This week the 5th Circuit Court of Appeals put the brakes, rather a wheel lock, on President Obama’s prosecutorial discretion initiatives, DAPA and an expanded DACA, deciding not to lift the stay of implementation of these programs in a decision on May 26, 2015. Legal experts predict that it may take until the President’s time in office is nearly up before the programs gets underway and by then millions of people who would be eligible for the programs may be discouraged from enrolling – assuming the programs are approved by the courts – because by then the Republican candidate for President will no doubt opine that the first thing he or she (Go Carly) will do is dismantle the program – and presumably not refund the filing fees.
Pro or anti- DAPA and the new DACA, one would be hard-pressed to say that the programs are not a dramatic expansion of the current mode of immigration enforcement. Essentially, what the programs do is allow millions of people to come forward and say. “Evaluate me. Am I deportation priority? If not, give me Deferred Action and the benefit that comes from Deferred Action, a work permit.” The immigration laws about deportation use the word, “Shall,” as in, “Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…,” including “shall” remove people in the country without lawful status. INA § 237(a)(1). But, of course, just like a policeman may see a guy smoking a joint and wag his finger at the smoker, tell him to put it out, and to get lost; or see a person speeding and his finger at the speeder and tell him to slow down and behave in his exercise of prosecutorial discretion, the DAPA and DACA plans are conceived as a way to wag a finger at minor offenders (entering the United States illegally is a minor offense, INA § 275) tell them to move on – and while moving on, pay $465 and get a temporary permit to work.
Not to delve too deeply into it, but the problem the courts, a District Court in Texas and a panel of the Fifth Circuit Court of Appeals, have is that this is not like a policeman happening on a speeder and waiving a finger, but institutionalizing a forgiveness program for millions of people (and what means institutionalizing more than a special form and a fee?) and providing them a lawful posture (don’t say status, unless in the 7th Circuit) which states may then have to oblige with state-paid-for amenities, like driver licenses.
The biggest problem with the argument that giving the President and Secretary of Homeland Security the authority to make policy changes that affect millions of people is a double edged sword. While the expansion of DAPA and DACA will help millions of people, suppose a new President decides to make sweeping policy changes that harm millions of people? Would people advocating for the President’s unbridled discretion still be believers in unbridled discretion?
Suppose a President Cruz (I am trying to make this an obvious hypothetical) decides that in his discretion, no person who has accrued unlawful presence in the United States shall be able to adjust status (become a permanent resident without having to leave the United States) in the United States? This could mean that thousands of people who get green cards each year through marriage to United States citizens or through very close familial relationships (child-parent, parent-child) would be barred from adjusting status. This could even mean people who applied while in status but whose status expired while the process was pending would be ineligible to adjust status, virtually eliminating adjustment of status for everyone. Would this be executive overstepping? ICE already reserves the right to arrest people with valid adjustment of status applications for being out of status and non-immigrants cannot change or extend their statuses if not in a lawful status.
Suppose President Cruz announces that no immigration status will accrue to anyone who ever committed a violent or dangerous crime – a decision the Ninth Circuit asserts is actually the law – would we support the President’s broad discretionary authority?
Suppose President Cruz announces that in his discretion no one will receive Deferred Action and all those with Deferred Action will have it cancelled and be deported with haste. Deferred Action is the term for the government’s policy of not deporting certain people who the government can deport. The terminally ill will be taken from their beds and deported. Those who assisted in drug prosecutions and are know to the cartels for their assistance in the arrest and prosecution of drug traffickers will be arrested and deported. Undocumented parents caring for critically ill children will be deported. No more stays of removal or special consideration outside of the deportation statutes, which say “shall” after all and in which Deferred Action cannot be found.
Suppose President Cruz announces that the government has been too lenient in granting waivers based on extreme hardship for those who accrue unlawful presence (INA § 212(a)(9)(B)) or fraud (INA § 212(a)(6)(C)), or morally turpitudinous crimes (INA § 212(a)(2)(A)(i)) and henceforth waivers should be granted rarely and only in extremely compelling situations. I could go on and on – detaining all asylum seekers (already tried), detaining indefinitely those no country will accept (already tried and rejected by the Supreme Court), detaining people whose removal cases are on appeal (already tried). In a press release, the American Immigration Counsel wrote, “Judge Stephen A. Higginson, in his dissent, got it right when he called out the ‘political nature of this dispute’ and argued that the courts have no role to play here. The courts simply cannot be a venue for anyone who disagrees with a President’s policy choice.” Do we really want strong executive authority as a general principle or only when it appeals to our policy preferences?
