The Benach Ragland crew just returned from the annual conference of the American Immigration Lawyers Association in Boston, Massachusetts. The annual meeting is the largest gathering of immigration lawyers and provides an opportunity for lawyers to learn from each other and improve their services to their clients. This year, Benach Ragland attorneys Dree Collopy and Andres Benach, served on the conference faculty. On Friday, Dree spoke on a panel that encouraged lawyers to think about issues in removal proceedings that go beyond the availability of relief entitled “Challenges and Strategies Beyond Relief.” On Saturday morning, Andres served as a “Star” on the “Litigating with the Stars” panel, which challenged lawyers in the audience to think through common (and uncommon) scenarios and share their strategy. The “stars” then critiqued the answers. It was, indeed, a pretty sharp group of lawyers, as the stars gave out lots of “9s” and “10s.”
AILA also asked Andres to serve a third year as a member of the amicus curiae committee, the committee that decides which cases AILA will support with amicus briefs and prepares briefs on behalf of the organization. In 2013-14, the committee submitted sixty briefs. Dree was chosen again to serve as the Chair of the AILA asylum committee. Thomas Ragland will continue to serve on the Federal Court Section Steering Committee.
The highlight of the conference was Saturday evening, when AILA gave its 2014 Joseph Minsky Young Lawyer Award for Outstanding Contributions in the Field of Immigration and Nationality Law. In presenting her with this award, AILA cited Dree’s full caseload at Benach Ragland, as well as her leadership of the Catholic University Law School Immigration Clinic and her stewardship of the AILA National Asylum Committee. Lastly, AILA noted that Dree is writing the upcoming edition of AILA’s Asylum Primer, a practical how-to for anyone seeking to represent an asylum seeker. AILA subsequently published Dree’s speech accepting her award on its Leadership Blog. Dree cited the humanitarian crisis on the border, the lack of due process, and the failure of the political branches to address the serious policy issue of immigration:
We are now faced with a humanitarian crisis at our borders. CBP and ICE officers are using excessive force, inhumane detention conditions, and “no process” removals. We are faced with immigration courts fighting against insufficient resources, overcrowded dockets and cabined legal discretion. And we are faced with a renewed assault on our asylum system by Congress and the agencies themselves.
Yet, no actions are taken by those in power to fix our system. Instead we have a Congress that points fingers and strikes a pose in Capitol Hill hearings and an Administration which, on the back of an immigration reform-focused campaign, has taken to putting Band-Aids on gashes rather than treating the underlying wounds.
Until we have leaders who are going to work together to solve real problems that affect real people, American businesses, and separated families, it is up to us. It is for these reasons that this award is only the beginning of my journey.
After the awards ceremony, BR and many FOBRs headed out for a night of dancing, before getting back to the work that we knew awaited us.
As way of background, my client, a 21 year old college junior who has been here since she was four years old, applied for cancellation of removal from the Immigration Judge. Cancellation is available to an individual who has been unlawfully present in the U.S. for at least ten years, possesses good moral character and whose removal would cause exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent or child. Congress has decided that only 4000 cancellation cases should be granted every year. For many years, the 4000 quota was enough for the entire country. However, as the Obama administration put many more people into removal proceedings, more people applied. And guess what? Given a day in court, more people were able to convince judges that they were good people with longstanding ties to the U.S. and deporting them would cause their families tremendous hardship. By December 2012, the Office of the Chief Immigration Judge announced that they had run out of cancellation visas for the entire fiscal year, which had started barely two months earlier. My client had a hearing in December 2012, in which she was informed by the Judge that there were no more cancellation grants available and the case would need to be continued. The case was reset until October 2013. The irony at that time was that she had originally been scheduled in October 2012, when cancellation numbers were available, but had to be rescheduled when the court was shut down due to flooding in lower Manhattan as a result of Hurricane Sandy.
Fast forward to October 2013 and the government shutdown cancels her latest hearing. The New York, upon reopening, quickly sent out a hearing notice for March 30. However, on March 28, the court called me to inform me that the case would need to be rescheduled because the judge had been selected for jury duty! We were rescheduled for April 18 at 2:00 PM, a date that greatly concerned me as it was Good Friday. Sure enough, the court called the day before and asked us to come in earlier, which we happily did. At the hearing, the government informed the court that it agreed with our request to grant our client cancellation of removal. It took all of fifteen minutes. The Judge was glad to do so, but explained that there are no cancellation numbers and that my client would be placed in the queue based upon the date and time of her case and would be notified when a number became available to her. The case could not be “granted” until then. So, my client, while relieved that she will ultimately be granted, remains in a precarious limbo by another absurd anomaly of our immigration laws- that only 4000 of these may be granted in a given year. Who knows where Congress got that number?
