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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)

Does the President Have the Power to Stop All/Most Removals?

25 Nov


As official Washington administers last rites to immigration reform for 2013 only to have it pop up again with a barely detectable pulse, undocumented immigrants and their allies continue to press the President to use his power as the executive to suspend removals.  Marches, sit-ins, hunger strikes, and social media combat for #notonemore deportation have reached a fever pitch as the House seems to be putting the last nail in the coffin for the comprehensive immigration reform bill passed by the Senate in June.  A family feud exploded into the open today when activist Ju Hong challenged the President of the United States as the President delivered a steaming bowl of bromides to a friendly pro-immigrant crowd.  Hong challenged the President and told the President that he has the power and the authority suspend deportations.  The President engaged Mr. Hong and said that he did not possess such authority.

So, who’s right?  Is Hong right and the President can, as a function of executive power, halt deportations?  Or is the President right that he is obliged to enforce the law and Congress must act in order to reform our broken immigration system?  The answer, like always, is very unclear.  In the President’s favor is that his constitutional obligation to “take care that the laws are faithfully executed” prohibits his ignoring the laws contained in the Immigration & Nationality Act.  However, in Hong’s favor is the fact that the President, through Deferred Action for Childhood Arrivals (DACA), relief for certain widows of American citizens, and the recent Parole-in-Place memo for military families, has already exercised his executive authority not to enforce certain portions of the immigration law.  As Hong might argue, if the President can choose not to enforce the law for certain sub-groups of immigrants, what is there to stop him from expanding the beneficiaries of his grace to other groups?  The question is whether there is a difference between a limited exercise of discretion versus a wholesale refusal to enforce the majority of the the Immigration & Nationality Act (“INA”).  Let’s also agree before we look at this that it would be better if Congress passed a humane and comprehensive reform that kept families together.  However, as it appears that Congress has no intention of doing that, let’s take a look at what the President could do without Congress.

In 1984, the Supreme Court heard a case called Heckler v. Chaney.  In this case, inmates scheduled to be executed by lethal injection argued that the lethal drugs were not being used in conformity with their use as approved by the Food and Drug Administration (FDA) and they brought suit to compel the FDA to take enforcement action against the sheriff’s departments that were improperly using the drug.  The Supreme Court held that the decision to initiate, terminate or suspend enforcement proceedings were squarely within the unreviewable discretion of the executive branch.  The Supreme  Court  wrote:

This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion (citation omitted).   This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.  The reasons for this general unsuitability are many.  First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.  Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.  An agency generally cannot act against each technical violation of the statute it is charged with enforcing.  The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.  Similar concerns animate the principles of administrative law that courts generally will defer to an agency’s construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute(citation omitted).  In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.  Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.  The action at least can be reviewed to determine whether the agency exceeded its statutory powers (citation omitted).  Finally, we recognize that an agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict — a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II,  3.

In this instance, the Supreme Court seems to support Hong’s position when it states that a decision not to prosecute or enforce is left to the agency’s unreviewable discretion.  This would support the argument that the administration could make a decision not to enforce the Immigration & Nationality Act.  Yet, the Supreme Court did not give the President the carte blanche to ignore the statute.  “We emphasize that the decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.  Thus, in establishing this presumption, . . .  Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers.  Congress may limit an agency’s exercise of enforcement power if it wished, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”

As an example, the Supreme Court cited a discrimination case, Adams v. Richardson, in which a court ordered federal education officials to enforce portions of the Civil Rights Act of 1964.  In that case, a court determined that education officials had failed to enforce a clear statutory directive from Congress and ordered the officials’ compliance.  It could be argued that Congress provided in the INA very specific guidance to the executive branch about how to enforce immigration law.  The INA provides for mandatory detention of certain foreign nationals, bars many removable individuals from all relief, and restricts jurisdiction in federal court over agency actions.  In fact, when the President established DACA, a number of ICE bureaucrats brought suit arguing that the INA provides a mandatory duty upon ICE to initiate removal proceedings against all removable foreign nationals that ICE encounters.  While the ICE bureaucrats thankfully lost, they lost on an employment law/ standing issue and the initial decisions of the judge suggested that he accepted the bureaucrats’ claims.

