The flow of families with children and unaccompanied minors has been dominating the news recently. The causes of the trend are beginning to be explored with some care and insight by the media after at first relying on, I hate to say it, the imbecilic conspiracy theories of Texas Governor Rick Perry (I hate to say imbecilic theories, so, Rick Perry fans, I have not said his theories are imbecilic) and the Republican Party’s blame President Obama answer to any question. I predict that within a year or two Republicans will be blaming global warming on President Obama – “If only he led instead of making speeches, we wouldn’t be in this mess.”
I discussed some of the causes of the family surge here and the media has discovered the the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) and the Special Immigrant Juvenile Status (SIJS) program the TVPRA created based on a noble goal of protecting children, except Mexican children, from abuse, abandonment, or neglect. There is little doubt that the unintended consequences of poor funding of immigration programs and the humanitarian goals of the TVPRA have contributed to the present border problem. I resist the hyperbolic reference to this problem as a crisis. The U.S. is dealing with the arrival of approximately 50,000 families and children fleeing the ravages to our south. In a country of 318 million, that is a problem. Jordan, a country of 6.6 million, has had to deal with 1.2 million refugees fleeing the ravages to its north. That is a crisis.
The immigration funding issues and the TVPRA have had unintended consequences as pull factors – factors attracting families and children to the United States. However, in addition, there are unintended consequences of U.S. policy that have created many push factors – reasons that lead families and children to leave their Central American homes.
America’s history of involvement in Latin America has led to the poverty and oppression that people are fleeing. You don’t have to be a Marxist political scientist to see that funding and support of right wing dictators, armies, and militias over impoverished peasants and indigenous populations seeking a little justice and a little piece of the pie is going to have the unintended consequence of causing people to leave their countries out of fear and need.
Deporting U.S. resident gang members back to Central America by the thousands per year since 2001 has had the unintended consequence of causing gang violence to pervade Central America. Supporting a drug war in South America and Mexico has had the unintended consequence of moving the drug violence to Central America.
It is not like America has been sitting around minding its business and suddenly thousands and thousands of people are showing up at our borders. It is caused by the unintended consequences of U.S. policies. More enforcement and abrogating laws providing for human rights protections may help stem the flow a little by reducing some of the pull factors, but without seriously addressing U.S. policies that lead to unintended push factors, the problem will not be solved. Despite making it more miserable for people to come and stay in the United States, it is still going to be more attractive to try than facing torture and death in Latin America so people will continue to come. Posted July 13, 2014.
In one short week, this is some of the wisdom that has come from USCIS.
1. A, from Las Vegas, is a long-term permanent resident. A’s ten-year green card is expiring next month. A went online to the USCIS website to file to renew the green card. A then took the receipt for $450 to the Las Vegas USCIS office with A’s passport so A could get A’s passport stamped with proof that A’s permanent resident status was not expiring, just A’s card. The officer told A that A could not apply for citizenship until A gets the new card, which A was told, would take about a year. Why would the information officer say such a stupid thing about not being able to apply for citizenship for a year and why does it take a year for USCIS to send a new green card to someone? Master Card will send you a new credit card in less than a week if you lose and they do not even charge you $450. If it is expiring, they send you a new one without your asking.
2. B, a United States citizen parent who was raised and lived abroad, immigrated a child, C, through a U.S. Consulate. Once C came across the border, admitted to the United States as a permanent resident, B took C to a post office and got C a U.S. passport. According to the Immigration and Nationality Act Section 320, a child (born after February 7, 1983) automatically becomes a citizen if the child as at least one U.S. citizen parent by birth or naturalization; is under 18 years of age, lives in the legal and physical custody of the U.S. citizen parent, and is a lawful permanent resident.
USCIS sent B a letter telling him that C needs to pay $165 for a green card to be made. B ignored the letter. B got a second one. B called the USCIS National Customer Service Center and told them about the letter and asked why a U.S. citizen would have to pay $165 for a green card. The officer angrily explained that a passport from the Department of State means nothing. If he did not pay they would have big trouble as C is not a citizen until USCIS says C is. Why does USCIS want $165 from U.S. citizens to make them green cards? Why would a USCIS information officer tell someone something as absurd as that a U.S. passport is not proof of citizenship?
