This is the internet age. If you want information, directions, advice, go online. If you want to access government information, go online. Suppose a person wants help with immigration services. A person in the know knows that USCIS provides all kinds of information and free forms online. A less savvy person may not even know the name of the organization, USCIS, but this being the internet age, still turns to the internet for help. Step one, search for help. An internet search on Google of “USCIS” gets one to this right on top – first entry:

USCIS Forms –

Google “immigration department” and you get this as the first entry:

Immigration Department –

It seems like you’ve found it. Here’s the site.

It’s got flags, the statue of liberty, a U.S. passport, and links to everything, including forms. Clicking on the first form listed, the Form I-90, and after some questions, you learn that for $170 you can get the form — a form that is free on the actual website.  Bing is even worse – three imposter websites as first hits for “USCIS.”

Is there any clear disclaimer or indication at the top of the website that it is not a government website? No.

Do the owners show you their pictures and explain that it is a private, for profit site? No.

Is there fine print that these are not a government sites? Yes. Are there tell-tale signs that these are not government sites? Yes. However, it is manifestly clear that these sites’ sole purpose is to mislead people to think they are at the actual USCIS website to rip people off, to trick people who happen onto the site to pay for things that are free elsewhere.

Suppose you innocently type in the URL, instead of Guess what you link to? The same charlatans.

USCIS ripoffs are not the only ones. Call the Clark Court Nevada telephone number and you will get a bewilderingly long and complex phone message about court services. A reference is given to website: (.us?). Type it in and you are taken to a website where a vast array of information, including all kinds of computerized court record information is available for free. Type it wrong – drop the s in courts, and you get to this site – an imposter site that will charge you for the information the real website provides for free.

I don’t know how many times people have come to my office and told me about filing applications online thinking they filed with USCIS, but instead were tricked and gave money to charlatans or how many times I told people that they could get a form for free online and then was told that I was wrong, the website required payment?

It is amazing to me that disguising a website as a government website to trick money out of people is not a crime. Likewise, it is amazing to me that making buckets of money directing searchers to imposter websites is not a crime. It is also amazing to me that USCIS or Clark County or any powerful government entity having its stakeholders ripped off does nothing about it. But it most amazes me how people can do things like this in the first place. Posted March 22, 2015.

Published Mar 22, 2015 - Comments? None yet

The Los Angeles Times reported on March 6 in an article, “7,000 immigrant children ordered deported without going to court,” that, well, 7,000 immigrant children were ordered deported without going to court. The article attributes this this to “notices sometimes arrived late, at the wrong address or not at all. In some cases, children were ordered to appear in a court near where they were initially detained, rather than where they were living.”

My experiences with the handling of asylum seekers’ cases is that it is quite understandable that large numbers will end up not getting notice of court dates, missing their hearings, and being ordered removed in absentia, in their absence.

At the outset, one should understand the in absentia removal rules that apply in the immigration court. When a person misses court in a criminal matter, a warrant for arrest may be issued, but the case is held in abeyance and if and when the person eventually shows up, the case gets back on track. In the immigration context, the law is much less forgiving. The Immigration and Nationality Act states at INA § 240(b)(5)(A), that if a person fails to appear at an immigration court hearing and the government shows that the person is not authorized to be in the United States and had notice of the hearing, then he shall be ordered removed. The order can be rescinded under two circumstances – at any time if the person did not get notice of the hearing, INA § 240(b)(C)(ii), or within 180 days of the order if there are exceptional circumstances – like serious illness to the alien or serious illness or death of a close family member. INA § 240(b)(5)(C)(i). Losing the notice, misunderstanding the date or time, not being given the mail about the hearing by someone in the household, being stuck in traffic, missing a flight, getting lost, going to the wrong court, or simply forgetting about a date months in the future are ordinarily not considered exceptional circumstances. So missing court can mean your goose is cooked. The law does not consider whether you have an extremely meritorious claim for asylum, if you had notice and missed court, you may well be a goner.