Thus, while the President and his appointees have considerable discretion in choosing how to enforce the law, it is less clear that they have the ability to decide to suspend all removals, or even a substantial majority of them.  While principles of prosecutorial discretion– the authority of an enforcement agency to utilize limited resources in the best way it seems fit– legitimately empower the President to identify priorities, the President would not seem to have the power to decide not to enforce immigration law.

This is not to say that the President could not be bolder with his use of his discretionary authority.  DACA has been the boldest step he has taken so far in asserting his executive authority to remedy the harsh effects of U.S. immigration law.  Could the President extend his discretion to limit the removal of parents of U.S. citizens?  Could he expand DACA to include more people?  Could he decide that no children below 16 should be removed?  This is where the legal question turns political.  The anti-immigrant right wing already believes that, despite the record number of removals, the President is not enforcing immigration law.  Should the President grow the universe of those eligible for favorable exercises of discretion, it is likely that whatever life remains in positive immigration reform in Congress will evaporate immediately.  As long as the promise of immigration reform remains flickeringly alive, the President is unlikely to antagonize his Congressional tormentors.  The House GOP seems to get that and feeds us all little scraps of “immigration reform is alive” every now and then in an effort to stave off unilateral action.

We tend to look at our times as if the political atmosphere was never more poisonous.  That is simply not true.  There have been plenty of times in our history where a President took a very expansive view of his authority.  Andrew Jackson did it on a nearly daily basis.  Lincoln utilized his powers as commander-in-chief to imprison half of Maryland and emancipate millions of enslaved humans.  Franklin Roosevelt threatened to add six new justices to the Supreme Court to tilt the balance on the Court to favor his agenda.  Harry Truman took over steel mills during the Korean War.  These were bold political moves in response to urgAdelantoent situations.

As the atmosphere grows more poisonous, perhaps the President will channel his inner Jackson or Roosevelt and take these drastic steps.  Perhaps Mr. Hong’s biggest contribution was to serve as Jefferson’s “firebell in the night” to tell the President that the situation has grown desperate.  As the President spoke, young activists, chained themselves in civil disobedience at the Adelanto detention center in California.

As Congress fails to deliver any relief to immigrant communities, the pressure will continue to mount on the President to take a leap of faith and assert a robust exercise of discretion and reap whatever political harvest is unleashed.

Congratulations to the National Center for Transgender Equality: Let’s Hope ENDA Does Better than CIR!

13 Nov

Our moment

Last night, Jen Cook and I went to the National Council for Transgender Equality’s  (NCTE) 10th Anniversary event.  The evening was themed “Our Moment,” reflecting the organization’s intention to build upon the successes of the gay rights movement in the past year, including the repeal of Don’t Ask, Don’t Tell, the Windsor decision, and the many states that have enacted gay marriage.  In fact, even as the party went on, the festivities were interrupted to announce that Hawaii became the 16th state to allow for gay marriage.  As acceptance of full rights for gays and lesbians has grown tremendously over the past few years, acceptance of the essential humanity of the transgendered has not moved as quickly.  There have been victories- the Affordable Care Act provides increased access to needed medical services to transgender individuals, transgender individuals such as Chaz Bono, Laverne Cox, and Lana Wachowski have upped awareness of trans issues in our culture.  Even Chelsea Manning has forced us to confront the dilemmas facing trans people in the military and in prison.

There was palpable excitement in the room last night.  Last week the Senate passed the Employment Non-Discrimination Act (ENDA), which would make it illegal nationwide to fire or discriminate in employment issues against someone for their sexual orientation or gender identity. Employment discrimination against trans individuals is a serious problem, with 90 percent of trans individuals reporting that they suffered some form of employment discrimination in their lives.  The Senate ENDA bill is termed “trans-inclusive,” because it has expressly included discrimination protections for transgender individuals, whereas previous incarnations had sacrificed the “T” in GLBT as protections for trans individuals were just a bridge too far for some.  But this years ENDA is trans-inclusive and is now headed to the House of Representatives.   As immigration lawyers, our hearts sank as we heard people express optimism over the chances for its passage in the House.  Over the last four months, we have watched as the House has run out the clock on immigration reform.  Even after being confronted by young activists who brought their plights to him over breakfast, Speaker John Boehner made it clear today that no immigration legislation is moving this year.