3. D, who entered the United States without a visa as a child and was raised in this country married a U.S. citizen who served in the military. D called USCIS’s National Customer Service Center and asked how D could become a permanent resident. Ordinarily, a person cannot become a permanent resident while in the United States without having entered the country with inspection. D was told that because D entered without inspection, D could get a green card by applying for asylum and explaining D’s predicament. D did this and because D did not qualify for asylum – fearing persecution based on race, religion, nationality, political opinion, or social group – D was placed in removal proceedings. D then applied for “Parole in Place,” a USCIS policy that allows spouses of veterans to be deemed as having entered with inspection as a parolee so the person can adjust status. USCIS in San Diego refuses to issue the Parole in Place because D is in removal proceedings and that ICE needs to issue the parole document. Parole in Place is a USCIS program. ICE was not delegated the authority, USCIS was. The purpose is to make life easier for military families facing having to be separated because of an illegal entry. From what orifice did the San Diego office pull out the wisdom that ICE could issue Paroles in Place and that it was not available to people in removal proceedings – particularly those in proceedings because of USCIS’s own wrong advice?
4. E petitioned USCIS to remove the condition on E’s residence on Form I-751. The USCIS in Laguna Niguel asked for a piece of paper. E sent it and post office tracking and return receipt shows USCIS received it long before the deadline it set. Then USCIS sent a letter saying it did not receive the piece of paper and was denying the petition. The denial letter explained that E could file a form and pay $680 if E wanted Laguna Niguel to reconsider the denial. E went to the San Diego local office and asked how it could be that if E sent the paper on time and it was received on time, E was denied and E had to file a reconsideration form and pay $680 to fix USCIS’s obvious mistake. The San Diego officer agreed with E and told E all E needed to do was write a letter explaining the situation to Laguna Niguel and everything would be alright. E immediately did. E got the letter back telling E that E’s request for reconsideration was rejected because E did not include the $680 fee and the appropriate form. E immediately sent the form and fee – but by then the deadline for filing the reconsideration request had passed. In the meantime, USCIS placed E in removal proceedings incurring more stress and more expense. Why would the San Diego office tell E not to file the form and fee? And why, after the San Diego office was alerted to its mistake (by me), is it powerless to intercede on E’s behalf? Will USCIS accept the late reconsideration request? Will it act on it in a timely manner?
The advice USCIS provides to the public can be wrong and hugely damaging. Its self-monitoring of its information officers is abysmal. How can it tell people to apply for asylum when they shouldn’t, tell people not submit forms and fees, insist that citizens pay for permanent residence cards, and make up naturalization requirements? And why can’t USCIS straighten out the messes IT creates for people? Is this any way to run an immigration system? You bet it’s not. Posted June 29, 2014.
The news is full of stories about how families with children and unaccompanied minors are flooding into the United States from Latin America. It is bad times in Latin America. Families are coming to America fleeing crime, violence, and the impacts of climate change. News reports indicate that people are operating under the misconception that the laws have changed and they are welcome in the United States. Changes in administrative practice may have helped foster that opinion. Some people attribute the misconception to the President’s Deferred Action for Children Arrivals (DACA) program. The participation rate in the program is far lower in the United States than was expected. One likely reason is the lack of knowledge of the program. If news of DACA has not percolated through the Latin communities of the United States, why would we expect it to have percolated throughout Latin America? In 1997, new laws created harsh punishment, a ten year bar, for people who cross into the United States illegally after being here illegally for more than a year and departing or having been deported, but 17 years later it seems most Hispanics in the United States are not aware of it and, based on the large numbers of aliens directed to go abroad to get a visa by United States attorneys when the alien is ineligible for a visa for ten years, even many immigration attorneys seem unaware of it as well.
