On December 9, 2009, Immigration and Customs Enforcement announced a new policy regarding the custody of aliens coming to the border to seek asylum.  I wrote about the policy change with great excitement when it was announced. The memo states:  

Each alien’s eligibility for parole should be considered and analyzed on its own merits and based on the facts of the individual alien’s case. However, when an arriving alien found to have a credible fear establishes to the satisfaction of DRO [Detention and Removal Operations] his or her identity and that he or she presents neither a flight risk nor danger to the community, DRO should, absent additional factors, parole the alien on the basis that his or her continued detention is not in the public interest.

There’s a tale that Abraham Lincoln was asked, “If you call a horse’s tail a leg, how many legs does a horse have?” His evocative answer was, “Four.” Evocative because we learn so much about Lincoln from the answer. At least this is what I taught in school as a child. No one ever taught me what it taught about Lincoln or even why it was the right answer. I, in my “not going to become President” manner, am partial to the answer, “Five.”

The concept of calling something something else and then capitalizing on the change in nomenclature is not rare. If I say that ketchup is a vegetable, does that mean it is appropriate to cut another vegetable out of school lunch? Lincoln probably would not look at it this way – if ketchup is called a vegetable, the school lunch is still not a balanced meal. (more…)

For years before it actually happened in 2003, many immigration-law pundits advocated for the division of the former Immigration and Naturalization Service (INS) into different components. The idea was that the cultures of benefit granting and enforcement were incompatible. When the Department of Homeland Security (DHS) was created in 2003, the immigration functions of the INS were moved from the Department of Justice (DOJ) and given to the new DHS. Within DHS, INS functions were, like a dream come true to these pundits, divided into three components, U.S. Citizenship and Immigration Services (USCIS) for benefit adjudications, Immigration and Customs Enforcement (ICE) for enforcement inside the United States, and Customs and Border Protection (CBP) for enforcement at ports of entry and securing the borders. Ever since, these agencies have been in negotiation and discussion about who is responsible for tasks that overlap and to allocate responsibilities when handling them separately could be wasteful – such as, for example creating an apparatus to answer Freedom of Information Act requests which seems to be a perpetual work in progress.

In the pre-2003 days, there was plenty to complain about with INS, but there was never doubt about who was in charge. If it had something to do with immigration, the agency responsible was INS. Now, if there is a policy change, often the ramifications of the change throughout the immigration-law universe are not explored because the different components (bureaus) of DHS coordinate poorly at times and it often appears that they administer the laws without appreciation of how changes impact other immigration organizations. Here are two examples. (more…)

A remarkable thing a parent learns from raising children is their innate understanding of fairness. There is no toddler indoctrination camp that teaches fairness. Barney, Teletubbies, and Blues Clues don’t teach it. In the olden days, Sesame Street, Zoom, or the Three Stooges (yes, in the olden days, toddlers watched the Stooges) didn’t. Maybe Mister Rogers and Davey and Goliath did, but not enough to completely indoctrinate kids. Split a sandwich, cut a piece of cake, share a can of soda, allow a child to stay up late, and the “That’s not fair,” complaint is raised immediately. Have you ever heard a child say, “Well, Timmy got a slightly larger slice of pizza than me (no English-speaking child outside of Belgravia would say, “a slightly larger slice of pizza than I”) but, you know, it is not that easy to cut a pizza into eight equal slices, I am still getting an ample slice, and do not really need more empty calories. Besides it will all work out in the end, next time I may get a larger portion of something. It’s not like my parents hate me. It’s just the way things are.” No, never.

In American law, the concept exists as well in the equal protection clause. Section 1 of the 14^th Amendment says: (more…)