The Trump Administration’s onslaught of anti-immigrant rule-making, combined with increased enforcement, pushed the Immigration Court backlog to new heights–there are currently more than 1.3 million noncitizens in removal proceedings.
When Joe Biden came into office, we were hoping his Administration would move quickly to un-do the damage caused by his predecessor, and to issue new, badly-needed administrative (and hopefully legislative) changes. To be fair, there have been some changes, especially to the more high-profile Trump-era policies such as the Muslim travel ban and the Migrant Protection Protocols. Progress in other areas has been slower, but now–after more than four months of deliberation–we have a new DHS memo on prosecutorial discretion.
The purpose of the memo is to guide DHS/ICE attorneys (the prosecutors in Immigration Court) about their enforcement priorities, i.e., who should and should not be a priority for deportation. The ability of prosecutors to make these decisions is important, since there are not enough resources to deport everyone, and DHS needs to decide where to focus its efforts. The new memo sets forth how DHS attorneys should exercise their “prosecutorial discretion” or “PD.”
Photographer Harvey Finkle has documented immigration to the city of Philadelphia since the 1970s. His work has been hailed as “visual anthropology” that records successive waves of settlement, mostly in South Philadelphia, by European Jews, Vietnamese, Cambodians, Burmese, Mexicans, Central Americans, and other immigrants and refugees.
In his new book, Faces of Courage: Ten years of Building Sanctuary, Mr. Finkle chronicles the first ten years of the New Sanctuary Movement of Philadelphia—a coalition of twenty-eight congregations that works to build community across religious, ethnic, and class lines to end injustices against all immigrants, documented or otherwise.
The Asylumist recently caught up with Mr. Finkle, to ask about his career, his book, and the New Sanctuary Movement. (more…)
In order to “amplify” the President’s tough-on-immigrants campaign message and win votes, the Trump Administration is planning on conducting a series of ICE raids in “sanctuary” jurisdictions, such as California, Denver, and Philadelphia. What should you do if ICE (Immigration and Customs Enforcement) comes looking for you? Or if you get caught up in a raid?
Before we answer those questions, I want to note that people who have pending asylum cases, or who have cases in Immigration Court, are rarely targeted for arrest by ICE. The agency’s main targets are people who already have removal orders and people who have criminal issues (including very minor criminal issues). However, ICE also makes “collateral” arrests if they encounter other “illegals” in the course of pursuing their target. But unless you have already been ordered removed or you have criminal issues, it is unlikely that you will ever have to deal with ICE. That said, it never hurts to take precautions and to be prepared. So how do you do that?
In the old days, politicians would win votes by kissing babies.
First, a couple general rules to keep in mind. If you are stopped by ICE or the police, do not run away or resist. Keep your hands where the officers can see them. Be aware that in some states, you are required to give your name to law enforcement. Do not lie about your immigration status or present false documents. Trying to lie your way out of a situation rarely works, and is more likely to cause additional problems. The better approach is to inform the officers that you wish to remain silent and that you wish to contact a lawyer and/or your family. As you probably know, in the U.S., you have the right to remain silent, and anything you say to ICE or the police can be used against you in court. So the less you say, the better.
If the officers want to search you, you have a right to say no. However, if the officers have probable cause (for example, they suspect that you committed a crime and are carrying a weapon), they can search you. If ICE or the police want to search you, you can repeat that you do not consent to the search, but do not resist.
Non-citizen in the U.S. are required to carry proof of immigration status at all times (Green Card, work permit, asylum receipt, passport and visa, etc.). If an ICE officer asks for your immigration papers, you are required to produce your documents. If you do not have your papers with you, you can inform the officer that you wish to remain silent or that you wish to call an attorney. You also have a right to call your country’s consulate in the U.S. (though for asylum seekers who fear harm from the home government, this may not be a great idea). You might also scan your immigration papers or take pictures of them, and keep them on your phone or in your email. That way, even if you do not have the originals, you can at least produce copies. In addition, non-citizens in the U.S. illegally (and who do not have an application pending) can be subject to expedited removal if they have been in the U.S. for less than two years. So make sure to carry proof (or have it on your phone or in your email) that you have been in the country for more than two years. If you have been in the U.S. for less than two years, do not admit that. Stay silent and ask to speak to a lawyer.
