GUEST BLOG: Gender-Based Asylum Victory in Virginia by the George Washington University Law School Immigration Clinic

15 Apr

This post was written by Sydney Barron, a law student at George Washington University Law School and a member of the school’s Immigration Clinic, under the direction of Professor Alberto Benitez.  Benach Ragland periodically offers this space to law students and non-profit organizations to discuss their immigration cases.  If you are a law school professor or a non-profit organization that wishes to tell the story of one of your immigration cases, please write us at acbenach@benachragland.com.

 

On March 11, 2014, my client, Julia[1] won the asylum that she requested over a decade ago. Julia fled horrific domestic violence in her home country, Guatemala, and came to the United States in 2002. Unfortunately, Julia was not able to bring her children with her when she fled. After she entered the United States, the George Washington Immigration Clinic helped her file her asylum claim. Julia had to live with uncertainty for over a decade as her case wound its way through the immigration system. By the time Julia was finally granted asylum twelve years after fleeing her abuser, she had appeared before three different immigration judges, and worked with twenty different student-attorneys from the GW Immigration Clinic.

Sydney Barron Photo

GWU Law Student Sydney Barron

Julia filed for asylum in 2003. There was insufficient time for all of her testimony and cross-examination at her first individual merits hearing in 2004, so she had an additional individual merits hearing scheduled. The next hearing was not held until 2006 because the immigration court was so busy at the time.

When Julia first filed for asylum, the law of asylum for victims of domestic violence was far from favorable. At that time, the immigration courts were waiting for regulatory guidance on the issue of granting asylum to victims of domestic violence, but were hesitant to grant asylum while such guidance remained pending. For this reason, the immigration judge administratively closed Julia‘s case in 2006. This situation provided only temporary protection, and her case could be reopened at any time. Additionally, even though Julia could remain in the United States while her case was administratively closed, she could not bring her children here unless she was granted asylum.

A year later in 2007, the Department of Homeland Security (“DHS”) requested that the case be reopened. In June 2009, the immigration judge issued a written decision finding that Julia was credible and had suffered harm rising to the level of past persecution, but there was no “nexus” between the harm she suffered and her membership in a particular social group. The immigration judge therefore denied Julia‘s asylum claim.

The GW Immigration Clinic assisted Julia in appealing her case to the Board of Immigration Appeals (“BIA”). Before Julia‘s appeal was decided by the BIA, the law on asylum for victims of domestic violence shifted and became more favorable. The most well-known case on the eligibility of victims of domestic violence for asylum is Matter of R-A-. In Matter of R-A-, a Guatemalan woman suffered terrible abuse from her husband.[2] Fourteen years after R-A- applied for asylum, in December 2009, an immigration judge granted R-A-’s request for asylum.[3] Another central case regarding asylum for victims of domestic violence, Matter of L-R-, ended in 2010 with a grant of asylum.[4] In both Matter of R-A- and Matter of L-R-, DHS submitted briefs describing the circumstances that they considered sufficient for a domestic violence victim to be eligible for asylum.[5] Given these two historic asylum grants, a prior student-attorney at the GW Immigration Clinic submitted a Motion to Remand Julia‘s case with the BIA.

When I first met Julia, she had not yet heard back from the BIA about the Motion to Remand. During my first semester in the GW Immigration Clinic, the BIA remanded Julia’s case to the Arlington Immigration Court. My first appearance in immigration court was for Julia‘s master calendar hearing. The GW Immigration Clinic Director, Professor Alberto Benitez, and my other supervisor, Mr. Jonathan Bialosky, prepared me to ask for a grant of asylum at this hearing. They explained that this was an unlikely outcome, and was extremely unlikely without DHS’s support. However, if I were able to convince DHS to agree to a grant, the immigration judge might grant Julia asylum given the prior immigration judge’s findings on credibility and the violence Julia suffered.

On the day of the master calendar hearing, the DHS trial attorney had not yet received Julia‘s file from the BIA, and could not support a grant. Luckily, the immigration judge recognized that Julia had already been waiting for over a decade, and scheduled the merits hearing for March 11, 2014. This was a huge relief to Julia, and myself, since some cases are scheduled up to two years from the master calendar hearing date.

In preparation for the individual hearing, I met with Julia multiple times a week. Her family members had alerted her to continued threats made by her abuser, including threats to beat, rape, and kill her. I submitted affidavits from Julia and her family about these threats.   I also submitted evidence from a psychiatrist, which supported Julia‘s testimony, and multiple articles about Guatemala and its institutionalized acceptance of domestic violence.

Before the individual merits hearing with the immigration judge, the GW Immigration Clinic held a moot hearing with Julia. Professor Benitez and Mr. Bialosky explained that I should not have a set of questions written down, because they had seen student-attorneys become dependent on a list of questions, ignoring what their client was actually saying. I wrote out the main issues that I wanted to get Julia to testify about, and practiced asking non-leading questions with other student-attorneys.  On the day of the moot hearing, I realized the difficulty of an actual direct examination, especially the difficulty of asking non-leading questions to get Julia to provide necessary details. Additionally, Professor Benitez and Mr. Bialosky asked the student-attorney playing the role of the trial attorney to try to surprise and rattle me by objecting to my evidence and submitting new evidence during the moot. The moot hearing taught me the importance of carefully listening to the client’s testimony and asking sufficient follow-up questions to ensure the client mentions all relevant details. It also taught me the importance of projecting confidence in my questions and responses, especially when unexpected issues arise.