In this legal battle over executive authority, those who favor strong executive powers may be wise to be careful what they are asking for because they may get it. Posted May 31, 2015.
The questions in the current discourse about foreign affairs and Iraq are whether it was a mistake to go in in 2003 and whether it was a mistake to get out in 2010. Conservatives have gone from No and Yes to Yes and Yes quicker than society has come to accept gay marriage and marijuana. Liberals have stayed relatively consistent, except for exceptions, Hillary, answering Yes and No. Whatever Conservatives true analyses are, it is hard not to see some of the typical President Obama bashing in the latter latter No — it was a mistake to get out in 2011 because President Obama was in charge when the U.S. finished pulling out in 2011 (but not when the pullout began in 2007).
The criticism seems based on the observation that we, the United States, won the Iraq War by 2011 and then President Obama squandered the victory by handing the place over to, of all people, the Iraqis, who then snatched defeat from our victory. The theory is, I suppose, that the happily unified Iraq of 2011 would have remained happily unified if the United States had only left behind a few tens of thousands of troops to make sure things stayed peaceful. After all, Americans left troops behind in Germany, Japan, and South Korea to prevent backsliding and we should have done the same in Iraq.
Great theory except for one persistent fact, like weapons of mass destruction and “We’ll be greeted as liberators,” it is not true. Before talking about Iraq, lets look briefly and Germany, Japan, and South Korea. I was in the military in the late 1980’s to early 1990’s. I met soldiers who served in Germany and South Korea and myself was on of the anti-backslider force in Japan. Soldiers recounted and regaled the beauty of the countries, the delicious food, and the fun and girls they had. Some brought local girls they married to their next duty stations and worked to try to get back to those countries at least one more time before they retired. Even guys I worked with who were in Vietnam said that Saigon was a blast during the war.
I have yet to meet a U.S. veteran with tales of enjoying leave in an Iraqi city, sampling the cuisine, drinking the arak, or dating the girls (or boys). I doubt even Paul Bremer ever once ate grilled fish at a restaurant on the banks of the Tigris – apparently the thing to do at a time before we liberated the country. And why didn’t military members and Mr. Bremer do these things? Two reasons: 1) Everyone hated us and wanted us gone, and 2) it was too dangerous.
Besides the normal reading and TV watching that inform what we know about Iraq, over the last 15 years I have represented many Iraqis in the United States, mainly but not exclusively, asylum seekers. The reasons for seeking asylum changed as time advanced from early 2000 to now. Before the war in 2003, most asylum seekers I dealt with were Chaldeans from northern Iraq fleeing Saddam Hussein and the Ba’ath Party. The usual claims were based on coercion to join the Ba’ath Party and accusations of selling arms to the Kurds. A lot of stories of persecution involved being arrested and then a father or uncle paying some Iraqi captain a bribe to allow the imprisoned son or nephew to escape Iraq to Turkey and onward to the United States. I remember reading a news report in 2004 or 2005 about captured records from the Iraqi Army documenting rampant corruption, allaying concerns I had in my own mind that it was uncanny how many bribe-taking captains there were in Saddam’s army.
I should add that these cases did not go well. Immigration judges had heard a lot of similar corrupt-captain stories and were not buying them. There were lots of cases on appeal by the time the U.S. invaded in 2003.
After the invasion, Chaldeans already in the system had an even harder time. Now, immigration judges were finding that any asylum claims based on persecution by the Ba’ath Party and Saddam Hussein were no longer viable as the Ba’ath Party and Saddam were gone and a Pax Americana had spread to Iraq – it was safe to go home and safe to stay home.
