Monday, July 13, 2020

What is a “Merit-Based Immigration System” under this Administration?

An administration spokesperson stated last week that the President was preparing something big on immigration reform – that he supported an executive order and a bill to create a “merit-based immigration system.”

This begs the question of what aspects of immigration the President deems meritorious. He stated that he intended by executive order to put DACA persons on a “road to citizenship.” This is odd considering that only a few weeks ago, his administration was before the Supreme Court arguing that DACA was unconstitutional (they lost). He has also turned down deals in the past to legislate DACA benefits in exchange for funding for his “wall.” After the loss before the Supreme Court, he vowed still to end DACA and try again. Now, apparently, he wants them to be citizens?!

It cannot be refugees and asylees that he thinks have merit in our system. The number of admissions as refugees has been dramatically reduced in this administration (from almost 100,000 a year to less than 18,000). And now, refugee admissions are currently completely suspended due to the pandemic. The administration has also been hammering away at asylum law and procedure to do the same. In asylum law, a number of inhumane tactics have been employed to keep out asylum seekers, including: forced child separations as a deterrent (it’s still going on); metering at the border so that people can’t legally apply and are forced to wait in tent cities for months at a time and subject to rapes kidnapping, malnutrition until they give up;  changing the case law on what qualifies for asylum; promoting judges with the highest denial rates;  denying asylum for persons passing through third countries; and the remain in Mexico policy while waiting for adjudication (this list could go on and on).

Not coincidentally, there have been numerous articles lately about the shortage of workers in the meat processing industry, which have traditionally come largely from refugee admissions and new immigrants. This shortage, now exacerbated by the pandemic, is directly related to the shut down of refugee admissions to the U.S.

Most assume “merit based” to be high tech workers, but that can’t be what this administration values either. The denial rates for H-1Bs (which are 66% mostly made up of STEM field workers, including 76% comprising computer related jobs or engineering) have skyrocketed from 6% to 33%. The USCIS has blown its budget (which had a surplus in the beginning of this administration) chasing after supposed fraud and denying meritorious H-1B cases.

Recently, by executive order, the administration prohibited new H-1B and L-1 visas from being issued, ostensibly under the guise of protecting U.S. jobs.  But this administration was attacking these visa classifications even when the unemployment rate was 3.5%, so it’s not really about jobs.  This executive order has left highly skilled workers and high- level executives of major companies stranded abroad and their families separated because they are unable to get the visas they were otherwise entitled to.

It is worth pointing out that during the first quarter this year, the unemployment rate for professionals in the STEM fields FELL from 3% to 2.8%. Any economist will tell you that is full employment, so it is unclear what U.S. jobs are being protected by this executive order. And the administration did not feel the need to provide any evidence that this executive order was actually needed to preserve U.S. jobs.  Indeed, numerous studies have concluded that H-1B workers create U.S. jobs, not take them away.

L-1 visas are for intra-company transferees with “specialized knowledge” or working as managers or executives. It’s hard to see how denying those visas is protecting U.S. jobs. When companies decide to transfer an L-1 in, it is typically because they are either management level or have a rare skill that can’t be found in the current marketplace. It is a naïve notion to think of all workers as fungible. In other words, high unemployment doesn’t mean we have to stop all new workers from coming in. A laid off restaurant manager can’t be moved to take a senior engineer position at an international engineering firm just to fill an open position.

More recently, ICE announced that F-1 students in the U.S. will not be allowed to stay if their schools hold classes solely online.  In addition to the obvious hardship to students suddenly having to conform to this order, this has the unintended consequence of discouraging the world’s best and brightest from coming to the U.S.  Already schools have lost billions of dollars in reduced foreign student enrollment as a result of the policies of this administration.

We also have to conclude that family immigration is not countenanced as “merit-based.” The administration has often railed about “chain migration” (despite employing family immigration to bring the President’s wife’s family to the U.S.).  Chain migration is largely a misnomer anyway since which family members can come is strictly limited and can take decades to be successful under the current system. Still, it’s clear that this is not what was in mind for merit-based immigration with this administration. Previous proposals from the administration have sought to eliminate entire categories of family immigration.