Here’s where Congress got the 4000 number!
My client is just one of millions of people left in a state of limbo by Congress’ inability to address the crisis of immigration law. In this case, my client has DACA and I probably could have gotten the removal case dismissed. The government stipulated to relief, meaning she would get her green card. It is hard to say that, in this one case, the problem is the administration. Like all other arbitrary caps and quotas, such as the H-1B cap, the former cap on asylee adjustment, and caps on immigrant visas, Congress needs to act.
Throughout the American Immigration Lawyers Association’s two-day conference designed to help paralegals provide more effective assistance to their supervising attorneys, faculty reviewed and discussed the paralegal’s role with regard to key legal and factual issues, as well as the preparation of application forms and supporting documentation. As members of the conference faculty, Dree Collopy and Liana Montecinos presented on asylum and removal case preparation, covering the asylum process, removal proceedings before the U.S. Immigration Courts, Immigration Court filings and preparing cases for trial, and the important role of the paralegal throughout these immigration cases. Paralegals from all over the country participated, either in person or by the conference’s webinar component.
Benach Ragland Paralegal (and Superstar) Liana Montecinos began her portion of the presentation by asking, “Who here thinks of themselves as an artist?” Liana then went on to describe the “art” that she creates every day in preparing filings to be sent to Immigration Courts around the country, emphasizing the importance of being detail-oriented, while also keeping in mind that each part of a filing contributes to its effectiveness as a whole. From the cover page, to the index of exhibits, to the supporting evidence, to the proof of service, everything must be in order and must be presented like a valuable piece of art.
Benach Ragland Partner Dree Collopy emphasized the importance of teamwork in tackling the preparation of filings and testimony to be considered by the Immigration Courts. In cases before the U.S. Immigration Courts, it is not only an individual’s livelihood or career and it is not only an individual’s family unity that is at risk; often times, it is a family member’s well-being and survival, or even the individual’s life and freedom at risk. Because of this, the stakes are incredibly high and the nature of the relief sought can be quite complicated. In meeting the Respondent’s high burden of proof in cases before the Immigration Courts, it takes a team, and paralegals are an essential part of that team.
Perhaps the most important aspect of teamwork on Immigration Court cases, whether you are an attorney or a paralegal, is providing impeccable client service from the beginning of the case until the end. Liana and Dree emphasized the importance of client service throughout their presentation, noting that clients in removal proceedings are going through one of the most stressful times in their lives, and often times, having to recall and discuss in detail some of the most traumatic times in their lives. Communicating frequently with clients, helping them feel comfortable with the procedures, and educating them about removal and the relief they are seeking will enable them to participate more fully in their cases and to feel more confident and calm throughout the process.
BR attorneys and staff are committed to improving the quality of practice of representation of immigrants. In addition to having an opportunity to share our experience, we had the chance to learn from great immigration lawyers and paralegals and made many new FOBRs.
Benach Ragland is very pleased to announce that Rachael Petterson has joined the firm as an associate attorney. We are very excited that Rachael has chosen to join our team and look forward to her contributions on behalf of our clients for many years to come.
Rachael has been a FOBR (Friend of Benach Ragland) since our start in April 2012. A graduate of George Washington University Law School, Rachael jumped right into the practice of immigration by assuming the reigns of the GW Immigration Law Clinic while Professor Alberto Benitez was on sabbatical. Rachael supervised the work of twelve student-attorneys who provided pro bono legal services to the immigrant community in the DC area. In a remarkable year, Rachael served as a student in the clinic, graduated from law school and moved right into supervising the clinic. During that time, the clinic scored a number of impressive courtroom victories and its alumni have gone on to meaningful careers in immigration. The attached photo shows Rachael with Professor Benitez, a happy client and student attorney and FOBR Jose Pitti after one of their victories. (See if you can guess who is who!). Andres Benach is also a graduate of George Washington Law School and a former member of the Immigration Clinic.
Rachael left academia to engage in private practice. She worked with Ivan Yacub, a terrific litigator based out of Virginia. Ivan is a well-known advocate who is always pushing the legal envelope for his clients. Rachael undoubtedly learned a lot by Ivan’s side.
Before law school, Rachael was a Peace Corps volunteer in Guatemala. In Guatemala, Rachael helped individuals who suffered human rights abuses to assert their rights under laws enacted at the end of the civil war that consumed Guatemala in the late 20th Century. The greater DC area is home to a large Guatemalan population that fled that same barbarous war.
A native of Texas, BR is principally concerned whether Rachael can make some excellent Texas barbecue and whether she can dance a proper two-step.
Rachael will move right in to handling our growing caseload of immigration litigation, provisional waivers, complex criminal immigration matters, motions practice, and asylum and refugee protection. We look forward to introducing her to all of our clients and friends.
