Tuesday, January 16, 2018

My Response to Congressman Sam Graves about DACA


 Congressman,

Thank you for your response to my email.  As an immigration lawyer and one who works with immigrants on a daily basis, I feel the obligation to rebut some of your assertions below.  First, my email, I believe, was in support of the Dream Act, but your response referenced DACA.  They are two separate things.  I support both but, of course, we wouldn’t need DACA if a Dream Act is passed.  I hope you will consider it favorably.

Regarding DACA, you state, without authority that it is unconstitutional.  That is your opinion, but it is not well supported.  As you know, under our form of government, it is the U.S. Supreme Court that has the final word on whether an action of the administration, or Congress, is constitutional.  To my knowledge, no court has determined it to be unconstitutional and in fact, claims of unconstitutionality have been rejected by the courts that have considered it.  The issue has not reached the U.S. Supreme Court.  “DAPA,” that is protection for parents of “Dreamers” was blocked by a lower court (in a split decision), although not on constitutional grounds, and the U.S. Supreme Court split 4-4 on the issue, letting the lower court decision stand.  Not so with DACA.   In fact, more than 100 legal scholars signed onto a letter at the time DACA was established in 2012 stating their opinion that it was constitutional.  Very similar actions have been taken unilaterally, by executive order, by previous presidents to protect immigrants, including George W. Bush and George H.W. Bush, etc.

By their nature, executive orders are unilateral.  That, in itself, does not affect their viability or their constitutionality.  If you think that executive orders by their nature are unconstitutional, then I trust you are carrying that same attitude toward the plethora of executive orders issued by the current administration.  If fact, with the exception of the recent tax bill, very little has been done by this administration with the cooperation of Congress, but very much has been done by “unilateral” executive order.

So if you oppose DACA, I think you should look elsewhere for justification than your conclusory statement that it is unconstitutional.  And if your opinion as to constitutionality is based on the simple fact that it was done by executive order, you are plainly wrong.

You also cite DACA as a reason for the recent surge of immigrants at the southern border.  I don’t know your sources for this, but it is also wrong.  I’ve personally worked at the southern border with those recent border crossers in our detention facility at Dilley, Texas.  They are overwhelmingly from three countries: Honduras, El Salvador, and Guatemala.  Not Mexico.  In fact, there is a net negative immigration from Mexico.  Of those border crossers, none cite DACA as a reason for coming to the U.S.  They are fleeing horrible, persecution situations in their home countries, and they are seeking refuge in the U.S.  They are, in fact, refugees.  The proof of this is that well over 98% are found, upon examination by asylum officers, to have a “credible fear” of persecution and eligible to present claims for asylum to an immigration judge.   They don’t “sneak” into the country, but present themselves at the border and ask for safety and the opportunity to apply for asylum.  They have the legal right to do that, and we have the legal obligation as a country to consider their plea and treat them humanely as they present it.

In this country, our history and our noble aspirations have been to welcome hard working immigrants that will contribute to the betterment of our country. 

Finally, I don’t doubt the sincerity of your views.  In my experience, however, people take stances such as yours when they agree with the effect it has on people’s lives, rather than on some abstract notion of separation of powers.  Yes, Congress should act on this issue.  Until it finds the courage to do so, I respectfully don’t find your approach to this issue consistent with our history or our values.


__________________________________________________________________________

Roger McCrummen  ∙  Attorney at Law


From: Congressman Sam Graves [mailto:MO06ima@mail.house.gov]
Sent: Monday, December 18, 2017 3:06 PM
To: roger@mhaf.org
Subject: Message from Congressman Sam Graves



December 18, 2017


Mr. Roger Kent McCrummen
Kansas City, Missouri 64118

Dear Roger:

Thank you for contacting me with your concerns regarding Deferred Action for Childhood Arrivals (DACA). I appreciate hearing from you and welcome the opportunity to respond.

In 2012, President Obama decided to unilaterally order the federal government to stop deporting certain illegal immigrants brought here as children. This policy, known as Deferred Action for Childhood Arrivals (DACA), is cited as one of the main reasons for the surge at our southern border. This program was not only implemented without the input of Congress, but also violated the Constitution in doing so. Only Congress can pass legislation providing immigration benefits to individuals, but President Obama used his executive authority to circumvent the federal government’s legislative body. Simply put, the means by which DACA became law is unconstitutional.

However well-intentioned DACA may have been, I defend the constitutional right of Congress to review and pass legislation. Our country was built on the rule of law and an unconstitutional executive order granting amnesty to illegal immigrants has no place in our legal system. Although we may disagree with this issue, I hope you can appreciate the sincerity of my views as I do yours. 

