Amnesty is here! Government, stay closed forever.

Saturday, October 5th, 2013
By: Jonathan MontagJ.D.

Voters choose whom to vote for by what is dearest to them. I remember in high school, my wood shop teacher (Back in the day, kids were offered all kinds of classes in high school such as shop, auto repair, art, music, home economics, and still learned how to read.) encouraged us to vote for politicians who voted for progressive forestry policies. Citizens vote based on a politicians views on their pet issue, be it Israel or global warming (both believers and deniers) or nuclear energy or coal or baby seals. My pet interest is immigration. I love the shutdown – like the voter who votes for the pro-forestry candidate who also wants to mine Haiphong Harbor (It has been some time since I was in high school.) I care little about how the shutdown has stopped food inspection, IRS services to people needing to buy homes or obtain refunds, air crash investigations, auto safety research and investigations, and even national park access to World War II veterans, the shutdown is great for immigration and so I hope it lasts forever. Here’s why.

The immigration courts and their appeals board, the Board of Immigration Appeals (BIA),  are closed except for detained cases.  Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are still open for business.  As a result, more and more aliens are being funneled into the immigration system by being placed in removal proceedings by ICE and CBP, and fewer and fewer are being processed through the system by the immigration courts and BIA. Aliens in proceedings before these tribunals are thus not getting their hearings. The result is they cannot be removed — a de facto amnesty.

For almost a week, now, the immigration courts have been closed. The immigration courts are already woefully backlogged. Immigration attorneys who use paper calendars already have their 2014 Day Timers and are shopping for their 2015 calendars. In some “lucky” jurisdictions, cases are being scheduled in 2016 and beyond. Congress, refusing to fund the immigration court system to allow for timely adjudication of immigration cases, has allowed for longer and longer backlogs. Now, with the courts closed, those backlogs are getting worse. Last week, four days of non-detained hearings were canceled. At the same time ICE and CBP have been generating new cases. Thus, the backlog as increased at least 2 percent (1 week / 52 weeks in a year).

Courts being closed cuts both ways for aliens, but for the most part I have to think for aliens, it is a good thing. Obviously, if an alien is seeking a benefit from the immigration court, such as asylum or permanent residence, the court’s closure means he will not get that benefit. If an alien in the system expected an immigration judge’s granting his benefit on October 4, 2013, he now may not get back to court until October 2016. This could be a tragedy for, let’s say, an asylum applicant who can only bring his spouse and children to the United States after being granted asylum. On the other hand, most asylum seekers lose their cases and, after exhausting any appeals available, are then deported. That day of reckoning has now been pushed off for years. The delay will allow the asylum-seeker to obtain permission to work. Isn’t that he wanted – a safe haven and an ability to work until bad times in his country blow over? And in the mean time, a young person arriving at our borders and seeking asylum will now have a few years to do what young people do best – falling in love and getting married – providing another avenue for relief.

Some aliens have relief in immigration court and are just waiting for the opportunity to ripen. Suppose an alien and his alien spouse came to the U.S. many years ago and overstayed a visa. He and his mate then had children here, but the couple could never become legal. The alien then had the misfortune to be placed in removal proceedings. Now, his children are approaching 21 and are able to petition for him. In October 2013, the child may be 19 or 20, and an immigration judge may conclude that that is too long to wait for the child to turn 21 and compel the alien to depart the United States. Because that hearing was canceled and the case may not come back before the immigration court until sometime in the middle of 2014 or even much later, that child is now closer or has reached the magic age 21, and new relief becomes available.

And what about those who have no relief at all? The passage of time may provide more avenues of relief. But for those for whom new relief does not emerge, instead of being deported in 2013, deportation is pushed off until 2014? 2015? 2016? allowing for more time with family, more time working, more time in a country that is trying to force them out. And more time for a new immigration law to pass that could provide relief from deportation. Also, for those waiting for the appellate courts to overturn bad interpretations of the law, more time means a greater chance for reversals to occur.

All the while, while the non-essential immigration courts and BIA are closed, the self-supporting USCIS is still open for business and can still issue work permits to those in the immigration court system who are eligible for them while their cases are delayed – such as asylum seekers, and Cancellation of Removal and adjustment of status applicants.

So forget about the mothers and babies without their WIC food, shuttered Head Start classes, the interruption of public health monitoring of flu and contaminated food disease outbreaks, and the absence of economic data gathering and analysis. Forget about the forests, parks, Israel, global warming, nuclear energy, coal,  and baby seals. Congress has spoken: Immigration courts are non-essential; Backlogs are not a concern; Let ‘em have a temporary amnesty. And I like it. Posted October 5, 2013.


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