On Thursday, June 27, 2013, theAmerican Immigration Lawyers Association (AILA) will bestow its highest annual honor, the Edith Lowenstein Memorial Award for excellence in advancing the practice of immigration law, to our very own Thomas Ragland. AILA is the most comprehensive and significant professional organization of immigration lawyers, comprising more than 11,000 lawyers practicing U.S. immigration law around the globe. For the past 22 years, AILA has awarded the Lowenstein award to the lawyer who has most positively impacted impacted immigration law over the past year. Thomas is being recognized not only for his recent important victories in Congress and in federal courts, which have provided significant benefits for immigrants nationwide, but also for his leadership of AILA’s National Federal Court Litigation Committee, which helps lawyers around the country improve their litigation skills and share knowledge and efforts in advancing immigrant rights in the courts. In honoring Thomas, AILA wrote, “He has done much to promote aggressive, careful and competent litigation to counter irrational and abusive decisions by the government.”
Thomas was nominated for the award by his fellow AILA members.
Denyse Sabagh wrote: “He is truly outstanding and most deserving. He is the consummate litigator. He leaves no stone unturned and is dogged in his pursuit of justice and getting the right results for his clients. His work in the Waheed case and the Akinsade and Abusamhadeneh litigation have been excellent. These were extremely difficult cases and Thomas’ litigation skills won the day. His work not only benefited the clients but created decisions which are beneficial to us all.”
Joe Hohenstein from Philadelphia wrote: “Thomas is a tireless litigator, I have no doubt that he is one of the most – if not the most – astute immigration practitioners in the United States today. I am impressed with the way in which he has managed several complex cases along with increased duties for AILA on a national level – not to mention being a partner in his own firm. The thing I most appreciate about Thomas is that he has the exactitude of an engineer and the soul of a philosopher.”
Many Vargas and Isaac Wheeler of the Immigrant Defense Project wrote: “The Immigrant Defense Project enthusiastically supports Thomas Ragland’s nomination for the Wasserman award. Thomas has done pathbreaking work in the field of criminal immigration law. His outstanding advocacy on behalf of A.Waheed contributed significantly to the Fourth Circuit’s decision in Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) striking down Matter of Silva-Trevino. His ceaseless efforts for Akinsade resulted in important precedential victories in not one but two circuit courts, a truly impressive accomplishment. IDP has also sought Thomas’s wise advice in other criminal immigration litigation and benefits from his valuable contributions to national litigation strategy discussions through the AILA federal litigation section, the AIC national litigation strategy network, and other fora. He richly deserves recognition for his superb work and commitment to the rights of the some of the most vulnerable and disadvantaged noncitizens.”
Rekha Sharma-Crawford of the Kansas City Sharma-Crawfords wrote: “Thomas has been a leader in litigating complex, cutting edge issues while being a passionate advocate for a fair and reasonable interpretation of the immigration laws. His dedication to his community and his clients is out shined only by Thomas’ commitment to his colleagues in helping them reach their full potentials.”
Bob Pauw, a scholar on representing individuals before the courts wrote: “His work in the Akinsade litigation and the Waheed case has been of the highest caliber and has provided benefits not only to his own clients but to many other non-citizens as well. In addition, through his work as chair of the Federal Court Litigation Section he has provided assistance and guidance to other litigators throughout the country.”
Jeff Joseph from Colorado wrote: ““Thomas is one of the most prominent immigration litigators in AILA’s ranks. We are so blessed to have stolen him from OIL. He is known for taking on the most complex and challenging issues and has a track record of success. He has also taken on leadership of the federal court litigation section and the very active list serve and has grown the section into an enormous success.”
Scott Pollock from Chicago wrote: “In addition to his successes in the federal courts and steering the Federal Litigation section, he is always available to mentor other litigators. He has participated as faculty for several AIC litigation institutes. All in all, he has done a great job to promote aggressive, careful and competent litigation to counter irrational and abusive decisions by the government.”
Erich Straub of Milwaukee wrote: “I have taught with Mr. Ragland at AIC’s Litigation Institute, and I have presented with him at other immigration CLE’s. What impresses me so much about him in those contexts is that he is able to clearly and concisely communicate how he litigates to other practitioners. His courtroom victories speak for themselves, but his constant commitment to making other attorneys better is what makes me confident that he is having a much deeper, longer lasting impact on the immigration bar and litigation.”
Thomas’ dedication to precise, incisive, and intelligent lawyering distinguishes his practice in a field where many are content to settle for “good enough” representation. Thomas craves complexity, welcomes the last-ditch effort where all other lawyers have failed, and wields a mighty red pen. He recognizes that clarity and details matter – on paper or in oral argument, Thomas’ words are chosen with surgical precision. And like surgical patients, his clients quite literally owe him their lives.