Again, thank you for contacting me regarding this important issue. Please feel free to call (202) 225-7041 should you have any further questions or concerns about this or any other issue, or visit my website at www.graves.house.gov for more information.

  

  

Wednesday, November 22, 2017

The Mean Spirit of Immigration Enforcement under the Trump Administration. Part 1


It’s unfortunate that, after some consideration, I realize that this has to be a series with many parts.  The mean spirit of immigration enforcement characterized by this present administration is not seen in a few isolated events.  It is a conscious anti-immigrant policy directed at indiscriminate mass deportation. 

I have no apology in referring to this administration as “anti-immigrant.”  People want to correct that statement to say that it is just “anti-illegal immigrant.”  That is, in fact, not true.  It is the rhetoric coming from the administration, but it does not comport with the facts, or even with the overt statements made by the administration from day 1 of the presidential campaign.  This administration has sought to limit legal immigration at all levels, from cutting refugee admission in half, revoking DACA status, revoking TPS, to attacking business immigration, to seeking to reduce legal family immigration.

In fact, long term immigration advocates, like myself, have been astonished to see how quickly this administration’s anti-immigrant attitude has seeped down into the various agencies that deal with immigrants.  License has been given to be as harsh on immigrants trying to go through the process the correct, legal way, as possible, often resulting in arbitrary and unjust decisions by government officials without fear of repercussion.

Recall that the very first speech made by this President when announcing his candidacy included statements about immigrants that labeled them as criminals, drug dealers, and rapists.  We only need to look at the persons chosen to advise the President to see the anti-immigrant, white supremacist influences in the administration: Steve Bannon, Stephen Miller, Kris Kobach, and more.  Remember that the President made a point to his base by pardoning convicted criminal Sheriff Joe Arpaio, notorious also for many civil judgements against him for his anti-immigrant and unconstitutional actions.

Let’s acknowledge at the outset that a nation state has the right to control its borders.  How it does so, however, is subject to humanitarian and moral judgements.

Without question, the current administration (and in some limited respects, previous administrations) has utterly failed to preserve human dignity in favor of an enforcement only model of immigration policy.

Example 1.  TPS Cancellation

TPS (temporary protected status) is a temporary status given to persons from certain countries where we have deemed it inhumane or too dangerous for its citizens to be forced to return because of conditions in that country.  Some 22 countries currently have TPS for their citizens that entered the U.S. before a certain date.  In some cases, that date was many years ago.  For example, TPS was granted for El Salvador first in 2001, as a result of the civil wars in the 1990s that displaced thousands of persons.  TPS has to be renewed by the government on an annual basis, and the beneficiaries are allowed to remain legally with work authorization.  It does not result in permanent residence, or citizenship, and can be revoked at any time.  Most persons relying on TPS have no other options for remaining legally in the U.S.

When TPS has continued for many years, there is an expectation (although no legal requirement) that legislation will eventually come that permits those here pursuant to TPS, who have established ties here and not committed crimes, to establish permanent residence.

First, with respect to Nicaragua, and now with respect to Haiti, the President has decided to not renew TPS.  This means that those persons here legally for years now must leave when their TPS expires, regardless of family ties, business ties, etc.  For the Nicaraguans, this is about 2,500 people.  For the Haitians, the number is closer to 70,000 to 80,000.  Nicaraguan TPS was first established in 1999, and Haitian TPS in 2010.

For Nicaraguans, this means the people suddenly losing the right to remain have been here for almost 20 years or more.  They have property, family, jobs, etc.  They may have nothing in their home countries and expect nothing on their return.  They have children born in the U.S. that are now U.S citizens.  What do they do with them?  Bring them back to their home country to forfeit any future opportunities, or allow them to stay in the U.S. and perhaps never see them again?  It is estimated that Haitian TPS holders have given birth to some 27,000 U.S. citizens after arriving here.  Do they leave them here (as it is their right to stay), or take them to Haiti?  This is indeed an inhumane “Sophie’s Choice” for these poor immigrants.

For Haitians, the administration’s actions are rife with cynicism as the President campaigned in Haitian communities just last year, proclaiming to them that he intended to be their “champion.”  Now, this champion is forcing them back to a still devastated country that in unable to receive them.

Although it is entirely legal to end TPS, there is no executive necessity for this action.  It doesn’t benefit the economy; in fact, it will hurt the economy and the employers who rely on these workers.  Families will be separated, perhaps permanently.  TPS holders are not eligible for welfare; they work and contribute to the economy.  TPS holders who commit crimes are not allowed to stay anyway, so it is not getting rid of criminal aliens. 

