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A Brewing Migration Problem?

The March 26 edition of the New York Times has an article, titled Renegotiate NAFTA?: Mexico Says Get On with It. What is important about the story is that the uproar generated by the ascendance of Donald Trump to the presidency and his call for renegotiating NAFTA, the economic uncertainty he has caused is having real and serious negative consequences.

The Trump Administration could be creating or may have already created a migration problem. Migration problems with anyone’s neighbor are always serious for the receiving country. If you are not sure about what this looks like take a look at any part of the world that is the receiving country. Quick examples that come to mind are Argentina at different times in the recent past, Jordan and Turkey in the wake of the Syrian civil war — and well the US and Mexico. When people decide to move, the countries which experience the greatest impact are those which are the closest.

The story reports that last year foreign investment in Mexico fell by 6% and is expected to drop by 21% this year. This means slower economic growth, rising interest rates and more political upheaval in Mexico. These are all prescriptions for more people in Mexico making the move to places in the US. On the US side of the border, the Trump Administrations pronouncements on immigration have created problems for agriculture by making it more difficult to find workers to harvest the crops. We are already witnessing a dramatic decline in foreign students choosing the US as their destination. Chinese and Indian students alone contribute more than $16 billion to the US economy. Some say that foreign students add about $33 billion to the US economy.

Notwithstanding the call to build a wall, hiring more ICE officers along the border and other dramatic pronouncements about immigration — none of these are more powerful migration factors than the economic and political forces which actually cause people to move. This is a fact that we have seen throughout history and which our political leaders are not going to change.

Mr. Trump’s gyrations about relations with Mexico and his threats to upend NAFTA may actually create a more serious migration problem something which was really not a problem to begin with. The one thing that the US should not want is a less stable Mexico. But everything that we do seems to be moving us in that direction.

How the Trump Administration has mis-characterized the 2015 Visa Waiver Amendments

The Trump Administration has said on a number of occasions that its Muslim Ban (I know that they don’t call it that but that is how it started out and whether it is in fact such a ban will be decided by the courts.) was justified by Congress’ enactment in 2015 of similar restrictions.[H.R. 158, The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015] I believe that the comparison and attempted justification of the current ban by using the 2015 enactment is not justified because the earlier action was a change in visa issuing procedures, not a ban.

It is worth noting at the outset that members of Congress are always in the position of having to to show their constituents that they are doing something even if it is ineffective. It’s like the adage that if you only have a hammer in your toolbox every problem will look like it’s a nail. Congress often does things that may be contrary to law and it is the job of the Executive Branch to try to moderate the application of the law to make it consistent with the Constitution. Failing that the judicial branch exists to keep them all honest. The second applies to the legislation enacted in 2015 that the Trump Administration claims to give them license to impose a ban based on religion and nationality. The 2015 legislation was a response to a concern that persons who had traveled through certain countries could have been radicalized and should be subjected to additional screening. It focused on these people rightly or wrongly because there were millions of people from a selected countries who were subjected to lesser screening. The countries that fall within this group are most of the European nations, Japan, Singapore and South Korea, Taiwan, Australia and New Zealand. The only country from Latin America under the program is Chile. There are many requirements for getting on this list and they include extensive data sharing and there it must be an strong record of its nationals who come to the U.S. and maintain their proper nonimmmigrant status. to them. This program was first established in 1986 and later made permanent is known as the “Visa Waiver Program” (VWP).

What Congress did in the 2015 amendments was to separate from the Visa Waiver Program, people who had traveled through the suspect countries or who were dual nationals with one of them. It effectively stated that these people had to be screened just like the 10.8 million other tourists and visitors for business who applied for visas in 2016. (The number of nonimmigrant admissions under the VWP last year was approximately 21 million, and the number admitted under regularly issued tourist visas was approximately 55 million.) [See Immigration Statistics, Nonimmigrant Admissions to the U.S.] The 2015 amendments did not, as was done in the Executive Order, ban the admission of any group of people. It enabled the Department of State which issues visas and the Department of Homeland Security which inspects arriving non-citizens to subject these people to an additional level scrutiny comparable to that imposed on most nonimmigrants. So the procedure did not expand our already broad exclusion laws nor did it create either a nationality or religious ban.

Let’s be clear – even people coming from a visa waiver country are not assured of admission. In fact, they can be easily turned back on arrival and put on the next plane with barely an explanation. Unlike other nonimmigrants admitted to the US they have effectively waived their rights except to being considered for asylum protection. All other nonimmigrants, that is persons from anywhere else in the world who are issued a visa are subject to multiple checks, first when they apply for their visa overseas and then when they arrive.