At Benach Ragland, we are proud and lucky to have Thomas on our team. We learn from him everyday and are inspired by his meticulous strategy and execution. We appreciate his friendship and his quiet and steady intensity to serve our clients to the best of his ability.
Over the last few weeks we have answered dozens of questions about the provisional waiver. One group of questions keeps appearing- questions about how people in removal proceedings or with a removal order can qualify for the provisional waiver. Whereas, the initial rule announced by the Department of Homeland Security indicated that the provisional waiver would be unavailable to people in removal proceedings, the final rule is somewhat more forgiving. The final rule states that an individual in removal proceedings can not seek a provisional waiver with the Citizenship & Immigration Service (CIS) unless proceedings have been administratively closed or terminated.
As Julie Andrews sang, let’s start at the very beginning as it is a very good place to start. Removal proceedings are initiated when the DHS issues a charging document known as a Notice to Appear (NTA) and lodges it with the Immigration Court. Any of the three immigration agencies, Immigration & Customs Enforcement, Citizenship & Immigration Services and Customs & Border Protection has the authority to issue NTAs. Usually, the time between DHS issuing an NTA and filing it with the court is close to simultaneous. However, on occasion, the NTA is issued and not filed with the court for days, weeks, months or even years. An individual is not “in removal proceedings” until an NTA has been filed with the court. Until the NTA is filed with the court, DHS has exclusive authority to choose not to bring removal proceedings against an individual. In cases where an NTA has been issued and not filed with the court, that individual is not in removal proceedings and should remain eligible for the provisional waiver. Removal proceedings continue until the immigration judge grants relief and terminates the case or the person departs the U.S. either under an order of voluntary departure or an order of removal. In cases where there is a final order of removal, but the individual has not been removed yet, even though there are no more proceedings before the court, that individual is still “in proceedings” and would be ineligible for the provisional waiver.
Once a person is in removal proceedings, the provisional waiver rule is clear that those proceedings must be administratively closed or terminated before that individual can seek the provisional waiver. Termination of removal proceedings can happen in one of two ways. First, proceedings are terminated where the immigration judge grants relief, allowing an individual to remain in the U.S. in some sort of legal status. Second, and this is the rarer form of termination, ICE may elect to terminate proceedings because it has decided that seeking removal in a particular case is no longer in the interests of the government. Although the DHS has exclusive authority to issue and to decide whether to file a Notice to Appear in immigration court, once proceedings have been initiated, DHS becomes a party to litigation and only the immigration judge has the authority to terminate removal proceedings.
Administrative closure is a tool of convenience for immigration courts. Administrative closure allows the court to take a case off an active docket and place it into “hibernation.”
By administratively closing a case, the case remains pending before the immigration court, but it is taken off the active calendar. When a case is pending before the court, it is on an active calendar and at the end of each hearing another hearing must be calendared. When a case has been administratively closed, it is not on any calendar and no hearings are scheduled. The case remains before the court, but the court is not acting on the case. In order to get the case back on the active docket, one of the parties must file a “motion to recalendar” the case. Cases can be administratively closed for months or years at a time. Either party may request administrative closure and the immigration judge has authority to grant it. Until recently, the law required the concurrence of both the foreign national and the government to allow for administrative closure. However, last year, in Matter of Avetisyan, the Board of Immigration Appeals held that an immigration judge may grant administrative closure over the objection of one of the parties. In other words, DHS can not unilaterally deny the foreign national’s ability to obtain administrative closure.
People currently in removal proceedings who would otherwise qualify for the provisional waiver can seek both termination and administrative closure. We expect that ICE, who represents the government in removal proceedings, will be fairly accommodating to requests to terminate or administratively close cases where the foreign national can present a prima facie case for eligibility for the provisional waiver. In these cases, your lawyer ought to prepare a motion to terminate or administratively close demonstrating that you qualify for the provisional waiver and that the pending removal proceedings are the only impediment. These individuals should be able to demonstrate that they are the spouse, parent or children of a U.S. citizen and that their only violation of law relates to entering illegally. By presenting evidence to the government of qualification for the provisional waiver and readiness to file it, it seems that ICE would exercise its discretion to administratively close the case to allow the applicant to file the provisional waiver application. Upon approval, termination seems appropriate. If the case is not approved, it is reasonable to expect that ICE would seek to recalendar the case and proceed with removal proceedings. Should the government refuse to join a motion for administrative closure, the immigration judge has the authority under Matter of Avetisyan to close the case nonetheless upon the motion of the foreign national.