I have handled many in absentia removal cases over the years, trying to rescind the removal order. In one case, a 16 year old’s mother withheld notice of a hearing for her son. She swore that it was her fault, but because the law considered her notice as adequate notice to her son, the immigration judge would not reopen the case. In another case, Immigration and Customs Enforcement (ICE) released an asylum seeker from detention in San Diego. He flew to be with members of his extended family half way across the country. He provided ICE with the address where he would be living and was told he would receive a hearing notice at that address. The immigration court mailed him a hearing notice on a Friday that reached him on Monday afternoon of the next week for a hearing in San Diego, not at his new home city 1,500 miles away, on Wednesday, two days later. Even if the man had the money to fly back to San Diego at the last minute, he could not book a flight on Tuesday to get him to San Diego on Wednesday. He was ordered removed in absentia. It took filing two motions to reopen before an immigration judge would reopen the case – showing the impossibility of returning to San Diego after receiving unconscionable short notice did not initially merit reopening according to the immigration judge.

The normal process, defined by regulation, is that when an alien comes to the border seeking asylum, he is detained and interviewed and an initial judgment is made as to whether there is a credible asylum claim. INA § 235(b). Those that pass the interview are then sent to immigration court for a more detailed consideration of an asylum claim. They are then eligible to be released from government custody, though release is not automatic. Adults and adults with children are considered for release by ICE. Unaccompanied children are supposed to be handed over to officials of the Office of Refugee Resettlement of the Department of Health and Human Services who are supposed to evaluate their asylum claims and also whether they are victims of abuse, abandonment, or neglect, and find them a place to live while their cases are decided.

As the time the ICE process to decide on release varies as are the delays in scheduling an initial immigration court date, some aliens are released after their cases are underway in immigration court and others are released before an immigration court date has been set. Those whose next hearing has been scheduled before their release are duty-bound to attend the hearing regardless of where they will be moving to unless the court date is vacated or venue is changed. Those who do not already have a hearing scheduled are told that they will receive a hearing notice mailed to the address they give when they are released. At that point, there is usually no case pending with the immigration court and no information as to what immigration court the case will be scheduled at – where the person is detained or where he is moving to after release – and no information as to how to contact the immigration court.

One more procedural nicety. When families appear at the border seeking asylum, if it is a mother and children appearing, quite often they will be released before the initial screening and told to await a hearing notice from the immigration court. In my experience, the vast majority of these people never get a hearing notice.  If it is a father, mother, and children coming to the border, the father is held in detention to undergo the screening and the mother and children are released. This results in the father being sent to immigration court while the mother and children are not.

The problem with the limbo for released women and children is that the specter of the case eventually being filed with the immigration court is always there. As people arriving to the United States with little more than the shirts on their backs and usually after some harrowing journey and then having to find relatives or friends or friends of relatives or friends to house them, they inevitably become itinerants (How long would you house a distant relative or a friend of a friend from the old country?). Without any knowledge of immigration law or procedures and without any information as to how to contact ICE or the immigration court about changing an address, the person’s actually receiving a hearing notice becomes less and less likely over time. And remember, even if one contacted an immigration court to give an address update, until ICE files the case with the immigration court, the immigration court will have no idea who the alien is and will not accept change-of-address information.

Why does ICE wait for a long period or never to file the papers to send an arriving alien to immigration court? Why are aliens released with so little information about changing address and court contact information? Why aren’t cases filed with the immigration court where the alien is moving to instead of where he was initially detained?

A cynic may conclude the reasons are:

1. If filing the case in immigration court and then the immigration court’s setting a hearing notice are delayed, the chances of an in absentia order are greatly increased. Then ICE can simply scoop up the individual and family and get rid of them. Removal numbers go up and the administrative costs of conducting a court hearing and appeals go down. Plus, the removed family, when back at home, can discuss a system of such monumental confusion and irrationality that anyone they talk to will know better than to even attempt to come to the United States and seek asylum.

2. An asylum applicant must file his application within one year of arrival. INA § 208(a)(2)(B). If the asylum seeker is told to wait for a hearing notice that never comes, he or she may not figure out that he or she has to file an asylum application elsewhere and then figure out where and how. If no application is filed, if the alien ever does find himself in immigration court, potential relief from removal is severely limited, making removal a more likely outcome, again boosting removal numbers and reducing bureaucratic effort for ICE.

