The Great Asylum Officer Rebellion of 2019

by Jason Dzubow

The Trump Administration has been doing everything it can to block asylum seekers from reaching our shores (everything, that is, except working with Congress to reform the law). Many of the Administration’s policies are legally questionable (to put it mildly), and have been challenged in federal court. Now, in an extraordinary move, a union that represents Asylum Officers has filed an amicus brief opposing a policy of President Trump (their boss).

The Administration policy at issue is officially known as the Migrant Protection Protocols or MPP. It is also called the “Remain in Mexico” plan, and it requires many asylum seekers entering the United States from Mexico illegally or without proper documentation to be returned to Mexico for the duration of their immigration proceeding. As a result of the MPP, over 12,000 people have been forced to wait in Mexico while their cases are adjudicated in the U.S.

Acting USCIS Director Ken Cuccinelli responds to the question, “How many asylum seekers will be interviewed this year under the MPP?”

The problems with the MPP are too numerous to list here. But for starters, Mexico is not a safe place for many asylum seekers, especially women, children, and sexual and ethnic minorities. Another problem is that asylum applicants stuck in Mexico have less access to legal assistance and less due process of law. Of course, all this is by design, as the MPP is clearly meant to deter people from seeking asylum by punishing those who have the temerity to ask us for help.

Apparently, the MPP was also too much for many Asylum Officers, who are charged with evaluating asylum claims made by people arriving at our Southern border. Through their union, Local 1924, a group of Officers filed an “amicus” or “friend of the court” brief supporting a lawsuit that seeks to block the MPP. Amicus briefs must include a “statement of interest,” explaining why the filing party has an interest in the matter. Here is what Local 1924 had to say:

Local 1924 has a special interest in this case because, as the collective bargaining unit of federal government employees who are at the forefront of interviewing and adjudicating the claims of individuals seeking asylum in the United States, Local 1924’s members have first-hand knowledge as to whether the MPP assures the United States’ compliance with international and domestic laws concerning due process for asylum seekers and the protection of refugees and whether the MPP is necessary to deal with the flow of migrants through our Nation’s Southern Border.

There are two main reasons that Local 1924 objects to the MPP:

  • In the course of waiting [in Mexico] for a determination of their asylum applications, many [asylum seekers] will face persecution because of their race, religion, nationality, political opinion, or membership in a particular social group. By forcing a vulnerable population to return to a hostile territory where they are likely to face persecution, the MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.
  • Moreover, the MPP is entirely unnecessary, as our immigration system has the foundation and agility necessary to deal with the flow of migrants through our Southern Border. The system has been tested time and again, and it is fully capable—with additional resources where appropriate–of efficiently processing asylum claims… The MPP, contrary to the Administration’s claim, does nothing to streamline the process, but instead increases the burdens on our immigration courts and makes the system more inefficient.

In short, the officers charged with enforcing the asylum law at the Southern border think that the MPP violates the law and endangers people who our country is obliged (under international and domestic law) to protect.

Predictably, the Acting Director of USCIS (which oversees the Asylum Division), Ken Cuccinelli, issued a statement “blasting” the amicus brief:

Union leadership continues to play games while the border crisis intensifies. Lives are being lost, detention facilities are unsustainably overcrowded, and illegal aliens with frivolous claims continue to overwhelm our system. The fact of the matter remains that our officers signed up to protect the truly vulnerable, our asylum system, and most importantly, our country. A cheap political stunt helps no one and certainly does not help to contain this crisis.

In his statement, Mr. Cuccinelli fails to address any of the substantive claims raised in the amicus brief (shocking, I know). Instead, he falls back on the old talking point that frivolous asylum claims are somehow to blame for the crisis at the border. Of course, there is little evidence to support this position, but as a climate-change denier, Mr. Cuccinelli is obviously not beholden to concepts such as evidence or common sense (or common decency).

In my experience, most Asylum Officers take their jobs very seriously. They recognize their duty to uphold the asylum law and to grant or deny protection where appropriate. They also recognize their duty to protect the United States. This sense of responsibility to country stands in sharp contrast to the arrogance of the Trump Administration and the USCIS Acting Director, who seem to think they can run roughshod over our nation’s laws and force government employees to do the same. For this reason, I think the amicus brief is significant: It stands as an expression of independence of Asylum Officers (or at least those in Local 1924) to make decisions in accordance with the law, even when their higher-ups demand that they do otherwise.

I hope Asylum Officers and Immigration Judges around the country will take note. I hope that they will read the amicus brief, particularly the recitation of our country’s proud (but imperfect) history of protecting people fleeing harm. And most of all, I hope Officers and Judges will continue to follow the law, even when the political leadership pushes them to ignore it. Following and enforcing the law is the ultimate “rebellion” against the current Administration’s lawlessness. Our asylum system, our country’s moral integrity, and the lives of asylum seekers all depend on it.

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Another Salvo in President Trump’s War on Asylum

by Jason Dzubow

In case you haven’t noticed, President Trump is not a fan of asylum seekers. His Administration has taken a number of actions to block asylum seekers from coming to the United States and to reduce legal protections for those who are already here. Now, the President has issued a policy memo instructing the Attorney General and the (acting) Secretary of Homeland Security to propose new regulations and re-arrange resources to further discourage migrants from seeking asylum in the U.S. Let’s take a look at this most recent move, and how it might impact the asylum process.