 

If anyone believes that House members can be moved by hearing the personal stories of those effected by our terrible immigration laws or due to employment discrimination because of gender identity, Boehner’s cold response to these teenagers who spoke truth to power should put that notion to rest.  George Washington called the Senate the “cooling saucer” because it was meant to temper the excitable House of Representatives.  That role has changed and a group of 40 Tea Party Republicans in the House can stymie the hopes and aspirations of immigrants and trans men and women.  It is truly ironic because both pieces of legislation easily passed the Senate and would easily pass the House if the speaker would just bring it to a vote.  Yet, the Speaker cares more about the needs of his 40 Tea Party members than he does the suffering of 11 million immigrants or the need for employment discrimination protection for vulnerable minorities.

Our involvement in trans issues began when young trans women came into our office and asked us to help them apply for asylum.  Most had come from Central America and they all had stories of beatings, rapes, and rejection by their family.  They braved smugglers and human traffickers to make it to the U.S., where they found a chance to be themselves.  We have been able to obtain asylum for dozens of transgender individuals and not just from Central America.  Persecution of the non-gender-conforming is a worldwide pestilence.  To hear and know their stories and their bravery in leaving their homes under dangerous circumstances to have a chance to simply be themselves fills us with great admiration and respect for these individuals.  Their needs are far more fundamental than a job.  They come to America to be who they are.  It all starts there.  Over the years of representing trans individuals in asylum and then for green cards and, ultimately, citizenship, we have watched them grow into themselves, get stable employment, start relationships and family, and give back to their communities.  To watch a human being develop to her potential is like watching a flower bloom.  You can never grow tired of it.

The NTCE has done tremendous work to bring trans civil rights to the forefront of the political arena.  Like immigration reform, I am confident that full civil rights for trans people will occur in the future.  Last night, we heard from 33 year old Dylan Orr, a White House appointee, and 23 year old Sarah McBride, a political activist, about their professional experiences as a trans man and trans woman respectively.  They are the future and that gives us confidence and joy.

A New Fiscal Year and the Same Old Dysfunction

1 Oct

1_photo

The air is noticeably crisper, the baseball playoffs have begun, I have started to see decorative gourds, but the traffic got a whole lot lighter today.  It is October 1, 2013, the first day of the fiscal year 2014 (FY2014), and the federal government has shut down over the inability of Congress to pass a budget that does not seek to undo the Affordable Care Act.  With the radical takeover of the House of Representatives, government functions, including immigration, have ground to a halt.  If the House can not even keep the government running, how are we to expect that they can actually create positive change by passing meaningful immigration reform?

Here are things that are not going to happen because of the government shutdown:  our client, a lesbian from South Africa, will not get to present her case for protection to an immigration judge and she will remain in limbo for the forseeable future, worrying whether she must return to a country where “corrective rape” is a common occurrence for those deemed to be gay; our clients, DI and NM, husband and wife, will continue to be separated while they wait for the National Visa Center to resume processing DI’s case and deciding whether the birth and marriage documents from Iran are the right ones, and our client, DR will have her hearing rescheduled once again.

DR’s case presents an amazing saga of government bad luck and government dysfunction.  DR is supposed to go before the immigration judge on Monday, yet the case is likely not to go forward due to the shutdown.  Even if it did, the word is that the Congressionally-limited 4000 green cards available through cancellation of the removal for FY 2014 are already gone.  Chew on that for a minute.  The 4000 visas available for cancellation, meant to get the country through the entire year, were gone before the FY even started.  Thus, the Judge could not even grant the relief we were seeking.  Perhaps she could have reserved one of the FY 2015 visas and had us return in a year to finish the case.  This was supposed to all occur last year for DR.  However, last year, Super Storm Sandy closed the immigration court in New York for about two weeks.  DR missed her hearing and, by the time, she returned to court in December 2013, the cancellation visas were all gone.  Certainly, there would be new cancellation visas on October 7, a week after the FY begins, we all reasoned in December.  So, we scheduled for October 7.  Oops.  The irony of all this is that the government and the Judge all agree that she should be granted her residence.  Yet, it is Congress that has continued to stand in the way.  The 1996 Congress which passed the dreadful immigration law which limited cancellation grants to 4000 a year has caused endless bureaucratic delay and now with a shut down has made it impossible for the parties to work out a solution.  Meanwhile, DR keeps working and going to school, wondering when she will get the relief she deserves.