It is simply a mean-spirited act intended to get rid of immigrants by an anti-immigrant administration.  We predict that other countries will soon follow.  We also predict that the beneficiaries of TPS whose programs are cancelled will NOT leave voluntarily.  This means that they will have to be deported, which further adds to the cost of this executive action.

Example 2, DACA revocation (to follow).

Tuesday, September 5, 2017

Is DACA Unconstitutional?

Note that this same President who claimed he had unfettered discretion to ban Muslims from the U.S. by executive order, now claims that the former President did not have the same constitutional power to exercise prosecutorial discretion on behalf of dreamers. In fact, over 100 constitutional law professors signed on to a letter at the time affirming the constitutionality of the DACA action. [legal argument at https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/LawProfLetterDACAFinal8.13.pdf]. Article at https://www.dailykos.com/stories/2017/8/16/1690348/-100-law-professors-to-Trump-No-question-DACA-is-constitutional.
Look at it this way. If you are stopped for speeding, does the officer sometimes not write a ticket but give you a warning instead? That is an exercise of prosecutorial discretion and it is available in all areas of enforcement. When Pres Obama decided to prioritize removal of some aliens and not others, that is within his authority. If Congress doesn't agree with it, they can pass laws and appropriate the necessary funds to accomplish the desired result. Since they have not appropriated the necessary funds to remove everyone here without authorization, the enforcement bodies have to prioritize their enforcement actions. Surely, no one thinks that deporting non-criminal immigrants brought here as children should be our highest priority.
It is also sadly ironic that the President who seeks security in the Constitution for his inhumanity is the same person who gladly pardoned convicted criminal, Sheriff Joe Arpaio, whose crime was defiance of a court order pertaining to his unconstitutional treatment of unauthorized aliens. If it is the Constitution you care about, you don't show it by pardoning someone (even before sentencing) who proudly violated it.

Monday, September 4, 2017

Rationale for DACA

Now is a good time to remind people briefly of the reason behind DACA (Deferred Action for Childhood Arrivals).  The “Dream Act” (not DACA) was first introduced into Congress in 2001.  Its purpose was to provide a legal status for non-criminal immigrants brought here as children.  It bounced back and forth over the years in various pieces of legislation, but never passed, although each President at the time said he would sign it if it got through Congress.

President Obama also pushed for immigration reform legislation that would include some version of the Dream Act.  When it became clear that this was not a legislative possibility during his tenure, he created something less, called DACA, by executive order in 2012.  The Dream Act would have provided permanent residence and eventually citizenship for persons who could benefit from it.   The President could not go that far by executive order, so DACA instead creates a kind of temporary status for its beneficiaries.  Their deportation is deferred if they qualify, and that “deferred action” gives them the opportunity to apply for work authorization, obtain driver’s licenses, go to school, etc.  It’s not permanent, and it can be revoked at any time by a subsequent executive order of the President.

The rationale for this action?  Persons brought here as children and remaining in the U.S. cannot be charged with having committed an illegal act by entering the U.S., and yet they have no legal status and can be deported at any time.   They have long ties to the U.S. and should be given the opportunity to remain and prosper and, in many cases, they have virtually no ties to (and may not even speak the language) of their home countries.  It certainly cannot be regarded as healthy for our country to have children grow up here, only to discover that they have no opportunities and no hope for success in life because of their legal status.

Since DACA was passed, almost 800,000 “dreamers” have applied for the temporary protection.  Of these, the great majority have jobs and many are in higher education.  In January, the libertarian Cato Institute -- which promotes limited government -- estimated that terminating DACA and immediately deporting those enrolled in the program would cost the federal government $60 billion, and would reduce economic growth by $280 billion in the next 10 years.

There is no valid economic or humanitarian argument for ending DACA.  To end DACA now does not comport with American values toward immigrants and cannot be said to be “patriotic” in any sense of the word.  It only amplifies our most base instincts of fear toward the “other” and contributes nothing to making the country great.  Immigrants, on the other hand, contribute much to the success of the U.S.  I need not go into the multitudes of examples.  

The threat to revoke DACA appears even more cynical when we consider that the President just pardoned convicted criminal, Joe Arpaio, who terrorized immigrants for years as Sheriff of Maricopa County, defying court orders, and shaming his office with unconstitutional enforcement actions.  The President said he was "just doing his job."  He was not.  His oath is to uphold the Constitution and he failed criminally in that.