The day before the hearing, I called the trial attorney who was assigned to Julia‘s case. I left her a message asking if she had received my pre-trial filing, and offering to answer any questions she might have. That afternoon the trial attorney returned my call while I was in class, and while I was able to excuse myself to an empty room, I did not have any of my notes with me. My lack of notes initially worried me; however, once the trial attorney started asking me questions about the case, I realized that the months of preparation had hammered all of the facts into my head, and I could easily discuss the case without any notes.   We discussed the procedural history of the case and the evidence that Julia’s abuser continued to threaten her. After answering all of the trial attorney’s questions, I felt confident that the trial attorney appreciated the grave danger that Julia would face if she were forced to return to Guatemala.

On the day of Julia’s individual merits hearing, Professor Benitez, Mr. Bialosky, and many of the other student-attorneys who came to support Julia were present in the courtroom. Immediately before the hearing, the trial attorney informed me that she would not be opposing a grant of asylum. Julia was extremely excited, but I explained that nothing was certain until the immigration judge granted her asylum. The immigration judge requested that I do a short direct examination of Julia, and after my direct examination the trial attorney did a short cross-examination. After Julia returned to her seat, the immigration judge gave his oral decision granting Julia asylum. To the surprise of everyone in the courtroom, Julia asked the judge if she could hug him. The judge explained that he could not hug her in person, but that he would “hug” her from where he was. Both Julia and the immigration judge hugged the air in front of them in a very touching moment. Julia also hugged the trial attorney after the hearing was over. Professor Benitez told me later that it was the first time that he had ever seen a client ask to hug the immigration judge or the trial attorney.

I am grateful to the GW Immigration Clinic for the opportunity to assist Julia in her search for safety. I am grateful to my supervisors, Professor Benitez and Mr. Bialosky, who guided me through the process, set up moot hearings, and provided feedback on my pre-trial filing and hearing preparation. I am grateful to all of the other student-attorneys for their help throughout the year, providing feedback and helping to prepare Julia for cross-examination. Finally, I am grateful to Julia, an inspiring woman who persevered with immense strength. The opportunity to help protect her from further abuse and finally bring her a sense of peace and closure was an amazing gift.

 

[1] My client’s name has been changed to protect her identity.

[2] Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008).

[3] Lisa Mendel-Hirsa, Recent Landmark Victories in the On-Going Struggle for U.S. Immigration Law to Recognize and Fully Protect Women’s Human Rights, Empire Justice Center (Nov. 19, 2010), http://www.empirejustice.org/issue-areas/domestic-violence/battered-immigrants/articles/domestic-violence-and.html#.U0Ac3fldVHI.

[4] Id.

[5] Department of Homeland Security’s Position on Respondent’s Eligibility for Relief,

Matter of R-A-, 22 I. & N. Dec. 906 (Feb. 19, 2004) (File No. A 73 753 922); Department of Homeland Security’s Supplemental Brief, Matter of [L-R-, redacted] (Apr. 13, 2009).

If Nigella Lawson was Found to be Inadmissible, that Finding is Suspect and, Even if she is, she has a Terrific Case for a Waiver!

3 Apr

Nigella

From across the pond comes word now that Nigella Lawson, she of the cookbook and lifestyle empire, has been denied admission to the United States, due to reports of her testimony regarding her use of cocaine and marijuana.  Now, Nigella Lawson has never been convicted of illegal drug possession or distribution.  So what gives?  Well, what appears to have happened is that Ms. Lawson was determined to be inadmissible to the United States because she may have “admitt[ed] to having committed  . . . a violation of any law or regulation of a state, the United States, or a foreign country related to a controlled substance.”  This ground of inadmissibility does not require a conviction of a drug offense, just an admission.  But is Ms. Lawson’s apparent admission in a United Kingdom court sufficient for her to be found inadmissible?  It seems highly doubtful.

Here’s what we know.  Nigella Lawson is a highly successful businesswoman.  She has authored a number of cookbooks and lifestyle books.  She has had her own television shows and has appeared in a number of tv shows about cooking and entertaining.   Her private life burst out into the open in July 2013, when she was photographed being grasped around the neck by her husband, Charles Saatchi.  Shortly thereafter, Ms. Lawson was a witness in the fraud trial of two of her assistants, who had been accused of wrongly using Saatchi’s credit cards.  Their defense was that their use of the credit cards was allowed by Lawson in exchange for them not revealing her drug use.  Lawson testified in court and stated that she had used cocaine and marijuana.  Fast forward to last weekend.  At London’s Heathrow airport, Lawson was apparently denied boarding a flight to Los Angeles.  Apparently, Ms. Lawson has been found to be inadmissible due to her admission of a violation of a law relating to a controlled substance.