The Congressional inaction has also stalled immigration reform.  Millions of immigrants wait for the chance to regularize their status and integrate more deeply into American life.  The promise of reform has been tantalizingly close since June when the Senate passed its immigration bill.  Yet, the House has done nothing with that bill.  Rather than build, they seek to destroy.  In the meantime, millions of immigrants, their families and their employers get up and go to work and school.  They do their jobs while the House Republicans close the biggest employer in the DC area.  Yet, the deportation machine keeps running.  ICE has announced that enforcement and removal operations will continue during the shutdown.  The heavy priority on enforcement over benefits and relief has been noticed in the immigrant priority.  Certain immigrant groups have taken matters into their own hands, seeking entry into the United States across the Mexican border.  I have no idea what will be the long-term effect of that strategy, but I do know that it can not be any less effective than trying to lobby Speaker of the House John Boehner.

At least the traffic in downtown DC is better.

Meet Jim Mowrer, Running Against Steve King of Iowa

23 Aug

Mowrer with ACB and JDC

On Tuesday, August 20, approximately fifty people gathered at Benach Ragland’s offices in Washington, DC to meet and support a 27 year old candidate for Congress from the 4th District of IowaJim Mowrer, born on a farm in Boone Iowa, and a veteran of our war in Iraq, is challenging the incumbent Steve King for his seat in Congress.  Readers of this blog need no introduction to Steve King as he is a leader of the extreme anti-immigrant faction of American politics.  With little results to his name, King has emerged as a rallying point for the “deport ‘em all” crowd with his willingness to say things that are not only insulting but patently and verifiably false.

As this post is about Jim Mowrer and the talents that we hope he will take to Congress, we will not belabor King’s venality.  However, King has seemingly been driven mad by the prospect of immigration reform, and like a wounded beast, his attacks have grown more desperate and chaotic.  In the past month alone, King has managed to earn rebukes from the majority of his own party as well as his church.  Briefly, in the past six weeks, King has:

To list all the idiotic things that Steve King has done and said, as well as the many people who are growing tired of King’s obsession with immigration to the exclusion of the best interests of his constituents would be to devote too much space to this clown. Especially, when there is so much to say about Jim Mowrer.

 

For us, it started with the fact that Mowrer simply is “not Steve King.”  That alone is cause for support.  However, on getting to know the man, it is quickly apparent that Mowrer is a special individual who can make a positive impact on Congress and our public debate.  Mowrer radiates Iowa earnestness and optimism despite a challenging life. Born on a farm in Boone, Iowa, Mowrer lost his father at the age of seven to a farming accident.  His mother had to leave the farm for the town and, for a while, the Mowrers relied upon the social safety net.  Mowrer is careful to credit his mother’s hard work, but is not blind to the role that Social Security survivor benefits provided to his family at their moment of tragedy.  Mowrer went to Iraq with the Iowa National Guard.  Mowrer points to his service in Iraq as when the immigration issue hit home for him.  Mowrer describes fighting alongside permanent residents and the profound impression that their patriotism had for him.  To Mowrer, they were Americans as much as anyone else; they were his brothers in arms.  Mowrer movingly describes putting on citizenship ceremonies in Iraq for his fellow soldiers and the pride that they and he felt during those moments.

Mowrer returned from Iraq and went back to Iowa.  He immediately noticed the extreme Steve King fatigue that residents of the 4th District were experiencing.  He also noted their embarrassment with the Congressman’s antics.  Mowrer knew that King did not represent the people that he grew up among in the 4th District and that those people were suffering while King embarked on his diatribe against immigrants instead of focusing on issues that matter to Iowa.  For example, there is still no Farm Bill, an essential part of Iowa’s economy.

At Benach Ragland on Tuesday, Mowrer promised to be a leader on immigration reform.  While it may be enough for him not to be Steve King, Mowrer said he would lead on immigration reform.  He supports comprehensive immigration reform, the path to citizenship and the Senate bill.  But, just as importantly, Mowrer has a deep respect for immigrants.  As he says, all his brothers in Iraq had “U.S.” on their uniforms and it did not matter where they were from, where they were born or whether they were residents or citizens.  When he needed back up, they were there.