One common way people get detained is during a traffic stop. If you are stopped for a traffic violation, the police officer can require you to produce your driver’s license, proof of insurance, and vehicle registration. Once the police have your information, they often check for outstanding arrest warrants. In some jurisdictions, they also check for immigration warrants and can detain people with outstanding criminal or immigration issues.
Today, politicians win votes by putting babies in jail.
It is less common for ICE to come to your home, but if that happens, you do not have to let them into your house unless they have a warrant signed by a judge. You can ask to see the officers’ ID and any warrant. Also, be aware that sometimes ICE officers will try to trick you into leaving your house or allowing them to enter. If ICE officers or the police force their way into your house, do not resist. Tell them that you do not consent to them entering your home, and that you wish to remain silent and contact a lawyer.
While it is probably unlikely that you will ever be detained by ICE, it is a good idea to have a plan in place just in case. What will you do about your children or other people that you take care of? Who will assist them? If you take medicine, make sure that someone can get it for you (including a copy of the prescription). What about bank accounts, vehicles, and property? You need to have someone to take care of your affairs in the event that you are detained, and that person needs to know what to do in case of an emergency.
In addition, keep your immigration and other legal papers somewhere where your family or friends can access them. Also, make sure your family members know or can find your Alien number. If you have a lawyer, your family members should have that lawyer’s contact information.
You can find more information (in many different languages) about encounters with ICE and the police at the ACLU “Know Your Rights” webpage.
Finally, if you are detained, you may be eligible for release on your own recognizance (meaning you are released and required to report back to ICE or an Immigration Court at some point in the future) or on a bond (meaning you pay money as a “guarantee” that you will appear for any future court date or for removal from the country). If ICE refuses to release you or set a bond, you can ask an Immigration Judge to do that. Depending on the circumstances, judges sometimes do not have the authority to release you. But in my experience, asylum seekers are almost always released unless they have criminal issues.
In short, while it is not impossible that a person with a pending asylum case will be detained by ICE, it is rare. Nevertheless, it’s a wise idea to have a plan in place and to be aware of your rights. That way, you will be ready for any eventuality.
By now, you’ve probably heard about the massive, coordinated ICE raids in Mississippi. About 680 people were arrested at seven agricultural processing plants. According to ICE’s acting director, Matthew Albence, some of those arrested will be prosecuted for crimes, others will be swiftly deported, and some will be released pending immigration court hearings. Mr. Albence states, “The arrests today were the result of a year-long criminal investigation, and the arrests and warrants executed today were just another step in that investigation.” How many of those arrested were actually criminals, and how many were “collaterals” (people who were not targets of the raids, but were encountered and arrested due to their unlawful immigration status), we do not know.
The raids are supposedly also targeting the companies that hired these “illegals.” The U.S. attorney for the Southern District of Mississippi, who was involved in the ICE operation, warned: “To those who use illegal aliens for a competitive advantage or to make a quick buck, we have something to say to you: If we find you have violated federal criminal law, we are coming for you.”
On the plus side, now is a great time to apply for a job in the poultry processing business.
As we know from prior large-scale raids, the implications of arresting so many people are deep and long-lasting. Probably the most famous example is the 2008 raid at a Kosher food processing plant in Postville, Iowa. Almost 400 people–mostly indigenous Mayans from Guatemala–were detained. Many were charged with crimes such as using a false Social Security card. They were given a choice: Plead guilty and accept deportation, or go to trial. Going to trial was risky, and would result in many months of detention, even for those who were ultimately acquitted (since unlawful immigrants can be held in detention pending a criminal case). The result: Most people chose to plead guilty and accept deportation. A number of people in management were also charged with crimes. Only one–the owner of the plant Sholom Rubashkin–served any significant jail time, and that was for financial fraud (he had also faced charges for immigration-related crimes, but those were dropped). After eight years in jail, Mr. Rubashkin’s sentence was commuted by President Trump, purportedly after the intervention of Trump sycophant Alan Dershowitz.
