshold standard of proof in credible fear interviews.Presumably, this will go beyond what the Trump Administration has already done to make it more difficult for asylum seekers arriving at the border or an airport. Again, how much can be done without abrogating our treaty obligations is unclear, but certainly Congress and the President can make it more difficult for people arriving here and requesting asylum upon arrival.
iii. Impose and enforce penalties for the filing of frivolous, baseless, or fraudulent asylum applications, and expand the use of expedited removal as appropriate.Why these two proposals did not warrant their own Roman numerals, I do not know. As for the first, there are already severe immigration consequences for filing a frivolous asylum application (including a bar to all benefits under the INA), but I suppose the penalties could always be made worse. Also, the Trump Administration has already set forth a policy on expedited removal, so perhaps the new proposal would incorporate those ideas (which basically expands the temporal and geographic boundaries of expedited removal).
iv. Close loopholes in the law to bar terrorist aliens from entering the country and receiving any immigration benefits.As you might imagine, the immigration law currently has no provisions what-so-ever to block terrorists from coming here. Amazing that no one noticed this before. Lucky for us, some keen-eyed Trump Administration official caught the problem, and so now we can finally make some rules blocking terrorists. Whew!
v. Clarify and enhance the legal definition of “aggravated felony” to ensure that criminal aliens do not receive certain immigration benefits.An alien convicted of an aggravated felony is ineligible for most immigration benefits, including asylum. I agree that the definition of aggravated felony could use some work–some offenses that might seem serious (like assault and battery against a police officer) are generally not aggravated felonies under the Immigration Act; other crimes that seem minor (such as shoplifting) might be an aggravated felony. It’s clearly not equitable. My fear is that the Trump Administration will blindly expand the definition of aggravated felony so that any crime–no matter how minor–will bar asylum seekers from the U.S. and will needlessly divide more families through deportation.
vi. Expand the ability to return asylum seekers to safe third countries.The idea of sending asylum seekers back to the last “safe” country they passed through is not new. For various reasons, I doubt it is the magic bullet that some immigration resrictionists think it is. For one thing, it is difficult to know whether a particular country is safe, and so I suspect that such a provision might just shift the battle from the fear of persecution in the home country to whether the third country is “safe.” Also, whether the “safe” countries will agree to accept non-citizens we send their way seems doubtful.
vii. Ensure only appropriate use of parole authority for aliens with credible fear or asylum claims, to deter meritless claims and ensure the swift removal of those whose claims are denied.This provision probably involves closing “loopholes” at the border. Here, some data might be useful. Is there any evidence that paroled aliens commit crimes? How often do such people fail to appear for court hearings? What is the cost of detaining such individuals? Making rational and effective policies requires answering such questions before taking action.
viii. Prevent aliens who have been granted asylum or who entered as refugees from obtaining lawful permanent resident status if they are convicted of an aggravated felony.There is a waiver available to refugees and asylees who commit crimes (INA § 209(c)), including in some cases, aggravated felonies. However, BIA case law largely already prevents aggravated felons from taking advantage of the waiver. My main problem with eliminating the waiver is that it will result in people being deported to countries where they face harm, even for relatively minor crimes (many minor crimes are considered aggravated felonies already, and the Trump Administration plans to broaden the definition of aggravated felony even further).
ix. Require review of the asylee or refugee status of an alien who returns to their home country absent a material change in circumstances or country conditions.Asylees who return home are already subject to having their status terminated. So like many of the provisions listed here, this one seems like piling on. Also, there are legitimate reasons why some asylees need to return home–to see sick family members, for example. Also, in some cases, asylees do not fear their home government; they fear terrorist groups in their country. Such people can return home for a brief period, but if they remain in their country for the long term, they face great danger. The current law recognizes this, and makes some exceptions for asylees who return home. This seems more fair than a blanket prohibition.