People with old orders of removal who have not yet departed the United States would need to reopen removal proceedings so that removal proceedings can be administratively closed or terminated. This is a heavy lift. If the removal order is more than 90 days old, a foreign national will, generally, need the government to agree to reopen for the purpose of closing. Makes sense, right? However, there may be circumstances where the hardship is so clear and extreme and the facts are so compelling that the government agrees to this. By asking the government to join a motion to reopen, an individual with a final order of removal, who may or may not be on the government’s radar screen for removal, makes herself vulnerable to enforcement of the removal order should the government prove unwilling to join in reopening. While there are limited circumstances in which an immigration judge can reopen on his own motion, those instances are rare and should not be, generally, relied upon.
Finally, people who have been deported or departed the U.S. under an order of voluntary departure or removal are ineligible for the provisional waiver and must seek the waiver through the traditional means at the consulate in their home country.
The provisional waiver has the potential to help thousands of people in removal proceedings. Many of them may be waiting for hearings on cancellation of removal which requires a much higher level of hardship than the provisional waiver’s standard of extreme hardship. It is not really conceivable that anyone can navigate this thicket without experienced counsel. Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.
None of this is surprising to immigration attorneys. ICE runs a gulag archipelago of detention centers across the country, holding immigrants who have overstayed visas, entered without inspection, seek asylum, and committed minor offenses. ICE has continued to push in the federal courts for expansive definitions of mandatory detention, even if it means detaining people for offenses committed decades ago. In 2011, ICE detained over 429,000 people, more than any other single government entity. More than the Bureau of Prisons, the States of California, Texas, Florida, and New York. ICE operates in its own jails, rents out space at local jails and contracts with private companies like the GEO corporation to manage this enormous population. In addition, ICE has contracts with BI Incorporated to monitor individuals with final orders of removal. This often involves ankle bracelets with GPS, telephonic and in-person reporting. BI officials also monitor an individual’s efforts to obtain passports and plane tickets to depart the U.S. under an removal order. In other words, they do ICE’s job. And, frankly, they are pretty good at it. Over 400,000 removals in 2011 shows how good BI is. If budget hawks are serious about making government run like a business, how about saving money by eliminating the middleman?
The large budgetary excess for immigration enforcement also provides an explanation for the massive ICE resistance to immigration reform. After all, if undocumented youth are getting DACA rather than being detained and deported, bed spaced is being underutilized and removals may go down. In our current economic environment, it won’t be long before some budget-cutting legislator begins to question the excess of the the immigration enforcement budget. If ICE were to exercise discretion and not detain and deport everyone that they possibly could, can they fulfill their contracts with the private companies that have built jails throughout the country. If ICE were to take a more reasonable approach to enforcement, would they need to send out 20 agents before dawn to arrest four plumbers working a contract at Dulles because they are working on fake green cards?
The large amount of money at stake for immigration enforcement makes it clear that the efforts of some ICE bureaucrats to derail common-sense immigration reform is a result not of a principled belief in our national security and public safety, but rather to protect their exalted place at the public trough.
As we spend months debating the economic future of this country and what immigration reform will look like, it is worth contrasting the unproductive use of $18 billion tax dollars that ICE has commanded on an enforcement roid rage with the agreed-upon economic stimulus that would be provided by an immigration reform package.
It is very true that the immigration laws need a wholesale revision. Congress needs to make substantial changes, regulations need to be re-written, precedent decisions scrapped and new guidance forthcoming. But another change is needed and this change may the hardest of all. It is a change of attitude within the agencies. We have written in this space on multiple occasions about the hostility that elements within ICE have for their political leadership and the “culture of no” within CIS has been well-documented. However, less reported is the blase indifference that many civil servants within the agency take toward the people affected by the way they go about their jobs.
Here is where I am supposed to say that the majority of the people who work for the immigration agencies are hard-working, well-intentioned people laboring under tremendous workloads and inadequate resources. I am supposed to say that those who are indifferent to the human lives in the case before them are far outnumbered by the valiant majority who struggle against the bureaucratic odds to make a difference. Sorry, but I can not say that. I have to say that indifference is the default and care and compassion and vigor are the exception. Such virtues do exist within the immigration agencies, but they are rarely on display. Initiative and “going the extra mile” are snuffed out like weeds in those Round-Up commercials. The overwhelming majority simply have little concern for the people affected by the way they do their jobs. Immigration reform will be incomplete unless it addresses this problem as the power of clerks and administrative staff to harm the interests of immigrants remains immense.