The effect of the raid on the town of Postville and the wider community was profound: Children stopped going to school, families were separated, several hundred people were tried, convicted, and deported with little due process of law, the food processing plant–the town’s largest employer–closed for weeks and eventually declared bankruptcy, and a study of the long-term health effects of the raid showed that “Babies born to Latina mothers after the raid were 24 percent more likely to be underweight than infants born the year before,” presumably due to the stress and fear the raid engendered. Ten years later, the town had mostly rebounded, but memories of the raid–and the trauma–live on.
I imagine that noncitizens in Mississippi and across the nation will experience similar impacts as a result of the recent ICE raids. The psychological harm is compounded by the Trump Administration’s vicious anti-immigrant rhetoric, as well as the mass shootings in Pittsburgh and El Paso, which were seemingly perpetrated by men opposed to the foreign “invasion” of our country.
What will happen to the men, women, and children affected by the recent raids is still not known. Some of those detained likely have defenses to deportation, such as asylum or Cancellation of Removal (assuming their due process rights are not violated and they have an opportunity to present their defenses). Several of the people arrested during the Postville raid cooperated with the authorities in the criminal investigation and obtained U visas. Perhaps some of those affected by the raids in Mississippi will be eligible for such visas as well.
Family members of those detained–especially children–will also face severe challenges. After the Iowa raid, many children went into hiding or were traumatized by the sudden absence of their parents and the fear of their own pending arrest. Churches and non-profits stepped up in Iowa, and I imagine we will see similar efforts here. Whether ICE has made arrangements for detainees’ children, and whether they will release non-criminal parents in their custody, is still unclear (ICE has indicated that such people would be released after an initial screening).
Part of the problem in this regard is trust. It is impossible to trust what ICE says. For example, one of the detainees in the recent raids has a 12-year-old daughter named Angie. The child was brought to the scene by a family friend in order to say goodbye to her mother. The following exchange with an ICE agent ensued–
“Here’s the deal, all right,” an agent says to an English-speaking woman accompanying Angie. “She [Angie’s mother] just went. Her mom got on the bus. We took her mom’s documents, all right. She’s going to be processed, because she doesn’t have papers to be here legally.”
But “because she’s the only caretaker of the child,” the agent continues, “she’ll be released this afternoon. So with [Angie] being a U.S. citizen and being 12 years old … she’s going to be issued a notice to appear, she’ll have to see an immigration judge, she’ll be released this afternoon.”
“Today?” a woman asks.
“Yes, yes,” the officer responds. “But I’m going to tell you something, she’s not going to be deported because she has a United States citizen child.”
As of Wednesday night, the mother had not been released.
This is the type of behavior we see all the time from ICE agents. They give assurances to defuse the situation or end a conversation, but those assurances are false. They also pass the buck–in this case, it is not the ICE agent’s problem, the mother will have to see an Immigration Judge. I get it–law enforcement officers want to de-escalate tense encounters. But the frequent lying makes it impossible to trust anything that ICE agents may say.
Finally, I do understand that ICE agents have a job to do, and that people who are here unlawfully can be deported. That is the law. But this raid–with its helicopters and military-style trappings–seems designed for propaganda purposes. In the context of the times, I fear that the effect on our country’s noncitizen and minority community members will be traumatizing and frightening. I also can’t help but feel that that is exactly what ICE wants.
For weeks, the Trump Administration has been threatening to deport “millions” of illegal immigrants. The on-again, off-again plan seems to be on again (sort of), and so let’s discuss who might be targeted, and what to do if ICE comes calling.
Before we get to that, I think it is important to understand something about the rhetoric of President Trump and his aids: Through their words and their actions, they are trying to terrorize non-citizens. Unfortunately, they are largely succeeding, and many people throughout the U.S. are living in a state of dread. Perhaps the President and his supporters can argue that this is about enforcing the law, and about deterring foreigners from coming here. But it seems to me that the law can be enforced without the cruel words and rhetorical games, such as Mr. Trump’s gleeful tweet that unless Congress can work out a solution to the “Asylum and Loophole problems at the Southern Border… Deportations start!” From where I sit, this is pure cruelty, and the harm to regular people–non-citizens and their citizen family members–and to our nation is very real.
Remember when Conservatives used to oppose raids against children?
