Republican Party presidential primary poll leader, Donald Trump, issued a immigration policy plan this week. In the quiz below, excerpts from the plan (in bold) prompt multiple choice questions. See how you do in answering the questions prompted by Mr. Trump’s observations about immigration law and his policy prescriptions.
1. We are the only country in the world whose immigration system puts the needs of other nations ahead of our own. What is the number of refugees per 1,000 people in the following countries?
Jordan, Lebanon, Sweden, United Kingdom, United States:
A. 9, 11, 12, 14, 16
B. 15, 10, 15, 15, 15
C. 0.82, 3, 9, 250, 333
D. 333, 250 , 9, 3, 0.82
2. A nation without borders is not a nation. Which of the following countries has defined, internationally recognized borders?
C. United States
3. Any immigration plan must improve jobs, wages and security for all Americans. The National Center for Policy Analysis, an organization endorsed by Newt Gingrich and John Stossel on its website, discussing the North American Free Trade Agreement, stated:
A. Trade deals with developing countries invariably leads to a decrease in employment for the developed country.
B. Jobs lost in the developed country are replaced by higher paying jobs.
C. United States trade representatives fail to negotiate trade deals that benefit U.S. workers because their goal is fashioning a new world order based on international law.
D. Trade deals are influenced by corporations seeking treaties so they can move factories abroad to reduce labor costs and environmentalists who are anti-development.
4. The effects on jobseekers have also been disastrous, and black Americans have been particularly harmed. The Congressional Black Caucus did the following in response to the Comprehensive Immigration Reform legislation approved by the U.S. Senate in 2013:
A. Unanimously supported the legislation.
B. Met with President Obama and tried to persuade him to abandon the plan.
C. Met with the Senate’s Gang of Eight and implored them to make amendments to their plan so as not to harm employment opportunities for U.S. citizens.
D. Rejected calls to unify with other minority rights organizations and instead voted to defeat the legislation in the House of Representatives.
5. The costs for the United States have been extraordinary: U.S. taxpayers have been asked to pick up hundreds of billions in healthcare costs, housing costs, education costs, welfare costs, etc. Which of the following is true?
A. According to the Institute on Taxation and Policy Analysis, the 11.4 million undocumented immigrants currently living in the United States collectively paid $11.84 billion in state and local taxes in 2012.
B. The Social Security Administration estimates that it collected $13 billion in pay-roll taxes from unauthorized immigrant workers and their employers in 2010, while very few undocumented workers can collect Social Security.
C. The Texas State Comptroller reported in 2006 that the 1.4 million illegal immigrants in Texas alone added almost $18 billion to the state’s budget, and paid $1.2 billion in state services they used.
D. All of the above.
6. Triple the number of ICE officers. Which of the following is true?
A. ICE Special Agents earn between $40,000 to $68,000 per year plus benefits and can retire at age 50 or after 20 years of service.
B. ICE has an estimated 15,000 to 20,000 employees in 400 domestic and 50 international offices.
C. ICE is the second largest criminal investigative agency in the U.S. government, following the FBI.
D. All of the above.
7. ICE officers should be required to issue Notices to Appear to all illegal aliens with criminal convictions, DUI convictions, or a gang affiliation. Which of the following is true?
A. In 1997, Congress passed and President Clinton signed a law that made dozens of crimes aggravated felonies leading to near-certain deportation for tens if not hundreds of thousands of immigrants.
B. As of July 2015, the backlog of removal cases in immigration court is approximately 454,000.
C. The Constitution’s Due Process Clause guarantees illegal aliens a fair hearing before they are deported.
D. All of the above.
8. End birthright citizenship. This remains the biggest magnet for illegal immigration. Which statement is true?
A. Once an illegal immigrant has a child born in the United States, it is virtually impossible to deport that person.
B. The parent of a child born in the United States has an almost automatic opportunity to become a permanent resident.
C. Countries that do not have birthright citizenship have far more generous laws regarding acquiring citizenship by blood than the United States does to avoid widespread statelessness among children.
D. The Constitution provides American citizens the right to be with their foreign immediate relatives, i.e., spouse and children, enforceable under the venerable Writ of Mandamus.
9. End birthright citizenship. This remains the biggest magnet for illegal immigration. Which of the following is required for an illegal alien present in the United States to attain lawful status based on having a child who was born here?
