Archive for the ‘ General ’ Category

A week of reinventing the wheel in a system too complicated to administer.

Sunday, May 17th, 2015

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.

What if he was a foreigner?

Thursday, April 30th, 2015

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.

Prosecutorial discretion in immigration court still should be going strong

Sunday, April 12th, 2015

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.

USCIS in San Diego has new rule – no proof of submission of documents

Friday, April 3rd, 2015

Every adjudicative body I have ever dealt with, from government agencies to the Supreme Court, provide proof of filing documents. Today I met the exception. I delivered documents for a case as requested by USCIS to the San Diego USCIS office. I gave the packet to an officer at a window. I brought two copies – one for him and one for me. I asked him to stamp or otherwise verify on my copy that he received it. He said that USCIS does not do that anymore. “He is not allowed to!,” he said (exclamation point added). He showed me a little green log book he was logging the submission in and that served as the proof of my delivering the packet.

If this is indeed a new policy, then it is a very stupid policy. If in a few weeks USCIS asserts it did not receive what I hand-delivered today, how can I prove that I delivered it? How do I know what he wrote in the little green book? If it is not the policy not to give proof of receipt of documents and some Tucker Carlson-looking guy is making things up, then educate him and show him how to use the receipt stamping machine. Also, monitor him to make sure he is not making all kinds of other things up.

Don’t worry, you say. If you delivered it, USCIS has it and everything will work out. That USCIS misplaces documents is a given – everyone has been known to misplace documents. USCIS even has a regulation, 8 CFR § 103.5(a)(2)(ii), contemplating losing or overlooking evidence. Why remove a simple and commonplace protection for customers of USCIS? Riddle me that, USCIS. Posted April 3, 2015.