The New York Times documented that “Judge Katzmann blames predatory lawyers who are not familiar with immigration law for much of the poor representation. The immigrants who hire them often do not speak English and are unfamiliar with the court system, making them particularly vulnerable.”

As an attorney who handles many appeals, I could not agree more.  Cases that are appealed are bound by the evidence and arguments presented to the lower court.  It is maddening to take a case on appeal, only to discover that the attorney in the lower court did not make the correct arguments, did not present the proper evidence, or simply did not prepare (or prepare the client) for court.

The widespread ineffective assistance has had a profound effect on the Second Circuit.  Beginning around 2006, the Second Circuit clearly became fed up with lawyers who were not properly arguing cases before the Court.   In dozens of written decisions, the Second Circuit openly criticized lawyers by name, referring many of them for disciplinary hearings.  One would expect that the Court would provide greater scrutiny to appeals in immigration cases to be sure that an order of removal was properly entered rather than being the product of poor legal representation.  Unfortunately, the opposite is true.

First, in 2007, the Second Circuit created a system for handling asylum appeals different than all other appeals.  The “non-argument calendar” provides that, unlike every other type of appeal, asylum cases would be “decided without oral argument unless the court orders otherwise.”  Second, the Court changed the way it handles briefing deadlines.  Judge Winter of the Second Circuit took over the sole duty of handling request for extensions of briefing schedules in asylum appeals, and routinely denies any request for extensions even those that are unopposed by the government and based on meritorious and extenuating circumstances.  I recently had such a request denied, despite the fact that the government consented to the extension and it was needed as a result of a death in my family.

Third, the Court has begun issuing summary dismissals of appeals in large numbers. The Second Circuit now consolidates many asylum cases into one and denies them en mass, with 19 to 30 dockets decided by a single summary order.  It has issued at least eight such summary orders in 2011.  Disturbingly, the summary orders have been limited to just asylum cases and just one ethnic-group: Chinese nationals.  An example of such a denial can be found here.  I am not saying that any of the cases decided in this manner had merit or that the outcome should have been different, but the Second Circuit delegitimizes its own authority by leaving the perception that it is singling out one type of case (asylum cases) and one ethnic group (Chinese nationals) for disparate and unequal treatment. It is no surprise that on the Chinese New Year in January, 2012, there were protests outside of the courthouse in downtown Manhattan.

The polices have caused the number of “grants” (i.e., wins by the immigrant) to plummet. A review of published decisions show that as recently as 2006, the Second Circuit granted 22.6% of appeals by immigrants in asylum cases.  Since then, it has stepped up the rate of denials, and is tied for last among all circuit courts in the United States for 2010, granting only 4.9% of appeals in that year (compared to a 21% grant rate in the Seventh Circuit, 15.9% in the Ninth, 13.5% in the Fifth, and 10.7% in the Third).

Disturbingly, given the Second Circuit’s (understandable) willingness to be critical of the performance of many immigration lawyers, one would expect the Court to at least be more receptive to cases where the immigrant alleges that their order of removal was entered as a result of ineffective assistance of counsel.  Yet a review of the Second Circuit’s cases where the immigrant presents such an argument (known as a “Lozada” motion) confirms that in the past four years, the Court has granted just two cases of approximately 90.

It is a sad state of affairs that the Second Circuit’s frustration with ineffective lawyers has resulted in less protections for immigrants who are harmed.  Hopefully, the Second Circuit will take a deep breath and review its handling of these cases.  It should not be sacrificing justice in the name of expediency or a desire to clear its docket.

“Have we not come to such an impasse in the modern world that we must love our enemies – or else? The chain reaction of evil – hate begetting hate, wars producing more wars – must be broke, or else we shall be plunged into the dark abyss of annihilation.”

“This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.”

“A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual doom.”

- Martin Luther King, Jr.