One last point of fact which in my view highlights how the Trump Administration has mischaracterized and overblown the importance of the amendments is that throughout the period of conflicts in the region and with heightened concerns about terrorism, the Department of Homeland Security have granted and extended Temporary Protected Status (TPS), to nationals of Somalia, Sudan, Syria and South Sudan living in the U.S. (See List of Temporary Protected Status grants.) A grant of TPS provides these people with protections from deportation or being placed in removal proceedings and gives them formal work authorization in incremental one year periods. This is hardly a sign that the U.S. has ever considered these people as a group to be a security threat requiring their categorical denial of admission.

Can the Attorney General Faithfully Enforce the Immigration Laws?

It seems that these days nearly every time you open the newspaper there is a story on the front page that raises an immigration issue. Here’s one that may be less obvious to most, except perhaps the immigration lawyer.

Recently the Washington Post broke a story that raised serious questions as to whether the current Attorney General, made a false statement or committed perjury when he testified at his confirmation hearings. At the hearings the Senator denied having had any encounters with Russian officials. It was later learned through news sources, that he had at least two encounters with Russian officials, one in his Senate office and the other while attending the Republican National Convention in July, 2016. The story set off a firestorm over whether the new Attorney General should recuse himself from any Department of Justice (DOJ) investigation of alleged Russian interference in the 2016 Presidential election including possible contacts with the Trump campaign.

It may not be readily apparent that this controversy has any relevance to immigration and nationality law. I believe that it does for a variety of reasons. The Attorney General enforces the immigration laws through the immigration courts. He is also responsible for representing the government when it opposes someone who is seeking citizenship through naturalization. Similarly the Attorney General is often the one representing the United States whenever it is seeking the revocation of a person’s citizenship through a procedure called denaturalization.

Before getting to the immigration story it’s important to look at the facts that are known in this case. Let’s take a look at an excerpt from the questions and answers at the Attorney General’s confirmation hearing. This excerpt from the transcript was taken from a CSPAN recording of the testimony. As is routine in these situations, before giving his testimony the Senator was administered an oath in which he swore that he would provide “the whole truth and nothing but the truth” under penalty of perjury.

    Sen. Franken: CNN has just published a story, and I am telling you this, uh about a news story that’s just been published I’m not expecting you to know whether or not it’s true or not. CNN just published a story alleging that the intelligence community provided documents to the President-elect last week that included information that “Russian operatives claimed to have compromising personal and financial information about Mr. Trump[”] these documents also allegedly stated “there was a continuing exchange of information during the campaign between Trump surrogates and intermediaries for the Russian government.[”] Now again I am telling you this as its coming out so ah you know, but if its true it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign what will you do?
    Senator Sessions: Senator Franken I am not aware of ah any of those activities. I have been called a surrogate at a time or two in that campaign and I did, not have communication with the Russians, um and I am not able to comment on it.

(emphasis added)

While Senator Franken’s question was about what Sessions would do as Attorney General if he learned of contacts between “anyone affiliated with the Trump campaign” and the Russian government, his response went beyond the question and included several assertions on his part. First that he was “unaware of … any of those activities.” In the second he stated that he had been called a Trump campaign surrogate and that he did not “have communication with the Russians.” Finally he stated that as a result of his other statements he was not able to comment on the question. According to news stories the Senator had at least two encounters with either the Russian government or their intermediaries one of which was at the Republican National Convention in July,2016. As a result of this previously sworn testimony a number of commentators have called on Sessions to resign. Others urged him to recuse or withdraw himself from involvement in any DOJ investigation of the matter of Russian interference in the 2016 election campaign. By the end of last week Sessions had agreed to withdraw from any involvement in the investigation. The calls for Sessions’ resignation and recusal were predicated on the notion that because he had given false statements which amounted to perjury he could not be an impartial overseer of the investigation.

While I believe that determining whether Sessions committed perjury is an important line of inquiry, we also need to look at other issues. Nearly every immigration lawyers has uuuto determine the consequences of a person’s false or misleading statements. In immigration law a serious legal problem arises where an applicant provides false or misleading statements irrespective of whether the false statement was material. In addition when looking at whether a false statement relates to something which is material one needs to look at the impact of the response to the to the questioning that was taking place. If for example Sessions had acknowledged that he had contacts with the Russians would Franken have asked other questions? It could be argued that if Sessions had testified consistent with the news recently published has been learned more recently the Committee would have learned that at least one of those encounters may or may not have been with Sessions in his on the Senate Armed Service’s Committee. Perhaps the Committee might have wanted to explore what transpired during those encounter. Possibly a different response would have allowed the committee to explore the issue of whether the Senator had either knowingly or unwittingly been involved in meddling by the Russians in the electoral process.