In a case of giving advice that I would have a hard time accepting myself, I think it is important to ignore the Administration’s words as much as possible. By this, I don’t mean that non-citizens should tune out, since it is important to know what’s happening in order to protect yourself. But dwelling on the Administration’s threats and bluster is mentally exhausting, and it serves no purpose (other than perhaps to further the President’s goal of terrorizing you). Despite it all, so far, Mr. Trump’s bark has proved far worse than his bite (in terms of deportations, the opposite might be said of President Obama).
And so while the rhetoric is bad, and bad things are happening, they are not happening on the scale that the President likes to claim. The “millions” of deportations is now down to two thousand, and even that may be difficult to accomplish given the government’s limited resources and the advance notice provided by the Commander-in-Chief. In short, the situation is not as bad as it may appear, and it is important to not let the stress and fear become overwhelming.
Turning to the raids themselves, who is a target? We don’t precisely know, since ICE keeps its cards close to the vest, but the New York Times reports that ICE will target individuals and families with final orders of deportation, particularly those who entered the country recently. Also, according to RAICES, an immigration non-profit, raids will occur in 10 different cities.
If you have legal status in the United States, or if you have a pending application in Immigration Court or at the Asylum Office, the raids should not directly affect you. Indeed, from what we know so far, unless you actually have been ordered deported by an Immigration Judge and that order is final (meaning, you did not appeal or your appeal was denied), you are not a target of the raids.
On the other hand, if you do have a final order of removal, you could be a target. It likely does not matter how long you have been in the U.S., whether you have family here, or whether you are otherwise law-abiding. If you live in one of the targeted cities, the risk is probably greater than if you live elsewhere, but we cannot be sure about that–raids could occur anywhere.
Also, ICE officers are perfectly happy to arrest any “illegal” who they encounter, even if that person is not the target of a raid. So if you live with a person who is a target, or you spend time with such a person, or if you just happen to be in the wrong place at the wrong time, you could find yourself affected by a raid. For this reason, it is good for all non-citizens to be prepared.
So how do you prepare? The ACLU has a helpful webpage in many different languages. Also, the National Immigration Law Center recommends the following for people without status (I have slightly edited this list):
If you encounter ICE agents, remain silent, or tell the ICE agent that you want to remain silent.
Find out the name and phone number of a reliable immigration attorney and keep this information with you at all times.
Know your “alien registration number” (“A” number) if you have one, and write it down someplace at home where your family members can find it.
Prepare a form or document that authorizes another adult to care for any minor children.
Advise family members who do not want to be questioned by ICE to stay away from any place where a raid occurred or where a detained person is being held.
Do not sign any U.S. government documents without first speaking with a lawyer.
More generally, have a plan. Make sure a trusted family member or friend has access to your immigration information and documents. Maybe scan or photograph your documents and save them online. Make a plan with your immediate family about what to do in the event of a raid – who to call, where to go.
If you have a deportation order, realize that you are a target for ICE. If ICE or any part of the U.S. government has your home, work or school address, they could come there to arrest you. If you are in an area where raids are likely to occur, you also face risk, as ICE can detain anyone without status, even if that person was not the specific target of the raid. One thing you can do affirmatively is to talk to a lawyer–if there is a basis to re-open your case, you are probably better off getting started now rather than waiting until you are detained.
Non-citizens who are in-status also need to be careful and should be aware of their rights. Carry your Green Card, EAD or other documents with you (in some cases a non-citizen is required to carry such documents), or at least carry a copy of them. And keep a copy at your house, online, or with a trusted friend, in case you lose the original.
If you do not have status but have a pending case, carry copies of your receipts or Immigration Court scheduling order, and–if you have it–a photo ID. Such documents should provide protection against arrest.
If you are arrested, there are actions that you (or more likely, your lawyer) can take: File a motion to reopen a closed case, request a stay of removal, file a motion for bond. So even an arrest may not be the end of the story, if you are prepared to take action.
Finally, try to keep things in perspective. In 2016, there were over 950,000 people in the U.S. with removal orders. This is the most recent data I could find, and I suspect that the numbers are even higher today. If ICE hopes to arrest 2,000 people in these raids, that accounts for only about 1 person in 500 of those in the U.S. with a deportation order. And even if they arrest more than that, the likelihood of any one individual being targeted is quite low. These raids are more about frightening people than about effective immigration enforcement. Keep that in mind and make sure you are prepared. These are the best ways to get through this difficult time.