A background on the terms:

“Unlawful Presence”

A person who enters the United States without being inspected by an immigration officer at the border (enters without inspection or “EWI”) accrues “unlawful presence” in the United States.  A person who enters the U.S. on a visa, but overstays that visa, also accrues unlawful presence from the date their visa expires.

“Departure bar”

Under immigration law, bars to reentering the U.S. “kick in” once a person who has accrued unlawful presence leaves the U.S.  The length of the bar depends on how much unlawful presence was accrued.  A person who accrues less than 180-days of unlawful presence does not have a reentry bar.  Between 180-days to one-year, the person is barred from reentering the U.S. for three-years.  Any unlawful presence in excess of one-year results in a ten-year bar.  It is important to remember that this bar does not exist until the person departs the U.S.

Adjustment of status vs. consular processing

Generally speaking, a person who enters on a visa but overstays does not need to depart the United States to get lawful permanent residency (a green-card) if a U.S. citizen “immediate family member” (spouse, parent, or child over the age of 21) petitions for them.  This is considered adjustment of status from within the U.S.

However, a person who enters without inspection cannot get legal status from within the United States – even if a U.S. citizen immediate family member is petitioning for them.  The same is true for people who overstay a visa, but are eligible to adjust their status on another ground besides an immediate family member petition, such as those who are seeking lawful permanent residency based upon an employment-based petition or non-immediate family member such as a sibling.  Under this circumstance, the person must depart the U.S. and process from overseas – known as consular processing.  This creates a catch-22 in that a person must depart the U.S. to be eligible for lawful permanent residency, but upon departing, they become ineligible for a period of time due to the departure bar.

Waiver of the departure bar

The departure bar can be waived for people who are the spouse, parent, or child of a U.S. citizen or lawful permanent resident if it can be shown that the U.S. citizen/LPR relative would suffer extreme hardship if the intending immigrant were not permitted to enter.  Unfortunately, under current rules, the intending immigrant does not know whether the waiver will be approved until after they depart and file for the waiver.  Thus, the rule serves to discourage otherwise eligible people from leaving the U.S. and applying for their lawful status, because they fear that the waiver would be denied, and they would be stranded away from their family for three or ten years (or more).

Proposed rule

The proposed rule by the Obama administration seeks to create a procedure that would allow people to apply for a waiver of the bar prior to leaving the U.S.  Consequently, they would know, prior to being subjected to the bar, whether their application will be approved.  It would thus serve as an incentive for people to attempt to legalize their status, thus reducing the number of people without legal status.

However, the proposed rule is just that – proposed.  It is a basic certainty that there will be no action taken on the proposal until after the election.  Many things can change or be altered during the “notice and comment” period required for proposed Federal Regulations.  Thus, people should know that there is no knew “law” or “right” and be cautious before applying for anything prior to being sure that you are eligible for it.   The administrations proposal can be found by following this link.

Bring Back 245(i)!

All of this sounds insanely complex and arcane, simply because it is.  It is also unnecessary.

Prior to April 30, 2001, a much simpler law existed – section 245(i) of the Immigration & Nationality Act.  245(i) permitted people who had entered without inspection or overstayed a visa to pay a penalty of $1,000 with their lawful permanent residency application to waive the unlawful entry or visa overstay. No showing of extreme hardship to an immediate relative was required, nor was the person required to depart the U.S. and consular process.  The waiver was automatic upon payment of the penalty fee.

Section 245(i) was not an “amnesty.”  A person using 245(i) was required to be “otherwise eligible” for adjustment of status – meaning that they had a family or employment-based petition approved and would be eligible for LPR status but for the unlawful entry or visa overstay.  245(i) had bipartisan support and was reauthorized by successive presidents, both Republican and Democratic.  Unfortunately, in April 2001, George W. Bush and Congress allowed the law to lapse.