The issue raised here was addressed in Kungys v. U.S., a Supreme Court cases involving the denaturalization of an alleged former World War II prison guard accused of executing Lithuania Jewish citizens during the war. Kungys had given false testimony and submitted false documents relating to his date and place of birth in both his naturalization and original visa applications which had enable him to first come to the U.S. The Court in an opinion authored by Justice Scalia held that even though the false statements made by the applicant might not have been material to the underlying application, if it had a natural tendency to influence or cut off a line of inquiry relevant to the naturalization it could be treated as material. In Kungys the Court found that in this case his false statements about his date and place of birth would not meet the requirements for an illegal procurement for denaturalization. But the Court held that the false statements even though not amounting to perjury did reflect on his lack of good moral character. Indeed there is no materiality requirement in determining whether false testimony result in a finding that an applicant lacked good moral character. In Kungys’case a lack of good m establish good moral character at the time of his application could lead to his denaturalization because it is something which is required of all citizenship applicants.

Any prosecutor would explain that it is not easy to get a perjury conviction. As a specific intent crime, it requires proof that the person who was under oath, intentionally provided a false statement about a fact which was material. As a result even where a false statement has been made obtaining a conviction can be very challenging for any prosecutor.

There are a multiple provisions in the immigration laws which impose serious sanctions against those who have provided false statements, misrepresented facts or engaged in other forms of deceptions to obtain an immigration benefit, even where they don’t amount to perjury. A false statement such as the one given by Senator Sessions during his confirmation if perpetrated by someone seeking any immigration benefit would result in a serious sanction – probably the denial of entry, deportation or denial of citizenship.

Insofar as we are looking at the statements made by the current Attorney General we can say that a minimum his statements likely had an impact on the line of questioning and could have led to further important and relevant questioning. Even if the statements did not amount to perjury, were those statements dishonest and befitting what we would expect of our Attorney General. After all the Attorney General is charged with enforcing and interpreting immigration laws intended to combat the very behavior in which he has allegedly engaged.

If you are interested in the statutory references that bear on this discussion they are listed below.

8 U.S.C. 1101(f)(6) – good moral character as defined by under the Immigration and Nationality Act.
8 U.S.C. 1427(a) – the good moral character requirement for naturalization applicants
8 U.S.C. 1451(a) – illegal procurement of naturalization by either by concealment of a material fact or a misrepresentation.

H

Clogging the Immigration Courts

The February 27, 2017 issue of The New York Times carried an article titled He’s a Local Pillar: Now He Could be Deported. A careful read of this news account will help you to better understand the flaws in the Trump Administration strategy of going after everyone in the US because they are “law breakers.” It also points out why real immigration reform is needed, not just political pandering and scapegoating.

Since I don’t have all of the facts and am making assumptions based on the news story my comments should not be considered as straight legal advice on how this poor family can get out from this catastrophe.

According to the story, Juan Carlos Hernandez is 38 years old from Mexico and manages a popular Mexican restaurant in West Frankport, Illinois. He has lived in the US since the mid-1990s having entered the country illegally. He is married to a US citizen (his wife was recently naturalized) and has three US citizen children. He is the manager of a Mexican restaurant 1990 in the town and by all accounts has been a model citizen and a pillar of the community. The only negative in his background is that he has two convictions for driving under the influence (DUI) from 9 years ago.

While in a technical sense Juan Carlos is here unlawfully and could be deported, since he now has a lawyer he should be able to avoid actual “deportation.” His effort to stay will be long, scary and expensive, and it will be particularly burdensome on the US government.

Here are two reasons why even though his life has been turned upside down he should be able to prevail. First because he is married to a US citizen, while technically deportable he should be eligible for permanent residency – in his case it will have to be an immigrant visa since he entered the country illegally and therefore never had any status in the U.S. The only reason why he might be unable to get permanent residency is if he had a record of serious serious crimes or there was something else in his background standing in his way. The second reason is that because he has been in the US for more than 10 years and has close family ties with US citizens (his wife and children appear to be US citizens) and might be able to prove the requisite level of hardship to them if he is deported he could be eligible to seek what is called “cancellation of removal.” This “cancellation” would result in the proceedings being terminated and he would be granted permanent residency.

