Month: September 2020

As published in the Immigration Daily on September 23, 2020

With the passing of Justice Ruth Ginsburg this past week, immigrants have lost one of the great champions of immigrant rights. A liberal justice, she consistently voted for the rights of immigrants and in the increasingly more conservative Supreme Court, formed a bloc with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the Court’s major 5-4 decisions on immigration. A couple of the major ones in which she participated on the losing side were United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam) in which the Court tied 4-4 to sustain the Texas court decision barring  President Obama’s DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program which would have given legal protections and work authorization to the parents of citizens and permanent residents; and DHS et al. v, New York, et al., 140 S. Ct. 599 (2020) in which the court by 5-4 vote allowed the new public charge rule to be implemented in February 2020 by staying the preliminary injunction of a New York federal court. Recently, however, she took part in the 5-4 winning vote in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) in which the Court rebuffed the Trump Administration’s attempt to end the DACA (Deferred Action for Childhood Arrivals) program. Although that decision was decided on procedural grounds that the Court indicated might be overcome by another suit after the government complied with proper procedure, there was no assurance that such could actually be done in a 5-4 court in which Chief Justice John Roberts exercised the swing vote. Justice Roberts, a conservative with centrist bend, had earlier frustrated the Administration by providing the swing vote in National Federation of Independent Business v. Sebelius, 567 US 519 (2012), a decision upholding the Affordable Care Act, and Department of Commerce v. New York, 139 S. Ct. 2551 (2019), which denied Mr. Trump the right to add a citizenship question to the U.S. Census.

However, with the appointment of another conservative justice, the tide will move further to the right, and consistent 6-3 or 5-4 losing votes can be expected in most cases dividing the nation, including those on immigration. Justice Roberts will lose his position in these highly contested cases as the deciding vote. President Trump has already vowed to nominate a replacement within this week and Senate Majority Leader Mitch McConnell (R-Kentucky), has stated that he will bring the nomination to the floor of the Senate – both defying Justice Ginsburg’s dying wish that her replacement be made by the next President.

The effect on the 700,000+ Dreamers in the DACA program will be momentous, and the reelection of Donald Trump will ensure that they will either be used as the ultimate bargaining chip for a Trump administration to ram through its entire program of immigration restructuring or failing that, all be subject to removal proceedings with both legal protections and work permits revoked or no longer extended. Already since the Supreme Court’s decision, the Administration has moved to reject all new applications for DACA benefits and restrict renewals to one year instead of the present two years.

The unpalatable nature of a Trump immigration scheme is already being seen in his taking advantage of the pandemic to issue proclamations, executive orders and regulations barring nationals of disfavored countries even as the US leads the world by far in infections, and restricting qualified and approved workers from other lands from entering even though studies have shown that they would benefit the country and add more jobs. It is known that Mr. Trump’s chief takeaway from his DACA defeat is his belief that the Court’s decision gives him the authority to create such a program for merit-based immigration. On July 10, 2020, he said, “We are working out the legal complexities right now, but I’m going to be signing a very major immigration bill as an executive order, which Supreme Court now, because of the DACA program, has given me the power to do that.” Previously his son-in-law, Jared Kushner, drafted a merit-based immigration plan that did not move forward, but an idea of its contents was in Mr. Trump’s May 16, 2019, speech in which he said that it would eliminate all current family and employment-based preference categories and replace them with new “Build America” visas awarded by points. In Mr. Trump’s America, huddled masses and refugees need not apply, only the rich and highly skilled. This country could take a lesson from Germany and its Chancellor Angela Merkel that took in over a million refugees in 2015 in a program now seen as highly successful in building a stronger Germany from what was then an aging population.

For Dreamers and all immigration proponents – indeed all who support civil rights, voting rights, the environment, women’s rights, LGBTQ rights, honor, civility, truth, corruption-free government, a rational foreign policy, decision making other than from gut instincts, and all the other parts of the American system that Mr. Trump has damaged and will in his next four years destroy for a generation– the only solution appears to be a political one in getting out the vote and voting.