The following reforms are needed:

  1. ICE should release fathers with mothers and children.
  2. ICE should give families the option of release or being held together. People released before being granted asylum rarely get government assistance or even permission to work and if there is no family or friends to assist for a long period of time, the family will have no means of support.
  3. When people are released from detention, their cases should promptly be scheduled where they are moving to. Persons leaving detention should always know where their next court will be, and, if possible, when.
  4.  Notices of a new hearing should always provide the newly-released alien with ample time to reach his new home and find his way to a new immigration court in a new city.
  5. Court contact information and address-change information should always be provided to an alien when he is released, both for those whose cases are already scheduled in the immigration court, where address and change of address information, but not a telephone number, are provided, and for those whose cases are not scheduled for immigration court yet.
  6. Asylum seekers should be told about the one-year filing deadline and how to file with USCIS if their case is not scheduled in immigration court (though not scheduling cases promptly in immigration court should not happen).
  7.  If ICE or Customs and Border Protection (CBP) prepares court documents and serves them on an alien, they should expire if not filed within a reasonable period of time after they are served. The specter of ICE’s or CBP’s filing documents at any time in the distant future should not hover over an individual, particularly when he lacks information about how to change his address with ICE or CBP.
  8. Immigration courts should be mandated to continue cases where an alien fails to appear at immigration court when the case deals with a released asylum seeker where confusion or administrative complexity or impossibility, but not necessarily lack of notice or exceptional circumstances, led to the failure to appear.

Newly-arriving asylum seekers are probably the least adept of all people at navigating the bureaucratic labyrinth that is the immigration system because of language, cultural, psychological, and educational deficits. Administrators need to add clear signposts within the labyrinth so aliens can get through it. We should not countenance a system where the labyrinth routinely leads to dead ends that result in removal before the asylum-seeker even gets his day in court. Posted March 8, 2015.

Published Mar 08, 2015 - Comments? None yet

Last week saw federal judges twice stymie the executive branch by enjoining the Department of Homeland Security from doing what it wants to do. The first injunction, in Texas v. USA,  stopped the government from doing something nice for the undocumented – beginning the implementation of the first of the President’s executive actions announced last November. The action  was to expand the Deferred Action for Childhood Arrivals (DACA) program to both earlier and later arriving children.

The second injunction, in , R.I.L-R v. Johnson  stopped the government from doing something mean to the undocumented – stopping the government from detaining without seriously considering releasing recently-arrived undocumented aliens caught inside the United States near land borders. While a split this week on good happening to the undocumented, it was a week of failure for the government.

In neither case was the government enjoined from doing what it wanted because what it wanted to do was unconstitutional. Rather, the government was enjoined for violating the Administrative Procedures Act in the case of enjoining the implementation of the expanded DACA and for violating its statutory duty to administer a detention statute in a manner that would not implicate constitutional concerns in the case of stopping the virtual mandatory detention of newly arrived aliens caught inside the U.S. near the border.

Shouldn’t those who insist that the President has broad executive powers in law enforcement be disappointed at his (administration’s) twin losses this week while those who favor a more-restrained executive be celebrating? Probably, but the divide in immigration law is not ideological, it is about the undocumented themselves.

In the case of the DACA expansion injunction, the district court judge in the case concluded that the government was issuing new administrative regulations to enforce statutes of the Immigration and Nationality Act and that to do so, the notice and comment process for regulation promulgation had to have occurred and had not. The government argued that no new rules were promulgated; rather the discretionary application of the law was being changed, which is not a new rule which needs to be promulgated through notice and comment. Actually, the judge’s position is not as cuckoo as pro-alien observers would have you think. It  puts pro-immigration forces in the position of having to defend a strong executive – a strong executive prone to extend its powers to new limits as time goes on.

Hence, to the second injunction which is about a strong executive extending the limits of its power. Here the strong executive, responsible for the detention decision relating to aliens caught at or near the border, was not releasing women and children. It was keeping these aliens detained not based on the twin regulatory bases for releasing aliens from custody – whether they are a flight risk or a danger. 8 C.F.R. § 236.1(c)(8). Instead, people where not released so as to serve to deter others from coming to the United States. The court said that was an impermissible use of the executive’s authority in making custody determinations.