As a preliminary matter, the news is not all bad. In Section 2 of the memo, the President re-affirms his commitment to the humanitarian immigration system: “It is the policy of the executive branch to manage our humanitarian immigration programs in a safe, orderly manner that provides access to relief or protection from removal from the United States for aliens who qualify, and that promptly denies benefits to and facilitates the removal of those who do not.” While it may not be big news that the Administration will provide “relief or protection… for aliens who qualify,” since failing to do so would violate the law, we have to take our good news where we can find it.

“Pay for asylum? No problem. I’ll have my manservant write you a check whilst I finish my charcuterie platter and valet my Bentley.”

In addition, the thrust of the new proposals seem directed towards migrants arriving at the Mexican border. Indeed, the express purpose of the memo is to address the on-going “crisis” in “our immigration and asylum system… as a consequence of the mass migration of aliens across our southern border.” It appears that some of the coming changes will affect all asylum seekers–as opposed to only those entering from Mexico–but we won’t know for sure until the AG and the DHS Secretary draw up the new regulations.

Finally, it is important to note that none of the changes in the memo have gone into effect–yet. The President has ordered his team to propose regulations within 90 days, and after that, it will likely take additional time to implement those changes (and some may be challenged in court). So for the time being, none of the new rules listed in the memo are operational.

Turning now to the specifics, the memo calls for several significant changes:

First, as I read the memo, it requires all asylum applicants who pass a credible fear interview (an initial evaluation of asylum eligibility) to present their cases before an Immigration Judge. Previously, certain applicants–most notably, minors–could present their cases in the less-confrontational environment of the Asylum Office. Now, it seems, they must present their cases in court.

Second, the memo requires that, “absent exceptional circumstances, all asylum applications adjudicated in immigration court proceedings receive final administrative adjudication, not including administrative appeal, within 180 days of filing.” [please assume there is a long pause here, while I laugh and laugh, and eventually compose myself well enough to continue writing]. This ain’t gonna happen. No way. No how. It’s another iteration of what Judge Paul Wickham Schmidt famously calls “aimless docket reshuffling” or ADS. ADS is the process whereby a new Administration comes in and imposes its particular priorities on the Immigration Court system. The very predictable result of ADS is that cases get re-arranged, judges lose control of their dockets, and most everything gets delayed much longer than if management had just left well-enough alone. The Trump Administration is by no means the first to practice ADS, but they do seem to indulge in it more frequently than prior administrations.

Third, the memo calls for “regulations setting a fee for an asylum application not to exceed the costs of adjudicating the application… and for an initial application for employment authorization for the period an asylum claim is pending.” In other words, the government wants to charge asylum seekers to seek asylum (the affirmative asylum system is currently funded by other immigrants when they pay USCIS fees). How much this fee will be, we don’t yet know, but if the fee is meant to cover the cost of adjudicating the asylum application, it won’t be cheap. Will the fee include the cost of security background checks? Immigration Court proceedings? These processes are expensive, and few asylum seekers can afford to “do business” this way.

The memo does not indicate what happens to people who cannot pay, but we can’t just deport them. Indeed, the Immigration and Nationality Act (section 241(b)(3)) and the Convention Against Torture prohibit the U.S. from returning people to countries where they face certain types of harm (this is separate from, but similar to, the asylum law). Such people apply for relief using the same form (I-589) as asylum applicants. Will the government adjudicate these other types of humanitarian applications where the person is unable to pay for asylum? We don’t know this either.

Perhaps those who cannot afford to pay will be eligible for a fee waiver. That would help, but fee waivers require significant work to complete, and so, at a minimum, many lawyers would raise their fees (since we are paid for our time). This would make it more difficult for asylum seekers to obtain legal counsel.

As I read the memo, it also seems to be calling for a fee for the initial Employment Authorization Document (“EAD”). Currently, the first EAD for an asylum applicant is free. Renewals cost money (currently $410). EADs are valid for two years, and fee waivers are available, so this particular requirement, while harmful to asylum seekers, is probably not that damaging.

Fourth, the memo calls for regulations to “bar aliens who have entered or attempted to enter the United States unlawfully from receiving employment authorization before any applicable application for relief or protection from removal has been granted, and to ensure immediate revocation of employment authorization for aliens who are denied asylum or become subject to a final order of removal.”

Currently, an alien is eligible for an EAD 180 days after she files for asylum (she can submit the application 150 days after she files for asylum). If the new memo is implemented, asylum seekers who “entered or attempted to enter the United States unlawfully”can no longer receive an EAD unless and until their cases are granted. As the memo is written, this provision would probably not apply to an alien who arrived in the U.S. with a visa, but that is not entirely clear. The phrase “entered or attempted to enter the United States unlawfully” is subject to interpretation, and if interpreted broadly, it could block some asylum seekers from obtaining an EAD, even if they entered the U.S. with a visa (for example, if the visa was procured by fraud).

Ironically, if the government succeeds in adjudicating asylum cases within 180 days (and I am skeptical about that), the EAD provision will become less important, since cases will either be granted or denied before the alien is eligible to obtain his EAD. If the case is granted, the alien will be eligible to work immediately, and if it is denied, he presumably (based on this memo) would be ineligible to work while the matter is being appealed. The problem will be for applicants who face long delays, and are unable to work lawfully. How will such people survive the wait?