A. The child is at least 21 years old.
B. The parent entered the United States legally.
C. The parent has not broken any of hundreds of criminal or immigration laws.
D. All of the above.
10. We need to stop giving legal immigrant visas to people bent on causing us harm. From the 9-11 hijackers, to the Boston Bombers, and many others, our immigration system is being used to attack us. Which of the following is true?
A. The State Department requires all persons ages 14-79, to undergo an interview before a visa is issued.
B. If the State Department has the slightest suspicion a person belonged or provided any support to a gang, criminal organization, or terrorist group, that person will not be issued a visa to come to the United States regardless of what family he has in the United States and no court can review the decision.
C. Under current law, a person who supported efforts to overthrow a government, even a government the United States may want overthrown, like Syria or Iran or the Taliban in Afghanistan, is inadmissible to the United States.
D. All of the above.
1. D Jordan has 406 times as many refugees per 1000 citizens as the United States.
2. C Obviously, countries without universally accepted borders are still countries.
3. B There are always going to be winners and losers in any agreement; the question is really what the net gain is.
4. A The CBC unanimously supported the legislation. One would think they would vote for what is in the best interests of their constituents and certainly not against their best interests.
5. D While there are costs to illegal immigration, there are offsetting revenue gains even before calculating the positive impact of the labor of illegal immigrants on the economy.
6. D It is not going to be cheap or easy to hire and build an infrastructure for 40,000 more government employees.
7. D ICE is already working full bore to find and deport criminal aliens. The unwillingness of Congress to fund the deportation apparatus causes huge bottlenecks.
8. C Having a U.S. citizen child does not provide much protection against deportation.
9. D The obstacles to immigrating one’s parents are huge and require more than 21 years of planning.
10. D Immigration attorneys deal every day with long delays based on security checks by the Department of State and arbitrary denials of visas for innocuous reasons.
Posted August 23, 2015.
In my last post, I discussed puzzlement that the Ninth Circuit Court of Appeals did not make a Rendon analysis in its decision to remand Madrigal-Barcenas v. Lynch. Just a week later, two days ago, the Court issued a decision in Lopez-Valencia v. Lynch, a case involving theft, Cal. Penal Code § 484. Using a Rendon analysis, the Court concluded that the California theft statute cannot be considered a theft offense as it is overbroad and indivisible. This is the type of result one might expect in a Rendon analysis of a drug paraphernalia statute. A caveat: the case does not address whether Cal. Penal Code § 484 is a crime of moral turpitude, the usual way the statute affects aliens under the immigration laws. Posted August 19, 2015.
On August 10, 2015, the Ninth Circuit remanded Madrigal-Barcenas v. Lynch, which was at the Supreme Court along with Mellouli v. Lynch. Mellouli v. Lynch, is the Supreme Court case decided on June 1, 2015, that held that a Kansas conviction for possession of drug paraphernalia, in the Mellouli case, a sock in which Mr. Mellouli stored four Adderall pills, was not categorically a removable offense as a controlled substance violation, INA § 237(a)(2)(B)(I). The Kansas statute, Kan. Stat. Ann. §21–5709(b), proscribes “possess[ion] with intent to use any drug paraphernalia to,” among other things, “store” or “conceal” a “controlled substance.”
The Supreme Court remanded to the Ninth Circuit to deal with it in light of Mellouli. In Madrigal-Barcenas, Mr. Madrigal-Barcenas was convicted under Section 453.566 of the Nevada Revised Statutes which states, “Any person who uses, or possesses with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this chapter is guilty of a misdemeanor.” This had rendered Mr. Madrigal-Barcenas ineligible for Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b)(1). The Ninth Circuit remanded the case to the Board of Immigration Appeals which will in turn remand the case to the immigration court to “consider, in the first instance, the potential application of the modified categorical approach, as well as the merits of Petitioner’s request for cancellation.”
In a nutshell, the issue in Mellouli and Madrigal-Barcenas was whether a statute is overbroad and what to do in such a case. The Immigration and Nationality Act lists scores of reasons a person can be removed from the United States. Many relate to criminal conduct. Many of those reference federal criminal statutes. Of course, persons convicted of state crimes are also removable for criminal convictions. The trick is to see if the state crime is a match for the federal one or a match for federally proscribed conduct. Testing for a match in state criminal elements to federal criminal elements or the elements of an offense that is removable conduct is called the Categorical Analysis or Taylor Analysis, named after the North Carolina law enforcement official, Andy Taylor, I mean based on a Supreme Court case, Taylor v. United States. When a state statute is overbroad, it usually implies that the state statute includes crimes that are analogous to federal crimes (or conduct) and crimes that are not.