Mowrer at BR

And we will be there all the way for Mowrer.  He has a chance to unseat King.  Defeating King would send a message to all those who follow him that the era of demonizing immigrants is over and the era of solutions and inclusion is here.  There is no room in the public debate for the hateful rhetorical bombs that King lobs.  His followers seldom seem to have the same enthusiastic disregard for the facts and the will of their constituents.  His defeat would send them running to the hills.  King was pushed to the limit in 2012 by a candidate who did not come from the district.  He does not have a war chest for this race and he has alienated his allies in the GOP.  But, most importantly, King is out of step with his constituents.  In a recent poll, the 4th District of Iowa overwhelmingly supported the principles in the Senate immigration bill, including the path to citizenship.

King’s deranged obsession seems to be catching up to him.

 

Mowrer’s campaign website is http://www.mowrerforiowa.com

Facebook: https://www.facebook.com/MowrerforIowa

Twitter: @JimMowrer

CIS Bureaucrats Union Joins ICE Bureaucrats Union in Opposing Immigration Reform

23 May

uscis

The day before the Senate Judiciary Committee advanced the most significant piece of immigration legislation since 1996, the “President of the National Citizenship and Immigration Services Council, the union representing 12,000 United States Citizenship & Immigration Services adjudications officers and staff” sent a letter to Members of the United States Senate in opposition to the immigration reform bill under review in the Senate.  Despite claiming to be the “backbone of our nation’s immigration system,” the Union leadership complains that they were not consulted over the proposed immigration reform.  Had they been consulted, the union continues, it would have exposed, they claim, the gross politicization and overbearing pressure to approve applications and petitions by individuals who present a danger to the public or a threat to national security.  The letter is so full of inaccuracies, half-truths, and overly dramatic claims that the best way to address it is to address each of their points in turn.

“USCIS adjudications officers are pressured to rubber-stamp applications instead of conducting diligent case review and investigation.  The culture at USCIS encourages all applications to be approved, discouraging proper investigation into red flags and discouraging the denial of any applications. USCIS has been trued into an “approval machine.””

No one who spends any time dealing with immigration would recognize this statement.  The agency has been criticized repeatedly for encouraging a “culture of no.”  This criticism is not limited to the “immigration advocates,” but by businesses throughout the U.S.  But let’s not mess with anecdotes.  Numbers and facts matter here.  A look at CIS’ own statistics for January 2013, shows that approvals went up by 7% and denials went down by 8% from January 2012 to January 2013 for applications other than citizenship.  Well, that does seem to bear out an increased approval rate over the course of a year, but, perhaps, not enough to call it an “approval machine,” especially with 2.3 million non-citizenship cases in the pipeline.  But that pattern does not hold up in the citizenship context.  Between January 2012 and January 2013, approvals of applications for citizenship went up by 13% and denials went up by 54%!  Wow, that is a big increase in denials of a serious application.  Granted, this is just one month worth of statistics, but that is one month more than the CIS union leadership offered.  And whether this trend is sustained over several months, it seems reasonable to state, that CIS has become an approval machine in the last year or so.  In addition, the National Foundation for American Policy issued a report last year that concluded that “USCIS adjudicators have demonstrated a capacity to keep skilled foreign workers out of the United States by significantly increasing denials, along with often time-consuming Requests for Evidence, despite no change in law or relevant regulations between 2008 and 2011.”  The statistics and experiences of foreign nationals, their families and lawyers who regularly deal with the USCIS, know that the agency is far from rubber-stamping and is closer to a delay, doubt and deny machine than an approval machine.

“USCIS has created an almost insurmountable bureaucracy which often prevents USCIS adjudications officers from contacting and coordinating with ICE agents and officers in cases that should have their involvement.  USCIS officers are pressured to approve visa applications for many individuals that ICE has determined should be placed into removal proceedings.”

