Archive for the ‘Legal Topics’ Category

Asylum seekers at border face stronger headwinds 8 21 18

Saturday, August 11th, 2018

The Washington Post reports that a judge threatened to hold Atty General Sessions in contempt over a court review of an asylum appeal by a El Salvadoran woman and her daughter.

Immigration Impact says that for border crosses, fewer are getting approvals for asylum. Per TRAC, the share of asylum requests being turned down by immigration judges has skyrocketed since mid-2017.

How it works

Here is what happens for border crossers without proper documentation. They are subjected to a fast-track deportation process called “expedited removal,” unless they express fear of returning to their home countries. These individuals must be referred to an asylum officer for a “credible fear interview” to assess the likelihood of making a successful asylum claim.

During the interview, if the asylum officer finds that there is not a “significant possibility” that the asylum seeker could establish eligibility for asylum, the asylum-seeker can appeal to an immigration judge for a Credible Fear Review (CFR). The judge’s decision on the matter is final. Currently about 500 CFR cases are decided each month, down from about 700 cases per month in 2015-2016.

The data analyzed by TRAC indicate that the share of positive outcomes nationwide from CFRs had fallen to 14.7% as of June 2018 which is less than half of what it was in June 2017 (32.7%).

Depending upon the particular Immigration Court undertaking the credible fear review, the proportion of asylum seekers passing this screening step varied from as little as 1% all the way up to 60%. Thus, whether or not asylum seekers receive favorable CFR court decisions appears to be largely driven by which Immigration Court and judge heard their cases.

Sessions’ remarks on October 12, 2017

The system is being gamed. The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.

Here are the shocking statistics: in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving those with just claims buried.

The increase has been especially pronounced and abused at the border. From 2009 to 2016, the credible fear claims at the border went from approximately 3,000 cases to more than 69,000.

How long in US before deported?

Sunday, May 6th, 2018

 

Immigration court cases now involve more long-time residents, according to this report.

The latest available data from the Immigration Court reveals a sharp uptick in the proportion of immigration court cases involving immigrants who have been living in the U.S. for years. During March 2018, for example, court records show that only 10% of immigrants in new cases brought by the Department of Homeland Security had just arrived in this country while 43% had arrived two or more years ago, and 25% at least four years ago,

In contrast, the proportion of individuals who had just arrived in new filings during the last full month of the Obama Administration (December 2016) made up 72%, and only 6% had been here at least two years. During the period between May 2013 and February 2017 over 75% of all court cases involved those who had only recently arrived. During this period the Obama Administration had prioritized recent illegal entrants to the country. Faced with a growing court backlog and not enough judges to hear and decide new cases, DHS believed this focus would serve as a more effective deterrent. Concentrating limited resources in this manner naturally increased the odds that recent illegal entrants and over-stayers would be promptly deported.

The top 25% of cases in terms of length in the U.S. were about this long in the U.S. at a minimum:

2000 – 2003 about 6 years

2004 – 2005 about 3 years

2006 – 2012 8 years or higher

2013 – 2016 rapidly descended to and stayed at zero years.

TheMigration Policy Institute wrote, “the Obama-era policies represented the culmination of a gradual but consistent effort to narrow its enforcement focus to two key groups: The deportation of criminals and recent unauthorized border crossers. Eighty-five percent of all removals and returns during fiscal year (FY) 2016 were of noncitizens who had recently crossed the U.S. border unlawfully. Of the remainder, who were removed from the U.S. interior, more than 90 percent had been convicted of what DHS defines as serious crimes.”

2017 rapidly rose to 4 years.

Note that these figure are not for deportations but for being brought before an immigration court.

Federal judge defends DACA

Thursday, April 26th, 2018

John Bates, judge in the federal district court of the District of Columbia, and a Republican appointee, struck down on April 24 the administration’s rescission of the DACA program. He gave the administration 90 days to come up with a better justification for ending DACA. If it fails to do so, Bates will order the government to open up DACA for any new applicant as well as protect those already awarded DACA status.

As noted by the Washington Post, The program has transformed the lives of hundreds of thousands of immigrants, allowing them to get driver’s licenses, qualify for in-state tuition, buy homes and attend college and graduate school. They must meet educational and residency requirements and cannot have serious criminal records.

From the conclusion of Bates’ opinion:

the Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision. And although the government suggests that DACA’s rescission was also predicated on the Department’s assessment of litigation risk, this consideration is insufficiently distinct from the agency’s legal judgment to alter the reviewability analysis. It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action. For these reasons, DACA’s rescission was unlawful and must be set aside.

For the reasons given above, then, the Court will vacate the Department’s September 5, 2017 decision to rescind the DACA program. The Court will stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful.