My colleague Ruth Dickey recently accompanied one of our clients to an interview with the ICE Counter-Terrorism Unit, after the client was ordered to report for questioning. She writes about her experience here:
ICE has been in the news lately for its role in apprehending migrants, detaining parents, and increasing deportations. For the public, the agency has become synonymous with the current administration’s aggressive approach to enforcement. Rightly or wrongly, ICE agents are portrayed as a boogeymen, and the #AbolishICE hashtag continues to trend ever upwards.
Ruth Dickey, immigration attorney extraordinaire.
What many people do not know is that ICE has two divisions that work with the public: Enforcement and Removal Operations (“ERO”), which is responsible for most of those gut-wrenching daily headlines, and Homeland Security Investigations (“HSI”). HSI is usually seen as a “good guy” agency. Agents track down terrorists and pedophiles, counter human trafficking, and help interdict illegal drugs. They do important work that protects us from transnational criminal organizations and other bad actors. When ICE issues a press release about a success story, it’s usually for something that HSI has done. The fact is, HSI’s work is generally more brag-worthy than anything ERO is doing.
HSI, it turns out, seems a bit embarrassed to be associated with the notorious ERO. Indeed, a group of HSI Special Agents recently published an open letter to DHS Secretary Kirstjen Nielsen requesting to break off from the rest of ICE. In the letter, the agents explain that,
HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security. Furthermore, the perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement.
The agents complain that cities and towns are unwilling to partner with HSI unless they hide the agency’s connection with ICE. It seems that HSI is eager to maintain the image of a law enforcement agency that helps, not hurts. Its association with ICE makes HSI less effective because localities are reluctant to work with HSI agents.
Give this background, we were surprised recently when one of our clients was contacted by HSI’s National Security Group-Counterterrorism and Criminal Exploitation Unit. Our client had come to the United States for an education program. He had been thoroughly vetted prior to arrival, and was bright and ambitious enough to merit a scholarship funded by the U.S. Department of State.
While he was in the U.S., our client was outed as a gay man and he received several death threats from back home. All this took place shortly before his student status ended, and he hired us to file for asylum. His case was filed a few weeks after his classes finished (meaning that he had just fallen out of status). By the time HSI contacted him, our client’s asylum application was already pending, and he had received his receipt.
Our client is law abiding, and doesn’t have so much as a speeding ticket, so it was strange that HSI would have an interest in him, much less the counterterrorism unit.
I attended our client’s HSI interview in a drab office building near the airport. I went there not knowing what to expect. The agents obtained basic biographic information and took out client’s fingerprints. Then the agents told us that they were arresting the client, releasing him, and issuing him a notice to appear in Immigration Court (an NTA). In the ensuing discussion, the agents told us:
That the Immigration Court would decide our client’s case more quickly than the Asylum Office (apparently, the agents weren’t familiar with the LIFO policy, which went into effect in January).
That sending the case to court was not a waste of resources, since the case might have been referred to court anyway (that is, the agents inappropriately speculated about the merits of the case, even though they seemed to know nothing about it).
That our client would be required to attend regular check-ins at ERO to prove he was not a flight risk (despite his strong asylum claim, which he filed voluntarily).
Our client had to surrender his passport, and the agents would not give him a receipt or a certified copy of the document. Thus, he had no evidence that his passport was in HSI’s possession (inappropriate and incredibly inconvenient, given that the passport was his only form of ID).
That I (the lawyer) should not question the agents’ actions, since their children receive death threats (you would think that these alleged threats might generate some empathy for asylum seekers, but I digress).
Technically, the agents are correct that they have the power to send our client to court since he was already out-of-status. But here, I want to focus on why this approach is inefficient and inhumane.
First, our client already had a pending affirmative asylum application with USCIS at the time of his “arrest.” Such cases are less stressful on the applicant, as they consist of a (theoretically) non-confrontational interview. Contrast this with the adversarial hearing in Immigration Court. Also, under the new LIFO system, most new affirmative asylum cases (like our client’s) will be decided much more quickly than the average asylum case in Court. Further, Asylum Office cases are cheaper for the applicant in terms of lawyer’s fees, since such cases require less attorney time than Court cases.