Both cases reduce to one single issue – discretion. In the DACA extension case, the question was whether the President’s plans were allowable discretion or a new rule that needed to be properly created. In the detention case, it was whether the government acts in its discretion when it uses deterrence as a custody determination factor. It is hard to make an argument to your desired outcome – to simplify, pro- or anti- alien –  if trying to advance an argument based on the degree of fetteredness executive discretion should be.

Of course there is a way to reconcile ideology and the outcomes in the cases. That is, consideration of the merits. If you believe that DACA and the soon to come DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) are within the bounds of executive discretion then you are disappointed in the injunction. Similarly, if you believe that considering the deterrence value of detention an improper consideration in a civil detention determination,  you are happy about that injunction.

Can someone be ideologically pure about the power of the executive and conclude that one injunction was correctly decided and the other was not? Can a person believe at the same time that the executive branch does not have the authority to tolerate some classes of the  undocumented in our presence but has the authority to detain without consideration of flight risk and danger asylum seekers who entered the United States without inspection? Or, conversely, can a person believe that the executive has the authority to tolerate the presence of certain classes of the undocumented, but no authority to make the release of undocumented aliens found inside the United States near the border subject to consideration of the effect on the control of the border of the knowledge that aliens entering without inspection and seeking asylum will with high probability be released soon after their initial apprehension?

I suppose some will find taking contrary positions from the alien or the government in both of the two matters is intellectually consistent with their views about executive power after carefully considering the statutes, regulations, precedent decisions, and government policies. Most people, I suspect,  take a side based on their feelings about undocumented aliens. Consistency in support of  or opposition to the undocumented is the real issue, not consistency in theoretical considerations of the role of discretion in government decision making and its impacts on the prerogatives of the executive branch. Posted February 22, 2015.

Published Feb 22, 2015 - Comments Off

We’ve all heard about all the faux wars going on these days – class warfare, the war against the job creators, the war on Christmas. There are a lot of wars to be paranoid about that don’t exist. It is time for those skeptical of big government to examine a real government war, USCIS’s war on marriage. This is a war on good marriage while in pursuit of marriage fraud.

I am no expert on test making theory. However, one thing I know about testing is that you can design the sensitivity of a test. Let’s say you want to test for something like marriage fraud. You can design a test that finds nearly 100 percent of marriage fraud cases, but also finds a great number of false positives, meaning a lot of people in real marriages are determined to be in fake marriages. You can make a test that nearly never wrongly determines that fraud exists, but also allows actual fraudulent marriages to escape detection. It is probably impossible to design a test that detects only fraudulent marriages.

Think of yoghurt. We sometimes hear reports that the USDA allows X parts per billion of rat poop in yoghurt and wonder why they allow any. The answer is that the more stringent the test, the more good yoghurt that will get thrown out and throwing out good yoghurt for infinitesimal gains in purity is insane.

Why can’t USCIS catch all fraud but deny no deserving green card applicant? One reason is it is impossible to test what you are looking for. The standard definition of a real marriage in the 9th Circuit is one where the parties to it intend to spend their lives together. You know, till death do us part. The Ninth Circuit wrote in analyzing a case where the government denied a married foreign man a green card based on marriage:

Petitioner’s marriage was a sham if the bride and groom did not intend to establish a life together at the time they were married. 

While the validity of that definition is debatable (the guy in Cleveland who had women chained in his basement for years intended that the relationships were permanent), let’s just stick with it. How do you measure the intent to remain together? It is a state of mind so it has no obvious physical metrics. There are some outward manifestations – buying life insurance with the spouse as beneficiary (you acknowledge that at the end, your spouse will still be there). Getting a 30 year mortgage together (you acknowledge that in 30 years you’ll still be together – thirty a proxy for infinity). Sleeping in the same city. In the same home. In the same bed. Of course these are not proof of the existence of marriage. You can cancel insurance and re-finance a mortgage or sell a home. Further, you can easily buy insurance or buy a home to give the appearance of being in a real marriage. Most Senators and Congressmen and Congresswomen, who write the immigration laws, do not live with their spouses as they cannot afford to or do not want to set up two households, one in Washington and one in their constituency, and they commute home periodically. With all the writing about sleep disorders and prescriptions for cures for sleep disorders like those CPAP machines, one imagines plenty of otherwise normal married couples sleeping separately at least some nights or some parts of some nights.