U.S. law allows the Department of Homeland Security to find a person inadmissible if she has admitted to a violation of a law involving a controlled substance.  It would seem simple enough.  However, the process required to make that finding is tightly controlled by longstanding caselaw.  Specifically, in the 1957 decision in Matter of K-, the Board of Immigration Appeals held that, in order to find someone inadmissible for admission of a controlled substance, these steps must be followed: (1) the individual must be provided with a definition of the offense with all essential elements; and (2) the individual must be provided with an explanation of the offense in laymen’s terms.  Since the statute does not makes someone inadmissible for use of an illegal drug, but the violation of a law related to a controlled substance, DHS must identify the statute violated and the person must be provided with an explanation of the elements of the crime and must admit to all those elements.  This process is usually undertaken at a port-of-entry between a Customs and Border Protection (CBP) officer and an applicant for admission.  A person can not be found to be inadmissible if these requirements are not satisfied.

This is why the explanation for Nigella Lawson’s inadmissibility in unconvincing.  Perhaps there were other reasons why she could not board that plane.  But, if she were indeed deemed to be inadmissible based upon her admissions of cocaine and marijuana use in UK court, it would seem that these procedural requirements were not honored as it does not appear that any sort of interview between DHS and Lawson ever occurred.  In addition, it seems unlikely that Ms. Lawson, in her testimony ever specificallty admitted to violating a specific law.  In other words, Lawson probably did not testify as follows: “Yes, I knowingly and willfully possessed a substance that I knew to be cocaine.”  And it is unlikely that someone then said, “Aha!  So you admit violating the Misuse of Drugs Act of 1971?”  To which, she probably did not reply, “Yes.”  It is not enough for inadmissibility for a person simply to say “I used cocaine.”  They must admit violating a law and that law must be identified.  Where?  When?  Was it really cocaine?  All these questions need to be answered.  And Lawson has an absolute right under U.S. law to say that she is “not guilty.”  Therefore, it seems that, if she was denied boarding that plane on these grounds, she was wrongly found to be inadmissible.

If she is, in fact, inadmissible, Lawson would be an excellent candidate for a waiver of inadmissibility.  The law provides a generous waiver of inadmissibility for people seeking to enter the U.S. temporarily.  Known as a 212(d)(3) waiver, the waiver allows inadmissible people to enter the U.S. despite their inadmissibility.  In considering an application for a waiver, the DHS must weigh the following factors: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the ground of inadmissibility and (3) the reasons the applicant is seeking admission.  In assessing a potential Lawson application for a waiver, it would seems that she has a very strong case.  First, it can not be seriously argued that Ms. Lawson is any threat to U.S. society if allowed into the U.S.  Second, it is hard to say that this is a very serious ground of inadmissibility.  It is not a conviction, it does not relate to violence, the sale of drugs, or weapons.  It deals with the recreational use of illegal drugs in the past, an act that many millions of Americans have engaged in.  As far as grounds of inadmissibility go, this would seem to be on the lower end of the serious scale.  Finally, certainly Ms. Nigella 2Lawson has very good reasons to enter the U.S.  An accomplished businesswoman overseeing an empire of lifestyle media, her commercial ties to the U.S. are substantial.  U.S. businesses would lose out if they are unable to continue to collaborate with Ms. Lawson.  Applications for 212(d)(3) waivers are made to the State Department and the Department of Homeland Security and both must agree to grant the waiver.  The legislative history and the caselaw show that the the waiver is supposed to be generously given.

In the end, Ms. Lawson should be able to get on with her life and her travel to the U.S.  For now, no doubt she is reeling from this latest indignity.  If you are reading, Nigella, there is hope.  We can help!

GUEST BLOG: Catholic University Law Students Win Protection for South African Client!

20 Mar

Judy and Tarun

By Judith Muñoz and Tarunpal Dhillon, Student Attorneys with the Catholic University Law School Immigration Litigation Clinic

 

We met our client, Tanya,[i] for the first time on December 18, 2013 at the Baltimore Immigration Court. She stood behind a glass door, in a navy blue jumpsuit, handcuffed and shackled. As she told us her story of survival in South Africa, a few points became very clear about our client: she is a source of inspiration, a fighter, and a seeker of justice. Her story is similar to that of David and Goliath.  She is an individual who, against all odds, dared to question and challenge a powerful, dominating, and resourceful enemy. The enemy in our client’s story is not a single individual but an all-powerful entity, consisting of hundreds of corCorrupt SA police 1rupt men going against the very principle of righteousness they vowed to abide by and the very principle of justice they vowed to uphold – the South African Police. The South African Police conspired with a notorious criminal gang to target and harm our client, Tanya, due to a deeply rooted animosity surrounding the controversial death of Tanya’s brother, a former police reservist.  Tanya had sought answers from the corrupt South African Police regarding her brother’s death, answers the police did not want to give.  For that, she became their target.