None of these provisions have yet been implemented or incorporated into law, and we will have to see how negotiations proceed. The Administration can argue that it is fair to bargain with the fate of DACA recipients in order to “reform” our immigration system (which certainly does need reforming). And perhaps that is the reality of politics. But I can’t help think there is a better way, and that it is not necessary to pit one minority group against another, and to hold so many innocent people hostage to a political agenda.
There’s a new State Department rule in town about misrepresentation, and it could signal trouble for certain asylum seekers and others who enter the country on non-immigrant visas and then seek to remain here permanently or engage in other behavior inconsistent with their visas.
The State Department has a long tradition of blocking visas for people facing persecution (if you don’t believe me, Google “Breckinridge Long”).
To understand the problem, we first need to talk a bit about non-immigrant visas (“NIV”). To obtain an NIV, you have to promise to comply with the terms of that visa. One common NIV requirement is that you must intend to leave the U.S. at the end of your period of authorized stay (some NIVs are exempt from this requirement, most notably the H1b and the L, which are known as “dual intent” visas). Another common NIV requirement is that the visa-holder should not work in the U.S. without permission. If you breach these requirements, there are often—but not always—immigration consequences.
For example, up until the rule change, if an alien entered the U.S. on a B or F visa, or on the Visa Waiver Program, and then filed to “adjust status” (i.e., get a green card) within 30 days of arrival, the alien was presumed to have had an “immigration intent” at the time of entry, and thus USCIS would assume that she lied about her intention to leave the U.S. at the end of her authorized stay (in government-speak, this is called a misrepresentation). If she violated her status between 30 and 60 days after arrival, USCIS might still decide that she misrepresented her intentions when she got the visa (this was known as the 30/60 day rule). If she filed for the green card on day 61 or beyond, she would generally be safe. There are exceptions and caveats to all this, but you get the picture.
[If] an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… you [the consular officer] may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.
This change specifically affects people applying for visas at U.S. consulates, but it seems likely that USCIS could adopt the rule as well, which would mean that people who come to the United States on certain NIVs and who engaged in “non-status-compliant activity” within 90 days of arrival will be presumed to have lied in order to obtain their visas. All this means that the 30/60 day rule is dead, at least so far as the State Department is concerned, and probably for USCIS as well.
This is all pretty boring and confusing, you say. What does it have to do with asylum seekers?
The issue is, if a person comes to the United States and applies for asylum within 90 days of arrival, he might be considered to have lied about his “immigration intent” in order to obtain a U.S. visa. In other words, requesting asylum (and thus asking to stay permanently in the United States) is not consistent with coming here on most NIVs, which require that you promise to leave the U.S. at the end of your authorized stay.
This problem is not just academic. I’ve recently heard from a colleague whose client came to the U.S., won asylum, and obtained a green card. But when the client applied for citizenship, USCIS accused him of a “misrepresentation” because he entered the country on an NIV and then sought to remain here permanently through asylum. This example comes amidst several cases—including one of my own—where USCIS seems to have pushed the boundaries of the law in order to deny citizenship to asylees. It also seems part of a larger pattern to “bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing.”
I should note that the above examples are not related to the new State Department rule (probably), though if USCIS implements a similar rule, it would potentially expose many more asylees (and other USCIS applicants) to the same fate.
It’s a little hard to understand what USCIS is trying to do here, or why they are doing it. For one things, there is a waiver available to refugees and asylees who commit fraud (the waiver forgives fraud and allows the person to remain in the United States). Also, when a person fears persecution in her country and qualifies for asylum, low-grade misrepresentations are routinely forgiven. So the likelihood that any asylee would ultimately be deported for having lied to get a visa is close to zero. In other words, USCIS can delay the process, and cause these asylees a lot of stress and expense, but in the end, they will remain here and most likely become U.S. citizens (eventually).
Perhaps this is the Trump Administration’s implementation of “extreme vetting.” If so, it’s more appearance than substance. It looks as if something is happening, but really, nothing is happening. Except of course that USCIS is mistreating people who have come to the United States and demonstrated that they have a well-founded fear of harm in their home countries. So—like a Stalinist show trial—such people will admit their “misrepresentations” (in many cases, for the second, third or fourth time), go through the hassle, stress, and expense of the waiver process, and then end up staying here just the same.