There is something else I know about test making. For a test to be successful, you need to know what you are testing for and then test for it. If the goal of the test is to determine whether a couple intends to establish a life together, then test makers need to find ways to test for that question. In the case of USCIS and marriage fraud, it is apparent to me, test makers make assumptions about marriage that stand as proxies for “intending to establish a life together” and then test the assumptions. Couples, they assume, live together, spend their free time together, recreate together, share all the details of their lives together such as all that goes on in the spouse’s family and all medical issues, share all financial information, the complete family history, and everything about work and any outside-the-home activities.

Are all of these true all of the time or some of the time for all people? For some people? For any people? Moreover, how much is a person supposed to remember? Do normal people normally remember what their spouse wore to bed a week earlier or even a night earlier, what they gave and got for Christmas, or what they ate for dinner a week earlier or even a night earlier? I’ve seen members of couples denied permanent residence for forgetting one dish on an Easter buffet table, what they ate on their second date two years earlier, and that they stopped for to buy milk on the way home from an outing. (Is it always food that disqualifies couples or am I just hungry after sitting through the five hour auto de fes that USCIS conducts in these cases?) Is this because they really don’t intend to establish a life together, or because they are not interested in what USCIS thinks they should be interested in, or that they just forgot?

In addition to the question of what the value of the test of these trivia proxy questions is in answering the question about whether members of a couple intends to spend their lives together, should people be subjected to such personal questioning – which does include questions about sexual activity?

Finally, because USCIS holds people to near-perfect scores on these tests which requires to conforming to assumptions about what a marriage should be like and requiring that a marriage be firing on all cylinders (one who hints at ambivalence about married life is bound to be denied a green card), USCIS imposes a way  to be married and way of life on couples. Should an agency be able dictate how a couple lives their lives (together always in the close embrace of an approving extended family), what their lifestyle should be (opulent enough for a large wedding, a nice honeymoon, a heavy engagement ring and matching marriage bands, memorable holiday presents, no roommates, exciting and memorable weekend activities, children) how much time they spend together (all their free time), what they should do with their free time (engaging with each other’s families, studying the household budget, and planning glorious holiday parties, all the while snapping photos at any opportunity and committing to memory every joint experience, a la Adrian Monk)? This is what the Ninth Circuit wrote about such an imposition on couples:

The concept of establishing a life as marital partners contains no federal dictate about the kind of life that the partners may choose to lead. Any attempt to regulate their life styles, such as prescribing the amount of time they must spend together, or designating the manner in which either partner elects to spend his or her time, in the guise of specifying the requirements of a bona fide marriage would raise serious constitutional questions. Aliens cannot be required to have more conventional or more successful marriages than citizens. 

I do not think USCIS should approve all marriage-based permanent residence applications without there first being investigation into the possibility of fraud. However, USCIS should realize that its methods are not testing for what they are looking for and thus are failing – people involved in good marriages are being denied while fraudsters are getting green cards. All the while, nice people are being subjected to oppressive, intrusive interviews, and months and years of stress – these cases go on for months and years. Many suffer under the prolonged uncertainty, anxiety, and cost of a protracted fight with the government about their marriage – paradoxically continuously both fearing and hoping for a knock at the door at 6 in the morning by officers coming to look at where the couple lives rather than making conclusions about a marriage based on questions about some triviality about a sibling’s sister’s age or whatever. Many cave, break up, and the alien returns home. USCIS should not score this as success, but for what it is, failure. Blackstone’s formulation, “”It is better that ten guilty persons escape than that one innocent suffer,” is based on avoiding injustice to the innocent even if it has adverse consequences. USCIS is imposing suffering on ten innocent people so they can detect one guilty one. This policy choice right-minded people should reject. Posted February 1, 2015.

Published Feb 01, 2015 - Comments Off