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.
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.
Middle Easterners are flooding out of their countries into neighboring states, Europe, Australia, and the United States. Asylum applications are chronically backlogged in America’s broken immigration system. The various observers and students of the Middle East each have their favorite explanation for why the Middle East is in such turmoil. In the George W. Bush years, everything was Saddam Hussein’s fault. Get rid of Saddam and all would be peaceful. Anti-colonialists and pan-Arabists blamed it all on Israel. Get that corrosive, pride crushing imperialist settler state out of the region and all would be peaceful. Others blame Iran – fomenting Shiite dissent to splinter the Arab Nation. Israelis blame radical Islam, as if Iranian, Shiite, and Sunni radicals to include Hamas, Al-Qaeda, ISIL, the Ayatollahs, Hizballah, the Taliban, Lashkar-e-Taiba … are all secretly united in Doctor Evil’s lair despite their ideological and theological animosities. America’s Tea Party and fellow-traveler Nativists blame our President for this and everything else as if all was rosy before 2009 and will be again in 2017.
If I were to choose a primary cause, it would be Saudi Arabia. Saudi Arabia was the fulcrum of Sunni Arabism because of its financial and political clout. So successful were they in cultivating their view of the Middle East as a homogenous Sunni zone from Morocco to Iraq that it was not until recently that people learned just how heterogenous the Middle East is. Kurds, ten percent of Syrians, suffered under a pan-Arabist vision of a United Arab Republic and then a Syrian Arab Republic that denied their existence. Christians make up ten percent of the population. Saudi Arabia and the Gulf States suppressed their Shiite populations. Of course, Sunnis are not alone in promoting an illusory homogeneity. Iranian Azeris make up twenty percent of Iran. Turkey has long denied that Kurds there are anything but a unique brand of Turk. Israel, in fact, is half-filled by Jewish Arabs who could not survive in the Sunni Pan-Arab myth perpetrated by the Saudis, the Sunni benefactors in the region.
But this myth could not hold. First, in Saudi Arabia and the rest of the Middle East populations have been greatly expanding. Shiites in Iraq and the Gulf have mushroomed in population, making a previously small oppressed minority into a large oppressed minority. In Yemen they just took over. In Bahrain they are extremely restive, testing the American resolve to let the Arab Spring blossom out of fear of our losing its fleet port in that kingdom.
Second, Saudi Arabia stood for little but its own existence and trying to maintain an unsustainable status quo. The monarchy ruled while amassing great wealth to itself and doing too little for the commoners. It allied itself with a conservative religious establishment whose view of Islam is not so much different from the Sunni radicals that now threaten it. Stoning, whipping, amputation, ans veiling women are their common manifestations of faith. Money is said to be flowing from Saudi Arabia and the Gulf kingdoms to extremist Sunnis, such as Al-Qaeda and ISIL, without much hindrance. While providing lip-service to its hostility to the Zionist Entity, it has done nearly nothing to help the Palestinians achieve either statehood in a portion of Palestine or assisting them in liberating it entirely. Its close relationship to the United States belied any commitment to the Palestinian cause and it turns a blind eye to Arab atrocities against the Palestinian diaspora. Walking the beaches of Israel in the 1980’s, one’s feet would get covered in oil that was mysteriously piped from Saudi Arabia through a country it would not even name. It is not a coincidence that Israel’s former President Shimon Perez gave a nice eulogy for King Abdallah who just died at, not surprisingly, 91 years of age.
This was not a sustainable model. The exploding young population sees the bankruptcy of a foreign policy appeasing the very enemy that the country says it stands against and ignoring a People the government says it supports. Religious minorities and the non-royals see their economic and political power stagnate while the Saudi family continues to hoard money and power to itself. The young, raised on the monopoly of strict Islam, actually take it to heart instead of seeing it as a cynical political-religious accommodation for the benefit of the monarchy. They embrace it and adopt it to a movement of political action, first led by the Saudi Usama bin Ladan and his cohort and later by ISIL in Syria and Iraq and now abutting the Kingdom itself.
Saudi Arabia had choices to make. Accommodate Israel in the region or work seriously to get rid of it. Instead it played lip service to getting rid of it while trading with it and accommodating it by its support of its supporters, such as the United States. Either embrace the politics of modern political Islamic Sunnism or struggle to free Saudi Arabia from its Wahhabist religious leaders and bring the country into the modern world – which would also require acknowledging the needs and rights of commoners, Shiites, non-Arabs, non-Muslims, and women in the country and the region. Instead, everything festered. The corrupt Sunni elitist structure eventually began collapsing around the region and is now struggling to reassert itself in Egypt and has splintered Libya. The oppressed in Alawite Syria took to the street and then to war, but their movement was hijacked by the Islamist radicals the Sunni religious establishment in Saudi Arabia and the rest of the Gulf clandestinely supported and may still support. They chose implacable hostility to Iran and Shiites instead of seeking an accommodation for mutual development and prosperity and even a joint accommodation with Israel or joint action against.