If Congress and the current Administration brought back 245(i), it would go a long way to solving many of the problems plaguing immigrants, their families, employers, and the country’s immigration policy in general.  It would provide an avenue to legal status for hundreds of thousands, if not millions, of immigrants currently stuck in legal limbo.  The government would receive tens of millions of dollars in filing fees, families would be able to remain unified, and employers could hire the talent they need.  I am not in any way hopeful that this issue will be taken up now, but after the election, let’s hope that common sense can make its way into the halls of Washington.

Ms. L fled China at the age of 19 after she was arrested and beaten for proselytizing and passing out Christian fliers at her high school. She arrived at Chicago’s O’Hare airport and requested asylum. She was placed in detention and scheduled for a hearing before an immigration judge. Her family in the U.S. hired a lawyer who failed to appear for the hearing. The immigration judge rescheduled the hearing, but the lawyer did not appear at the second hearing. Ms. L requested additional time to find a competent lawyer, but the judge expressed no sympathy despite the obvious ineffective assistance Ms. L had received. The judge deemed Ms. L’s request for asylum abandoned and ordered her removed (deported). However, Immigration & Customs Enforcement was unable to deport Ms. L because the Chinese government refused to accept her back, and Ms. L was eventually released after a year in jail.

Ms. L then moved to NY with her family, got married, and had two children. Several years later, she attempted to reopen her asylum case, arguing that there were changed country conditions in China and that she would be persecuted under the Chinese one-child family planning policy and on account of her religious beliefs. Unfortunately, Immigration Judges and the Board of Immigration Appeals often rely on the U.S. Department of State’s “Profile of Asylum Claims and Country Conditions” when analyzing country conditions. Such “Profiles” are deeply flawed, and would not withstand even the most basic scrutiny from any objective demographer. They are not publicly available, do not provide footnotes or sourcing for the information, often rely on statements of officials from the country being reported on (i.e., asking the alleged persecutors whether they persecute and then accepting the answer as truth), and provide outdated information. Further, the “Profiles” are inherently generalized and do not provide an individualized analysis of an asylum applicant’s claim.

In this case, Ms. L submitted an expert’s affidavit documenting the unreliability of the U.S. Department of State’s Profile on China as well as presenting a drastically different picture of China’s persecution of both Christians and individuals who have violated the one-child family planning policy. However, the Board declined to consider the affidavit by stating, without explanation, that it did not consider our expert to be an expert. This was stunning, as the expert has devoted her life to the study of Chinese policy, has worked for the French consulate in China, obtained a PHD in Chinese law and policy, and is a professor at a prestigious university on the subject.

We appealed the decision to the U.S. Court of Appeals for the Seventh Circuit, and the case was heard before Judge Frank Easterbrook, Judge Daniel Manion, and Judge Ilana Rovner. The audio is below, and we’ll post an update when we get a decision.

Under the Patriot Act, any person who provides “material support” to a “terrorist organization” is ineligible for any kind of legal status in the United States. On its face, few would take issue with this law. But the devil is in the details; both “material support” and “terrorist organization” are written so broadly that they can encompass almost any situation.

A.  “Terrorist Organization” is Defined to Include Red Sox Fans

A terrorist organization is defined as “two or more individuals, whether organized or not” that have or plan to engage in a range of violent activities, including, but not limited to the use of an “explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” Under this definition, two people who engage in any type of violence against people or property are the legal equivalent of al-Qaeda so long as they are motivated by something more than just financial gain. Red Sox fans celebrating a world series victory throw a garbage can through a store window? Yup, terrorists. A few guys get into a bar brawl over a spilled drink and a chair gets used as a weapon? Yup, terrorists. Several California police officers severely beat a man with their batons whom they mistakenly thought was a drug dealer? Yup terrorists. None of these activities are condonable; they are all illegal and should be punished. But they certainly do not constitute terrorism.