So what kind of immigrant will qualify in a merit-based system with this administration? It’s not clear. From day one of his campaign to the present day, the President has railed against immigrants and sought to eliminate both illegal and legal immigration. Of course, this may just be last minute election year pandering.  But any plan that fails to address humanitarian concerns, discourages STEM workers, and shuts down family immigration cannot be said to be of any benefit to a nation of immigrants. 

Thursday, September 19, 2019

Is There a Place for Compassion in our Immigration Policy?

Is there a place for compassion in our immigration policy? That’s something we all take for granted. After all, the Statue of Liberty is engraved with those famous words that include one of my favorite titles for our country: “Mother of Exiles.”  Yet is compassion antithetical to “making America great”? 

I suggest just the opposite is true, but it’s not a reality in our present policy. After Dorian made its devastating home over the Bahamas, and after humanitarian workers and government agencies alike were saying that the survivors needed to be evacuated as quickly as possible, the President balked. He said that they can’t come in without proper documents, because the Bahamas had a lot of very bad people in them, including drug dealers, etc., echoing similar words he said about Mexico when he began his campaign. 

Are we the kind of country that sees our neighbor’s house on fire and then has them arrested for trespassing on our lawn? Are humanitarian admissions a burden to the U.S.?

We certainly act as if that is the case under the current administration. Refugee admissions have gone down from almost 85,000 a year to a bit over 22,000 for fiscal year 2018, and the administration has proposed cutting that to zero. Stephen Miller, the chief immigration policy advisor to the President, has been reported to have said that he would be happy if not another refugee ever set foot on U.S. soil.

And we all know about the treatment of would be asylees at our southern border and the President’s mostly failed attempt to build a wall to keep them out. Over 42,000 asylum seekers have been forced to remain in Mexico under a new policy.  Few if any so far have been approved for asylum. The administration has implemented policy change after policy change designed to make attaining asylum in the U.S. a virtual impossibility, especially for those applying at the southern border. Immigration court procedures at the border have devolved into a sham of due process – all in a very transparent attempt to deny the right to seek asylum. And, of course, there are the child separation policies that received so much news coverage – specifically designed as a deterrent. The administration had to be sued to provide soap and other basic necessities to detained children.

This list could go on and on, including revoking temporary protected status for long term residents fleeing disasters, deporting spouses of military members, deporting children with medical needs.

But is this good policy? Does this make us proud to be American? 

Some things are right whether they cost or not. But in this case, anti-immigrant policy because of supposed financial burdens to the country or for feared criminal activity are misplaced. Study after study has shown that the foreign born, including those here without authorization, are much less likely to commit serious crimes than the native born. As for economics, there is also strong evidence that immigration, including both legal and illegal, benefit the U.S. economy over the long term and, more importantly, that an option for legalization would create enormous economic benefits to the country. 

A serious proposal to deal with the problem of unauthorized immigration must be to create a way for long term residents without criminal history to eventually gain legal status and be afforded the dignity we owe to all Americans. This could reap economic benefits as well as reinforce positively our national character and reflect true American values of justice and compassion -- something we are badly in need of today.

Tuesday, July 30, 2019

There is a story that Donald Trump told Howard Stern on his radio show.  An 80 year old man was dining at Mar a Lago and fell and hit his head on the marble floor.  Blood was all over the floor and the president’s first thought was that the man was dying.  Trump said he was disgusted by this and turned away from him.  He did not try to help the man or see that anyone helped him.  He showed not even the slightest bit of pity for the man.  Instead, he complained about the blood all over his clean marble floor.  He and Howard had a good laugh about it.  We don’t know what happened to the old man and no one apparently cared.  Trump said he forgot to call the next day to see if the man was o.k.  But he did call immediately for a cleaning crew to take care of that blood on the floor.  Fortunately, some marines did rush forward to help the man to an ambulance. 

This story seems to me to be a metaphor for the president’s immigration policy, particularly with respect to those neighbors at our southern border and applicants for refugee and asylum status.  They are going to make a mess, stain up our pretty white, and expensive, floor.  The wall will help us not to have to see them bleeding out.   It’s our way of turning away from them.  It won’t help them, but then again, that is not our concern is it? 