Second, from the government’s perspective, affirmative asylum cases are less expensive and more efficient than Immigration Court cases. For one thing, the Asylum Office is funded by USCIS user fees (meaning, when you pay a USCIS fee, some of the money goes to the cost of running our affirmative asylum system). Immigration Court cases, on the other hand, are paid for by taxpayers. Court cases also involve more people: The Immigration Judge, the court-appointed interpreter, the Court staff, the DHS attorney, and—in my client’s case—ICE agents. Asylum Office cases involve fewer people, and so are less expensive. Indeed, the raison d’etre for the Asylum Offices is to reduce the burden on Immigration Courts by resolving asylum cases before they land in proceedings.
Third, one main purpose of the Immigration Court is to deport people who have no legal right to be in the United States. This includes people convicted of crimes and people who pose a threat to national security. The more the court system is clogged with cases like our client’s, the less able it will be to deal with people who may be a danger to our country.
So here is my advice for HSI: If you don’t want to be “perceived as targeting undocumented aliens,” then maybe you should try not targeting undocumented aliens, like my client. HSI should consider efficiency and humanity before tossing affirmative asylum applicants into the Immigration Court system merely because they are out of status. If they want to do the right thing, HSI can start by revoking our client’s NTA and allowing the Asylum Office to adjudicate his case.
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.
Following the December 2, 2015 terrorist attack in San Bernardino, California, where the husband-and-wife perpetrators had purportedly become radicalized via the internet, Congress requested that the Department of Homeland Security (“DHS”) take steps to better investigate the social media accounts of immigrant applicants (the husband was an American-born U.S. citizen of Pakistani decent; his wife was a lawful permanent resident from Pakistan). In response, DHS established a task force and several pilot programs to expand social media screening of people seeking immigration benefits and U.S. visas. DHS also approved creation of a Social Media Center of Excellence, which would conduct social media background checks for the various DHS departments. The Center of Excellence would “set standards for social media use in relevant DHS operations while ensuring privacy and civil rights and civil liberties protections.”
The director of the Center of Excellence, Bill S. Preston, Esquire.
Last month, the DHS Office of Inspector General released a (clumsily) redacted report detailing the efficacy of DHS’s efforts and making suggestions. Due to the incomplete redaction job, it seems likely that the pilot program focused on refugees and perhaps asylum seekers, but the plan is to expand the program to cover all types of immigration benefits.
The goal of the pilot program was to help develop policies and processes for the standardized use of social media department-wide. “USCIS had previously used social media in a limited capacity, but had no experience using it as a large-scale screening tool.” The pilot program relied on manual and automated searches of social media accounts to “determine whether useful information for adjudicating refugee applications could be obtained.” It seems that the ability of DHS to investigate social media accounts was limited by technology: At the time the pilot program was launched in 2016, “neither the private sector nor the U.S. Government possessed the capabilities for large-scale social media screening.”
In one portion of the pilot program, applicants were asked to “voluntarily” give their social media user names. USCIS then “assessed identified accounts to determine whether the refugees were linked to derogatory social media information that could impact their eligibility for immigration benefits or admissibility into the United States.”
DHS has also been looking into social media, email, and other computer files of people entering or leaving the United States, including U.S. citizens, and this inquiry is far from voluntary. There have been numerous recent reports of DHS Customs and Border Protection (“CBP”) agents demanding passwords for cell phones and computers. The number of people subject to such searches increased significantly at the end of the Obama Administration, and seems to be further increasing under President Trump. Anecdotal evidence suggests that the large majority of people targeted for these searches are Muslim.
All this means that DHS may be looking at your accounts on Facebook, Twitter, LinkedIn, Instagram, etc. to determine whether you pose a threat and (possibly) to assess your credibility. They might also gain access to your email and other information stored on your computer or your cell phone. This data could then be used to evaluate your eligibility for immigration benefits, including asylum.
On the one hand, it seems reasonable that DHS would want to look into social media and other on-line material. After all, it is well-known that terrorists rely on the internet to spread their messages, and as DHS notes, “As the threat landscape changes, so does CBP.” Also, most immigration benefits are discretionary, meaning that even if you qualify for them, the U.S. government can deny them in the exercise of discretion. Therefore, if DHS “requests” certain information as part of the application process, and the applicant fails to provide it, DHS can deny the benefit as a matter of discretion.