B.  “Material Support” is Defined to Include the President of the United States, Congress, and Every American Taxpayer

The statutes do not only exclude members of the broadly defined “terrorist organization” from getting legal status in the U.S.  Those who have provided “material support” to a terrorist organization are treated the same as the members of the organization.   “Material support” includes committing “an act that the actor knows, or reasonably should know,” will result in providing, among other things, “housing,  transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification,” to a terrorist organization or  “to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity.”  In other words, providing any kind of money, food, or shelter to any person who has or plans to commit a crime using a weapon, constitutes material support, so long as the purpose of the crime is something other than pure personal profit.   It doesn’t even matter if the support provided furthers the crime.   Rent a car to those Red Sox fans?  Material support.   Give medical care to the bleeding bar brawlers?  Material support.  Provide on the job training to the California police?  Material support.

Importantly the statute does not provide exceptions that are commonly found in similar laws.  For example, people who have provided support to organizations that are funded by the U.S. are not exempted from the statute.  People who have provided support under duress (i.e., slave laborers) are not exempted from the statute.  So under the technical definition, because U.S. taxpayers have provided financial aid, weapons, weapons training, and countless other means of support to organizations and governments around the world that would easily meet the definition of terrorist organizations, every U.S. taxpayer could fall within the confines to the statute.

C.  But surely you are being hyperbolic – Our government would never assert the bar except in genuine cases of terrorist related activity!

I wish I was being hyperbolic, but unfortunately, DHS is actively asserting the material support bar in cases where it clearly should not be raised.  Thousands, yes, thousands of refugees who worked for U.S. backed and funded organizations overseas have been denied status – or their cases placed on hold – because of the material support bar.  Our firm is currently representing several individuals who are in this predicament.  The following is the true story of two of our clients:

Our clients, the “M brothers” grew up in war-torn northern Sri Lanka.  As teenagers, their father was beaten and kidnapped in front of them by a Sri Lankan government backed organization.  Two days later, the same organization kidnapped the M brothers and turned them into slave laborers.  Over the course of several days, they were tortured and forced to work digging ditches.  Eventually, they were able to escape, and made their way to the U.S. where they applied for political asylum.  In several hours of extremely difficult testimony, they described the horrific physical and psychological torture carried out on them by this organization.  After their testimony, the lawyer for DHS argued that because the M brothers dug ditches, at gunpoint, they provided material support to a terrorist organization (even though the organization was an official part of the Sri Lankan government, which received over $20 million in funding during the year of the relevant events).  It has been two-years since the M brothers have testified, and there is still no decision on their case.  Once the word terrorism was used, their case became submerged in a politically bureaucratic morass that shows no signs of loosening.

D.  What’s the impact?

DHS has interpreted and implemented Congress’ words in the broadest possible fashion.  Its legal position, however, is untenable.  In enacting the material support bar, Congress’s intent was to deny relief to persons who made a moral choice to assist those who have engaged in terrorist activity. A rational reading of the statute should include an implied exception, at the very least, for those who acted under duress or who did not possess the requisite intent that would be required to attach personal culpability.

No rational law or public policy can justify denying relief to a victim of a terrorist organization, as is the case of the M brothers.  DHS’ efforts to apply the “material support” bar to genuine victims of terrorists ignores the intent of the statute, wastes government resources, and delegitimizes its efforts to exclude actual terrorists and those who pose a legitimate threat to the United States.  Hopefully, rationality will prevail at some point.  But given the politicization of terrorism in the public discourse, I fear that it will be years, if ever, that we will see such rational thinking.

Almost all people who have been to Immigration Court had the same reaction to the statistics cited in Demore.  Pure unadulterated disbelief.  This disbelief was not unwarranted.  Syracuse University’s “Trac Immigration” project, considered to be the most reliable of neutral sources, found that the average wait time for a hearing, as of early 2010, was 439 days – basically 10 times the government’s claimed time.  And that doesn’t include appeals.  I’m not accusing the government of intentionally lying to the Supreme Court to support its case, but…..o.k., yes, I am accusing them of doing just that.

Regardless, the fact remains that Immigration Court is remarkably inefficient.  There are several reasons for this, many of which could be rectified if the will was there.