It’s too bad. USCIS can do a lot of good—for immigrants and for our national security. But unfortunately, their current path will not lead to improvements in either realm.
Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.
Happy Birthday! Now, get the hell out of my country!
The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That’s up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.
Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR–the office that oversees the nation’s Immigration Courts–plans to hire more Immigration Judges (“IJs”). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.
Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country’s IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation’s 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct–more big assumptions).
But frankly, I’m doubtful that 68 years–or even 101 years–is realistic. It’s partly that more people are entering the population of “illegals” all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government’s point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump’s immigration agenda.
In addition to all this, there is the Trump Administration’s modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.
This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.
There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.
One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.
As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.
Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.
A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.
Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.
Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.
There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.
Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the “prosecutors” in Immigration Court) to take charge of the Immigration Courts and the “prosecutors” offices for the entire United States. A third Atlanta attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).
If you’re feeling down about Georgia exports, here’s something to love.
Before we get to those attorneys, let’s first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.
It’s true that the Office of the Chief Counsel (“OCC”) and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.
For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.
Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.
Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC’s position again points to an agency willing to put “winning” ahead of justice.
With this background in mind, let’s turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.
Tracy Short – ICE Principal Legal Advisor: Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he “oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States.” These are the attorneys who serve as “prosecutors” in Immigration Court, among their other tasks. According to his ICE biography, “From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel.” Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.
While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.
James McHenry – Acting Director of the Executive Office for Immigration Review (“EOIR”): In a move characterized as “unusual” by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation’s immigration court system. Judge Schmidt notes that, “While Judge McHenry has stellar academic and professional credentials, and is an ‘EOIR vet,’ having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ.” In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.
Indeed, Judge Schmidt’s characterization of Judge McHenry as an “EOIR vet” seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.
Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.
Whether Judge McHenry’s “acting” role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country’s immigration court system, with hundreds of judges and support personnel to oversee.
Gene Hamilton – Counsel to DHS Secretary: Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration’s travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.
So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country’s immigration system. Given their backgrounds and experience (or lack thereof), it’s difficult to be optimistic about how that system will fare under their watch.
The asylum process was designed for speed. The regulations require that, absent “exceptional circumstances,” USCIS should adjudicate an affirmative asylum petition within 180 days. See INA § 208(d)(5)(A)(iii). That time frame went out the window with the “surge,” if not before, and these days, cases typically take a few years (and cases referred to Immigration Court can take even longer).
“I have to drink to forget.”
The effect of these delays on asylum applicants is about what you’d expect. I often hear from clients who are suffering from depression, anxiety, and other stress-related illnesses. Some have diagnosable conditions, and we regularly obtain letters from physicians to help us expedite cases. The situation is particularly dire for applicants separated from spouses and children, but few people seem immune to the stress caused by not knowing whether you (or your loved one) will be returned to a place where you fear harm.
Several recent studies have helped shed light on how the immigration process impacts people’s health, including the health of their children and even their unborn children.
One study stems from a well-known immigration raid in Postville, Iowa in 2008. Almost 400 undocumented workers—mostly Guatemalan—were arrested and charged with crimes such as identity theft and document fraud. Most were deported. Researchers at the University of Michigan at Ann Arbor examined the birth certificates of 52,000 children born before and after the raid. They found that “Latina mothers across the state were 24% more likely to give birth to undersized babies in the year after the raid than in the year before.” “The weight of non-Latino white babies stayed constant, suggesting that Latino populations were uniquely stressed by the incident.”
“Low birth weight is associated with developmental delays, behavioral problems and an increased risk of chronic disease,” among other problems.
Another study, currently in progress, will examine millions of birth certificates nationwide to “learn whether similar birth-weight patterns emerge when individual states enact laws targeting undocumented immigrants.”