Finally, the memo calls on the Secretary of Homeland Security to “reprioritize the assignment of immigration officers and any other employees of the Department as the Secretary deems necessary and appropriate to improve the integrity of adjudications of credible and reasonable fear claims, to strengthen the enforcement of the immigration laws, and to ensure compliance with the law by those aliens who have final orders of removal.” It’s unclear (at least to me) what this means, but it seems like another version of ADS. Perhaps the plan is to shift resources away from adjudicating immigration benefits and towards enforcement. While this would certainly cause even more delay for individuals, families, and businesses who rely on USCIS, any boost to the asylum or enforcement sections of DHS seems unlikely. There is just not a lot of cross-over between the different functions of DHS, and so there are only so many resources that can be shifted around. In other words, I doubt the DHS Secretary can arm Naturalization officers and enlist them to chase after aliens with final orders.

President Trump’s memo leaves many unanswered questions, and so we will have to wait for the new regulations to learn the specifics. While some of these changes may be blocked by courts, others will likely go into effect. The result will be a further erosion of our proud tradition as a beacon of hope to those fleeing harm.

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The Irony and the Agony of a Government Shutdown

by Jason Dzubow

As you may have heard, parts of the federal government are closed for business. After two years of Republican inaction on “the wall,” somehow President Trump has decided that now is the time to shut the government down in an effort to “permanently fix the problem on the Southern Border.” Let’s look at the effect of the shutdown on immigration generally, and on asylum more particularly.

In immigration world, the biggest–and most ironic–effect of the shutdown has been to close most of the nation’s Immigration Courts. Courts that handle detained cases are still operating normally, but non-detained courts are closed. The irony is that shuttering the courts will have the effect of delaying the deportation of many aliens. On average (and based on current projections for FY2019), Immigration Judges will deport about 676 people per day. If we remove detained cases from the mix (very roughly speaking, detained cases make up about 13% of all Immigration Court cases), we can estimate that for each day the government is shut down, 588 people are spared from deportation. Given the long backlog in Immigration Court, most people with postponed cases will probably not return to court for another year or two, and so such people will be able to remain the U.S. far longer thanks to the shutdown.

$5,700,000,000 wall vs. $79 ladder.

Also from the Irony Department: The lapse in government funding means that Border Patrol agents–the very people who are supposed to guard our Southern border–will not be paid until the shutdown ends. As you can imagine, this is not great for morale. In addition, the E-Verify System, which allows employers to check whether a particular person is authorized to work, is down. If this “electronic wall” is not working, some “illegals” may be able to work. These results seems contrary to Mr. Trump’s stated goals of deporting more people and fixing the broken immigration system, but what else is new?

Of course, many asylum seekers will not be very happy about having their court cases delayed. Some have been waiting years for a decision, all the while separated from family members and living with great uncertainty. For such people and their families, the delay is heartbreaking.

To check on the status of the Immigration Courts, you can visit the EOIR website, which will indicate whether operations have resumed. If your court case is postponed due to the shutdown, the case will be rescheduled once the lapse in funding has been resolved. From EOIR:

Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.

In other words, the Immigration Court will send you or your lawyer a written notice for the new hearing date. You can also check the Immigration Court hotline, which indicates when your next hearing is scheduled. The phone number is 800-898-7180. This is a computer system; not a person. When it answers, follow the instructions and, when prompted, enter your Alien number. The system will tell you your next hearing date. Unfortunately, the hotline will not be updated during the shutdown, but once the situation is resolved, you can check for your next appointment (whether cancelled Individual Hearing dates will be set for another Individual Hearing or a Master Calendar Hearing, we do not yet know).

What if you want to file documents, evidence or a change of address with the Immigration Court? Immigration Courts and the Board of Immigration Appeals (“BIA”) are accepting filings for detained cases. As I understand, most courts are also accepting filings for non-detained cases, but such filings will not be acted upon. The problem is that such filings may get lost in the avalanche of documents that the courts receive. This problem will be especially acute if the shutdown drags on for weeks or months. My advice: If you have a deadline, file your documents, but make sure to keep a copy for yourself and have evidence that you filed (if you can file in-person, the clerk will stamp your copy of the documents; if you file by mail, you should keep a copy of the certified mailing receipt). If you do not have a deadline or an emergency, it is probably better to wait until the shutdown ends before filing any documents with an Immigration Court or the BIA.

For asylum seekers and immigrants who do not have court cases, the shutdown is far less consequential. USCIS obtains its budget from “customer fees” (i.e., money you pay for your green card, work permit, etc.), and so the lapse in government funding is not an issue (there is currently no fee for asylum, but USCIS customer fees fund the Asylum Offices). As a result, the Asylum Offices, USCIS offices, and Application Support Centers (the place that takes your fingerprints) are all operating normally. While this is unlikely to change, there is no harm in double checking before you make the trek to your appointment. You can do that here.

One final question is, How long will the shutdown last? Of course, we do not know. The longest shutdown to date occurred during President Clinton’s term, and lasted 21 days. The current shutdown began on December 22, 2018, and so as of this writing, we are approaching Mr. Clinton’s (or more accurately, Newt Gingrich’s) record. The shutdown is inflicting much damage on our country, including to some immigrants and asylum seekers. Let’s hope that our leaders can bring an end to the impasse as soon as possible.

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An Open Letter to the “Complicit” Asylum Officer

by Jason Dzubow

By now, you’re probably familiar with the famous, anonymous op-ed in the New York Times, written by a high-level member of the White House staff who is “resisting” President Trump. But in asylum-world, there’s another anonymous article getting attention. It’s an interview in Topic Magazine with an un-named asylum officer.