• Number of cases – There are far too many people being put into removal proceedings to start with.  The new “Obama policy” will hopefully address that, but more needs to be done.  Many people who could obtain legal status before USCIS are funneled to the Immigration Court system by overzealous officials at USCIS, ICE, and Customs and Border Patrol.  Often, after two or three preliminary hearings before an Immigration Judge (spanning many months or more), the Judge simply funnels the person back to USCIS.

• Lost files – The number of times the DHS lawyer (Trial Attorney, or “TA”) shows up for a hearing without the file is shockingly high. It happens regularly.  This is not the individual TA’s fault, but rather, is the fault of the DHS file storage system.  Because of the huge number of cases pending, the TA’s office usually cannot store the files in their office.  Instead, files are sent to an archives somewhere else.  Apparently somewhere very very very far away.  The TA then has to “order” the file prior to the hearing.  Sometimes the file doesn’t show up in time.  Sometimes, they forget to order the file.  Or the wrong one shows up.  When this happens, the Judge has to adjourn the case – usually for months or more – to wait for the file.

• No electronic files – In federal court, everything is done electronically.  Instead of mailing briefs, exhibits, motions, etc., lawyers can just upload their documents on the federal court’s website.  This makes things remarkably more efficient.  Files don’t get lost, storage space is reduced from a warehouse to a computer disk, lawyers and judges can access information and filings with a few mouse clicks, etc., etc.  It would make sense that immigration courts would do the same thing.  Unfortunately, they haven’t.  And it doesn’t seem to be in the near term plans.  I had a discussion with a TA a few weeks ago and asked why the TA’s office doesn’t make everything electronic.  He said they tried a few years ago, but the private contractor that they hired to digitize the records ended up scanning each page as an individual document.  So when the TA wanted to look at a 1,000 page file, he or she would have to open up 1,000 separate documents, instead of just one.

• Unnecessary bureaucratic procedures – Many of the immigration court procedures are unnecessary and unnecessarily time consuming.  The Immigration Court is part of the Executive Office for Immigration Review, itself a subdivision of the Department of Justice.  The Trial Attorney’s office is part of the legal department of Immigration and Customs Enforcement, which is a subdivision of the Department of Homeland Security.  Yet, to file an application before the Immigration Court, it must be filed with USCIS.  Sometimes applications need to be mailed to several different addresses, and done multiple times.  To get a hearing, an immigrant must be fingerprinted by USCIS, but each local Trial Attorney has a different procedure for scheduling an appointment.  And yet, there is no publicly available documentation of each local office’s procedures.  This ends up creating a massively complex procedural morass which cause huge delays as immigrants, lawyers, and judges try to navigate their way through the maze.

These are just some of the reasons for the massive delays.  There are others, including too few judges, too few clerks, not enough free legal services, unprepared lawyers, etc., etc.  If the political will and organization were present, many of these problems could be addressed.  Importantly, fixing the causes of the delays would provide major financial savings too – especially if the court were to implement electronic records.  It would be a win win for all, including the taxpayers.  Until then, we’ll just have to wait and wait and wait.

]]> http://www.bardavidlaw.com/immigration-court-inefficient-court/feed 0 http://www.bardavidlaw.com/qa_on_the_new_obama_policy http://www.bardavidlaw.com/qa_on_the_new_obama_policy#comments Fri, 02 Sep 2011 16:26:31 +0000 Zachary Slapsys http://www.bardavidlaw.com/?p=692 Where legislation fails, there is always policy.  Or at least that’s the Obama administration’s latest approach.  On August 18, 2011, the Obama Administration announced that the Department of Homeland Security (DHS) and Department of Justice (DOJ) will work together on a new initiative to focus their resources on the enforcement of “high priority” immigration cases, while clearing “low priority” cases from the administrative docket.   In the past few days, we’ve received many calls asking about this policy.  We’ll try to provide some insight:

-Does the policy apply to me?