Let’s focus on the Executive Office for Immigration Review (EOIR), the Immigration Court system. Here are just a couple of things that have happened to us in the past few months that show how bureaucrats affect people’s lives by the way they do their jobs:
Client was detained by ICE. ICE said that he was subject to mandatory detention. We wanted to argue to the Judge that he was not. We filed a request for a bond hearing, which is a matter of right, on October 24. The case was not scheduled until November 27, five weeks after we filed. This meant that our client had to sit in jail for an additional five weeks after we asked for his release before a judge could consider his claim that he should not be detained. Five weeks is a long time to sit in jail when the law says you do not have to sit in jail. The decision on when to give him a hearing was made by the Immigration Judge’s legal assistant. No doubt she was reacting to limits on how many cases a judge can hear on any given day, but the harm of the judge hearing one more case against an individual spending several weeks in jail ought to be considered.
Client was detained by ICE. When ICE detains an individual that they are placing into removal proceedings, ICE must issue a Notice to Appear (NTA) charging the individual with removability. ICE must file the NTA with the Immigration Court and the Court must schedule the hearing. We requested bond. Although the rules require the Court to schedule a bond hearing for any detained individual regardless of whether an NTA has been filed, the Court’s backlog in recording the filing of NTAs causes the staff to fail to schedule a bond hearing. A hearing was finally scheduled 30 days after the client is taken into custody and the Judge orders release.
Client was scheduled for hearing on her application for cancellation of removal for 10/31/2012. That hearing was set in December 2011. Hurricane Sandy closed the Immigration Court that day and for several days afterwards. Expecting that the court would reschedule the case once it reopened, we wished to inform the court that we did not need much time for a hearing. In December 2011, the Court scheduled the case for three to four hours of time. However, since then, we negotiated with ICE counsel and agreed that all issues in the case could be resolved in a hearing of an hour or less. On November 15, 2012, we filed a motion letting the court know that we did not need much time, so that the Court could squeeze us in wherever it had time. We made several calls to and left messages with the court’s clerical staff, none of which were returned. We finally spoke with the legal assistant to the judge around December 1, who stated that she had not seen the motion and she would have to look for it, but that she was not going to stop what she was doing to do so. If she found it and the Judge ruled on it, she would give us a courtesy call. On December 4, 2012, we got the call- hearing on December 11! However, on December 5, the rumors started flying- the cap on grants of cancellation of removal had been met and no cancellation grants could be made until October 1, 2013. As these were just rumors, we went ahead with the hearing, traveling to another city to be there on December 11. At the hearing the Judge informed us that, since there were no cancellation numbers, she could not and would not hold a hearing and we could come back in October 2013. So many small acts of initiative could have made a difference here: (1) the clerk could have addressed the motion in a timely manner and we could have gotten on the calendar before numbers ran out; (2) when numbers ran out, the court could have called and rescheduled knowing that we would have to travel to attend the hearing at substantial cost to the client.
They never call back. Never.
These are problems that are not going to be addressed by legislation. They require a wholesale change in attitude and a lesson in courtesy. This is not simply a problem of
“poor customer service.” I hate the idea of customer service in a government agency. I think they owe us MORE than a business owes its customers. We are citizens, we are a polity and they are our government. They derive their authority from us. A business derives its income from us, which it can choose to accept or not. Citizen vis-a-vis government is entitled to more respect and deference than a Slurpee-buying sap at a Seven-Eleven.
These problems require an understanding that immigration detention is a serious deprivation of liberty that must be limited in duration and for the most serious matters. A culture must grow within the Immigration Court that anything that unnecessarily prolongs detention is to be avoided and that resources will be provided to ensure that immigrants have access to prompt hearings. Employees of the court system must be trained to recognize that they should do all they can to ensure that detained individuals have access to process. A person is charged with murder is put in front of a magistrate judge within 24 hours who sets bail (or not). A person charged with overstaying a visa is often detained for weeks before he gets review of his detention. How does that system make sense?
This post was mostly cathartic. Future posts will explore some of the legal underpinnings of the immigration detention regime. For example, a U.S. Supreme Court decision many years ago said that removal proceedings are civil and not criminal and many criminal procedural protections are, therefore, unavailable in removal proceedings. Given the militarization of the border and the use of detention during removal proceedings, we wonder how much of that flawed doctrine still can stand.
In Washington, we have very hot summers without a real beach to beat the heat. Our winters can be wet, sloppy messes or we can get pounded with multiple snow storms in a city completely unprepared for more than three inches of snow. Along with the occasional security scare, World Bank protest and Presidential motorcade, life in the Nation’s Capital can be challenging. However, certain things make up for that. I can see the Washington Monument from my window, the reflection of the Lincoln Memorial on the pool and the genuine devotion of DC area residents to ideas in the public sphere are some of them.