The interview is sad and poignant. It’s obvious that the officer cares about his (or her) job and the individuals who are seeking protection in the United States. With the advent of the Trump Administration and it’s increasingly hostile approach to asylum seekers, the officer is facing a crisis of conscious: “I struggle every single day with how to determine whether I’m causing more harm than good,” the officer states.

Asylum Officers review the latest Trump Administration policy memo.

One example the officer gives is the implementation of the infamous “zero tolerance” policy at the border, where parents and children were separated, often by trickery, and with no real plan for reunification:

I was interviewing moms in detention who were separated from their children. [U.S. government officials] took their children away from them. All that they wanted from me was to know where their kids were. They would ask me, “Where are my children?” But I was told not to tell them where their kids were. I was told not to tell them. When I say I’m complicit, this is what I mean.

Obviously, looking a desperate mother in the eyes and declining to give her information about her children is a soul-crushing experience. And, according to the anonymous officer, the Administration’s policies are having a deleterious effect on asylum officers:

People in the office are demoralized. I think the job was hard to begin with. There were already very high expectations, very rigorous screenings. Now, there is a fear among upper-level officers that the [asylum] program could get cut altogether, so everyone is trying very hard to not make any mistakes so that the program doesn’t get cut. My worry is that this will lead to people who should get asylum not getting asylum…. [At] this point, I can’t yet fathom what [bad thing] will happen next. I don’t want to, but I’m sure it will come. I never thought they would take kids away from their parents. What else could they do? They did that, so they could do anything.

What should a decent, moral person do in a situation like this? For me (as an outsider), the answer is not so clear. I have friends who have left government because they could not contribute to the goals of the Trump Administration. Other friends have chosen to stay, to do whatever good they can. Which approach is better probably depends on the individual and her circumstances, and I am quite sure it is not an easy decision either way.

If it were me, one factor in deciding whether to stay or go would be the impact of my choice on the asylum system. I have written this before, but it bears repeating here: In many ways our asylum system is sacred. Our country grants protection to strangers who arrive on our shores seeking refuge from danger. We offer asylum in part because it serves our national interests. But we also offer asylum because we are generous and good. By helping others, we help define ourselves. My decision to leave would depend in part on whether I thought my departure would make “the system” better or worse.

Asylum Officers, Immigration Judges, and government attorneys implement the asylum law. Without them, there would be no humanitarian immigration system. In my experience, most of these people are hard working. The majority are clearly committed to the rule of law, and to Justice (though we don’t always agree on what “Justice” looks like). They take their responsibilities seriously and recognize the life-changing nature of their work. They are the ones who have to make the difficult choices (choices that lawyers like me do not have to make): Whether to grant a close case or deny a sympathetic one that simply does not qualify for relief; whether to give an applicant the benefit of the doubt; whether to grant or deny as a matter of discretion. These are the tough choices that ultimately allow “the system” to continue functioning.

So it seems to me, the question for the anonymous asylum officer and many hundreds like him, is whether there is still room in the system–and in his particular job–to do Justice. In the case of our officer, it appears that such room still exists.

Even as the Trump Administration is working overtime to narrow the path for asylum seekers, it is still possible to do good. As the anonymous officer notes, “there is still space to be fair, and to provide opportunities for people.” And it’s not just fairness; it’s also kindness. Speaking about female asylum seekers detained at the Southern border, the officer says:

I think that oftentimes for the women who are detained at those facilities, [my interaction with them] will be the first moment that someone will be kind to them. The very first time in the whole process. They are not treated well at the border, by other agents in other agencies….

The value of such kindness is difficult to overstate. It can be the difference between hope and despair. Even for people who are ultimately denied, the fact that they were treated with respect and fairness makes a real difference. I have seen that myself many times.

As an attorney who represents asylum seekers, I hope that the anonymous officer will stay. When good people depart government service, the rule of law is degraded. The decency and compassion that have been–to borrow a word–the loadstars of our asylum system, are further eroded. And of course, the erosion of our humanitarian immigration system also marks a degradation of our country’s humanity.

These days, many good people in government are conflicted. The anonymous officer states, “I think about it [quitting] all the time.” I don’t blame the officer for this. It is painful to compromise one’s morals. But now, more than ever, I think we need people like this officer to stay. To do their jobs. And to pursue Justice.

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Stephen Miller Is Not a Hypocrite

by Jason Dzubow

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.

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Immigration Judges Revolt Against Trump Administration

by Jason Dzubow

In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.

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The Self-Fulling Prophecy of Demonizing Immigrants

by Jason Dzubow

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.

 

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Trump Administration Lies About the Economic Impact of Refugees

by Jason Dzubow

There’s a Yiddish expression, “A halber emes iz a gantse lign,” which means, “A half-truth is a whole lie.” A recent article from the New York Times demonstrates that the Trump Administration is using half truths in order to justify its plan to reduce refugee admissions to historically low levels for the upcoming fiscal year. From the Times article:

President Trump is taking Simon and Garfunkel’s advice a bit too literally: “Lie, lie, lie, lie, lie, lie, lie, lie, lie, lie, lie, lie.”

Trump administration officials, under pressure from the White House to provide a rationale for reducing the number of refugees allowed into the United States next year, rejected a study by the Department of Health and Human Services that found that refugees brought in $63 billion more in government revenues over the past decade than they cost.

In other words, political officials suppressed a study from HHS because the results of that study did not support Mr. Trump’s policy goals.