The usual next step, the Modified Categorical Approach, tests whether the record of conviction contains information to determine what elements form the basis for the conviction. In the Mellouli and Madrigal-Barcenas cases, the statutes were considered overbroad because a person could be convicted of possessing paraphernalia for using or storing a drug that is not a federally controlled substance as there are some drugs that are illegal in a state but are not found on the federal drug schedules. The modified categorical test would look at the conviction record to see if a drug was named and whether that drug is a federally controlled substance. In Mellouli, apparently there was no need to remand for the modified categorical analysis because it was already implicitly accomplished as no controlled substance was named in the conviction documents. In Madrigal-Barcenas, the case was remanded to conduct the modified categorical analysis. The Categorical and Modified Categorical approaches are not new concepts. I have written about them repeatedly over the years, including initially here.
While the categorical and modified categorical analyses have, as stated in Mellouli, a long pedigree in immigration law, there have been attempts to erode the strictness of the tests as they tend to exonerate people who obviously committed crimes that are removable offenses. The Supreme court, in its 2013 decisions in Descamps v. United States and Moncrieffe v. Holder revalidated the categorical and modified analytical approaches. Moncrieffe explicitly underpins the Supreme Court’s holding in Mellouli.
Based on this analysis, the Ninth Circuit was justified in remanding Madrigal-Barcenas to consider the modified categorical analysis. However, there is another analytical step not mentioned in Madrigal-Barcenas, a step discussed in the Ninth Circuit’s decision in Rendon v. Holder. The Ninth Circuit did not take this step.
Under a Rendon analysis, the issue is not the various types of conduct that can lead to a criminal conviction in a particular criminal statute, but what a judge or jury must find to lead to a conviction. In Rendon, the issue was whether a burglary under Cal. Penal Code § 459 was an aggravated felony. To be an aggravated felony, § 459 had to match the federal definition of a theft offense. The federal definition requires an unlawful entry into a car with the intent to steal the car. The crime under § 459 is entering a locked car to steal or commit a felony. A factfinder does not need to determine whether the defendant intended to steal something or commit some other felony to convict. As the Rendon court termed it, stealing or having some other felonious intent are not alternate elements of the crime (elements need to be found by the factfinder) but rather alternate means of committing the crime (means do not need to be specifically found by the factfinder).
Applying the Rendon analysis to the crime in Madrigal-Barcenas, Section 453.566 of the Nevada Revised Statutes, if a Nevada jury would not have to determine what drug the paraphernalia was for, then the issue of what drug the paraphernalia was for would be an alternative means of conviction and not alternative elements of conviction. A quick perusal of Nevada jury instructions should indicate whether a jury must find a specific drug relating to the paraphernalia making the drug an element of the crime, or whether no finding of a particular drug need be determined by a judge or jury, in which case the crime is not divisible, but rather simply has alternative means of commission. In such a case, the crime would not render one removable for a drug-related offense because a specific drug is not an element of the crime regardless of how obvious it is that a specific, perhaps federally illegal, drug was related to the paraphernalia. Had the Madrigal-Barcenas court taken this step, it might well have found that the paraphernalia conviction was not a divisible offense and remand for the modified categorical approach unnecessary. If it found the statute was not divisible, remand would be warranted so Mr. Madrigal-Barcenas could pursue Cancellation of Removal, but not to determine whether his crime barred him from the relief.
It should be noted that under the California Criminal Jury Instructions, to find a person guilty of possessing drug paraphernalia in California under Cal. Health and Safety Code § 11364(a), a jury must find merely:
1. The defendant [unlawfully] possessed an object used for unlawfully injecting or smoking a controlled substance;
2. The defendant knew of the object’s presence; and
3. The defendant knew it to be an object used for unlawfully injecting or smoking a controlled substance.
As no specific drug needed to be identified, the crime was not divisible and would not be a removable offense.
The Madrigal-Barcenas court should have conducted a Rendon analysis and completely resolved the issue of removability in the case. Posted August 16, 2015.
Some of my clients understand what is going on in their cases. Others think of what is happening as a black box. They hire me to solve some problem. We fill out papers, pay fees, they pay me, we go to meetings or hearings, I may go to meetings or hearings without them, and their problems are gone (when we win). Despite my explaining what we are doing and why, to them it is just magic. Then they send others who want their own situations resolved through some of this magic. People call and say, “I heard you were good.” What they mean is not I heard you know what to do, do it in a timely manner, keep me informed, are friendly, polite, and accessible, and don’t price gouge me, but rather, you brought the magic of success to my friend and I want you to bring it to me.