On the other hand, the inter-connectivity of the on-line world could yield evidence of relationships that do not actually exists. For example, one study estimates that Facebook users (all 1.6 billion of them) are connected to each other by 3.57 degrees of separation. That means there are–on average–only 3.57 people between you and Osama bin Laden (assuming he still maintains his Facebook page). But of course, it is worse than that, since there are many terrorist suspects on Facebook, not just one (Osama bin Laden). So if you are from a terrorist-producing country, it’s likely that suspected terrorists are separated from you by less than 3.57 degrees of separation. Presumably, DHS would take these metrics into account when reviewing on-line data, but you can see the problem–your on-line profile may indicate you have a relationship with someone with whom you have no relationship at all.
So what can you do to protect yourself?
First, don’t be paranoid. It’s nothing new for DHS or other government agencies to search your on-line profile. Since everything posted on-line is, at least in a sense, public, you should be discrete about what you post, and you should be aware that anyone–including the U.S. government–could be reading it.
What’s more problematic is when CBP seizes electronic devices at the border and then reviews emails and other confidential information. This is extremely intrusive and an invasion of privacy. There is also an argument that it violates the Fourth Amendment right to be free of unlawful searches, but generally, people coming and gong from the U.S. have less protection than people in the interior (though I imagine that as CBP steps up the practice, we will see lawsuits that further define Fourth Amendment rights at the border). Knowing that you could be subject to such a search at least enables you to prepare yourself. Don’t travel with devices if you don’t want them searched. Be careful what you store on your devices and in the cloud.
Also, if you think you have problematic on-line relationships or derogatory on-line information, be prepared to explain yourself and present evidence if the issue comes up.
On-line information can affect an asylum or immigration case in more subtle ways. For example, if you state in your application that you attended a protest on a particular date, make sure you got the date correct–DHS may be able to find out the date of the protest, and if your account of events does not match the on-line information, it could affect your credibility. The same is true for more personal information. For instance, if your asylum application indicates you attended high school from 1984 to 1987, that should match any available information on the internet. Mostly, this simply requires that you take care to accurately complete your immigration forms, so that there are no inconsistencies with data available on-line.
Again, it’s not really news that DHS is reviewing social media and other on-line information. It does appear that such practices will become more common, but as long as applicants are aware of what is happening, they can prepare for it.
Just prior to the 2008 presidential election, the AP broke a story about Candidate Obama’s Aunt Zeituni, a rejected asylum seeker who was living in the U.S. illegally. The source for the story was an unnamed “federal law enforcement official.” At the time, it appeared that the leak was designed to harm Obama’s chances for success in the election. As you may have noticed, it didn’t.
After news of the leak broke, ICE initiated an investigate, and speculation about the source abounded.
“Outing” asylum seekers ain’t classy, San Diego.
Fast forward to September 2013 when a heavily-redacted version of the report from the ICE Office of Professional Responsibility was finally made public. The report, which was actually completed in August 2010, states that ICE/OPR identified the leaker, who admitted what he did. However, it does not name names, nor does it indicate whether the leaker was punished. However, from a careful review of the report, some on-line research, and a bit of deduction, we can make a pretty good guess about who leaked Aunt Zeituni’s name and immigration status to the press.
We begin with the initial AP article, which was written by Eileen Sullivan and Elliot Spagat. The article does not name the source of information, but it states that the Aunt’s asylum application was denied in 2004 and she was ordered deported.
The ICE/OPR report indicates that the leaker was interviewed by “OPR/San Diego” in May and June 2010. The leaker admitted that he spoke with a male reporter (the names of the journalists are redacted, but it is most likely Elliot Spagat). The leaker stated that the disclosure was an “error in judgment.” He also claimed that he had no “political motivations.” Instead, he revealed the aunt’s illegal status because it was “very interesting information” and he thought “the American public has a right to know that.”
According to the report, the leaker had spoken with the reporter before and had a history of getting together with him socially. The leaker was first introduced to the reporter in 2007 by someone at the DHS Office of Public Affairs (which is the “primary point of contact for news media, organizations and the general public seeking information” about DHS). The leaker did two or three interviews with the reporter in the course of their relationship.