The draft study was completed in July but never publicly released. Instead, it was leaked to the NY Times. The study was meant to look at the costs and benefits of refugee resettlement to our economy. How much do refugees cost us for things like public benefits, education, and law enforcement? How much do refugees contribute through taxes? Are refugees a net gain or a net loss, at least in terms of dollars spent and received?

The 55-page draft study found that refugees “contributed an estimated $269.1 billion in revenues to all levels of government” between 2005 and 2014 through the payment of federal, state and local taxes. Taking into account resettlement and other costs, the report estimates that “the net fiscal impact of refugees was positive over the 10-year period, at $63.0 billion.” When refugees and their family members were counted, the benefits were more modest, but still positive, at $16.9 billion. These results align with another recent study on the economic impact of refugees conducted by two professors at the University of Notre Dame.

The final, three-page report that HHS ultimately submitted includes only money spent by the government on refugees, without including revenue–literally, half the truth (and that’s being generous, since they reduced the size of the report from 55 pages to three). Maybe I can do the same thing on my own taxes–include only my expenses, but leave out revenue. I am not sure how that would go over with the IRS, but I’m guessing not well.

This strategy–of promoting the negative by leaving out the positive–is nothing new for the Trump Administration. Last Spring, the Department of Homeland Security launched the Victims of Immigration Crime Engagement (VOICE) office. According to DHS, VOICE will, “Provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.” So we get to see the negative impact of aliens on the United States, but we hear nothing about the positive contributions made by such people (and of course, the evidence is pretty conclusive that aliens commit crimes at lower rates than native-born Americans).

Not all government employees are on board with the Trump Administration’s anti-refugee program. The most obvious dissenter is the anonymous person who leaked the HHS report to the NY Times. More publicly, the State Department’s Director of Refugee Admissions told an audience at the Heritage Foundation, “We see… that refugees do very, very well, and it’s one of the reasons that we would like to see more long-term studies about refugee success and perhaps failure so that we can really see those areas that we should focus on more…. They’re taking jobs that are otherwise unfilled, and refugees, frankly, do quite well.”

There also seems to be internal disagreement about how many refugees we should admit to the country. For FY 2017, President Obama raised the refugee ceiling from 85,000 to 110,000, but President Trump has proposed reducing refugee admissions to 45,000 for FY 2018, which starts on October 1. Interestingly, officials at the National Security Council, the State Department, and the Department of Defense have lined up to oppose such a precipitous drop, presumably because they recognize the benefits of our refugee program.

By next week, we should know for sure how many refugees President Trump plans to admit in FY 2018. I’m not optimistic about the numbers, but I understand that reducing immigration was one of Mr. Trump’s core promises when he ran for president. What probably bothers me most about the whole process, though, is the blatant dishonesty of the President, who is trying to justify his refugee policy based on half truths and whole lies. An honest discussion might not result in a different outcome in terms of numbers, but it would be far better for our country and our democracy.

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Another Open Letter to My Friends at DHS and DOJ: After Joe Arpaio, What Now?

by Jason Dzubow

The Joe Arpaio pardon is an affront to anyone concerned about the rule of law. And this includes the lawyers, judges, and adjudicators I know at the Departments of Justice and Homeland Security.

Soulless Joe from Maricopo’

But before we get to that, we need to talk a bit about “Sheriff Joe.” A brief overview of his career as sheriff of Maricopa County, Arizona reveals various misdeeds, including–

abuse of power; misuse of funds; failure to investigate sex crimes; improper clearance of cases; unlawful enforcement of immigration laws; and election law violations. A Federal court monitor was appointed to oversee his office’s operations because of complaints of racial profiling. The U.S. Department of Justice concluded that Arpaio oversaw the worst pattern of racial profiling in U.S. history, and subsequently filed suit against him for unlawful discriminatory police conduct. Arpaio’s office paid more than $146 million in fees, settlements, and court awards.

But all that is not what ultimately led to where we are now. Mr. Arpaio was a defendant in a civil rights lawsuit. The judge ordered him to stop racial profiling, but Mr. Arpaio refused to comply. In a civil contempt proceeding, Mr. Arpaio admitted as much to the Court: “Defendants acknowledge and appreciate that they have violated the Court’s orders and that there are consequences for these violations.” In this particular case, the “consequences” proposed by Mr. Arpaio were for the tax payers of Maricopa County to foot the bill for a victim compensation fund. That didn’t pan out, and Mr. Arpaio was charged with criminal contempt.

He was convicted on July 31, 2017. The presiding judge wrote that Mr. Arpaio had “willfully violated an order of the court” by failing “to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” Sentencing was scheduled for October.

Then last week, on a Friday night in the midst of a hurricane, President Trump issued a pardon for the criminal contempt and any other charges that might arise out of the same litigation. In an explanatory statement, the White House called Mr. Arpaio a “worthy candidate” who “protect[ed] the public from the scourges of crime and illegal immigration.”

So what does this mean? Of course, it means that Joe Arpaio won’t be going to jail. But on a more fundamental level, what does it mean for the rule of law? And what does it mean for those who enforce the law?

It seems to me that the clear signal sent by this pardon is that violating the law–by racial profiling or other means–is acceptable in order to rid our country of the “scourge” of illegal immigration. The ends justify the means.

Such an approach is antithetical to any society that values law and order, and that opposes tyranny. Those sworn to protect our nation’s laws must hold themselves to the highest standards. It is not for them to decide which laws to follow based on their subjective beliefs about right and wrong. They must follow the law. And when they don’t, they must be held accountable. When regular citizens fail to obey the law, it is anarchy. When law enforcement officers fail to obey the law, it is fascism.