Although President Obama deported more immigrants than any president before him, he did establish a priority for removal.  This had to do with the recognition that only about 400,000+ immigrants could be removed each year, given our enforcement apparatus (include courts, officers, constitutional protections, etc.).  But if there are 11 million unauthorized immigrants, that means it could take 20 years or more to remove everyone (and that is supposing no new unauthorized immigrants arrive and the maximum amount can be removed each year).  The solution to the problem is comprehensive immigration reform that creates a pathway to legalization for long term non-criminal aliens.  This would allow them to come out of the shadows and live productive lives contributing to the U.S.  It would also make it easier to focus on criminal aliens.

But because we have failed to pass immigration reform (it will happen one day), that leaves us with the question of who should be our priority for removal?  Under President Obama, that meant that criminal aliens and recent arrivals should have the highest priority for removal.  Those with no criminal convictions and with long ties to their communities should be deferred in their removals.  The President could not grant them citizenship or permanent residence, which would require congressional action, but could favorably exercise prosecutorial discretion and focus the enforcement apparatus elsewhere.  It brought some order to a system that seemed to act randomly to pick the lowest hanging fruit, deporting some immigrants deserving of discretion, and ignoring others that should be removed.

It is analogous in my mind to saying that with our limited police force, it makes sense to focus more of our efforts on solving and preventing violent crime, and less on traffic tickets. 
When President Trump took office, one of his first actions was to remove the priorities for removal established by President Obama.  This meant that everyone without legal status was a priority for removal.  The result, as could be expected, was that deportations over all are up, but removals of criminal aliens are not.  Every day we see stories of non-criminal immigrants that have been here for 30 years or more, with U.S. citizen children and spouses, who are suddenly sent back to their home countries and ripped from their families in the U.S.  The fear in the immigrant communities is palpable.  They want nothing to do with law enforcement of any kind, because it could lead to removal from their families and the lives they have established here.

DACA represented a step even further than mere prosecutorial discretion in that it sought to couple the discretion (aimed at the most sympathetic group of unauthorized immigrants) with an eligibility for work authorization and a temporary confidence that the beneficiaries could pursue lives of excellence here.  If that goes away through executive action, and Congress does not act to protect the “Dreamers,” we will be witnessing first hand a gross act of injustice by our government.


Tuesday, February 21, 2017

The Idolatry of Safety

I hear repeated promises from the President that he is going to keep us "safe."  These promises are usually preceded by a description of just how fearful the world is.  Muslims want to kill us. Immigrants are pouring in over the borders.  Inner cities are disasters of slums and violence.

The most common objection I see to admitting refugees to the U.S. is, how can we be sure they are not terrorists?  Are we safe?  Despite numerous factual descriptions of the exhaustive vetting processes that refugees go through, the President still prefers the lie, going even so far as to say recently that refugees are "not screened" before they are admitted to the U.S.  Nothing could be further from the truth, but my point will not be to describe the vetting process.  That is already well documented in other sources (for those with eyes to see and ears to hear).

Rather we should ask, why is guaranteed safety the pre-requisite for admitting refugees?  Is there any act of compassion that doesn't involve some degree of risk to the one showing compassion?  Could the "Good Samaritan" be sure that the injured man in the road wasn't really some kind of trap to rob or kill him?  Or that the man he helped wouldn't take all his money the first chance he had?

If we have to be 100% guaranteed that no refugee will ever turn terrorist before we admit any in, then we have elevated our safety to our highest moral goal.  It becomes our object of worship.  Certainly we can never give such a guarantee any more than we can guarantee that none of the 4 million children born in the U.S. each year will grow up to be a serial killer.  And the odds of being killed by one of those native born is substantially higher than the odds of being killed by a refugee or any other immigrant.  If assurance of safety were our only goal, perhaps a policy of mass infanticide would be in order -- like Herod's plan to eliminate the perceived threat of the newborn Christ.  But, of course, we must abandon such an immodest proposal.

Showing compassion and humanity to refugees is not only part of our international obligations as a country, but it is also part of the moral and just obligations of any country, especially any country with the resources with which we have been blessed.

Sometimes doing the right thing has a cost.  That's not to say we shouldn't do our best to review and vet immigrants and refugees, but to hold off on humanitarian aid purely because of some amped up and unfounded fear is wrong.

I suggest that the burden of proof is not on me or my government to prove that all refugees are safe.  I think the burden is on the anti-refugees to prove that our guaranteed safety is a higher good than our duty to act justly.

In the movie, "Open Range," Kevin Costner and Robert Duvall as two cattlemen, are trying to enlist the aid of some of the town's people in resisting an evil rancher baron and his henchman.  One farmer has two young sons and tells Kevin Costner,

"I didn't raise my boys just to see 'em killed."