It is not necessarily peoples’ faults that they think this way. There are a lot of factors that contribute to it. There is media simplification. There is an axiom about news consumption – the more you know about a topic, the more what you read in a jpurnalist’s article about the topic seems wrong. Journalists need to get it short and shortness does not lend itself to connecting all the dots about how the law works. Further, journalists prefer to report on people, not abstractions like laws and events. Thus, they prefer the narrative of the magic of the lawyer rather than the details of the law. Lawyers capitalize on the myth-making. Far be it (unfortunately) for a lawyer with bills to pay and loans to pay back to discourage clients who want to buy some of the magic.
Of course, the clients are also at fault. Some aspects of the law are opaque and volatile. A client who faced four grounds of deportability recently had his case dismissed when an immigration judge determined none of the charges was sustainable. Five years ago he would have been deported. Who even knows what a crime of moral turpitude is anymore? Other laws are rather clear. Since 1997, the law about three and ten year bars to immigrating and the permanent bar to immigration based on unlawful presence have been on the books and many people – including lawyers and government adjudicators – hardly grasp them. For almost 20 years people have been denied visas or permanent resident status because of these bars, hardly a family with undocumented members in it has not been touched by them and still people are clueless about them. Nearly everyday I have to go through the spiel about what these bars are to potential clients.
The black box of magic is a shortcut for understanding what is actually happening , but ignoring the black box does not mean a person misunderstands the reality of the situation – just the causation. We all lead our lives this way. I am writing this blog on my computer and will post it on the internet. Yet, I have little to no idea about how my computer hardware works, how the software works, or how the internet works. Yet I am very knowledgeable about how to post this blog entry. Like the law, it involves writing checks to people who deal with black boxes, like a pretty lady race car driver, I think.
People call me all the time and ask about Obama’s new law that they heard about on the news. My initial instinct is to shudder. Presidents don’t make laws. Congress makes laws. There have been no new laws of any major significance since 1997. Yet, people who did not have work permits before now do and people who faced deportation now don’t, so obviously there is some new something, call it a law or call it an executive order or a judicial decision, or a policy priority, or whatever. Play legal semantics all you want, there are new laws out there. The black box is my forest and I am missing the trees.
Just this week, a federal district court in California held that the government violated a 1997 agreement that immigration authorities should not detain of children. In February a federal district court in Washington, DC, held that immigration officials could not detain people arriving at our borders for the purpose of deterring others from coming to the United States. What happens when a family comes to the United States and expresses a fear of return is a long process begins. As laid out by statute and regulations, these aliens are supposed to be detained, an initial evaluation of their fear to see if it makes out a legitimate asylum (or related relief) claim is made, and if a claim exists, the family is scheduled for immigration court, and a custody determination is made. The family files an asylum application in immigration court and an immigration judge rules on it. Six months after filing the application, the family members are able to obtain work permits if the case has not been denied by then. If the application is approved, the family can stay. If the case is denied, the family can appeal. If they succeed, they stay. If they lose, they go.
However, none of this goes as smoothly as that. There are long delays in getting the initial interview and waiting for a decision afterwards. As the waits grow, most, by necessity, are released without these initial interviews. Some are sent to court anyway and some wait for a letter to attend an interview or a court date that never comes. Some get court dates months and even years later. Some judges dismiss cases because of the lack of an initial interview leaving the families without any apparent forum to seek permission to stay in the United States. The complications are myriad and the straight forward process is more a rarity than the reality.
Take away what goes on in the black box and this is what you have – this is what a family perceives. If you come to the border, you get arrested. You are held for a few days at most and released. Based on being released for humanitarian reasons, you get a work permit. Your kids go to school where they finally can learn in a safe environment and often receive breakfast and lunch. States provide benefits if there is no family to assist and even if there is. A letter may or may not come for an interview or for court, but that is months or years in the future. In the meantime, you have escaped the hell scape that is life in Central America, your kids are fed and safe (though lets not over-estimate how wonderful life is in a U.S. ghetto) and being educated. If a letter does come and an application can be filed, a process that takes years commences, by which time the children have grown and avenues for legalizing status may emerge if the asylum claim is not successful.
These families see clearly what is really happening. They may not understand how the system works or why things are happening, but as certainly as Danika Patrick is allowing you to read this article, these families are able to stay in the United States and be safe. That is all that matters to them, as it would be for you if you were in their shoes. Posted July 26, 2015.