Fleeing imminent death threats, Tanya came the United States with a J1 visa in 2005. Once in the United States, Tanya obtained a U visa as a victim of domestic violence. In 2011, however, Tanya’s U visa was revoked after she was found guilty of a criminal offense during which she was acting in self-defense against her abuser. She was placed in removal proceedings before the Baltimore Immigration Court, and ultimately, she was ordered removed to South Africa, the very country she had fled years before. Although she had an appeal pending before the Board of Immigration Appeals, the Department of Homeland Security deported Tanya to South Africa.  In an effort to hide and protect herself from the police and the gang, Tanya relocated and took extreme measures to change her identity. Despite her efforts, however, the police used its mighty resources to track her down. Again, they used the notorious criminal gang to do their dirty work for them. The gang found Tanya and attacked her on two different occasions, threatening her life and destroying any sense of security she had gained by her relocation and change of identity. Tanya moved around, staying in the homes of friends and acquaintances, trying to stay out of reach of the police and the gang, until December of 2013, when she received news that the Board of Immigration Appeals had granted her appeal. The Board remanded her case back to the Baltimore Immigration Court and requested that she return to the United States to litigate her application for protection under the Convention Against Torture.

After hearing our client’s story, we quickly realized the enormous responsibility that we agreed to put on our shoulders. We were to become protectors, fighters-for-justice, and zealous advocates for a woman who feared she would be brutally and viciously attacked and killed by a notorious criminal gang working under the orders of the South African Police. Our most important and challenging task was to establish the relationship and collusion between these two criminal, corrupt entities and relay it persuasively in front of the immigration judge during Tanya’s individual merits hearing.

Corrupt SA police 2

We spent the next three months dedicating our lives to fighting for our client’s life. As law students, the real world of immigration practice had arrived very quickly and was knocking on our door. We made the choice to open that door and step through it to try to save our client. The process was overwhelming and stressful because the stakes were so very high, but at the same time, this case was an opportunity to transition from inexperienced first-time litigators to zealous advocates fighting for justice for our deserving client. We seized the opportunity and have felt a true transformation from students to advocates, a trait that has now become a part of our identities.

The individual merits hearing represented the most difficult and costly law school exam that we agreed to partake in. We agreed, amongst ourselves, to view the outcome as an indicator of our skill level.  We were students, up against an experienced attorney for the Department of Homeland Security.  We had a decision to make: we could either act like students and fall back to our insecurities and uncertainties, or we could step into the real world of advocacy and put everything on the table for our client. We viewed the hearing as our opportunity to fight for Tanya, for justice, and for humanity – everything Tanya was unable to procure in her native South Africa. After months of preparation, there was nowhere else in the world we would have wanted to be other than at our client’s side, defending her and seeking justice.

The hearing consisted of three-and-a-half hours of direct and cross examinations, client and witness testimony, evidentiary challenges, responses to objections by opposing counsel, and answers to tough questions from the immigration judge.  It ended with an oral decision given by the immigration judge. When the immigration judge stated that he was ready to make his decision, we took a big breath and silently prayed. The wait was unbearable and our hearts were beating at an exceptionally high rate, but we knew we had done everything in our ability to fight for our client. When the immigration judge announced his decision to grant our client deferral of removal under the Convention Against Torture, we experienced a type of joy and accomplishment never before experienced by either of us in our lifetime. It hit us: we had saved our client’s life.

Our client’s reaction made the three months of insanity, stress, frustration with complicated legal theories, and uncertainty as students in the challenging world of immigration law all worthwhile.  Tears poured down her face while she repeatedly whispered the words “thank you”. Tanya was released from immigration detention that afternoon, and we were able to walk out of the immigration court building with our client, who was literally jumping and skipping for joy, a free woman who can now live safely in the United States. Walking out of the court with Tanya was an amazing feeling. Fighting for justice to save a woman from torture at the hands of the corrupt South African Police is an accomplishment we will never forget. It was one of the best days of our lives.

The success of our case is attributable to a number of exceptional individuals that worked tirelessly and vigorously with us over the three-month timeframe. We had the support of two amazing supervising attorneys, our professors, Michelle Mendez and Dree Collopy, who taught us immigration law and the skills we needed to practice before the U.S. immigration courts, and prepared us for the countless scenarios that could be thrown at us during the individual hearing. They were our mentors and educators, and were always present as a source of optimism and encouragement. We were also fortunate to have had the opportunity to work with an exceptionally wonderful human being, who donated many hours of her time to work with us as our expert on police collusion in South Africa, Dr. Fran Buntman of George Washington University.  Lastly, we had the tremendous support of our fellow classmates and participants in the Immigration Litigation Clinic at the Catholic University of America Columbus School of Law.

As a direct result of our particDavid-Vs-Goliathipation in Catholic University’s Immigration Litigation Clinic, we were blessed with the opportunity to meet an amazing client who came to us with a David and Goliath scenario, but left us with the confidence to face seemingly impossible odds and the passion to fight for what’s right. For us, the clinic was not just a class…it was a transformation.


[i] Our client’s name has been changed to protect her identity.

Good News on I-601A Provisional Hardship Waiver Applications!