To which Kevin Costner replies:

"Well, you may not know this, but there's things that gnaw at a man worse than dyin'."

I'm praying that our treatment of refugees and immigrants in the coming administration will gnaw at us enough to outweigh irrational fears for our own safety.

Sunday, February 19, 2017

Forgive us our trespasses, as we forgive those who trespass against us.

I cringe when I see Melania Trump reading the Lord's Prayer at her husband's recent rally in Melbourne, FL.  Not because she seems utterly unfamiliar with it, and not because I have anything against the Lord's Prayer, or Melania for that matter.  But because this administration's policies are utterly at odds with the content of the prayer.  The crowd cheers wildly because, I suppose, they think someone is standing up for Christianity by reading the prayer.  This is the worst kind of civil religion.  It is, as Paul says to Timothy, "having a form of godliness, but denying its power."  2 Tim. 3:5

How cynical for this administration to issue just this weekend the most draconian enforcement priorities I've ever seen against immigrants (affecting children, asylum seekers, parents, children, and spouses of U.S. citizens, spouses of soldiers, etc.), and then read:

"Forgive us our trespasses, as we forgive those who trespass against us."

Forgiveness is a Christian virtue, but apparently forgotten when it comes to immigrants -- whom we are expressly told by the Scriptures to treat humanely and compassionately.  Although the use of the word "trespass" in the Lord's Prayer reflects an old English definition of offense, it certainly describes the plight of most immigrants here without legal authorization.  They are "trespassers" desperately looking for a legal solution to their presence here.  And in most cases, contributing much more to our society than they ever take.

No one disputes that criminal aliens should be punished and likely banned from the U.S. (depending on the nature and severity of the crime and other mitigating factors, like family, etc. -- something for judges to parse out).  But this administration treats every immigrant who never had legal status, or had it and lost it, as criminals deserving of the harshest punishment, regardless of family, character, or contributions to the U.S.  The private prison industry will rejoice at their profits.  The poor will cry for relief from their oppressors, like the children of Israel in the land of Egypt.

Note to administration: Please don't read the Lord's Prayer and ignore its content, and then think you are somehow standing up for Christianity.  You are not.

Saturday, February 4, 2017

The Delegitimizing President

In one of his latest tweets, the President commented on an adverse ruling by a federal judge on the President's traveling ban, calling to the judge as this “so-called judge.”  Judge James Robart of Washington is not a “so called” judge.  He is a federal judge appointed by President George W. Bush and confirmed by the U.S. Senate under the procedures laid out by the U.S. Constitution.  He is “so-called” a judge by the legitimate authorities within our country.  To challenge that by implying otherwise is an attack on the democracy.

The President has a nasty habit of doing this – delegitimizing any persons or structures around him that would threaten his supremacy.  Remember during the campaign, when reminded that his opponent at that time, Ben Carson, was a “great doctor,” he responded that he was “perhaps an O.K. doctor.” John McCain “wasn’t a war hero.”  Jeb Bush was “low energy.”  Hillary Clinton was “crooked Hillary.”  Ted Cruz was “lyin’ Ted.” Marco Rubio was “little Marco.”  And don’t forget that his career was born on the multi-year false attack on the legitimacy of President Obama’s birthplace and the documents of his achievements.

All of this had the intention and effect of delegitimizing his enemies as persons because they were possible threats to the reality star turned politician’s ambitions.  In fact, his response to virtually any attack was not to defend or rebut the attack, but to delegitimize the attacker.

More seriously, he also turned his attacks on the media and the judiciary.  The press is constantly referred to as “dishonest,” and “lying,” and “corrupt.”  At one campaign rally, he joked that they should be killed, but he probably wouldn’t do it (although he was thinking about it).  He singled out reporters for criticism, to the point that one reporter had to be escorted out by Secret Service while the crowd jeered and threatened her.  And we all remember how he mocked a disabled reporter because he wouldn’t confirm Trump’s lie about celebrations among Muslims after 911.

When a fraud case concerning his “university” was before a federal judge, the President dismissed the judge (who was U.S. born) as a “Mexican” who couldn’t rule fairly on his case.  Trump later quietly paid $25 million to settle the case.

These attacks could be dismissed as the product of a thin-skinned, ego driven, narcissist.  And they are certainly that too.  But the more nefarious aspect is how the institutions that hold together democracy are weakened and made to appear less trustworthy.


Democracy doesn’t survive without a free press and independent judiciary.   If we don’t trust our institutions, then we will trust some strongman who promises us that “he alone” can save us.  That’s the end of a democratic society.