What has changed is how America is handling people coming to our borders. To get the complete picture, we need to go back to 1997. In that year, along with the “10 year bar” laws I just referred to, Congress changed the rules about how people coming to the border without proper documentation are handled. Before 1997, these people would be arrested and sent to an immigration judge. There an alien could ask for asylum. Asylum is hard to get. Being afraid of death in your home country is not a reason to get asylum. Being so poor you (or your children) will die is not a reason to get asylum. Being so sick you will die is not a reason to get asylum. A person can only get asylum if they demonstrate an objectively reasonable well-founded fear of persecution based on race, religion, nationality, political opinion, or social group. While, as I have written, social group is a hot topic, but fear of crime, violence, corruption, hunger, or disease are not in the vast majority of cases bases for social group or any other kind for asylum. Consequently, the vast majority of asylum cases were denied. The problem was the time it took. Back before 1997, like now, the immigration court system was severely backlogged. It was neither humane of feasible to keep people detained while they pursued their cases, so people were released and were able to fight their cases for years while free. In 1997, Congress tried to stop this system. It created a new system where aliens who did not have the proper documentation to enter the United States could be deported at the border by immigration officers at the border. The immigration court was cut out of the system. Once the program was inaugurated, officers at the border quickly racked up far more deportations per year than immigration judges did. Asylum seekers coming to the border could still seek asylum. In that case, the alien was mandatorily detained (“Pending the credible fear determination by an asylum officer and any review of that determination by an immigration judge, the alien shall be detained. Parole of such alien in accordance with section 212(d)(5) of the Act may be permitted only when the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.” 8 CFR 235.2(b)(4)(ii)) and was interviewed by an asylum officer. The asylum officer listened to the alien’s asylum claim in a process called the “credible fear interview.” If the asylum officer believed that the claim had merit, then the person was able to see an immigration judge and could seek asylum. After a successful result of a credible fear interview, the alien could also be released from detention. If the alien’s credible fear interview was not successful, the alien was allowed to see an immigration judge who would assess the credible fear determination of the asylum officer. If the immigration judge agreed with the asylum officer, the alien was deported. If the immigration judge disagreed with the asylum officer, the alien was allowed to present his case to the immigration judge in a full-blown removal hearing. The goal was to winnow out the lame asylum claims and expedite the removal of people coming to the border without valid asylum claims.
Then, the world fell apart. The United States liberated Iraq from the tyranny of Saddam Hussein, causing huge flight from Iraq, particularly of the Iraqi Christian population, who while they may have been able to endure the oppression of Saddam and his Ba’ath Party, could not endure being blown to bits or decapitated in a sectarian civil war. The Mexican government decided that governing in cooperation with drug cartels was no longer feasible, and went to war against the cartels, leaving many Mexicans caught between the cartels and the army and the police not knowing who worked for whom. Again, like with the Iraqis, while they may have been able to endure living in a corrupt, criminally co-opted state, they could not endure being tortured and killed by the police, the army, and the cartels. A lot of the rest of the world was not doing to well either. Latin American countries were suffering from drug crime and dictators. These dictators suppressed revolutions, but while they may have pacified the country from revolutionaries, pacification did not bring peace to the people, who faced corruption, political violence, and crime they could not endure. Somalia, without a government since 1990, was still spewing out asylum seekers caught in the middle of tribal warfare. People were coming to the border and our government had to react. Under President George W. Bush, the government chose the option of insisting that virtually all asylees coming to the border remain detained. With the flood of people coming to the border, it began taking months for credible fear interviews and months and months longer for asylum hearings. Appeals could take years more. That was a lot of people to detain – including families and children. News stories came out of people detained for nearly endless periods while pursuing asylum. These were people whose claims were that they were fleeing for their lives ended up locked up for months and years by the very country they thought was their salvation. Conditions such as overcrowding, the absence of health care, and abuse were criticized It was like Julie Andrews and the von Trapps spending two years in a harsh detention center after fleeing Austria. It was putting a black shadow on the Shining Beacon on the Hill. And make no mistake, these asylum seekers were not being housed in country clubs. They were housed in jails with criminals. Kids were held separately from their parents and had limited access to their parents. Reports of what was going on were chilling.