18 Mar

VisaToday, the US Citizenship & Immigration Service announced a fix to one of the more serious problems with the provisional waiver process for unlawful presence.  As you may know, the CIS instituted the I-601A provisional waiver process last year to allow immigrants who are immediate relatives of U.S. citizens but are also ineligible to seek residence in the U.S. due to unlawful entry to seek a provisional waiver of inadmissibility in anticipation of seeking a visa at the U.S. embassy abroad.  The provisional waiver, sought on form I-601A, only waives inadmissibility due to unlawful presence (i.e., entering without inspection and remaining more than 6 months in the U.S.).  The waiver does not waive any other ground of inadmissibility such as inadmissibility due to criminal convictions or fraud.  To address this issue, the CIS decided early on that where another ground of inadmissibility may be present, such as due to criminal convictions, the CIS would deny such applications because there was a reason to believe that inadmissibility might apply.  This approach left a lot of people out of eligibility for the provisional waiver, many of whom are not, in fact, inadmissible despite having criminal convictions.  This is because not all convictions create inadmissibility.  The largest class of crimes that cause inadmissibility are those that are considered to involve “moral turpitude.”  Crimes involving moral turpitude are those offenses that are inherently base, vile, or depraved.  They usually involve theft, dishonesty, or violence.  However, many crimes, such as trespass, disorderly conduct, or a simple driving under the influence, clearly do not involve moral turpitude.  In addition, there is an exception to inadmissibility for “petty offenses.”  A petty offense is one in which the maximum possible sentence does not exceed one year and the individual is sentenced to less than 180 days in prison.  A crime involving moral turpitude that falls within the petty offense exception does not cause inadmissibility.  However, under the reason to believe standard, CIS was denying waiver applications simply because an offense could create inadmissibility, which was patently unfair to those who were not, in fact, inadmissible.

In an email today, U.S. CIS stated that on January 24, 2014, it issued Field Guidance to its offices instructing officers not to find a reason to believe someone might be inadmissible where the applicant is clearly not inadmissible.  The Field Guidance provides:

USCIS officers should review all evidence in the record, including any evidence submitted by the applicant or the attorney of record. If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.
The CIS has also agreed to reopen, on its own motion, cases that were denied on “reason to believe” to determine whether an applicant denied was, in fact, inadmissible.  If not, the CIS would proceed to consideration of the merits of the I-601A provisional waiver application.
This is a tremendous improvement from the previous position that CIS took.  It is a credit not only to CIS but to the many individuals and groups who pushed CIS on this issue.

Nine Ways Obama Could Make Immigration Law Better Without Bothering to Wake Congress

13 Mar

dwi-obama-copy

The House of Representatives passed the Enforce Act yesterday.  This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit.  The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.  How this vote fits with the immigration statement of principles that the House GOP released in January is beyond us.  When in doubt, votes, much more than “statements of principles,” reflect where Congress truly is.  And the House actually managed to get worse on immigration.  So, in case, it is not perfectly clear- THE HOUSE HAS NO INTENTION OF PASSING ANY MEANINGFUL IMMIGRATION REFORM.  IF THE PRESIDENT WANTS TO BE A CHAMPION OF IMMIGRANTS, HE NEEDS TO DO SO ON HIS OWN.  Got it??Grumpy-Cat

My internet marketing professionals tell me that lists are very effective ways to get readers to a blog.  And cats in a foul mood.

So, here are nine things that the President could do administratively to grant some relief from the deportation machine.  That is, nine things that the President could do without Congress acting.  Any of these steps would ease the deportation crisis and provide relief and assistance to hundreds of thousands of people left hopeless by Congressional inaction.

Now, we have heard a lot from this President that he does not have the authority to simply ignore the law.  That simple statement is true enough.  However, the President does have broad authority to determine how to interpret ambiguous statutory language.  And the Immigration and Nationality Act is pretty darn ambiguous.  For example, Congress has stated that cancellation of removal for people who are not permanent residents is limited to those who have U.S. citizen or permanent resident family members who would suffer “exceptional and extremely unusual hardship” if the applicant were deported.  It is the role of the immigration agencies to define what is “exceptional and extremely unusual hardship.”  Whereas the Board of Immigration Appeals has been pretty stingy with that standard, the agency could depart from such a parsimonious interpretation and create a more generous standard.  The President’s power to fill-in the details and context of statutes was discussed by the Supreme Court in Chevron v. National Resources Defense Council.  In that case, the Supreme Court stated that it will defer to an agency’s reasonable interpretation of ambiguous statutory language.  As a practical matter, where a court finds a statutory command to be ambiguous, it will almost always defer to the agency’s interpretation of the statute.  Most statutory language is ambiguous.  Recently, for example, courts of appeals have found the term “when the alien is released” to be ambiguous as to time.  If an agency’s interpretation conflicts with an ill-expressed Congressional mandate, the Court reasoned, Congress could legislate more specifically.  It is here that the President can use Congressional inaction in his favor.  Since Congress seems incapable of passing any legislation, it is unlikely that the President’s liberalized policies will be overturned by a vengeful Congress.

Another Supreme Court case sheds some light on the powers of Congress vis-a-vis the President.  In INS. v. Chadha, the Supreme Court invalidated a statutory scheme in which the House of Representatives could veto a INS decision to grant relief from removal known as suspension of deportation to a particular individual.  The Court reasoned that the power to decide particular immigration cases has been delegated by statute to the executive and that it violated the Separation of Powers for the Congress to be able to veto a decision regarding a particular individual.  This case shows that Congress may disapprove of decisions that the agency makes, but absent legislation, can not do anything about them.  Again, the difficulty of getting legislation through Congress gives the President a lot of leeway.

Presumably, the President, a constitutional law professor, knows all that, so he is ready to take actions that would dramatically improve the lives of immigrants in America, re-capture his status as “immigration reform champion in chief,” and get himself measured for a monument on the Mall.

