Today, FOBR (Friend of Benach Ragland) Erich Straub wrote a strong response to the nonsense spouted by Fox News talking head Greta Van Susteren, who waded into water over her head when she penned an op-ed stating that lawyers who helped DREAMers file applications for Deferred Action for Childhood Arrivals (DACA) were committing malpractice because the program was temporary and lawyers were doing the equivalent of turning their clients into the government authorities for removal. I think Erich makes some great points, but I want to address some other factors that Greta may wish to consider.
Following Erich’s lead, I will disclose that I am one of the lawyers she accuses of committing malpractice. Since 2009, I have applied for and obtained deferred action for nearly fifty people. These include people on the brink of removal and others who were tired of living in the shadows and were willing to take the risk in an effort to better their lives. And I am strongly encouraging DREAMers to take advantage of this opportunity.
Greta, suddenly seized with uncharacteristic concern for immigrants, believes that applying for DACA provides the government with all the tools it needs to remove an individual. To those of us who practice in the immigration courts, we know that the government’s satisfaction of its burden of proof to establish removability is so low as to be practically laughable. The government can prove deportability in immigration court by producing a form known as an I-213. This is a document prepared by an immigration official that states that a certain individual is deportable. That’s right. The government can prove its charge that someone is deportable by producing another document that asserts that a person is deportable. To establish deportability, the government needs little evidence and a DACA application, which would, concededly, do the trick, is overkill. But wait, there’s more, Greta. If a person is considered an applicant for admission, they bear the burden of proof to show that they belong in the U.S. Establishing removability is easy. It is removing people that is hard. DACA is a recognition that DHS should spend its limited resources on those who present the most serious threats to public safety and the integrity of the system and not on kids who had nothing to do with their unlawful status and want nothing more than to study and work and contribute to the land they call home.
Greta also reminds us that she used to be a criminal defense lawyer, before she turned in her bar card for her Murdochian perch. Now, many of my friends are criminal defense attorneys. I admire them and their work. But I envy their procedural protections. They have a whole slew of amendments to the Constitution to protect the rights of their clients. Their clients have a privilege against self-incrimination, the right to appointed counsel, the right to confront witnesses, protection against unreasonable searches and seizures, the right to a jury. None of these rights apply in removal proceedings, which the Supreme Court described as civil, rather than criminal, in nature. Greta seems to believe that immigrants in removal proceedings have anything close to a level playing field against the government. I guess it is this level of ignorance that makes her such a perfect fit for Fox.
Finally, I can not say enough good things about Erich’s article. What choice do these kids have but to try to seize the bone that has been thrown to them? They know that they are getting scraps from the table. They know that one party has steadfastly fought any effort to improve their situation and the other has lacked the courage to bring a real fight on the matter. (If I have to tell you who’s who, you probably are reporting for Fox). Yet, they are trying to take any opportunity to show the world that they want to fully integrate themselves into American society.
Greta, you call yourself a journalist. Why not talk to some of these kids? why not ask them why they care coming forward? Have you ever heard of undocumented and unafraid? These kids have demonstrated tremendous courage and have shown that they understand the values of this country better than any of the blowhards screaming about immigrants. Their courage should not be surprising. It is the essence of the immigrant experience. It takes courage to leave your home and risk deserts, drug traffickers, rivers and freight trains to try to make a better life for oneself. This is what every generation of immigrants has brough to this country. Only a cynic like Greta would think that that courage should fail them when they have a chance to grasp a sliver of their DREAM.