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.

Published May 25, 2015 - Comments? None yet

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.

Published May 17, 2015 - Comments? None yet

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.

Published Apr 30, 2015 - Comments? None yet

On August 6, 2015, Brian M. O’Leary, the Chief Immigration Judge, the head of the immigration judges,  and Riah Ramlogan, the Acting Principal legal Advisor for ICE, ICE’s head of its immigration court prosecutors, both issued memoranda regarding prosecutorial discretion, here and here. While it may be coincidental, two memoranda on the same day from different agencies at different federal departments (ICE is part of the Department of Homeland Security and the immigration courts are part of the Department of Justice) certainly send a strong message – prosecutorial discretion in the immigration courts is alive and well. Ms. Ramlogan’s memo instructed her attorneys to have evaluated before all hearing  every case on the docket for the feasibility of exercising prosecutorial discretion in the case. Mr. O’Leary’s memo instructed immigration judges to ask about the feasibility of exercising prosecutorial discretion in each case on the docket. Previously, immigration judges were giving aliens in the court system time to seek prosecutorial discretion and ICE attorneys were evaluating cases usually only after pitches to exercise the discretion were made to them.

Prosecutorial discretion policies in the immigration court context were implemented in 2011 and strengthened in memoranda such as this one from the director of ICE on November 20, 2014, when President Obama announced initiatives to defer action to remove law-abiding undocumented aliens with permanent resident or U.S. citizen children (DAPA) and more children than were eligible for an earlier program initiated in 2012, who entered the United States before age 16 (DAPA).

The DAPA and new DACA programs have not yet begun because of pending federal litigation which I have discussed here. When a federal district court judge enjoined the implementation of DAPA and the new DACA, stories began circulating that ICE was no longer honoring the existing prosecutorial discretion programs. The twin April 6 memos make clear that the prosecutorial discretion programs in the immigration courts are still in force and in fact the implementation must be more thorough.

While to some the program seems only like a way to grant amnesty to illegals and in a way it certainly is, it is also necessary. As Mr. O’Leary writes in his memo, there are 429,000 cases pending in immigration courts. More are pending on appeal. The court system cannot deal with this many cases. There are three ways to solve the problem: 1) Speed up the processing of each case; 2) increasing the number of prosecutors and immigration judge; or 3). Reducing the number of people subjected to removal proceedings.

During the George H. W. Bush years, the solution was #1, speeding up the processing of each case. Immigration judges were exhorted to meet completion deadlines and quotas and the BIA began a process of summary adjudication of appeals. The result was not a reduction of the backlogs and led to due process challenges to unfair process. It turned out that the problem was not lollygagging immigration judges, but a system that could not move faster while doling out justice fairly. Solution #2 means Congress must allocate more money to the immigration court system, but Congress won’t do that. Thus the only answer is 3) reducing the number of people subjected to removal proceedings by not proceeding against low priority aliens.

Just as examples of the problem are cases that have crossed my desk this week. An alien in removal proceedings in San Francisco was recently scheduled for a hearing in his case in February 2018, more than three years from now. If his case does not get completed on that date, God knows when it will be continued to. An alien in San Diego who came to the country fleeing persecution in September 2014, will not be able to file his asylum application until November 2015, as his case has been postponed twice because the immigration judge was detailed for more important cases in other cities. God only knows when his actual hearing will be. A system that countenances such delays is not tenable. Doing nothing will mean actual bad guys will get to remain in the United States for years and people, like asylum seekers, will wait years to finally remove the specter of being returned to bad fates in homelands they have fled. Triage is necessary and that is what the prosecutorial discretion program provides. Deciding immigration cases should be in the hands of men and women. Scheduling should not be left to God. Posted April 12, 2015.

Published Apr 12, 2015 - Comments Off on Prosecutorial discretion in immigration court still should be going strong