It did not take long for the country to slip away from the liberators. Chaldeans came streaming to the U.S. now, not because of Saddam, but because of the absence of Saddam. Iraq had gone from a country with safe streets, grilled fish by the Tigris, and obedience to the ruler and his corrupt and brutal party, to a place of wanton sectarian violence with Chaldeans stuck in the middle with no protector. I recall a hearing I had in the early period of the transition to anarchy, before we accepted it as true, when a government attorney questioning an asylum seeker about why he was not grateful that Saddam and the Ba’ath were gone and that Americans were now in Baghdad keeping it safe for Christians. He then added, to the obvious fury of the immigration judge, that Americans were dying every day to keep him safe, so why shouldn’t he just happily go home? The irony was lost on him that if the country was safe to go back to, American service members would not be dying every day. These cases also did not go so well and many went up on appeal.
By the mid-2000’s, the populace in general and immigration judges in particular were absorbing the fact that Iraq was a disaster and Chaldeans could not live there. Cases were routinely reopened based on the changed circumstances. Additionally, a special visa was created in 2008 to help people who had worked for us get out of there because mere association with the liberators was a death sentence. I recently reviewed a case where one family lived through the entire life cycle of the Iraq War with the case going up and down on appeal three times – asylum denied before the invasion and then remanded; denied again in the Pax America phase and then remanded; and finally granted at the beginning of the next decade.
The myth is that President Bush’s surge, counter to the Iraq Report created by foreign and public policy luminaries that concluded that it was all a lost cause, put Humpty Dumpty together gain. Facts on the ground and my own experiences speaking with and representing Iraqis belied all this. During and after the surge, Americans were still dying all the time. Car bombs were going off all the time. Churches were being attacked and blown up all the time. People continued to flee. No one was returning. In addition to Chaldeans, now new clients included Sunnis and Shi’is caught in the middle of a civil war in a fractured country. An Iraqi diaspora, once safe working in Gulf countries, were slowly being forced out and found they could not go home to Iraq under threat of death.
Imagining the post-surge Iraq as a Switzerland that just needed 20,000 American babysitters to thrive was not an observation anyone made in 2007-2011. It takes the wisdom that comes from forgetting what happened six years ago and abject partisanship of people that will blame President Obama for anything for people to even dare to say such nonsense now.
America left Iraq because no one wanted us there. Shi’ites and Sunnis had their own reckoning to do with each other and were waiting for us to leave to get it done. Had we stayed, we would have been decimated bomb by bomb and limb by limb until we left. We knew it in 2008 when we elected a president who said he would not countenance it. We knew it in 2012 when we re-elected him. People who go back and read about 2007-2014 know it. People who lived there know it and so do the people who the people who lived there spoke to about it when they got here trying to avoid having to go back. With 20-20 hindsight and notwithstanding the rise of ISIL, the answer still is Yes and No. Posted May 25, 2015.
Time and time again immigration lawyers like to tell you how complicated the immigration laws are. Often the motivation for saying this is to encourage people to hire a lawyer. While hiring a lawyer may help to avoid the procedural pitfalls of trying to obtain benefits from immigration agencies, the biggest problem is that the immigration laws are too complicated for the agencies themselves to administer. Lawyers have a hard time stopping the decision makers from making their stupid mistakes. It is hard to find the civil servants competent to deal with the myriad of rules and exceptions to the rules that is the result of fifty plus years of legislation on top of legislation, regulations on top of regulations, and policy memos on top of policy memos. If it is hard for lawyers trained to research the stuff, being paid to figure stuff out, and often rather passionate about learning the intricacies of the law, how can we expect civil servants who, after all, are just doing a job eight hours a day and dealing with crushing workloads to keep it all straight.
Just this week, a case came to me where USCIS denied an application for permanent residence because the alien was paroled into the United States and not “admitted” to the United States, when admission is not a requirement for applying for permanent residence as an alien paroled into the United States can also adjust status. To correct the blatant error may cost $630 in filing fees to file a form to request USCIS to correct its own error. Should USCIS officers know that paroled aliens can adjust status? Of course, but there are thousands of things they should know and it is hard to remember them all – all the time.