Also, in the body of his opinion, Bates wrote:

The Rescission Memo made no mention of the fact that DACA had been in place for five years and had engendered the reliance of hundreds of thousands of beneficiaries, many of whom had structured their education, employment, and other life activities on the assumption that they would be able to renew their DACA benefits. 24 The Supreme Court has set aside changes in agency policy for failure to consider reliance interests that pale in comparison to the ones at stake here. See, e.g., Encino Motorcars, 136 S. Ct. at 2126 (setting aside the Department of Labor’s interpretation of a statutory exemption from the Fair Labor Standards Act’s overtime-pay requirements, in part because the agency had failed to address “decades of industry reliance” on its prior view that the exemption applied to a particular class of employees). Because DHS failed to even acknowledge how heavily DACA beneficiaries had come to rely on the expectation that they would be able to renew their DACA benefits, its barebones legal interpretation was doubly insufficient and cannot support DACA’s rescission.

 

The end of discretion in ICE enforcement

Thursday, March 15th, 2018

The American Immigration Council comments on how the Trump administration has toughened ICE removal of unauthorized persons in two ways. One is to expand the scope to include all persons:

“the Trump administration expanded “enforcement priorities” so broadly as to render the term meaningless. As U.S. Immigration and Customs Enforcement (ICE) stated in a year-end report, ICE no longer exempts groups of removable [noncitizens] from enforcement. In other words, all undocumented immigrants have become targets—even if they have lived in the United States for many years, have U.S.-born children, and have never had a run-in with law enforcement.

The second way is to tighten discretion:  On February 20, 2017 “Department of Homeland Security (DHS) memorandum implementing A Trump executive order severely curtailed the ability of immigration-enforcement personnel to assess an individual’s equities when making case decisions. In the words of the memo: “prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of [noncitizens] from enforcement of the immigration laws.” Put differently, all DHS personnel “shall faithfully execute the immigration laws of the United States against all removable [individuals].”

The Council notes, “One of the crucial mechanisms in the enforcement of U.S. immigration law and criminal law is the exercise of discretion—and not just prosecutorial discretion. At the broadest level, discretion refers to the decision by a law-enforcement officer, prosecutor, or some other government official to pursue (or not pursue) the enforcement of certain laws against a person, or group of people, who may have violated those laws.

Also go here.

 

Executive Branch tightens up legal immigration

Thursday, November 23rd, 2017

 

The Customs and Immigration Service has been tightening up the flow of legal immigration. This from Bernard Wolfsdorf, past national president of the 14,000-member American Immigration Lawyers Association (AILA), Joseph Barnett, both of Wolfsdorf Rosenthal LLP:

“USCIS is now issuing lengthy detailed requests for evidence contesting every issue and requiring unreasonable quantities of proof in regard to any application for an immigrant or non-immigrant visa or adjustment of status.

“USCIS is adjudicating nonimmigrant visa applications with the goal to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” Immigration petitions should include an argument on how the issuance of a visa or other immigration benefit promotes these policy goals.”

The Wall Street Journal adds, “H-1B applications for positions at the lowest pay level are getting particular scrutiny, with the government questioning whether the foreigner holds required specialized skills, according to several immigration attorneys. A directive from the agency specifically questions whether a computer programmer is a specialty occupation that qualifies for the visa. Many of these applications are being denied, attorneys say.”

The WSJ cites the following other changes in administrative practice:

*Eliminate a provision that spouses of H-1B workers have the right to work.

*Kill the Optional Practical Training program, which allows foreign graduates from U.S. colleges in science and technology an extra two years of work authorization, giving them time to win an H-1B visa.

*USCIS directed last month that adjudicators no longer pay “deference” to past determinations for renewal applications. This means an applicant’s past approval won’t carry any weight if he or she applies for a renewal.

*The agency is conducting more applicant interviews, which critics say slows the system. The agency spokesman said this process will ramp up over several years and is needed to detect fraud and make accurate decisions.

*In the spring, the agency suspended premium processing, which allowed for fast-track consideration to those who paid an extra fee. This option wasn’t resumed until October, meaning many workers who qualified for a coveted H-1B visa had to wait months for a decision.

Biggest settlement ever for hiring undocumented workers

Tuesday, November 21st, 2017

The government settled in September with a company for $95 million over past used of undocumented workers. This is the largest settlement ever with an employer over illegal employment.

The Trump administration is, in effect, going after employers with the threat of huge fines, and avoiding the worksite raids which, around 2006, caused terrible press. This strategy is consistent with my prior comments that this administration will drive as far as possible to throttle immigration through Executive Branch initiatives that do not require the participation of Congress.