The president has sought to reduce or eliminate immigration since the first day in office, but he has a particular animus toward refugees and those brown-skinned asylum seekers coming from the south.  He announced his campaign run with those now famous and oft repeated words about Mexico sending rapists, drug dealers, and murderers (but some, he assumes, are good people).  He believes a wall is the only thing that will help, despite evidence to the contrary.

It should be clear now, the president particularly hates refugees and asylum seekers.  One of his first actions as president only 8 days into office was to dispute with the Prime Minister of Australia over the U.S.’s commitment to take 1250 refugees being held in detention there, a commitment that President Obama had made.  The president dismissed the agreement (and hung up on the Prime Minister) stating it was “a horrible deal, a disgusting deal that I would never have made.”  Notice again his reaction is one of “disgust” – the same as his reaction to the man on his marble floor. 

Remember also that the first presidential pardon was for Sheriff Joe Arpaio, of Maricopa County, Arizona.  He openly bragged that his detention of immigrants in Arizona were his own “concentration camps.”  He was convicted of criminal contempt for continuing to detain immigrants in contravention of a judge’s order limiting that.  The stories of his cruelty to immigrants are countless, but in the eyes of the President, he was a faithful public servant.  In his pardon the President stated Arpaio was “protecting the public from the scourges of crime and illegal immigration.”  Apparently, the law be damned.

The administration has already cut the number of available slots for refugees by over 2/3rds of the previous number, to 30,000, and many fewer than that are actually approved because of the slow walking of the process by the administration.  The administration is now proposing to cut refugee admissions to zero for fiscal year 2020.  That’s correct, zero. 

It is worth pointing out that Canada, with about a tenth of our population, now admits more refugees each year than does the U.S., the wealthiest country in the world.  Germany, about ½ the size of the State of Texas (and much more densely populated), has admitted 1.4 million refugees last year.  France admitted 402,000, and Sweden 328,000.   The president said recently, “[they] can't come in - our country is full. What can you do? We can't handle any more. Our country is full - can't come in. I'm sorry. It's very simple.”

Maybe it’s time to abandon the fictitious conceit of how generous we are.  Isn’t it true that the wealthiest people are often the greediest and most selfish, and the poorest are often the most generous with what little they have?

You may think from this discussion that refugees and asylees are a burden on the U.S.  That’s certainly what the president thinks.  But numerous economic studies have shown that even low skilled refugees admitted to the U.S. are a net economic positive for the country, paying more in taxes and other contributions than the public assistance they may qualify for.  Surprisingly, that’s also the case with those in the country without authorization.

But then again, they might bleed out on our pretty white floor.

The administration’s attack on asylum seekers is just as dramatic and draconian. The latest attempts by the administration show their desperation to shut off completely those fleeing persecution in Central America. Those actions have included several unconstitutional (as found by the courts) attempts to eliminate the possibility of applying for asylum if not entering legally, and then metering those attempting to enter legally so that they could not enter and apply.  Also, some 12,000 or more asylum seekers have been sent to Mexico (they aren’t Mexicans) to wait possibly years for asylum hearings, and U.S. lawyers have been prevented from going to them.  They have no resources, and don’t even have work authorization, or basic food and shelter other than what is provided by humanitarian organizations, while waiting to have their asylum hearings held.  Judges are given quotas for expediting cases.  The president rails against due process being accorded to asylum seekers (something the Constitution requires).  The Attorney General has sought to redefine what qualifies for asylum so that the great majority of those seeking asylum from the southern border can no longer qualify.  Children are separated from parents (this is still happening) and parents are forced to give up their asylum claims to be reunited with their children.  The government still can’t even track what has happened to all the children they have taken custody of. 

And now, the administration seeks to implement two more policies aimed at U.S. immigration.  The first is to disqualify from asylum eligibility anyone who passes through a third country (such as Mexico or Guatemala) on their way to the U.S.  This should be plainly unconstitutional, but it once again shows a determined effort to completely eliminate any person from ever claiming asylum in the U.S.  They are also pressuring Guatemala to agree that it’s a “safe third country” that will accept our asylum applicants, despite the fact that many of our asylum applicants come from Guatemala and no independent observer or human rights organization considers it a safe third country.  That agreement was apparently signed just today.