Just this week, I contacted ICE to help with routing a case from their office to USCIS, a sister immigration bureau within Homeland Security. The agencies don’t communicate with each other about such matters, so it is up to the customer to get ICE to move a file – which itself is an absurdity. ICE responded that the case was not in the San Diego ICE jurisdiction and that I should contact the ICE office in Los Angeles. The case, however, was squarely in the San Diego ICE jurisdiction. Time had to be taken to show ICE what was in their own file – that the case was in San Diego immigration court and the client lives in San Diego. Should ICE be able to look in its computers or in a file and determine a case is a San Diego case? Of course, but again, there are hundreds of things they should know how to do and it is hard to remember them all.
Just this week, the Department of State contacted me to tell me a petition will be cancelled because of lack of contact from the client. Time had to be taken out to forward correspondence that we had with the Department of State that showed there was contact. Should the Department of State be able to monitor communications so as not to hassle people with fatal pronouncements? Certainly, but, again, there are hundreds of things that the Department of State must do and it is hard to do them all.
These are just three very frustrating things that happened in a normal week to one lawyer with a modest client base. Think what happens to the unrepresented who believe what the government tells them or people whose lawyers may not be able to respond to nonsense as soon as it happens.
Immigration agencies, like all government agencies, are in a bind because it is impossible to find competent people, train competent people, and motivate competent people to do their jobs which are of extreme complexity. Two solutions come to mind – employ technology that notices the arcana in each case and helps to apply the law properly. Second, the agencies need to open up their decision-making processes to their customers to avoid mistakes. A call from an officer to me, for example, saying, “Hey, it seems we may have a problem with your case, What do you think?” could avoid a whole lot of stress, money, and administrative effort. But agencies build walls to avoid communication rather than working to tear them down. As a result, customers cannot communicate with the deciders behind the walls. No one benefits from a system where the adjudicators are over the heads and refuse help from their customers. Actually, someone does benefit, Tums. Posted May 17, 2015.
David Howell Petraeus
On April 23, 2015, David Howell Petraeus pled guilty to violating 18 USC 1924, which states:
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.
He received two years probation and a $100,000 fine.
What if he was a foreigner? Gen. Patraeus gave classified information to his biographer, Ms. Paula Broadwell. The statute defines classified information as information that requires protection in the interest of national security. Violating this statute, arguably, endangers national security. At INA § 237(a)(4)(A)(ii) there is exists a ground of removability for any person who has engaged in criminal activity which endangers public safety or national security. Assuming Mr. Petraeus was a lawful permanent resident, the standard relief he would seek is Cancellation of Removal for Certain Permanent Residents, INA § 240A(a). If he were not, he might seek Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b)(1). However, according to INA § 240A(c)(4), and alien deportable under INA § 237(a)(4) is ineligible for these forms of relief.
It is possible that Gen. Petraeus might be eligible for asylum or withholding of removal if he could prove he had a fear of persecution based on his race religion, nationality, political opinion, or social group. As many abroad presumably would like to get hold of a former CIA Director and U.S. Army General, he might have a claim. However, asylum and withholding are not available to aliens who are considered a danger to the United States (INA § 208(b)(2)(A)(iv)) or committed a crime that constitutes a danger to the United States (INA § 208(b)(2)(A)(ii)). If his crime was considered one dangerous to the United States or that rendered him one dangerous to the United States, he would not be eligible for this relief.
Gen. Petraeus might be able to obtain permanent residence through adjustment of status, i.e., through his marriage to a United States citizen or through an adult United States citizen son or daughter. He has adult an adult son and daughter, as well as a U.S. citizen spouse, so this avenue may be available for him. Maybe son or daughter is better, the marriage is kind of iffy, as can happen to men with biographers. There does not appear to be a parallel ground of inadmissibility for having committed a national security offense that could provide an obstacle to adjustment. However, there is a ground of inadmissibility for a person for whose entry to the United States there is a reasonable ground to believe would have serious adverse foreign policy consequences for the United States. INA § 212(a)(3)(C)(i). The State Department routinely finds that past conduct leads to a presumption of future danger, such as in cases where former presumed (but not necessarily proved to be) gang members are not allowed into the United States based on a belief they will enter to commit crimes. INA § 212(a)(3)(ii). There is an exception for members of foreign governments, but Gen. Petraeus was not a member of a foreign government. If this route failed, he could ask for protection under the U.S. Convention Against Torture if his home country might allow him to be tortured if he returned. All in all, it would be a tough road for America’s greatest hero. Posted April 30, 2015.