The government’s press release includes: “Asplundh Tree Experts, Co., one of the largest privately-held companies in the United States, headquartered in Willow Grove, Pennsylvania pleaded guilty today [Sept. 29, 2017] to unlawfully employing aliens, in connection with a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States.

“The $95,000,000.00 recovery, including $80,000,000.00 criminal forfeiture money judgment and $15,000,000.00 in civil payment, represents the largest payment ever levied in an immigration case.

“According to court documents, from 2010 until December 2014, Asplundh, an industry leader in tree trimming and brush clearance for power and gas lines, hired and rehired employees in many regions in the United States accepting identification documents it knew to be false and fraudulent. A six-year HSI audit and investigation revealed that the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.

“This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit. With a motivated work force, including unauthorized aliens willing to be relocated and respond to weather related events around the nation, Asplundh had crews which were easily mobilized that enabled them to dominate the market. Asplundh provided all the incentives to managers to skirt immigration law.”

Illegal border crossings declined by less than reported

Friday, September 29th, 2017

 

The media has been mis-reporting the pace of illegal entry when it gives the impression that the arrival of the Trump administration led to a drastic reduction in illegal crossings, based on apprehension volume. Media reports tend to cite a 40% or greater reduction. A more accurate decline is 25%, and the monthly trend through August shows shrinking of the amount of decline.

Apprehensions rose strongly during May – October 2016, before the election, to a peak of 68,000, well above the monthly average in the past five years of about 45,000. Apprehensions Nov 2015 through August 2016 were a 462,000 vs 320,000 the Nov. 2016 – August 2017. That is a 27% reduction.

From November 2016 through April, 2017, the monthly rate did drop precipitously to about 15,000. Since then it has risen every month to 31,000 in August. After one excludes the very high August of 2016, the August average of the prior four years is 39,000. This indicates a 25% reduction. Trend lines suggest that the reduction since the election will decline.  The next 12 months may be about 350,000 vs an average of about 400,000 if one leaves out the particularly high year of 2016.

Source is here.

Mass Supreme Court: Detaining is unconstitutional

Tuesday, July 25th, 2017

Per the Boston Globe, The state’s highest court ruled Monday that under Massachusetts law, local law enforcement officials cannot hold a person who is wanted solely for immigration violations, a ruling that provides a legal basis for sanctuary cities to refuse to cooperate with federal officials.

The Supreme Judicial Court ruling is believed to be the first court decision in the country to forbid local authorities from enforcing federal immigration laws, unless the state Legislature passes a law that specifically allows it.

Since, State Police have held 27 people on detainers from Immigration and Customs Enforcement, or ICE. Other agencies have refused to honor the requests.

“Conspicuously absent from our common law is any authority . . . for police officers to arrest generally for civil matters, let alone authority to arrest specifically for civil immigration matters,” the court ruled.

ICE issues hundreds of detainers in Massachusetts each year. Local municipalities including Boston, Cambridge, and Somerville, and some states, including California and Connecticut, have established policies that forbid law enforcement officials from assisting their federal counterparts in enforcing immigration laws. But Monday’s decision was believed to be the first by a state’s high court to forbid officers from arresting or holding someone based on an immigration violation.

Attorney General Maura Healey praised the decision. She had asked the court to find that federal authorities cannot force local officials to hold someone on a detainer under state law. Lawyers for Healey’s office had argued in court filings that local law enforcement officials can still play a role in helping federal officials when an immigrant wanted for deportation poses a public safety risk — for instance by alerting authorities of a suspect’s whereabouts. But they argued that those decisions should be left to local agencies.

In its ruling, the Supreme Judicial Court said that the Legislature could consider passing a law that would regulate how local law enforcement officials can assist federal authorities but left that consideration to lawmakers. “State law must affirmatively grant authority to state and local officers to enforce federal immigration law before arrest can be made on that basis,” the court said.

Do non-citizens vote in American elections? Recent evidence says no.

Tuesday, July 4th, 2017

The evidence available, drawing from extremely little legal enforcement action (mostly tied to local scandal) and from a recent study (by voting fraud allegers) of Virginia, is that the number of non-citizens voting is infinitesimally small, under one tenth of one percent of actual voters, and probably that is a gross over-estimate. In contrast, the allegers of voting fraud are saying that somewhere around 10% of non-citizens voted and that somewhere around 2% of all voters were non-citizens.

For my state of Vermont, which is subject as all other states to Kobach’s demand for voter data, a high estimate of non-citizens registered (per the analysis below) is a total of 39.