The union will get no argument that USCIS is an “almost insurmountable bureaucracy,” but coordination with ICE officers does not seem to be a problem.  Every immigration lawyer knows that if they take someone with an order of removal into CIS, for benefits that the law entitles them to, that they can expect that ICE will be waiting with handcuffs.  In addition, we know of lots of occasions where a person has been arrested and placed into removal proceedings because of information revealed in their applications to USCIS.  Many lawful permanent residents who are subject to removal are identified by CIS and ICE because of applications they file with the CIS and not due to excellent detective work by Homeland Security Investigations (HSI).  Finally, the visa applications that the CIS officers “are pressured to approve” for removable individuals are usually family based petitions, which they may use to apply for adjustment of status before the immigration court in removal proceedings.  Under the law, a CIS officer has no cause to determine an individual’s removability on an immigrant petition as it is not germane to the petition.  All that a CIS adjudicator is supposed to determine in such instances is whether the family relationship between the petitioner and the beneficiary exists.  What the union seems to be complaining about is that they are being told to follow the law and not bring extraneous matters into their adjudications.

“USCIS officers who identify illegal aliens that , in accordance with the law, should be placed into immigration removal proceedings before a federal judge, are prevented from exercising their authority and responsibility to issue Notices to Appear.  In the rare case that an officer attempts to issue an NTA, it must first be approved by a secretive panel created under DHS Secretary Janet Napolitano, which often denies the officer’s request.  Illegal aliens are then permitted to remain in the United States as USCIS officers are not able to take action or contact ICE agents for assistance.”

It appears that the union is unhappy that some of its members do not have authority to place an individual into removal proceedings.  The ability to initiate removal proceedings is an awesome exercise of the state’s law enforcement authority.  Not all officers are given that power and that is the way it should be.  Many CIS-issued NTAs are often defective and waste the resources of the immigration court and the ICE trial attorneys, to say nothing of the immigrant.  It is reasonable for the CIS, whose mission is only secondarily law enforcement, to restrict that authority to the more senior personnel.

“The attitude of the USCIS management is not that the agency serves the American public or the laws of the United States or public safety and national security, but that the agency serves illegal aliens and the attorneys that represent them.  While we believe in treating all people with respect, we are concerned that this agency tasked with such a vital security mission is too greatly influenced by special interest groups- to the point that it no longer properly performs its mission.”

If we and our clients are being served, allow us to register some complaints.  To enter a CIS office, we have to remove our coats and belts.  However, before we even get in, we must line up outside regardless of how hot, wet or frigid it may be.  Once we have reassembled our attire, we are directed to another line to demonstrate that we have a legitimate purpose to be in the building.  After the individual sitting in the “triage” chair allows us to proceed to the interview room, we turn in the appointment notice and have a seat.  Waits of over an hour are not uncommon until an officer appears in the door and shouts out a name.  We enter the interview with the client and have been told on more than one occasion that we, the attorneys, are to sit behind the client and not to sit by the client’s side.  Sometimes, a supervisor’s intervention is required just to settle seating arrangements.  The officer will not have reviewed the file, may not have all the files that they are supposed to have, or not initiated certain background checks.  In light of those facts, despite the client’s qualification for the benefit or satisfactory resolution of any outstanding issues, that client may not be approved until the remaining steps, all internal to USCIS, are undertaken.  This hardly seems like the service we would expect if CIS viewed their job as serving us and our clients.  In fact, the union’s statement makes it fairly clear that the only constituency they have is the welfare and grandiose expectations of the bureaucrats.  It is also worth reminding the union that CIS is a fee-based agency, where the fees that immigrants pay, which have gone up significantly over the last five years, pay the salaries of CIS officials.  And CIS is a monopoly.  Although the CIS now calls our clients “customers,” CIS is a monopoly as clients have nowhere else to turn to obtain U.S. residence.  Again, the CIS union exists solely to protect the interests of the CIS employees.

“Currently USCIS reports a 99.5% approval rating for all illegal alien applications for legal status filed under the Obama Administration’s new deferred action for childhood arrivals (DACA) policies.  DHS and USCIS leadership have intentionally established an application process for DACA applicants that bypasses traditional in-person interviews with trained USCIS adjudications officers.  These practices were put in place to stop proper screening and enforcement, and guarantees that applications will be rubber-stamped for approval, a practice that virtually guarantees widespread fraud and places public safety at risk.”