A third study suggests that immigration raids can have deleterious effects on adults, as well. In November 2013, in the midst of an on-going health study of Latinos in Washtenaw County, Michigan, ICE conducted a high profile military-style raid on the local community. “The 151 people who answered the survey after the raids reported worse general health than the 325 who had already completed it…. Many said that after the raids, they were too afraid to leave their homes for food or medical care, and displayed symptoms of post-traumatic stress disorder.”
After President Trump signed the first executive order, the American Academy of Pediatrics warned that, “Prolonged exposure to serious stress — known as toxic stress — can harm the developing brain and negatively impact short- and long-term health…. The message these [immigrant] children received today from the highest levels of our federal government exacerbates that fear and anxiety.”
These reports focus on undocumented aliens who fear removal and their children, but my guess is that the results would be similar for asylum seekers, who also face uncertainty, especially in light of the Trump Administration’s rhetoric and stepped-up enforcement efforts. The reports also reflect what I am hearing from my clients.
So what can be done to help alleviate stress related to asylum delays?
First, you can try to take some affirmative action. Ask to expedite and/or short-list your case. File a motion to advance. I have written about these options here (for the Asylum Office) and here (for the Immigration Court). Whether such efforts will ultimately make the case any faster is somewhat unpredictable, but taking action may be better than waiting helplessly.
Second—and I often tell this to my clients, most of whom have strong cases—try to live like you will win your case. Learn English, go to school, get a job, buy a house, etc. You really can’t put your life entirely on hold for years waiting for a decision in your asylum case. You have to live. Obviously, this is easier said than done, and I myself would have a very hard time following such advice, but those who can put the case out of their minds and go on with life will be better off than those who dwell on it.
Third, stay engaged. There are support groups for refugees, asylum seekers, and victims of persecution. There are also churches, mosques, and other institutions that can help. Being able to discuss problems, share information, and talk (or complain) to people who understand your situation is useful, and maybe cathartic. For a list of non-profits that might be able to refer you to a support group near you, click here.
Although cases do seem to be moving a bit faster lately, it seems unlikely that the long delays and uncertainty faced by asylum seekers will go away anytime soon. During the wait, it is important to take care of yourself and your family, and that includes taking care—as well as you can—of your mental health.
Late last month, the U.S. Supreme Court issued a decision allowing the Trump Administration to begin enforcing its travel ban against all refugees and against individuals from six “banned” countries–Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Travel Ban Redux, or Once More Into the Breach (of Decorum), Dear Friends
Since the Court’s decision is (to put it kindly) a little vague, it was initially unclear how exactly the Administration would enforce its executive order (“EO”). Now, the Department of Homeland Security and the State Department have issued some guidance, and so we have a better idea about the effects of the EO. Of course, given that the Supreme Court’s decision is subject to interpretation, we can expect more litigation in the weeks and months ahead, but for today, I want to discuss how the EO will likely be enforced with regards to asylum seekers, asylees, and refugees.
Asylum Seekers: Asylum seekers are people who are physically present in the United States and who have a pending asylum case. The short answer for asylum seekers from banned countries is that the EO has essentially no effect on your case (the longer answer is here). Cases will move forward and be adjudicated as before (i.e., slowly). I should note that since the beginning of the Trump Administration, we have had several cases approved, including cases from Muslim countries and banned countries.
Asylees and Refugees Who Have Already Been Resettled in the United States: Asylees are people who have been granted asylum by the U.S. government. Refugees in this section refers to people approved for refugee status overseas who have already been resettled in the United States. According to a DHS FAQ sheet (question # 11):
Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excluded from this Executive Order. As such, they may continue to travel abroad and return to the United States consistent with existing requirements.
This means that if you already received asylum, or if you were already resettled in the U.S. as a refugee, you can travel outside the U.S. and return, and the EO does not affect you. However, if you are from one of the “banned” countries, it is a good idea to keep an eye on the news to make sure there are no future changes that might affect your ability to return (one helpful website is the American Immigration Council).
Also, according to DHS (question # 22), people who received a green card based on asylee or refugee status are not affected by the EO.