The 50’s were not a great time for Saudi Arabia, but it is the time period in which it is locked and thereby locked the Arab world in stagnation which resulted in the fermenting of dissatisfaction for the next generations. Well, that closed container of anachronism, corruption, hypocrisy and religious extremism had to blow sometime and that time seems to be now. The people who live in the region are suffering and they are coming here and everywhere for safety. Posted January 24, 2015.
Readers may have noticed that I have not posted for a while. My semi-routine blogging got interrupted – by Lenovo. Here’s how.
My office’s copier contract ended and it was time for a new copier. Copiers these days – I address those more Luddite than I am – are networked. That means one needs a computer that connects your computer to the copier. I call it the server – hopefully not a stone age reference. (The computer guy keeps a straight face.) Then you can scan to your computer (and other users’ computers), fax, and print remotely to the copier. I needed a new computer to act as the server as the one that served this function to the old copier was a computer as heavy as a Buick and that ran an operating system that Windows does not support anymore so it was extremely vulnerable to hacking. I doubted the new copier could talk to the old computer. My solution – take my home desktop to work and have it serve as the server and then get something else for home. I liked the idea of something I could use as a desktop, a laptop for travel, and a pad for reading. I earlier had a laptop/tablet and realized, as I was developing Popeye forearms, that it was too large and heavy to serve as a proper pad. I bequeathed it and went back to my desktop for writing and actual paper for reading – putting back to use the paper bundles with witty covers the New Yorker would send me every week. But now was my chance to try again.
Searching the net, I found that Lenovo had a new product, the Thinkpad Tablet 10. It claimed to be a pad with all the power and capability of a laptop or desktop and the ability to be configured to actually be a laptop or desktop through a series of ingenious accessories, including a Dock (not a docking station) which, according to its YouTube boosters, was magnetic, elegant, and ingenious. I decided to get it. Curiously, here was the machine of the Millenium, imho, and no one was selling it. A few days after I caught the purchase fever – like new Love, when I decide I want to buy something after careful, rational research, once the decision is made, I can barely think of anything else until I have it. My capitalist Minders have trained me well – I found it on Amazon, and thanks to Amazon Prime, had it two days later. I got it just in time to bring my desktop to work to assume its new role as a server.
Now at home, where I usually write my blog, I had a pad, which one would have to have the tenacity of Jean-Dominique Bauby (Dive Bell and the Butterfly) to write a blog with, which I don’t. I needed the Dock. Again, curiously, the accessories were not available in stores or online. This is a real product with a real company behind it, Lenovo, probably the largest tech company in the whole Communist International, and yet the accessories for a device marketed as great because of the great accessories, were not available. Despairing, and without a writing tool to satisfy my readership, I went to the source, the Lenovo website, and ordered the Dock and a nifty cover, also not available anywhere, from Lenovo directly. Soon, but not Amazon-soon, thereafter, the cover came, but no Dock. A patient person – remember I am an immigration lawyer and deal with a bureaucracy for which 60 days is the blink of an eye – I waited about three weeks for the Dock. I then emailed Lenovo through their Customer Contact online system twice and got no reply (and no notion that the emails were ever sent). Finally, I called Lenovo. The woman in Customer Service tapped away on her keyboard which I could hear over the phone and told me that my cover was delivered three weeks earlier. I agreed, but told her that it was the Dock I was calling about. She tapped away a little more and then asked if she could put me on hold. Having not embezzled billions from party coffers, I thought it safe to wait. She came back five minutes later and informed me that Lenovo was not making the Dock. I exclaimed, “That is real weird because that is the only reason I bought the pad in the first place.” All that waiting to get a pad that would also be a desktop (I should add that with the cover and a bluetooth portable keyboard I bought, it was also supposed to work like a laptop, though the cover, which served as a stand, sucked as a stand), and it could never happen. Never. Ever. I realized that berating a poor lady on a telephone in Orange County (I am guessing) about my motivation to buy my computer would help neither of us, I thanked her and hung up. I had gone a month in anticipation, learned Windows 8.1, which I think is a quick way to develop schizophrenia – should I go online or use an app, but the app isn’t available (I think the tag line for all app advertisements should be, “Now available at the iTunes Store, coming soon for Android, and never for Windows.”), should I type it, click it, or touch it? – and ended up without my dream machine. I contacted Amazon online, printed out some labels, and sent the Pad back. To my relief, Amazon took it back and refunded me. Then I went to the store and got a new desktop – I am right back in the 1990’s where I belong.
And so, readers, that is why I have been down for the last month or so. One day I’ll find that versatile pad that is also a desktop and perhaps also a portable fishing rod. But that will have to wait until this desktop becomes obsolete in 2025. Anyway, to paraphrase Charlton Heston, Damn you to hell, Lenovo. Posted January 18, 2015.