It is very likely that his US citizen wife petitioned for him to get status and that is how ICE located him in the first place. If she had petitioned for him when she was a permanent resident there would have been a wait of more than two years before he could even get an interview for an immigrant visa. His case was further complicated by changes made in the 1996 immigration laws which made it very risky for someone like him to leave the country to be interviewed for an immigrant visa. This is because when Juan Carlos entered the country without a visa he began to accumulate “unlawful presence” and the law penalized him by making him ineligible to return without first getting a waiver. The Obama Administration created a procedural reform which would enable someone like Juan Carlos to seek the waiver before leaving to be interviewed for his visa. It doesn’t seem likely that the Trump Administration will honor that waiver.

So now that ICE has arrested him, Juan Carlos has few choices if he wants to stay with his family in the US. Let’s not forget that he is the only one in his family who is not a US citizen. If he leaves he will not be able to come back for some time, because he will have to wait in Mexico before he will be able to get his permanent residency. Meanwhile, it is unsure if that restaurant in West Frankport, Illinois will keep his job open or what will happen to his kids and wife while he languishes either in detention or in Mexico trying to come back.

I am not the first to make this point. An article by Julia Preston of the New York Times in December, 2016 described the staggering backlogs in immigration courts. In Denver, Colorado the delay between arrest and hearing was more than 18 months. In San Francisco it is even longer. The immigration courts already have more than 520,000 cases waiting to be heard and all of this new enforcement effort yields are additional cases. So who benefits from this practice? Probably the private prison operators who operate the “detention centers” and immigration lawyers who will have to be hired to represent these people.

Can or Will DHS Deport All of the Undocumented in the US?

Recently there has been much discussion in the media about how the White House has issued directives to beef up immigration enforcement and that the measure will target huge numbers of persons who might be in this country illegally including those who have only been charged with a crime for removal.

Setting aside what it means to be in the US “illegally”, it is important to identify who is subject to removal. Any non-citizen who is in the US without permission, who has entered the US with a visa and that visa (or permission to remain) has expired or if they have committed one of a number of enumerated offenses in the statute is subject to removal. The list of offenses is contained in the immigration statute, commonly referred to as the deportability provisions of the Immigration and Nationality Act. It is not helpful to consider these “violations” as crimes for under US law these are not treated as such. In fact if they were to be characterized or treated as crimes the defendants would be entitled to many more protections including legal counsel at government expense.

Under existing law while the government may remove someone who is deportable they can only go after categories of people listed by Congress in the statute. In other words, if a person is otherwise not deportable the government cannot get a removal order against someone who has been charged but not convicted of a crime. The reason for this is that the immigration statute requires that when the government is pursuing a case against someone for criminal activity, a criminal charge standing alone which has not resulted in a conviction may not be used to support the deportation order.

An immigration officer is like the beat cop who cannot on her own create their own reasons for locking someone up, there must be a clear defined basis found in the statute. Deportability grounds while numerous must clearly define the persons who are subject to them.

This takes us to the confusion about something called “prosecutorial” discretion – which refers to the broad discretion that a police (or immigration) officer’s or immigration officer to not go after every possible law breaker (or immigration violator). To do otherwise would cause the officer to waste vast amounts of resources pursuing cases which required inordinate amount of precious resources. So in applying the law the officer has to make a decision about where the government’s already strained resources will be applied most effectively. You may have experienced this while driving – would you expect a highway patrol officer to go after the person driving at 65 in a 55mph zone or the burglary call at the next exit? Hardly – just as the police officer has to make a discretionary determination about how he exercises her authority, the immigration officer has to make similar choices.

The commonly held view is that there are 10-11 million undocumented people in the US. Within that group are people who have been in this country, some for decades, others who have been waiting for permanent residency because they are married to or are children of US citizens or permanent residents. Still others have other ways that they might eventually get to become permanent residency. Like past Administrations, the Obama Administration made a decision that some of these people would be placed on a lower priority for deportation – in short that they would go after others who were easier deportation targets. Understand as well that an immigration officer cannot on their own deport that person, the Constitution requires that the person have a chance to show why they should not be deported because of one of the fore-mentioned reasons. And that process is very time consuming.

So when you hear someone say that DHS officers are going to go after everyone in the US who is here in an illegal status, they are either being dishonest or are suggesting that they not be smart about how they are prioritizing their limited resources. If they say that they are going to deport everyone the process could be phenomenally expensive and take decades to complete with limited results.