This is a highly misleading statistic.  As of April 1, 2013, CIS had received 488,782 DACA applications.  Of those, about 55% have been decided, for a total of 269,738 decisions on DACA Applications.  It is true that of those 269,738, the vast majority, 268,361, have been approved and only 1,377 have been denied.  The approval rate of the decided applications is 99.5%  But the reality is that it is faster to approve a case than to deny it.  Where CIS intends to deny a case, it issues a request for evidence or a notice of intent to deny.  That takes time.  Cases in which there has been an RFE or NOID are much more likely to be denied as the evidence initially submitted did not demonstrate eligibility.  A significant portion of those unadjudicated will result in denials due to lack of eligibility.  The CIS union leadership knows this and is being completely disingenuous.  Moreover, if the CIS is indeed processing the applications without sufficient review, why do they take so long?  We are tempted to think that it is because the CIS officials handling them are not handling them as efficiently as possible.

“While illegal aliens applying for legal status under DACA policies are required to pay fees, DHS and USCIS are now exercising their discretion to waive those fees.  Undoubtedly, these practices will be replicated for millions of illegal aliens if S. 744 becomes law.”  “US taxpayers are currently tasked with absorbing the cost of over $200 million worth of fee waivers bestowed on applicants for naturalization during the last fiscal year.  This is in addition to the strain put on our social security system that has been depleted by an onslaught of refugees receiving SSI benefits as soon as their feet touch U.S. soil.”

Wow.  CIS collects, on average about $2.6 billion in fees paid by immigrants, their employers and their families.  CIS receives about $100 million in appropriations from Congress.  One thing is very clear is that, if anyone is on the hook for the $200 million that the CIS chose not to collect, it is the other immigrants who bill that cost at a rate of 26 to 1.  Also, as regards Social Security, something well outside the expertise of the CIS union leadership, most credible studies show that immigrants provide a crucial source of income for the social security system.

“Large swaths of the Immigration & Nationality Act (INA) are not effectively enforced for legal immigrants and visaholders, including laws for public charges as well as many other provisions, as USCIS lacks the resources to adequately screen and scrutinize legal immigrants and non-immigrants seeking status adjustment.  There is also insufficient screening sand monitoring of student visas.”

It is hard to tell exactly what the union is talking about.  OK, let’s talk about public charge.  Every immigrant to the U.S. must demonstrate that they have the resources or have access to the financial resources so as not to become a public charge in the U.S.  All applications for residence must be accompanied by evidence demonstrating that.  That evidence is routinely submitted months in advance of adjudication.  It is all in CIS’ files for review.  we hope it is being reviewed.  The family based affidavit of support is about ten pages long- it is a lot of work to prepare one.  We hope that CIS takes the time to review something we have worked so hard on.  If CIS is not reviewing public charge information, it is a gross dereliction of duty on the part of individual officers and not indicative of any larger political purpose.

“A new USCIS computer system to screen application known as ‘transformation’ has proven to be a disaster as the agency has spent upwards of $2 billion for a system that would eventually allow an alien- now referred to as a “customer” under current USCIS policy- to upload their own information via the internet for adjudication purposes.  To date, only one form can be accepted into the program that has been in the making for close to ten years.”

Yep, “transformation” was a boondoggle.  Hopefully, heads will roll about such an egregious waste of money.  We can be sure, however, that the union will be there to defend those employees and keep them on the immigrant’s payroll.

 

It is very disappointing to see the USCIS union parrot the talking points of the rogue ICE union, the restrictions, and the retrograde Senators on the Judiciary committee.  However, it is perfectly consistent with CIS’ warped view of reality.  What this letter shows is that the union, like their ICE brethren, is willing to resort to half-truths, distortions and outright lies to protect the one constituency that they really care about- the bureaucrats they serve.

 

 

 

The union states that the CIS agents are pressured to “rubber stamp” approvals and that the CIS leadership views “aliens and the attorneys which represent them” as their true constituency.  The union also cites a statistic that 99.5% of DACA applications have been approved as evidence of the lax standard of review and the failure of CIS to ensure the integrity of the process.

From the Committee to the Senate Floor: The Immigration Bill Survives!