Along came a new President and new policy. The near-mandatory detention scheme of President Bush made way for the release of asylum seekers. Still, court backlogs were long. People were free from detention, but they still had wait long periods fighting their cases. Being free gave them more incentive to fight longer, but many would have fought anyway as the alternative was return to the death they were fleeing, though because of the bad situation on the ground in the countries they came from and sometimes because of poor relations between the home countries and the United States, people could not be returned anyway. Since a deportation officer could not accompany a deportee to Baghdad or Mogadishu and would not be allowed into Tehran or Hanoi, many would be able to stay – win or lose. We at least had the initial credible fear screening, at least. Except, there was a scarcity of asylum officers and wait times for the credible fear interview was months and months. Even though those who passed their credible fear interviews could be released, those waiting for these interviews still were supposed to be detained. That ended up meaning prolonged detention that many considered obscene and un-American. Customs and Border Protection began releasing families before the credible fear interviews with the goal of having the interview later. But that soon broke down and they started sending these families directly to immigration court. Wait! you say. The law forbids this. Wouldn’t immigration judges conclude that they lacked jurisdiction over a case until the regulatorily mandated credible fear process was completed? Indeed many immigration judges did and immigration courts terminated cases. This left large numbers of new-comers under no one’s supervision. Well, this could not go on, obviously, so the Board of Immigration Appeals came to the rescue. It determined that language in the statute that said an alien “shall” be placed in expedited removal proceedings where the exception to removal is a credible fear interview does not really mean “shall,” writing in Matter of E-R-M- and L-R-M-, “It is common for the term ‘shall’ to mean ‘may’ when it relates to decisions made by the Executive Branch of the Government on whether to charge an individual and on what charge or charges to bring.” Thus, Customs and Border Protection was now free to release arriving families and send them to immigration court without the credible fear screening process. So instead of being detained and undergoing a credible fear screening, aliens with families are released at the border and given papers to go to immigration court, beginning a process that can take years. Many do not even receive hearing notices as Immigration and Customs Enforcement, which takes care of the cases once the aliens are released at the border by Customs and Border Protection, in many cases is not even issuing hearing notices. Whether it’s because ICE is too is slammed with cases to process them or it is cynically delaying cases so aliens will miss the opportunity to apply for asylum is hard to know. An alien must apply for asylum within one year of entering the country and the application, if a person is in removal proceedings, must be filed at a hearing at the application in court. If the alien is not scheduled for a hearing, he cannot file his asylum application in immigration court. Thus, the opportunity to seek asylum disappears. A savvy alien who does not receive a court date can file an asylum application with U.S. Citizenship and Immigration Services, but when someone is told to wait for a court date, most likely that is what the person will do. And that is not all.
In the olden days, an asylum seeker was eligible for a work permit. The alternative would be that Julie Andrews and the von Trapps would be free in Switzerland but without any way to support themselves. Under rules initiated in 1995, Julie Andrews and the kids were out of luck. A law change made asylum seekers ineligible for work permits until their asylum applications were pending for 180 days. The clock started when the asylum application was filed. Immigration judges often found reasons to stop the clock, essentially making it impossible to ever get a work permit. This was designed to have a dampening affect on attracting asylum seekers to the United States and the filing of frivolous asylum applications for those who were here. (A class action lawsuit led to a court order that stopped a lot of the clock-stopping shenanigans.) This too has changed. The alien families released into the United States were released under the government’s parole authority to parole people into the United States for humanitarian purposes. These humanitarian parolees could obtain work permits from USCIS. Though ineligible to receive permission to work as asylum applicants, they were able to receive work permits as humanitarian parolees. Clients would come to my office and I would explain how the system worked including how they would have to wait many months and potentially never receive a work permit, at which point they would pull one out of their wallets. “Fat lot you know,” they likely were muttering under their breaths in Spanish, Arabic, Chaldean, or Somali. Indeed. The result of release, a work permit, and an interminable removal process makes the costs and risks of coming to the border and asking for asylum acceptable to more wretched people.