As published in the Immigration Daily on September 1, 2020

The Republican Party is the party of Trump. He shanghaied the party from the traditional Republicans in 2016, and Republican representatives and senators since then have been his devotees and enablers. Does Trumpism go away if he is defeated in the November elections? That is very doubtful as many of the Republican members of Congress owe fealty to the Trump ideals that brought or are continuing their tenures in office.

President Trump has misrepresented the truth while in office well over 20,000 times, and the Republican National Convention (RNC) was more of the same as it wallowed in mistruths, darkness, fantastical speculations and promises while shading or breaking various laws. Donald Trump as a friend of the immigrants was on display in a White House naturalization ceremony mixing the no-no of official business with political advertising as he oversaw the naturalization ceremony of five applicants including two from the “shithole” countries of Africa, and another from India (he is still hoping to peel away the votes of Indian-Americans through his friendship with Prime Minister Modi although Joe Biden’s running mate, Kamala Harris, is half Indian,and even as he has threatened the future immigration of Indian nationals by cracking down on H-1B’s, moving to end the popular H-4 employment program for spouses of H-1B holders, and is reportedly contemplating having long-time H-1B holders with approved I-140 petitions undergo the PERM labor certification process again).

The peel away strategy is simple – confuse and sway enough voters in swing states (Arizona, Florida, Maine, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Pennsylvania, and Wisconsin) – so that the president and his party can win the state if only by 50 votes and possibly the presidency again even if Mr. Trump loses the popular vote by 10 million. As the Republican Party and its voices like to say, “We do not live in a democracy. The United States is a republic.” Other ethnic groups being appealed to are Jews who Mr. Trump has said “owe” him because of his strong support for Israel; Asians for whom equality in education is a large issue with Democrats supporting the position that factors other than being the best and brightest as determined by standardized tests should determine admission to the best schools; in the Asian community, especially Taiwanese-Americans because of Trump’s recent elevation of the island as a counterweight to China even though he had earlier compared Taiwan as a speck to China; Russian-Americans for whom Mr. Trump’s unswerving devotion to Mr. Putin is gratifying; and Cuban-Americans whose litmus test is animosity against the island’s rulers.

For Blacks, peeling away means surreptitiously running and/or supporting Kanye West in his strange presidential bid, pardoning two black ex-prisoners, Jon Ponder on day two of the RNC and Alice Johnson the day after she spoke on his behalf at the RNC on day four, and even now planning to have the Pentagon award the Medal of Honor posthumously to Alwyn Cashe, a Black soldier who died saving his comrades in Iraq.

Presenting the coronavirus for the most part in the past tense was a staggering piece of fictional theater as if we were already past the disease when we still have over 40,000 new infections per day – that and saying that we were in a V curve, even a super V curve and would have a safe and effective vaccine by the end of the year. Mr. Trump’s and his party’s disdain for science was prominently displayed in his re-nomination celebration at the White House where over 1500 mostly maskless supporters crowded together (no social distance) on the South Lawn without being screened or even asked if they had symptoms even though more than 182,000 Americans have died of the virus and  almost 6 million infected since February 2020 including members of his own Secret Service detail who are forced by duty to travel with him to typical Trump mask- discouraged campaign events..

Just a look at the past few weeks of immigration news belies the fact that Mr. Trump is a friend of immigrants:

• A new asylum EAD rule, “Asylum Application, Interview, and Employment Authorization for Applicants,” FR 38532, Vol. 85, No.124, 6/26/20, just came into effect on Tuesday, August 25, that asylum-seekers must now wait 365 days before filing for an EAD. Also that they are disqualified from applying for EADs if they crossed the border without authorization. A new I-765 form with questions directed towards the latter was implemented by USCIS on that date.
• Another asylum EAD rule that took effect on August 21, “Removal of 30-Day Processing Provision for Asylum Application Related Form I-765 Employment Authorization Applications,” FR37502, Volume 85, No.120, 6/22/20, eliminates the regulation mandating USCIS to adjudicate initial applications for employment authorization for asylum applicants within 30 days. Although USCIS did not in our estimation take that seriously for the most part, it was helpful.
• Law 360 is reporting that there is a Department of Labor threat from a part of Trump’s 6/22/20 proclamation (that DOL in consultation with DHS shall consider promulgating regulations or take other appropriate action to ensure that aliens’ presence in the US who have been admitted or otherwise provided a benefit or are seeking admission or benefit pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage US workers) that DOL may soon be doing many workplace LCA compliance investigations of companies using the H-1B program.
• USCIS is being sued on its new fee hike regulation by nonprofit organizations Public Citizen, Ayuda, Northwest Immigrant Rights Project and CASA in Northwest Immigrant Rights Project et alv. USCIS et al, Case No. 19 CV 03283-RDM (DDC 8/21/20) since their clientele include survivors of crimes applying for their children or spouse who would have to pay $1485 (more than six times the current fee) and asylum-seekers more than $600 to file for asylum and EAD. Their bases are that the Acting DHS Secretary, Chad Wolf, is ineligible to serve in that position because of violation of the succession act and his actions as DHS chief have been illegal, that the rule is based on incomplete and unsupported justifications, violates several provisions of the INA and fails to comply with rulemaking requirements. In response, Mr. Trump is now trying to take care of one of these issues by formally nominating Mr. Wolf as DHS Secretary.
• There is a new Department of Justice proposal to codify the rule in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018), denying immigration judges the ability to administratively close cases, speed up appeals of immigration court cases and to otherwise limit the immigration judge’s authority to manage their caseload – the proposal, “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure”, FR 52491, Vol. 85, No. 166, 8/26/20, would impose strict time limits on the length of immigration court appeals, while also shortening briefing deadlines and limiting the Board’s members’ ability to review new evidence on appeal or to reopen immigration cases on their own. The part relating to codifying Castro-Tum states: “§1003.10 Immigration judges.… (b)… Nothing in this paragraph nor in any regulation contained in 8 CFR part 1240 shall be construed as authorizing an immigration judge to administratively close or suspend adjudication of a case unless a regulation promulgated by the Department of Justice or a previous judicially approved settlement expressly authorizes such an action….”
• DHS is extending its regulations against nonessential travel to and from Canada and Mexico through 9/21/20.
• How is DHS doing with Covid-19? In ICE facilities in Mesa Verde and Adelanto, California, terribly. The Mesa Verde facility was ordered on 8/6/20 to conduct weekly rapid result coronavirus tests after the court record showed that ICE and the GEO Group Inc. that ran the facility avoided widespread testing fearing the positive test results would require them to enact extra virus safeguards. Adelanto was even worse as, despite a federal court order in April that the center should follow pandemic response guidelines laid out by the CDC, ICE was making its own rules – that from 3/1/20 – 7/15/20, ICE transferred 102 individuals into Adelanto from facilities with confirmed Covid cases at the time of transfer or within two weeks of the transfer; that despite receiving 1900 Covid-19 tests in May which was enough to test the entire population of the detention center and the staff, ICE stopped its comprehensive testing program; that 4-8 people are forced to sleep in cells as small as 8 x 10’ and showers are so crowded that a person in one shower stall can reach out and press the neighboring shower’s button.
• How are they doing in the immigration courts with Covid-19? Not good. There are reports that many immigration judges do not want to wear their masks and what do you say to the judge who asks the attorneys if they are comfortable with them taking their masks off? The Boston immigration court was cited. Reports from Chicago were mixed on mask wearing. One attorney said that the majority of judges took their masks off during hearings for detained immigrants this past spring at the San Francisco immigration court. Some attorneys said that they prefer to keep their masks off during the hearing noting that they were seated more than 6 feet from the judge and underscoring the importance of face-to-face interactions, but they remained concerned about airborne virus transmission since the hearings are often held in small windowless rooms with less than ideal airflow. Other attorneys complained that the immigration courts did not appear to be wiping down surfaces between hearings and that the crowded hallways and small courtrooms were not conducive to public health. Other attorneys complained of too little notice as the courts do a phased reopening and of cases being bumped at the last minute.

The truth is unfortunately malleable to many Americans as proved so often by Mr. Trump in the past and he and his party most blatantly in the RNC. Republicans who honor the memories of Ronald Reagan, and both George H. and George W. Bush may very well have to form an independent party as it becomes increasingly clear that the Trump “base” controls the party and will continue to dominate it regardless of the election results.