Last night, I had another opportunity to appreciate Washington life. I received an invitation to attend a meeting at the Office of Public Engagement of the White House to discuss priorities for the Obama administration in the second term. Now, I would have crossed continents and oceans for such an opportunity. Luckily, all I had to do was take a short two-block walk on a lovely night and I was in the West Wing. Amazingly, the security guards at the White House are far more relaxed and confident than the guards at your standard federal building. Perhaps that was due to the President being on the other side of the earth. Relieved that I got to keep my belt on, I entered the White House, with about seven other people– an impressive collection of people. An ornate, inviting, and comfortable lobby awaits:
In the lobby, a TV blared Chris Matthews talking Benghazi non-stop. It must be strange to sit all day in a lobby where national news is talking about your co-workers all day long. I asked the receptionist if that grows tiresome and she told me that the TV is usually tuned to ESPN. Good call. We were welcomed into the White House by the lovely Rumana Ahmed, pictured below:
What a great impression of inclusion and American diversity and unity all at once to be welcomed to the White House by Rumana.
Prior to the meeting, I reached out to many Friends of Benach Ragland and asked for advice as to what specifically should be said about immigration. Together, we came up with a wish list of immigration priorities, which grew to fifteen items. Briefly, however, they settled on a restoration of judicial review over most immigration decisions, a generous waiver of most grounds of removability, reform of visa numbers to eliminate lengthy backlogs, DREAM Act, Permanent Partners, enhanced protection for minors, and increased ease in admitting highly educated immigrants. I prepared my elevator speech to tell them what they needed to do on immigration. However, it is well known military truism that the best strategy evaporates in the first seconds of battle. The meeting grew in different ways and adaptation was necessary.
Rumana took us upstairs to meet Jon Carson. We walked through the internal guts of the working White House and I was surprised to see people piled on top of each other, still working hard at 6:30 with the President in Cambodia. The workspace was decidedly not plush. Jon Carson is a super affable guy who oozes sincerity. I learned that he has a son in Pre-K at my kids’ school, but, unfortunately, his son and my Pre-K son are in different classes! Washington Living, again.
He told us that the administration wanted to hear about what they can do better in the second term and how can they use the next four years to push progressive ideas. Jon said that the two main immediate issues were the fiscal cliff and immigration. He also mentioned the logistics of having to sign up millions of Americans for health insurance coverage. The results of the election really dawned on me as the administration was planning the implementation of the Affordable Care Act.
Jon said that the theme of the second term of the Presidency would be “citizenship,” a theme the President highlighted at the Democratic National Convention. We previously riffed on the meaning of citizenship as immigration lawyers, but, sitting in the White House talking about making policy and administrative moves that would affect the lives of millions of people, the active nature of the concept became clearer. It is about creating closer ties of community with volunteers, schools, religious institutions and neighbors. Naturally, therefore, the conversation turned to organizing. Many observers have attributed the President’s victory to an organized workforce and volunteer system that delivered the vote and the participants in the meeting discussed how the Obama volunteer organization, Organizing for America, can be deployed not only in service of an election but also in service of progressive ideals.
As the discussion turned to immigration, I offered that some of the best organized and effective advocates are the undocumented youth who have created networks that have pushed immigration to the forefront. Organizations like DreamActivist and United We Dream have regularly outpaced more traditional organizations in calling attention to immigration injustices. Jon mentioned that only once has the President urged the public to contact Congress and that was during the debt ceiling fight last year. That call to arms shut down the Capitol Hill switchboard. I mentioned that undocumented youth are pretty good at shutting down switchboards and that, if the President came out strong for immigration reform, he would have formidable allies ready to work. I told Jon that there was a lot of mistrust of the administration on immigration and that they needed to see strong Presidential leadership to get behind immigration reform. Jon replied that the White House was well aware of the mistrust and expressed hope that DACA represented a turning point.
Jon wanted to know if immigration reform could be a rallying point for progressives for the long term. Everyone in the room seemed to agree that it was. Someone pointed out that no matter what their political persuasion, business supports immigration reform and immigration could be a way to begin to repair damage between the President and business community. I offered that the important parts of the core of the President’s support of Latinos, Asians and women could be solidified with immigration reform. Latinos would be Democrats for a generation with a generous immigration reform program – one that does not offer some simple and easy fixes while tightening enforcement, but one that recognizes that we have overdosed on enforcement and are in need to benefit reform. More butter, less guns. In addition, an appeal to women could be made if Michelle Obama met with U.S. citizen children whose parents have been deported. The staggering human cost of enforcement on steroids needs to be examined.