  • Parole in place.  This is the big kahuna of administrative reform.  Parole in place is a mechanism that would allow the agency to “parole” individuals who entered without inspection into the U.S.  While parole is normally thought of as something done to allow people to enter the U.S., parole in place allows the government to parole them from within the U.S.  The administration recently did this for the undocumented spouses of members of the U.S. military, but there is no reason why the concept can not be applied to tens of thousands of others.  Through parole in place, people who have U.S. citizen family members or job offers may be able to adjust their status.  Friends of Benach Ragland (FOBRs) Cyrus Mehta and Gary Endelman wrote the definitive piece on parole in place, so we will not go into excessive detail here.
  • Reconsider Matter of Rojas.  In Matter of Rojas, the BIA held that ICE may hold someone as a mandatory detainee regardless of how long it has been since the individual was released from criminal custody when ICE encounters the immigrant.  Many district courts have held that a person is only subject to mandatory detention if ICE apprehends them “when released” from criminal custody.  By reconsidering Rojas, ICE would allow immigration judges to determine whether particular individuals are dangerous or likely to flee before a removal hearing.  This would have the effect of drastically reducing the detained population.
  • Redefine custody.  Alternatively, ICE could interpret “custody” to include alternatives to detention such as ankle bracelets and home monitoring, as many criminal agencies do.
  • Issue a regulation stating that the separation of a parent from U.S. citizen child is, per se, presumptively “exceptional and extremely unusual hardship.”  This would allow parents of U.S. citizens to have more solid claims to cancellation of removal, removing the biggest obstacle to grants of cancellation of removal.  The INS created a presumption of hardship before when it issued regulations underillegal-immigrants-children-deport-parents NACARA allowing certain Central American and Eastern European immigrants to seek suspension of deportation.  The INS issued a regulation stating that NACARA applicants were entitled to a presumption of extreme hardship.  The immigration agency would be free to limit the presumption of exceptional and extremely unusual hardship, but should begin with the recognition that deporting the parent of a U.S. citizen child is an inherently traumatic act with horrific long term consequences.
  • Issue a directive to ICE and CBP stating that, unless significant criminal issues are present, the agencies should decline to enter administrative removal orders and instead seek removal through removal proceedings in immigration court.  DHS issues a wide variety of administrative removals.  Only about one-third of removal orders are entered by an immigration judge.  The rest are issued by ICE either due to reinstatement of a prior removal order, visa waiver overstays, expedited removal of arrivals and of non-resident criminals and voluntary returns.  DHS could issue a directive (not guidance or suggestions but orders) requiring ICE to bring these cases before an immigration judge, where the individual could apply for relief.
  • Issue a directive to ICE attorneys in immigration court to seek two year continuances in all cases in immigration court where there is no criminal ground of removability and no relief.  This would force ICE to work on the hardest cases and clear the backlog of cases where a person has done nothing more than entered illegally or overstayed a visa.
  • Issue a directive that detainers should only be lodged where a person has been convicted of a deportable offense.  Detainers are issued to people who have been arrested regardless of whether there is a conviction.  Removal proceedings are often started due to an arrest that does not lead to any criminal charge because a detainer has been issued.  Limit detainers only to those who have been convicted of a deportable offense.
  • Issue a precedent decision affirming the low standard for the exceptions to the one year rule for asylum.  The law requires an asylum applicant to seek asylum within one year of entry to the U.S.  There are exceptions to this rule and the statute requires that an applicant must prove the applicability of the exception “to the satisfaction of the attorney general.”  This is the lowest legal standard.  Yet, courts routinely hold applicants to a much higher standard.  The Attorney General can issue a decision making it clear to the courts that the exception to the one year rule should be liberally applied.I-821-TPS-Facts
  • Grant Temporary Protected Status to Mexicans, Salvadorans, Guatemalans, Hondurans, Venezuelans, and Ukrainians.  Temporary Protected Status is granted to nationals of countries where there is disaster or upheaval.  It provides individuals already in the U.S. with temporary status, protection against removal, and work authorization.  It is possible to make a cogent claim to TPS for each of those countries.  Mexico and the Central American countries have been beset by drug and gang violence creating a humanitarian disaster on the ground and Ukraine is the flashpoint of a major crisis in Europe.  These are all legitimate uses of Temporary Protected Status.

The House’s action yesterday makes it clear that the House has no intention of moving on immigration reform.  The only thing that the President has to lose is his dwindling support in the immigrant community.  And he loses that by not acting, rather than acting.

Strong Presidents are Great Presidents

17 Feb

Stop deports

On this President’s Day, we wish to add a historical perspective to the robust exercise of executive authority.  The President routinely tells audiences that he does not have the power to act unilaterally on immigration reform.  Frustration and anger have mounted as the toll from deportations rises, and the lost opportunities due to the lack of immigration reform are compiled.  The President’s claim of impotency is in direct conflict with how the right wing of the GOP (is there another wing?) sees the President.  Recently, the House Judiciary Committee held a charade of  hearing on the President’s duty to see that the laws be faithfully executed.  The theory: the President has abdicated his constitutional duty to faithfully execute the law by granting deferred action to childhood arrivals.  Apparently, the theory goes that the President has a duty to remove all deportable individuals and by granting deferred action to a sub-group of the deportable individuals, the President has failed to do his duty.  So, who is right?  Is the President a dictator who ignores the laws?  Or is he an executive with a limited vision of his authority, doomed to mediocrity?  That answer remains to be seen, in our opinion.  It will depend on whether the President follows the example of those presidents who have monuments on the National Mall and across the capital or those who are reviled, ignored and forgotten.  For a president as historic as Obama, we hope that he embraces a more robust view of Presidential power.