From this, we can glean some useful information about the source of the leak.
First, since the interview was conducted by OPR/San Diego, we can guess that the leaker is in San Diego. This conclusion is supported by the fact that the reporter (Mr. Spagat) is based in San Diego, and apparently the reporter and the leaker had met up socially a few times.
Second, the fact that the journalist had interviewed the leaker for two or three prior stories, and that the leaker was purposefully introduced to the journalist by the Office of Public Affairs points to a higher-ranking ICE officer. A lower-ranking employee would probably not be introduced to a journalist by the Office of Public Affairs or interviewed several times.
Since the leaker admitted to having been interviewed “two or three” times between 2007 (when he met the journalist) and October 31, 2008 (the date of the leak), we can look for names of ICE agents who appear in Mr. Spagat’s articles during this period.
Some on-line research revealed a few names, though one stood out because he appeared in several articles by Mr. Spagat in 2007 and 2008, but did not appear in any article after the election. While this person was the most likely suspect, I certainly did not have enough evidence to be sure.
I thought the best approach would be simply to ask the person. I found his email, and sent the following message:
I have been investigating the disclosure of President Obama’s aunt’s case prior to the 2008 election. My research has led me to believe that you informed AP reporter Elliot Spagat about the aunt’s case. I am writing to ask whether you would be willing to discuss this situation. Please let me know.
A few days later, I received this response from an attorney in Washington, DC who specializes in national security law:
My friend [redacted] contacted me about your e-mail inquiring about the disclosure of President Obama’s aunt’s case prior to the 2008 election. As I am sure you can imagine as a current ICE agent [redacted] would never be permitted to discuss a specific case without authorization from his agency. Respectfully, therefore, he can not respond to your e-mail.
Since this email came from a lawyer (and a pretty fancy lawyer at that) instead of DHS Public Affairs, and since it was not a denial, I suppose it provides some additional support for my theory about the leaker’s identity, but it was still not enough. I responded as follows:
Thank you for writing… I understand his position. Given the evidence I currently have, it seems very likely to me that he is the person who leaked the information. That said, it is currently not my intention to name him in the blog post (even as a suspect), as I do not wish to implicate anyone unless I am 100% certain about my information. If anything changes in that regard, I will contact you before I publish anything.
And that is as far as I got. So I guess I will not be winning any prizes for investigative journalism. While I feel that the public has a right to know who violated Aunt Zeituni’s confidentiality, I believe it would be wrong to accuse someone by name without stronger proof.
The OPR report indicates that “no prosecutorial actions” were taken in the case. I suppose that means that the leaker was not punished. He could have been: It is a violation of the law to violate an asylum seeker’s confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002).
To me, it is ironic that the leaker’s confidentiality received more protection than that of the asylum seeker. However, the fact that ICE investigated the leak and took it seriously will, we can hope, deter others from revealing such confidences in the future.
The ICE Union disagreed and posited that the memo was a backdoor amnesty (this despite the fact that the Obama Administration has been deporting record numbers of illegal aliens and, as these statistics show, has re-prioritized deportations to focus on criminal aliens). Chris Crane, President of the National ICE Counsel, had this to say about the memo and the Obama Administration:
Any American concerned about immigration needs to brace themselves for what’s coming… this is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy.
In my prior post, I tried to give the Union the benefit of the doubt, even though their claim seemed unfounded. Now, several immigration experts, including a former general counsel of INS under President George W. Bush, have reviewed the controversial memo. They conclude that the memo is “perfectly consistent with existing law on the use of prosecutorial discretion and serve[s] to guide its sound exercise in immigration law enforcement decisions.”
The experts’ conclusion–and a plain reading of the controversial memo–makes it painfully obvious that the Union’s complaints are baseless. Worse, the attacks, such as the quote from Mr. Crane above, seem blatantly partisan in nature.
It is frankly shocking that ICE and DHS would tolerate this type of insubordination. My guess is that the Administration is too cowed by right wing bullies to do anything about the problem (witness the Shirley Sherrod fiasco). It’s past time for the Obama administration to stand up to this sort of nonsense. ICE should fire the insubordinate agents immediately.