Asylees and refugees can file for their family members (spouses and minor, unmarried children) to come to the United States, and the EO does not block those family members from coming here. According to DHS (question # 34), “Family members planning to join refugees or asylees are only approved for travel if a bona fide relationship to a spouse or parent in the United States exists. Therefore, if the relationship were confirmed, the travel suspension would not apply.” (see also question # 36). So asylees who have filed I-730 petitions should not be prevented from reuniting with their family members in the U.S.
Refugees Who Are Waiting to Come to the U.S. for the First Time: It is important to note that all refugees, even people from countries that are not banned, are affected by the EO. According to DHS (question # 31), “Under the Executive Order as limited by the Supreme Court’s decision, any refugee, regardless of nationality, is prevented from admission to the United States unless he or she (1) demonstrates a bona fide relationship with a person or entity in the United States or (2) obtains a national interest waiver from the Department of State or CBP [Customs and Border Protection].”
The EO blocks admission of all refugees (other than those who meet an exception to the rule) for 120 days. According to the U.S. State Department, there are exceptions for “those refugees who are in transit and booked for travel,” though these people will likely all be in the U.S. by now.
According to DHS (question # 29), refugees can still come to the U.S. if they have a “close” family relationship with someone already here. DHS interprets this to mean:
[A] parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.
Certainly we can expect this interpretation to be the subject of litigation. Why is a half-sibling a close relative, but a grandparent is not?
Also, a refugee with a bona fide relationship to an “entity” in the United States is still eligible to travel here, but what this means is also unclear. According to a senior official at the State Department:
As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.
I expect we will see litigation on this point as well. Litigation means delay, and so the likely effect of the EO on refugees will be to greatly reduce the number of people coming to the United States.
Blocking refugees from resettling in the U.S. has been a goal of the Trump Administration since the beginning, and it is one reason why Mr. Trump was elected in the first place. So, like it or not (and obviously, I don’t), this is what democracy looks like. But of course the result is that innocent people will die, and it is all the more reason for those of us who support our refugee program to try to convince the general public on this point, to work with our representatives in Congress, and to litigate in court.
The EO’s impact on nationals of the six banned countries and on all refugees is temporary, at least for now. The Supreme Court will take up the merits of the EO this fall, and the President may issue new EOs (and Congress may pass laws that impact immigration). In essence, all this is a moving target, and so asylees, asylum seekers, and refugees need to keep abreast of any changes. We also have to keep working hard, in order to protect victims of persecution and to defend our nation’s values, which these days seem in grave jeopardy.
Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President’s executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order (“EO”). The new EO was also severely limited by the courts.
You’d think a bunch of people in burkas would be a bit more sympathetic to Muslims.
But now, the Supreme Court has spoken, and the EO is back, at least in part. So what’s the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC–they are a terrific organization that does yeoman’s work in all areas of the immigration field):
“[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have ‘a credible claim of a bona fide relationship with a person or entity in the United States.’
“What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a ‘close familial relationship’ with someone already here or if they have a ‘formal, documented’ relationship with an American entity formed ‘in the ordinary course’ of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.
“Who is likely to be allowed to enter the United States?
Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who ‘wish [] to enter the United States to live with or visit a family member’ have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically–I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.
“Who may have trouble entering the United States?
Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically–it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment].”
As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation–how the Department of Homeland Security (“DHS”) interprets and applies the Supreme Court decision in actual, real-life cases.
In that regard, I agree with Justice Thomas, who “fear[s] that the Court’s remedy will prove unworkable” and will invite a “flood of litigation.” Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?
In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court’s decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that’s not a great situation to be in.
Finally, yesterday’s decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court’s decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).
All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.
Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.
Fred Korematsu and the Presidential Medal of Freedom.
After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).
The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”
Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:
In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.
Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.
With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.
But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.
The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.
As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983–more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”
By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”
[The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.
And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.
Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.
Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.
Learn more about Fred Korematsu and his on-going story at the Korematsu Institute.