And so the Joe Arpaio pardon is an endorsement of fascism. Whether you think all “illegals” should be rounded up and deported, or whether you think they should all be granted green cards makes no difference to this analysis. Fascism is fascism and law is law.

So what does all this mean for attorneys, judges, adjudicators, and others at DOJ and DHS?

It seems to me that you have a duty to uphold the law, regardless of whether the President is willing to tolerate or even encourage you to violate it in the service of his goals. That’s pretty basic, and we’ve seen examples of government officials following the law even when the President discouraged it (see Jeff Sessions and recusal).

But I think there is something more you can do. You can err on the side of non-citizens. Especially these days, the deck is stacked against aliens seeking immigration benefits. Simple mistakes on forms can lead to severe consequences. Minor criminal convictions can lead to banishment for life. The over-broad terrorism bar treats victims of terror like terrorists. Prosecutorial discretion is gone. The denial rate for asylum cases is on the rise. We are seeing more and more requests for evidence, and the wait time for many immigration benefits is getting longer. Not to mention the travel ban, increased use of detention, the backlog, etc., etc. In other words, the situation on the immigrant-side of the fence ain’t easy.

But if you are an adjudicator or an attorney or a judge with DHS or DOJ, you have some power to mitigate these difficulties. You have some flexibility in your decision-making. You are in a position to blunt some of the worst excesses of the Trump Administration. You can help act as a counter-balance when the President encourages law enforcement to push the boundaries of the law, as he did with the Joe Arpaio pardon.

Immigration and asylum laws are not nearly as harsh as the Trump Administration would have us believe. But the President is trying to use immigration law and procedure in a way that blocks people from coming here, or that deports those who are here. It is up to the people on the front line of that effort to protect the rule of law. Judges, adjudicators, and attorneys have the legal authority to grant cases, and in the face of the Trump Administration’s attack on the rule of law, they should continue to do so. The lives of many immigrants–and our country’s fealty to the rule of law–depend on it.

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In a Time of Hate, My Refugee Clients Give Me Hope

by Jason Dzubow

As an ordinary citizen, it is not easy to decide the best way to confront a Nazi march. Show up to peacefully protest? That might give additional attention to the other side. Protest violently? Not only could that elevate the Nazis, it might also de-legitimize the resistance to the Nazis (even those who peacefully resist). Ignore them? That might be viewed as condoning their views. Reasonable people can differ about what to do, at least as far as the peaceful responses are concerned.

As a great American philosopher once said, “I hate Nazis.”

But when you are a public figure, especially an elected official, the decision about how to respond is clear: First, ensure safety and free speech. Second, denounce the evils of Nazism and make it plain that Nazis, Klan members, and anyone who might march side-by-side with such people are un-American, illegitimate, and unworthy of a seat at the table of public discourse.

Fortunately, the vast majority of our country’s elected leaders knew what to say in response to the Nazi march last weekend. But unfortunately, there was one important exception–our President, Donald J. Trump. To me, Mr. Trump’s contemptible silence, followed by a reluctant “denunciation” of the Nazis, followed by a denunciation of the “denunciation” is an utter disgrace. It is a green light to Nazis. It is yet another attack on common decency and on our shared national values. It is complicity with Nazism. By the President of the United States. (As an aside, one of my lawyer-friends at the Justice Department told me–perhaps half jokingly–that she wanted to post a sign in her office that reads, “Nazis are bad,” but she feared it might get her into trouble–that is where we are under Mr. Trump.)

Frankly, I am not particularly worried about the Nazis themselves. They certainly can do damage–they murdered a young woman and injured many others. But they do not have the power or support to threaten our democracy. This does not mean we should take them for granted (few would have predicted Hitler’s rise when he was sitting in prison after the Beerhall Putsch), but we should not be unduly fearful either.

On the other hand, I am very worried about our President’s behavior. His governing philosophy (perhaps we can call it, “trickle down histrionics”) is poisoning our public debate, and it weakens us domestically and internationally. Thus far, his incompetence has served as a bulwark against his malevolence, but that can only go on for so long (see, e.g., North Korea). So there is much to be concerned about.

Here, though, I want to talk about hope. Specifically, the hope that I feel from my clients: Asylum seekers, “illegals,” and other immigrants. There are several reasons my clients give me hope.

One reason is that they still believe in the American Dream. Despite all of the nastiness, mendacity, and bigotry coming from the White House, people still want to come to America. They are voting with their feet. Some endure seemingly endless waits, often times separated from their loved ones, in order to obtain legal status here. Others risk their lives to get here. They don’t do this because (as Mr. Trump suggests) they want to harm us. They do it because they want to join us. They want to be part of America. My clients and others like them represent the American ideal far better than those, like our embattled President and his racist friends, who disparage them. When I see my country through my clients’ eyes, it gives me hope.

My clients’ stories also give me hope. Most of my clients are asylum seekers. They have escaped repressive regimes or failing states. Where they come from, the government doesn’t just tweet nasty comments about its opponents, it tortures and murders them. The terrorist groups operating in my clients’ countries regularly harm and kill noncombatants, women, children, and even babies. My clients have stood against this depravity, and many of them continue to fight for democracy, justice, and human rights from our shores. My clients’ perseverance in the face of evil gives me hope.