And just yesterday, the Attorney General issued an opinion that family units cannot qualify as a “particular social group” and thus qualify for asylum as the subject of persecution.  This flies in the face of decades of judicial precedent on this issue and is yet another attempt to eliminate any possibility of asylum for those trying to cross the southern border.  It’s a peculiar feature of our immigration courts that the Attorney General can step in and overrule the decisions of judges as he or she sees fit, thus taking away any real independence of judges deciding asylum cases.  But that’s a separate topic for discussion.

The desperate actions by the administration to prevent anyone from attaining asylum in the U.S. are being added to on almost a daily basis, such that what is written here is probably already out of date. 

Most immigration policy for this administration is attributed to White House advisor, Stephen Miller.  He was quoted as saying that he would be happy if no refugee ever set foot on U.S. soil again.  The administration is working hard to make this a reality.

All of this is deliberate government action to try to discourage anyone from coming here to seek asylum or refugee status, and to eliminate any possibility of successful asylum applications.  The president has been found to have acted unconstitutionally in so many of his executive orders directed against immigrants that it begs the question of who is the real “illegal” here.

But then again, we wouldn’t want to mess up our clean white marble floor.

Wednesday, July 3, 2019

Open Letter Response to Dr. Dobson


Recently, with all the controversy about migrants being held in detention camps on the Southern Border, Dr. James Dobson of Focus on the Family fame (he's no longer with the organization), visited one of the Customs and Border Protection (CBP) facilities and gave a report. 

I’ve been asked to give my opinion on his observations and conclusions, as both a Christian and an immigration lawyer.

I’m glad that Dr. Dobson took the time to visit the facility.  I’m also glad he felt compassion for those being held.  How could any decent person not?  I wish more evangelical leaders shared the same concern.  I’ll include some quotes below from his letter for convenience, but the link to the entire letter is provided here.

"The children looked traumatized and frightened. Tears flooded my eyes as I stood before them. They had no toys or dolls, except for a few items bought for them by compassionate border patrol agents. One tiny little girl clutched something that resembled a doll bought for her by an agent."

The conditions Dr. Dobson observed are direct results of government policy.  They should elicit tears of compassion.  He notes that they had no toys, except some provided by agents.  When I visited a similar facility in South Texas for women and children, the CBP and private prison forbade us to bring in even crayons for the children.  We weren’t allowed to hug or touch the children.

Make no mistake about it.  These are prison camps where women and children, who have committed no crimes, are treated like dangerous criminals.  Guards are everywhere.  We went through strict security every day.  We weren’t allowed to bring in phones, lest we document some of the embarrassing conditions.  During my volunteer week there (and many others from my office have also volunteered there at other times), I was appalled at the prison conditions applied to persons at our border seeking help.  

We documented with affidavits numerous instances of neglect of children in these private prisons.  In several cases that I was personally aware of, children were forced to wait for hours in the hot South Texas sun, waiting to see a doctor, only to be told to drink more water, even though they had had a fever for more than a week.  No medicine was dispensed.  It’s no wonder we are now seeing deaths of children in custody, although none had died in the 10 years before the Trump administration.

The recent discovery of a secret Facebook page with over 9,000 members where CBP officers, current and former, joked about deaths in custody, should give you some pause about government policy in this area.  Are you aware that some CBP agents also destroy water bottles left in the desert for migrants, which can mean the difference between life and death?

The corruption is at the top and it filters down through the agencies.  The president has been anti-immigrant from the first announcement of his candidacy and this gives license to those below inclined to mistreat immigrants or otherwise ignore the law.  We observe this at all levels of immigration policy, from the dramatically increased denials of highly skilled professional workers to the treatment of refugees and would be asylum applicants.

Much of the fault, I believe, lies in the policy of detention in private for-profit prisons, and this policy of using for-profit prisons preceded the Trump administration.  When prison officials are motivated by profit, neglect occurs.  It’s no coincidence that the stock of the largest private prisons rose overnight dramatically when Trump was elected.  It’s also no surprise that the boards of the largest private for-profit prisons (who are the recipients of no-bid government contracts) are infested with former government officials, including John Kelly, Trump’s former Chief of Staff; Richard L. Armitage, former U.S. deputy secretary of state; Michael Corbin, former ambassador to the United Arab Emirates; Michael V. Hayden, former director of the Central Intelligence Agency and of the National Security Agency; Donald M. Kerr Jr., former deputy director of science and technology at the CIA; Anthony C. Zinni, former commander-in-chief of the U.S. Central Command and former U.S. Envoy to the Middle East; and Stephen F. Loftus, former director of the Office of the Budget for the United States Navy.