The earliest President who truly revolutionized the role of the Chief Executive was Andrew Jackson.  When Jackson took office, he viewed himself as the only national andrew jackson kingembodiment of the people’s will.  He scandalized the country by making arguments to the people in support of his policy decisions.  In addition, he broke tradition by vetoing pieces of legislation that he disagreed with.  Previously, Presidents would only veto legislation that they thought unconstitutional.  Jackson was the first President to veto legislation for the plain reason that he was opposed to it.  In addition, when South Carolina asserted that it could nullify a federal law that it did not like, Jackson stood for the not-yet-clear proposition that federal law was supreme and a state could not pick and choose which federal laws it wished to follow.  Jackson’s position on nullification provided historical precedent when another President was faced with rebellious southerners.

Before taking office, Abraham Lincoln was confronted with the “secession” of South Carolina and several other states.  Lincoln refused to accept that a state could secede and decided that his principal obligation was to preserve the Union.  Abraham_Lincoln_head_on_shoulders_needlepointWhen Lincoln called up 75,000 troops in the wake of the Southern attack on Fort Sumter, several other states, including Virginia, seceded. Lincoln arrested secessionist deputies in Maryland and advocated for a strenuous war against the rebellious states.  Lincoln exerted his powers as Commander-in-Chief to free the slaves in “territories in rebellion against U.S. authority” in the Emancipation Proclamation.  Just to be clear: Lincoln dissolved certain “property” rights in nearly half the country.

Franklin Roosevelt determined that the circumstances of the Great Depression required an energetic response by the federal government.  However, he found that the Supreme Court proved to be a formidable obstacle.  After the Supreme Court issued a series of opinions striking down New Deal federal legislation on matters previously considered solely the domain of the state as well as progressive state legislation, such as maximum hours and minimum wage laws, Roosevelt came up with the preposterous idea of adding additional justices to the Supreme Court.  After all, where is it written in the Constitution that there need to be 9 justices?  Roosevelt threatened to add additional justices– to pack the court– to get his agenda past the Court.  The crisis was averted when Justice Owen Roberts, a reliable Supreme Court vote against the New Deal agenda, changed his opinion and joined a group of justices supportive fdr2of the President giving Roosevelt a 5-4 win which upheld a Washington state minimum wage law.  Roberts’ switch and the retirement of Justice Willis Van Devanter provided Roosevelt with a solid majority to uphold the New Deal legislation.  The New Deal legislation significantly expanded federal authority over tremendous swaths of economic and commercial activity.

Each of these Presidents was derided during their terms as being despots, dictators, and wannabe kings.  A faction of the country called them tyrants bent on reshaping the country in some perverse way.  Yet today, each is honored with a place on our National Mall (True, Jackson is not on the mall- but his equestrian statute is right in front of the White House for the President to see every day.)  Each of these Presidents is understood as being an essential part of this country’s progress and their allegedly improper power grabs have been revalidated generation after generation.  This is not to say that they receive universal acclaim; there are plenty of holdouts who are anti-Lincoln for the Civil War and the modern day GOP and its court appointees are determined to undo the legacy of the New Deal.  Yet, when historians rank the best Presidents, all three will make that list.  They are on the list because they responded with energy to the crises facing the country.  In doing so, they expanded the power of the Presidency (without creating tyranny!) and pushed the country forward.

roosevelt-memorial-washington-dc

Contrast Lincoln with his predecessor James Buchanan.  Believing he could do nothing about secession or slavery, Buchanan allowed guerrilla warfare to rage in Kansas and Missouri through much of his term.  Buchanan felt he had no power to stop secession.  In other words, that the President of the United States was powerless to stop the dissolution of the union.  Little wonder that there is no monument to Buchanan and he routinely fills out the bottom slot when historians rank the Presidents.

All this is to say that history reveres Presidents who have a dynamic view of their power.  It has now become clear that Congress has no intention of taking up any meaningful immigration reform. This is despite an acknowledged crisis.  Lincoln-Memorial-4Families are being torn apart, the administration is closing in on 2 million deportations, businesses can not get the workers they need, and national security and public safety are compromised due to the failure of Congress to act on immigration reform.  It is time for the President to be worthy of the slurs hurled at him by the know-nothings in Congress.  It is time for the President to make a bold claim of Presidential authority and place a hold on all bust the most serious removals.  History will reward him if he does.  Lincoln or Buchanan?  The choice is the President’s.Andrew_Jackson_(2873018869)