Finally, I have hope because I see the courage of my clients, who refuse to be cowed by the hateful rhetoric of our Commander-in-Chief. Since the early days of his campaign, Mr. Trump has demonized foreigners and refugees, and after he was sworn in as President, these individuals were the first to come into his cross hairs. If he can defeat people like my clients, he can move on to new targets. But many refugees and asylum seekers have been subject to far worse treatment than Mr. Trump’s bluster, and they are ready to stand firm against his bullying. Their fortitude encourages others to stand with them. And stand with them we will. The fact that vulnerable, traumatized people are on the front lines of this fight, and that they will not surrender, gives me hope.

I have written before about the tangible benefits of our humanitarian immigration system. It demonstrates to the world that our principles–democracy, human rights, freedom, justice–are not empty platitudes. It shows that we support people who work with us and who advance the values we hold dear. When such people know that we have their backs, they will be more willing to work with us going forward. And of course, that system helps bring people to the United States whose talents and energy benefit our entire nation. Add to this list one more benefit that asylees and refugees bring to our nation in this dark time–hope.

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President Trump’s 101-Year Deportation Plan

by Jason Dzubow

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.

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Return of the Travel Ban

by Jason Dzubow

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.

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Fred Korematsu and the Forgotten Legacy of Lies

by Jason Dzubow

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.”

In 2011, the Acting Solicitor General stated:

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.

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In Trump’s America, Are Asylum Seekers at Risk of Arrest?

by Jason Dzubow

A recent case from Florida has raised concern in the asylum-seeker community. On April 26, Marco Coello, a Venezuelan asylum seeker, went to his interview at the Miami Asylum Office. Instead of meeting with an officer to discuss his case, he was detained by Homeland Security officers.

If you see these guys at your asylum interview, it’s probably a bad sign.

Fortunately, for Mr. Coello, he was released the next day, after various people–including Senator Marco Rubio–intervened on his behalf. An ICE spokesman said that he was detained “because he has a misdemeanor criminal conviction and had stayed in the U.S. longer than his visa allowed.”

I contacted Mr. Coello’s attorney, Elizabeth Blandon, and learned that his conviction was for trespassing (he was originally charged with misdemeanor possession of marijuana). I also learned that the Asylum Office issued a letter on the day of his arrest stating that the case had been sent to the Immigration Court. In fact, Mr. Coello’s case is not with the court, and the issue of jurisdiction (i.e., who will hear his case–an Asylum Officer or an Immigration Judge) is yet to be worked out. Until that happens, his case remains in limbo.

Frankly, it is unclear to me why ICE detained Mr. Coello. His conviction was for a minor violation, which is probably not even a deportable offense. One possibility is that ICE targeted him due to the mistaken belief that he had more than one misdemeanor conviction (trespassing and marijuana possession). Another, more conspiracy-minded, possibility is that ICE arrested Mr. Coello because he was a well-known activist from Venezuela. As the situation in Venezuela has deteriorated, the number of asylum cases from that country has soared. Currently, Venezuelans are filing more affirmative asylum applications than people from any other country. Maybe ICE wanted to send a message in an effort to intimidate potential Venezuelan applicants and stem the tide of cases from that troubled country. Normally, I tend to shy away from such conspiracy theories, but in this case, where the applicant is well-known in his community, I am not so sure.

Mr. Coello’s case is not the only instance of an asylum seeker being detained since President Trump took office, and rumors have been swirling about the new hard-line approach of his Administration. We have heard reports about an HIV-positive Russian asylum seeker, who was detained after visiting the U.S. Virgin Islands and then returning to the mainland (the problem here is probably that a person must go through customs to enter the U.S. from the USVI, and he did not get Advance Parole before leaving and trying to return). He was held for a month before being released. There have also been examples of ICE officials arresting asylum seekers who have been charged with crimes when they appear in criminal court. (And of course, there are the thousands of asylum seekers who arrive via the Mexican border without a visa and who are detained when they request asylum–but this began en masse long before President Trump’s time).

It’s not just asylum seekers who are being detained. Aliens applying for other USCIS benefits have also been arrested. For example, there were five cases where immigrants were notified to appear for USCIS interviews, and were then detained when they arrived at the USCIS office. Apparently, all five had prior deportation orders from Immigration Judges. There’s also the case of a woman who was arrested at a courthouse after filing a protective order against her ex-boyfriend. According to one news source, the woman had an extensive criminal history and had illegally re-entered the United States after being deported.

In addition to all this, there is the now-famous (at least in immigration circles) case from February of a domestic flight from San Francisco to New York where ICE agents checked IDs for everyone disembarking the plane (ICE claims that the searches were “consensual”). Supposedly, ICE was searching for an alien with a criminal record. Turns out, he wasn’t even on the flight.

So what does all this mean? Do asylum seekers risk arrest when they appear for their interview? Or when they show up for a court hearing? Or when they travel domestically? The short answer, at least for now, is no, no, and no.

First, except for the person returning from the USVI, the common denominator in the above cases is that all the aliens had a criminal conviction and/or a deportation order. If you do not have a criminal record or a removal order, there is no reason to believe that ICE will detain you if you appear for an appointment, court date or domestic flight. Indeed, except for the examples above involving criminal convictions and deportation orders, I have not heard about any asylum applicants being detained.

If you do have a criminal conviction (or even an arrest) or a removal order, then there is some risk, but it’s unclear exactly how to assess that risk. How likely is it that a person with a criminal record or removal order will be detained if they appear for an interview? Does the likelihood of detention increase with the severity of the criminal conduct? I do not know, and I am not confident that the few examples discussed above help us evaluate the chance of trouble. But given that there is some risk, it seems worthwhile for anyone with a criminal conviction or a removal order to consult with an attorney before going to an appointment with USCIS.