22 May

 

Yesterday, by a vote of 13-5, the United States Senate Judiciary Committee passed S. 744, the immigration reform bill.Flake  Three Republicans (Lindsey Graham (SC),Graham Jeff Flake (AZ) and Orrin Hatch (UT)) joined all ten Democrats to vote the legislation out of committee. Hatch

 

 

 

 

 

The five opponents were the five Republicans who had spent the several mark-ups attempting to torpedo the legislation with odious and unworkable amendments, most of which were defeated.  Yet, Senators Jeff Sessions (AL), Ted Cruz (TX), John Cornyn (TX), Mike Lee (UT), and Chuck Grassley (IA), have vowed to renew their efforts on the Senate floor, where the bill goes next.
Cruz Lee and Cornyn

The bill emerged after several mark-up sessions, largely intact. The bill still offers a provisional status and a path to citizenship, expedited residence and citizenship for undocumented youth, improvements in due process, increased use of E-Verify, tighter border controls, a new temporary worker visa, improved opportunities for employment-based immigration, enhanced H-1B provisions, and more liberal policy for asylum seekers.

The bill was improved by the passage of the following amendments:

  • Coons 2- limits ICE’s authority to perform nighttime removals.
  • Coons 5- provides immigrants with statutory right to see their “A-file” in removal proceedings
  • Hirono 21- allows undocumented youth to obtain federal financial aid
  • Blumenthal 2- prohibits solitary confinement of individuals in ICE detention
  • Blumenthal 8- restricts ICE enforcement at schools and hospitals.
  • Blumenthal 12- provides for expedited naturalization for undocumented youth in military

The bill was made worse by the following amendments:

  • Grassley 44- made conviction of a third DUI an aggravated felony.
  • Graham 1- allows DHS to terminate asylum of an individual who returns to country of nationality

The Committee fought off several “poison pill” amendments designed to gut the entire process or to make the immigration system more inhumane than it is today:

    • Cruz 3- would have barred anyone who was ever out of status from obtaining citizenship
    • Grassley 1- would have retained the one year filing deadline for asylum
    • Cornyn 3- would have made people convicted of minor offenses ineligible for provisional status
    • Grassley 18- would have required applicants for provisional status to disclose all previous social security numbers

GS

  • Sessions 1- would have imposed a $5000 minimum bond for release from custody
  • Grassley 67- would have subjected businesses hiring H or L workers to increased audits and bureaucratic oversight
  • Lee 15- would have required affirmative intent in employment discrimination based upon national origin
  • Grassley 34- would have imposed 20 year sentence for document fraud convictions
  • Grassley 45- would have expanded criminal penalties for illegal entry and re-entry

The strength of the bill was enhanced by the support of Republican Senator Orrin Hatch of Utah.  Senator Hatch has long been a champion of the H-1B program.  The Committee adopted Senator Hatch’s amendments to increase the availability of H-1B visas and earned the Senator’s support in the Committee.  Senator Hatch has not committed to his vote on the floor, but his support in committee, made the bill more strongly bipartisan and showed that the “Gang of 8” can pull reasonable Republicans into the bipartisan consensus that our immigration system requires serious overhaul.  This compromise required some serious accommodation by both Democrats and Republicans on the Committee and it is a welcome sign for our democracy that this issue did not cause the wholesale breakdown that we have come to expect.  This suggests that immigration reform has become a categorical imperative for both parties.

Unfortunately, the bill that came out of committee is as defined by what it does not include by what it does include.  Under pressure from the White House, Senator Leahy pulled his amendment to ensure that LGBT individuals and couples are treated equally and fairly under the immigration bill.  Republicans, including members of the Gang of 8, had balked at LGBT inclusion and, as a result, the Committee gave into homophobia.  We are extremely disappointed that LGBT families were thrown aside in the passage of this bill.  We remain hopeful that the Supreme Court will make this a non-issue soon enough.

The bill will now head to the senate floor, where there will be more debates and amendments.  Immigration reform will likely dominate the Senate for the month of June.  In some good news, Senator Mitch McConnell of Kentucky, the Republican leader, has said that he has no plans to block consideration of the bill.  While any single Senator can filibuster a bill, that Senator needs the support of 40 of his/her colleagues to sustain the filibuster and it is hard to imagine that succeeding without the support of the Senate leadership.

We hope for a strong show of support from the United States Senate.  A bill that gathers 65+ votes will storm out of the Senate and place a lot of pressure on the House to support common sense immigration reform.