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.
The recent massacre in Charleston and the threatening emergence of ISIS are both dominating the news these days. The relationship between these two events leads to a meaningful lesson.
Starting with Charleston, the June 17th murders at the Emanuel African Methodist Episcopal Church by a young man who wrapped himself in the Confederate flag as an emblem of racism and justifiable murder highlighted the irony that in the old Confederacy, the heroes of the South commemorated in statues throughout the South and lending their names to the roads and bridges of the South are the names of treasonous enemies of the United States and dedicated slave owners. Reporters and pundits have pointed out the hypocrisy and the need to eliminate all vestiges of the Confederacy and most certainly the veneration of the Confederacy. These same reporters and commentators marvel at the idiocy of the Civil War’s victors for allowing for the honoring and glorifying of Confederate politicians, theoreticians, and soldiers.
Also these days, the world is being rocked by the specter of the Islamic State which now controls a vast swath of Mesopotamia and is threatening to make a move on Damascus and perhaps Baghdad. From whence came these monsters? Let’s go back to beginning of the misery, 2003. The United States invaded Iraq to topple Saddam Hussein – not literally just Saddam Hussein, but also the Ba’athist government he controlled. So the Americans occupy Iraq and what do they do? They eradicate the Ba’athist regime. The Ba’athist Party was essentially a secular Sunni party and the institution for the domination by Sunnis of Iraq’s Shi’ites and checking the aspirations of Shi’ite Iran. Disbanding the military and the police, run and led by Sunnis as a power center for the Ba’athists, firing Ba’athist officials from all government positions, and allowing for Shi’ite power in Iraq and Shi’ite influence from Iran meant the stripping of the Sunnis’ wealth, power, and safety. Then the killing began.
The Sunnis, besieged by the emergent Shi’ite government of Iraq, Iranian-advised and supported militias, the Americans, and by the Shi’ite powers in Syria and Lebanon, and without any secular state champion, radicalized into the ferocity that is the only story of Sunni success in the region, the Islamic State.
Suppose instead of Paul Bremer, the post-invasion viceroy of Iraq who had this pedigree:
Born in Hartford, Connecticut, Bremer was educated at New Canaan Country School, and Phillips Andover Academy. Bremer graduated from Yale University in 1963 and went on to earn an MBA from Harvard University in 1966. He later continued his education at the Institut d’Etudes Politiques de Paris, where he earned a Certificate of Political Studies (CEP)
the head of the occupational authority in Iraq had been a Southern gentleman who spent his life surrounded by Robert E. Lee and Jefferson Davies Avenues, Highways, and statues and breathed in every day how peace was best established and maintained by treating the defeated South with dignity and honor and allowing Southerners to retain their myths and conceits, as awful as some of these myths and conceits were?
Would Iraq now be a stable democracy as the invasion had hoped to accomplish instead a disaster becoming more of a disaster every day? Come to think of it, the first head of the occupational authority, before Mr. Bremer, was Jay Montgomery Garner, born in Florida and presumably raised there. His plan for Iraq was to form an integrated government including large numbers of vetted Ba’athists, acknowledging that they had the know-how to run Iraq. What happened to him? He got canned. And his plans for Iraq? Discarded.
Is it possible with a different attitude toward the defeated, Iraq would have turned out to be a success story in democratization and successful nation building? Could it have been that 150 years from now tourists would have walked around Baghdad (something now not even imaginable) and wondered how come those assholes didn’t tear down the Saddam Hussein statue in 2003? Posted July 12, 2015.
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.