This was not a meeting for detailed proposals about restoring 212(c) or eliminating the three and ten year bar. Rather, it was big picture. The White House is now preoccupied with the fiscal cliff. The top legislative priority after fiscal cliff is settled is immigration. I have no doubt that the White House recognizes the need for very strong Presidential leadership on the issue. I tried to emphasize over and over again that reform cannot be left to the Congress and the President must guide and frame the discussion. I also have little doubt that the President is starting from a very generous reform program. Lastly, I can tell you that the White House is prepared to deploy all its resources on this. This includes mobilizing the extensive volunteer network and the OFA system to build support for immigration reform. Remember all those emails you got during the campaign asking for $17? They are not going away. Instead of asking you for $17, whoever, they will ask you to call Congress to ensure that generous common sense immigration reform is passed.
This is the best opportunity in a generation for sensible and humane immigration laws and the White House appears committed to doing it right. I know that there are those of you who don’t trust the administration at all to do what is right on immigration. And I will concede that the air of the White House may have clouded my judgment. It is very hard to remain cynical and jaded in the White House. I hope that you can put aside your cynicism and can dare to believe that, in the words of Sam Cooke, a change is gonna come. (watch below!) What do you have to lose?
This is certainly welcome news, but the wording of Romney’s support is worrisome. First, I can not help but think that there is some sort of dog whistle to the anti-immigrant crowd in there. By stating that the President is allowing people to “purchase visas,” Romney alludes to a common wingnut belief that the President is simply selling visas to whomever can come up with $465. A common hallucination against DACA is that there is going to be extensive fraud and we will never know if we are helping the real DREAMers or whether we are giving status to criminals and terrorists. I wonder if Romney is consciously indulging this fantasy. Second, Romney views this as entirely transactional. He makes no mention of the compelling circumstances of DACA applicants. He views this as something that people have purchased and not as a program meant to shield a deserving class of youth from the fear of removal. People deserve this benefit, in Romney’s worldview, because they have paid for it, not because of the circumstances of their arrival and their potential to contribute to our society. By linking the program to a financial transaction, Romney undermines the moral validity of the claim to civil rights for the DREAMers. Third, it is not a visa. Come on, get it right. You are running for the Presidency not for the Topeka School Board. Get your terms and facts straight. I suppose the error can be easily explained by the fact that Romney’s number one immigration adviser is Kris Kobach, who rarely gets anything right on immigration law.
Romney also said that, at the end of the two years that DACA grants are good for, “Before those visas have expired we will have the full immigration reform plan that I’ve proposed.” Romney is dangling major immigration reform. Of course, we have no idea what his plan is or how he plans of getting it through a Congress that has been ceded to the likes of Steve King and Jeff Sessions. The Republican party, with the help of certain feckless Democrats, has repeatedly stymied even the most sensible immigration reform. Remember the DREAM Act passed the House and got 55 votes in the senate, which would have been enough had the Republicans not filibustered it. Romney is attempting to woo Latinos by blaming the President for the failure to pass immigration reform between 2008 and 2010. This fantasy argues that since the Democrats had a a filibuster-proof majority in both houses during that time (which is not strictly true- there was the Specter conversion and the Kennedy death) and failed to pass immigration reform, that a Republican president and a Republican Congress would do better. Hogwash. Republican President Bush could not get the wingnut portion of his party to support immigration reform and, since his first day in office, President Obama faced a Republican minority committed to defeating him and using the filibuster to prevent anything from happening in Congress. Now, they have the chutzpah to imagine that Republican obstruction had nothing to do with the failure to get immigration reform. While, we believe that most reasonable people reject this, it is disappointing to see otherwise astute observers of the political scene fall for this.
Finally, Romney also said this: “I actually will propose a piece of legislation which will reform our immigration system to improve legal immigration so people don’t have to hire lawyers to figure out how to get here legally.” Now, that is hitting below the belt! Romney wants to put us out of business. Now, we can understand that the federal government may be getting tired of getting sued by us and losing, but this is personal. We are small business owners. Since we embarked on this venture, we have created four new jobs in the country. We have obtained visas for people that have enabled them to open businesses and hire more workers. As business owners, shouldn’t we be squarely within Romney’s sights? Instead, he states that he wants a system that does not require lawyers. We are all for simplifying the immigration laws and making them work for the United States. We are tired of telling people that there is nothing we can do for them and their best option to is to save their money and spend it on a new home in their home country. However, we remain committed to fighting for our clients and we envision that whatever reform Romney proposes will only increase our business as he is likely to cede immigration policy to the Steve Kings, Joe Arpaios and Kris Kobachs. If that happens, our response is “see you in court.”
ee is writing the upcoming edition of AILA’s Asylum Primer, a practical how-to for anyone seeking to represent an asylum seeker. AILA subsequently published Dree’s speech accepting her award on its Leadership Blog. Dree cited the humanitarian crisis on the border, the lack of due process, and the failure of the political branches to address the serious policy issue of immigration:
Lifted Lamp 