New Common Sense Rules on Material Support for Terrorism Bars

17 Feb

Syria

We have written on this page before about the absurd over-inclusiveness of the ground of inadmissibility for “material support” for terrorism.  This net barred Nelson Mandela from entering the U.S. without a waiver until 2008 and still bars 3000 refugees from the Iranian regime whose lives are at risk in Camp Liberty in Iraq from being resettled in the U.S. as promised by the U.S. government.  Moreover, hundreds, if not thousands, of others have had their applications for asylum, adjustment of status, or refugee admission placed on hold for allegations that they provided material support for terrorism by engaging in minor activities, such as distributing political leaflets, cooking food or distributing water, which the government has deemed to constitute material support of terrorism.  We are happy to report some good news on this front.  On February 5, 2014, the Departments of State and Homeland Security, issued new rules allowing the government to exempt those whose support is deemed to be “insignificant” or unintentional This decision should free the applications of hundreds of individuals in the U.S. who are awaiting the adjudication of green cards after having already won asylum in the U.S.  In addition, it should open the door to refugees from the war in Syria languishing in unsafe and unsanitary refugee camps.

U.S. law makes an individual inadmissible to the U.S. if they have provided “material support” to a terrorist organization.  The terms material support has been interpreted very broadly.  An illustration of the absurd lengths the bar extended to comes from a U.S. Citizenship & Immigration Service public forum.  A representative of CIS explained the “doing laundry” nature of the bar.  Let’s imagine that one person in a home has ties to a terrorist organization and another person in the household does the laundry for the household.  That person has provided material support for terrorism because she (let’s be real, here) has removed the terrorist’s burden of doing his laundry freeing him to do more terrorist things.  People have been found inadmissible for providing food, water, shelter to terrorists.  Although there is a duress exemption to the bar, the standard is high and the facts are rarely uncovered in an adjudication.

The new rules allow DHS to waive inadmissibility if DHS concludes that the individual applicant “has not provided more than an insignificant amount of material support to a terrorist organization.”  To exempt an individual, DHS must find the following that the applicant:

(a) Is seeking a benefit or protection under the INA and has been determined to be otherwise eligible for the benefit or protection;

(b) has undergone and passed all relevant background and security checks;

(c) has fully disclosed, in all relevant applications and/or interviews with U.S. government representatives and agents, the nature and circumstances of any material support provided and any other activity or association, as well as all contact, with a terrorist organization and its members;

(d) has not provided more than an insignificant amount of material support to a terrorist organization

(e) (1) has not provided the material support with any intent of furthering the terrorist or violent activities of the individual or organization; (2) has not provided material support that the alien knew or reasonably should have known could directly be used to engage in terrorist or violent activity; and (3) has not provided material support to any individual who the alien knew or reasonably should have known had committed or planned to commit a terrorist activity;

(f) has not provided material support to terrorist activities that he or she knew or reasonably should have known targeted noncombatant persons, U.S. citizens, or U.S. interests;

(g) has not provided material support that the alien knew or reasonably should have known involved providing weapons, ammunition, explosives, or components thereof, or the transportation or concealment of such items;

(h) has not provided material support in the form of military-type training;

(i) has not engaged in any other terrorist activity;

(j) poses no danger to the safety and security of the United States; and

(k) warrants an exemption from the relevant inadmissibility provision in the totality of the circumstances.

As the standards in the regulation make it clear, DHS must still conduct an extensive background check, determine that the individual does not pose a threat to the safety and security of the U.S. and also determine that the assistance provided to a terrorist organization be de minimis.  The new DHS rule recognizes that many immigrants come from war zones where failure to provide a drink of water or where failure to show solidarity with certain armed groups can be risking one’s life.

DHS also published a rule that is identical to the one above, but instead of insignificant support, the rule exempts those who provided support but did so unknowingly.  DHS exempts those who meet the criteria above and an applicant who:

(d) Has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;

(e) Has not provided material support (1) that the alien knew or reasonably should have known could directly be used to engage in terrorist or violent activity or (2) to any individual who the alien knew or reasonably should have known had committed or planned to commit a terrorist activity on behalf of a designated terrorist organization, as described in section 212(a)(3)(B)(vi)(I) or (II) of the INA, 8 U.S.C. 1182(a)(3)(B)(vi)(I) or (II);

This should assist the many people who have provided support to organizations that they believed to be charitable or humanitarian organizations only to find out later that their funds were used for terrorist acts.  Individuals will not be exempted if they should have reasonably known that their funds and  efforts would be supporting terrorism.

Predictably, many have used these common sense rules to accuse the administration of aiding terrorists.  This is pure demagoguery.  The administration has pushed the “war on terror” to new limits with the aggressive use of drones and targeted killings.  Like DACA, the new rules allow the government to separate the priorities from those who present no threat to the security of the U.S.  Yet, the anti-immigrant crowd asserts that the administration is being easy on terrorists and letting them into the U.S.  The fact is that many of these people are here.  They are working and living among us with no instances of terrorist acts.  For several years the DHS has had these cases on hold and people have lived here in administrative limbo.  A U.S. District Court in Virginia just last week rejected the government’s argument that it could keep a case in limbo for over fourteen years based upon an individual’s support for the Mujahedin-e-Khalk, an Iranian resistance group. 

The new rules should put an end to administrative limbo for thousands of individuals who, for fear of their lives, did little more than provide food or water or distribute political leaflets for groups that are today deemed to be “terrorists.”  This is a very welcome development.

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