If I had a conviction or a deportation order, and I was scheduled for an asylum or other USCIS interview, I would want to know a few things from my lawyer. First, I would want to know the likelihood of obtaining the benefit that I have applied for. If my case is very weak and unlikely to succeed, maybe I would be less willing to appear for an interview where I risked detention. Also, I would want to know how seriously the government views my criminal conduct. If the conviction is very minor, I would expect that the likelihood of ICE detention is low (but maybe not, as Mr. Coello’s trespassing conviction illustrates). If the conviction is serious–and many convictions subject an alien to mandatory detention–I would want to know that too. In fact, I would want to know all this before I even apply for asylum or other immigration benefit. Why start the process when it is unlikely I will be able to successfully complete it, especially if applying for the benefit exposes me to possible arrest?

Every person must make his or her own decision, weighing the risk and reward of applying for an immigration benefit. But if you have been arrested or convicted of a crime, or if you already have a deportation order, it would be wise to talk to a lawyer before you file an application or attend an interview with USCIS.

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The Terrorist Tactics of the Anti-Terrorism Executive Order

by Jason Dzubow

Earlier this week, President Trump issued a new Executive Order (“EO”) to replace one of his prior orders, which was largely blocked by the federal courts. The new EO, Protecting the Nation from Foreign Terrorist Entry into the United States, temporarily bans certain nationals of six majority-Muslim countries from entering the United States, suspends the U.S. refugee program for 120 days, and reduces the total number of refugees that the U.S. will resettle in FY 2017. Whether the new ban can withstand court scrutiny, and how it will ultimately effect who can come to our country, remains to be seen.

“My favorite four-letter word.”

For those foreigners already in the United States, the new ban has little legal effect. The immigration status of permanent residents, refugees, asylees, and asylum seekers remains essentially untouched. One possible exception is for family members of asylees and refugees who are hoping to come to the U.S. on a Refugee/Asylee Relative Petition (form I-730). Such relatives from the six “banned” nations–Iran, Libya, Somalia, Sudan, Syria, and Yemen–may be ineligible for a visa for a 90-day period. However, even this is unclear, as the EO provides a number of exceptions for nationals of banned countries, and such relatives may be entitled to an exception (depending on how you read the EO).

So for non-citizens in the U.S., including those from banned countries, the EO has almost no effect on their legal status here. That’s not to say that the EO has no effect–it certainly does. But that effect relates to the message the EO sends and the psychological damage it inflicts on Muslims and on non-citizens. Indeed, for this population, the effects of the anti-terrorism EO are similar to the effects of an actual terrorist attack in certain key ways.

Like a terrorist attack, the number of people directly impacted by the EO is much smaller than the number of people terrorized by it. The new EO is very narrowly tailored, so much so that it almost does not make sense. For example, the Administration claims that vetting for the six banned countries is insufficient. Yet the order allows nationals of those countries who already have visas to come to the United States. If there is a problem with the vetting, shouldn’t all the “improperly” vetted visas be revoked? Presumably, the Administration wants to avoid another humiliating defeat in court, but the limited scope of the EO seems to undercut the very rationale for its existence.

On the other hand, if the purpose of the EO is not really to block people from coming here, but rather to frighten people who are already here (Muslim Americans and non-citizens), the limited legal effect is less of a concern. As long as the order stands up in court–and even if it doesn’t–Mr. Trump has sent a strong message to the intended audience (really, there are two intended audiences: Mr. Trump’s supporters who want to see him fighting against “the others” and “the others” themselves, who feel targeted and excluded by the Administration’s policies). In this sense, the EO mirrors a classic terrorist tactic–limited impact (because you have insufficient resources to have a wider impact) with maximum effect (everyone in the targeted population is frightened).

And make no mistake, the EOs and the accompanying rhetoric are affecting their intended targets. Reports indicate that non-citizens and their children are under great stress due to President Trump’s words and policies. This stress can have harmful and life-long effects, especially on children. Muslims, including American citizens, have been subject to a barrage of bigoted statements from the President and his surrogates, and they are also suffering from similar types of stress. Some refugees are fleeing the United States, which they now view as unsafe, for Canada. So while the legal effect of the EOs may be small, the harm is very real, and very damaging.

Mr. Trump’s EOs are similar to terrorism in another important way: They help create a vicious cycle. Terrorists rarely have the power to conquer territory. Instead, the purpose of their attacks is to draw a response. Unless the response is careful and precise (a rarity), it can cause further alienation and anger, thus driving more people into the terrorists’ camp–a vicious cycle. In the case of the EOs, they help justify the narrative that groups like ISIS have been peddling (that the United States is at war with Islam). They also frighten and alienate people living in our country, particularly Muslims and non-citizens. Since alienated and frightened people are more likely to embrace extremism, the EOs are a type of self-fulfilling prophesy: EOs push people towards extremism, extremism justifies more EOs. It’s a vicious cycle analogous to the one created by terrorism.

Finally, the EOs do not exist in a vacuum. They are part of a larger campaign to demonize foreigners and Muslims. The whole effort of the Trump Administration towards such people is irresponsible and dangerous. It puts our country at greater risk by encouraging extremism and discouraging cooperation. But unfortunately, this Administration has proved again and again that it will not allow facts to get in the way of ideology, or sound policy advice to contradict prejudice. The new Executive Order is just the latest example of the misguided course our country is now taking. We are all less safe because of it.

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