Unfortunately, like so much else in immigration law, the answer is not straight forward.  Generally, the new policy only applies to people who are currently in removal (i.e. deportation) proceedings before an Immigration Judge, or have an appeal pending before the Board of Immigration Appeals or a federal court.   For those that are not in removal proceedings before an Immigration Judge, or whose removal proceedings have already been completed, it probably will not apply.

-What is the policy?

The stated purpose of the new policy is to alleviate the overburdened immigration courts docket load and to focus ICE’s limited resources on “high priority” cases.   Currently, it can take anywhere from one to four years or more for a case to be resolved in immigration court because of the massive numbers of people put into proceedings.

High priority cases involve people who are found by ICE to pose a threat to public safety or national security, people convicted of crimes, suspected terrorists or repeat immigration violators.  The attorneys for ICE who handle cases before the courts, known as Trial Attorneys, will be given “prosecutorial discretion,” on a case by case basis, to stop removal proceedings for “low priority” cases, which are those that involve immigrants who have no criminal history, demonstrate “good moral character,” and have significant ties to the United States- with a particular focus on children, the elderly and the sick.

The Administration is hoping that under this guidance, immigration authorities will make better informed and more uniform decisions about whom to place in removal proceedings.  In addition, the Administration is clearly attempting to inject some fairness into the system in the face of Congress’ failure to act.   No doubt the Administration is also trying to win votes for the next election with this move, particularly in light of its own failure to act on immigration in the past three years.

-What happens if I fall into the category of  a “low priority” case?

If an immigrant falls within the stated criteria, they can submit a written request to the ICE Trial Attorney asking for termination of their removal case.  The written request must include documentation to demonstrate how the person fits into the criteria (for example, proof of ties to the U.S., such as U.S. citizen family members).  If the Trial Attorney agrees, the case will be terminated and the immigrant will be given work authorization.

-Is this a new type of visa, and does it give people legal status?

No and no.  Unfortunately, a person who receives the benefit of “prosecutorial discretion” is only given a temporary respite and remains subject to the whims of ICE.  A beneficiary of the policy can be placed back in removal proceedings at any time.  A major advantage, however, is that the person may be able to seek legal status through other means while benefiting from the policy.

-What do you think of the policy?

As a policy tool, it is a (baby) step forward.  It can potentially benefit many people, and hopefully, afford them time to legalize their status or at least wait and see if Congress ever acts to provide real reform.  If the purpose of this policy is uniformity and efficiency, it is a welcomed idea. The sliding scale of enforcement priority is practical and fair, and will certainly benefit many immigrants who are productive members of society.

However, the policy is more a mandate for the DHS to clear out the onerous backlog of immigration cases than an olive branch to the immigrant community.  It is important to remember that “prosecutorial discretion” is the immigration authority’s unfettered choice whether or not to deport a person.  The guidelines are just that: guidelines, and no matter where a person may fall on the priority scale, nothing is binding. The ultimate decision lies with immigration authorities.  Thus, any notion that it is some sort of “amnesty” is inaccurate; it provides for no new rights, no new relief, and of course no judicial review of an agency decision under the policy.

Further, the policy is limited to those without any criminal convictions and does not give the ICE attorneys the authority to consider the underlying circumstances/gravity that led to a conviction.  One of the areas in need of the most reform is the insane consequences of criminal convictions.  Any immigrant – even those who are long-time lawful permanent residents – with a conviction can face removal.  Even those with convictions from decades ago, with extremely minor convictions, such as turnstile jumping, marijuana possession, and other non-violent offenses can lose everything.  And this policy does nothing to remedy that – in fact, it seems to exacerbate the problem.  It instructs ICE to focus its resources on all people “convicted of crimes,” without regard to any mitigating circumstances.

In other words, this policy is not a replacement for substantive reform.  It is merely a limited stopgap for some.  Although a  step in the right direction, unequal application of the policy is inevitable, and the need for concrete legislation  remains.

A person who stays up all night wondering if there is a dog.