Background: Kobach

Kansas Secretary of State Kris Kobach, who co-chairs the Trump Administration’s Presidential Advisory Commission on Election Integrity (VP Pence is chair) announced on November 30, 2016 that it was a “reasonable estimate” that 3.2 million people could have voted illegally based off a survey of the 2008 presidential election.

The Kansas secretary of state said data showed that 11.3% of non-citizens in the United States said they had voted in that year’s election. He pulled this figure from the heavens. There are 43 million immigrants of which 95% are 18 and older . About half are naturalized. Kobach is in effect alleging that of about 20 million non-citizens 18 or old, 11.3% or 2.3 million voted illegally. (If all of Kobach’s 3.2 million voted illegally and were non-citizens 18 or over, that implies that 16% of non-citizens voted.

On the face of it, this allegation implies national. massive, orchestrated campaigns of voter fraud. Actual systemic voting fraud cases of late involve at most dozens of voters and are local in nature.

A disputed 2014 research article

Kobach and allies have leaned on a 2014 article authored by Old Dominion University researchers that “6.4 percent of non-citizens voted in 2008 and 2.2 percent of non-citizens voted in 2010.”

The article was based on no original inspection of records or surveying but rather on a study by the Cooperative Congressional Election Study of surveys done in 2008 and 2012. The CCES researchers disparaged the Old Dominion article asserting that is drew unwarranted inferences from a very small sample size (such as under 200 positive results from a total survey population of 19,000). The title of the CCES December 2015 refutation: “The perils of cherry picking low frequency events in large sample surveys.”

The Virginia allegations

In May of this year a Public Interest Legal Foundation – sponsored report, “Alien Invasion,” produced figures of what it called non-citizens with Virginia driver licenses who voted. If you examine its figures, and compare them with Virginia population and voting numbers, these non-citizen estimates come to one third of one percent of adult non-citizens, and an infinitesimally small percentage of total voting in Virginia.

The Virginia report compared motor vehicle registration data (which has a field for citizen status), registration rolls, and actual voter counts. I have grossed up the figures, which covered most but not all voter districts, in order to show complete statewide estimates. The adjusted figures indicate that over a six year recent period 2,415 non-citizens were registered to vote and that they voted 9,745 times. These are definitely not the figures that Kobach and allies want to hear about. The reason is that the 2,415 is an extremely tiny share of the approximately 400,000 non citizen adults living in Virginia at the time.

The reasonable explanation is that many or most of the 2,415 persons either became citizens later or mistakenly listed themselves as citizens (consistent with survey errors found by CCES). Also, the 9,745 votes over a six year period is a vanishingly small share of the roughly 18 million times people voted in Virginia over the six year period.

Sanctuary Cities: the legal battle

Saturday, February 25th, 2017

Does the Trump administration have the legal power to withhold federal funds from sanctuary cities? Below is an analysis of the legal battle. In sum, the battle is partly over whether sanctuary cities are in violation of federal statute for failing to detain persons arrested  (San Francisco says no), and whether all federal funds or only a very small segment of them is at risk.

The details:

On January 25, President Trump said, “And finally, at long last, cracking down on Sanctuary Cities. It’s time to restore the civil rights of Americans to protect their jobs, their hopes, and their dreams for a much better future. Congress passed these laws to serve our citizens. It is about time those laws were properly enforced. They are not enforced.”

A law suit by San Francisco filed on January 31, in response to a Trump Administration executive order signed on January 25 sets out the legal parameters of the sanctuary city issue. The suit says that the Executive Order threatens the loss of $1.2 billion in Federal funds, 13% of the city’s annual budget.

“Sanctuary city” is an informal term with no legal meaning The SF suit describes what local orders generally do: “They specifically prohibit local law enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer requests, which are voluntary, and limit when local law enforcement officers may give ICE advance notice of a person’s release from local jail.” SF is referring to its Administrative Code, Chapters 12H and 12I. A detainer request is a request by the federal government that a city detain in custody persons who have been arrested.

The Executive order says that sanctuary cites are in violation of Title 8, Section 1373 of the United States Code, “which provides that local governments may not prohibit or restrict any government entity or official from “sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual.”

The SF suit says that it and other sanctuary cities are not in violation of this law. It cites a May 31, 2016 report by the Inspector General of the Justice Department on what constitutes a violation of Section 1373. The IG’s report includes examples of sanctuary city ordinances. It suggests that violation of Section 1373 puts at risk State Criminal Alien Assistance Program (SCAAP), which for the top ten sanctuary jurisdictions came to $342 million in 2015.

The SF suit says that Section 1373 does not require cities to respond to requests by the federal government to detain persons. Further it says that “No federal funds received by San Francisco have statutory conditions specifically requiring compliance with Section 1373.”