So are all these changes – not detaining families, sending people to court without credible fear interviews, not filing cases with the immigration court, the monumental wait times to resolve cases, and the issuing of work permits to parolees the President’s fault? Actually, I think the fault lies in a Congress that knows of no government program, except for actual defense spending, and not the mere defense of the border through effective administration of the immigration laws, that deserves proper funding. Had Congress funded family-appropriate and less jail-like detention space which was the topic of much discussion but less action in the early years of the Obama administration – after much investigation, the San Diego detention center did put umbrellas in the sun-drenched area where families wait to see their relatives – the hiring of enough asylum officers to complete credible fear screenings, enough immigration judges to expeditiously handle asylum claims, and enough appellate board members at the BIA and appellate judges at the courts of appeals, things would have been different. Instead America is getting what it paid for. Posted June 22, 2014.
Immigration law is complicated. A major reason is that it changes so much. In law school, when studying torts or property law, often students read seminal cases from the British House of Lords and “modern” cases from fifty years ago. An immigration lawyer can very seldom rely on an old case’s relevance. Immigration law is statute, agency, and court driven. Statutes and regulations change all the time and courts issue decisions all the time. Compounding the difficulty is that the implications of new laws and decisions affect areas of the law unanticipated when the new law came into affect. Even simple issues become needlessly complex. A recent Ninth Circuit case regarding the straightforward question of when does one appeal, Abdisalan v. Holder bears this out.
Nearly everyone is familiar in general terms with the appeals process. The lowest court makes a final decision. When the case is final, the loser can appeal. When the appellate case is decided and a final decision is made, the loser can appeal again, until there are no more courts to appeal to. The basis appeal process for a removal-based immigration case is:
Immigration court -> Board of Immigration Appeals -> Federal Courts of Appeal -> United States Supreme Court.
A wrinkle is that before relief can be granted in immigration cases, background checks must be completed by Immigration and Customs Enforcement and these checks expire after the passage of time. As to what is the meaning of a final decision in immigration law, Congress defined final at INA § 101(a)(47)(B), where it states:
[An] order … shall become final upon the earlier of— (i) a determination by the Board of Immigration Appeals (BIA) affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.
Instead of sticking to this simple definition, the Ninth Circuit, facing different scenarios, came up with various rules. Some scenarios are:
1. Suppose an alien seeks several forms of relief from deportation, including voluntary departure, and the immigration judge denied them all except voluntary departure. The BIA concurs with the immigration judge, but remands for background checks to be performed.
2. Suppose an alien seeks several forms of relief from deportation, including voluntary departure, and the immigration judge denied them all except voluntary departure. The BIA feels that the immigration judge was correct about denying some forms of relief, but did not properly address others.
3. Suppose an alien seeks several forms of relief from deportation, including voluntary departure, and the immigration judge denied them all except voluntary departure. The BIA feels that the immigration judge was correct about denying all of the other forms of relief, but did not properly address only voluntary departure.
4. Suppose an alien seeks several forms of relief from deportation, and the immigration judge grants one type of relief other than voluntary departure but denies others. The BIA feels that the immigration judge was correct about granting some relief and not other relief, but remands for background checks to be performed.
Ms. Abdisalan’s case was most like Scenario 2, but is a complex hybrid with some Scenario 4 mixed in.
If a case is remanded for background checks, or for voluntary departure, or to consider other forms of relief, is the decision final? Without going through all the cases and all the permutations, which you can read here in Abdisalan and in the links, below, to appellant and government briefs regarding re-hearing, the result is that it is a very hard question to answer. This is bad. It should not be hard to know when to appeal. Appealing is expensive. The filing fee alone for an appeal at the Ninth Circuit is $500. And then there are attorney fees. The first obligation is not to miss a deadline. Because failing to file means missing the opportunity to appeal, then, to be safe, after every remand you have to file an appeal. The costs become high. But the work does not end with just filing the appeal. Each time there is going to be squabbling (which implies briefing), about whether the appeal is ripe or already pending.
It is not just me who says making something so complicated out of something so easy is bad. Mr. Abdisalan believes so as he asked the Ninth Circuit to reconsider the decision. The government also thinks so (Scroll down 29 pages) as it told the Ninth Circuit their decision is wrong. The Ninth Circuit agreed to re-hear the case en banc. Hopefully the Ninth Circuit will agree that they need to straighten out the big mess about when to appeal and put forth a simple definition of “final” finally. Posted May 26, 2014.