This is the very definition of “the swamp” that the President has said he wants to drain.  It’s a public policy obscenity.  The no-bid contracts with the prison industry award $775 per child per day, and yet the government argues in court that it can’t afford to provide soap and toothpaste to children held in camps at 2-3 times the capacity for those facilities.  To act as if the administration is doing the best it can under difficult circumstances is, charitably, pollyannaish. 

I’m glad that you told one of the children that God loves him, and that you do too.  I believe that also.  In fact, I can point to (and you can too, I believe) many passages of scripture where God makes it clear that his heart is for immigrants and other marginalized people.  He pronounces curses on people who oppress immigrants and commands us to welcome them.  Nations are judged for the way they treat immigrants.  They are, in every way, our neighbors (whom Jesus commands us to love).

But it’s not enough to say we love them.  We should advocate for policies that treat them humanely, and sadly, I believe you have dodged this issue.  Instead, you want to attach partisan blame to Congress, Democrats, and liberals.

But it is this administration that has declared war on immigrants and especially refugees and asylum seekers.  They have initiated, for the first time ever, a policy of separation of children from their families, as a deterrent to further migration.  They are the ones who still haven’t had the will to restore family unity and didn’t even keep sufficient records to allow separated children to be returned to their families.  They are the ones responsible for numerous deaths in custody. They have drastically reduced the number of refugees we are willing to take.  They are the ones returning asylum seekers to Mexico to wait, possibly for years to have their asylum claims heard, where they aren’t safe and don’t have work permits or access to resources to help in their asylum cases.  They are the ones who have changed the very definition of asylum despite decades of judicial precedent so to eliminate virtually all legitimate asylum claims from Latin American countries.  They are the ones imposing quotas on immigration judges to remove asylum applicants more quickly.  They are the ones who tried (unsuccessfully and unconstitutionally) to say that immigrants couldn’t apply for asylum unless they entered legally, and then wouldn’t allow them to enter legally.  They are the ones imposing mandatory detention on asylum seekers.  And numerous other policy changes not mentioned here, all with the design of denying human rights to our neighbors asking for help.

Even though you want to blame Congress for not giving in to the CBP funding request, you should know that this has now happened (after your article was written).  This was done despite fears by many members of Congress that the President would try to divert money meant for immigrants to build his wall, as he has already done with other budgetary items.

I hope you also realize that there are those who believe that much of this overcrowding crisis was manufactured by CBP to get more money.  By law, the CBP is only permitted to hold children for 72 hours and then turn them over to the Office of Refugee Resettlement (ORR), which then can place them with relatives or hold them in safe facilities designed for children.  In violation of this, CBP continued to hold children for weeks and even months in horrible, prison camp situations, without turning them over to ORR, even though ORR has empty beds for them.  This recent crisis was about getting more money for detention (which goes to the private prison industry).

Moreover, there is no law that requires asylum seekers to be detained for months or years at a time.  This again is a policy by this administration designed to be a deterrent to further asylum seekers.  With a policy of mandatory detention (remember how the president decried “catch and release”?), the capabilities are quickly overrun and necessitating more expenditures on private prisons and policies to deny asylum seekers their human rights. 

But it does not have to be this way.  Asylum seekers can be screened and released with protections to assure their return for their hearings.  They can post reasonable bonds or have ankle bracelets.  I’m not fond of either of these, because they have a dehumanizing effect, but they are effective to assure return for asylum hearings and more compassionate than endless inhumane detention.

To approach this situation and not even acknowledge that the President’s policies are a big part of the problem is partisan and extremely naïve.

"Here’s something else you should know. I have been under the impression that these would-be immigrants try to cross the Rio Grande River and outrun or evade the agents. That is not true of most. They come in large groups, from 100 to 400 people at a time. As I write this letter, a record 1,200 people arrived together at El Paso. The refugees quickly gave themselves up to agents. That is why they have made this journey. They know they will be fed, medicated, and treated humanely, even if they are in holding areas while they are in our custody. Then they will be released on American soil."

You are correct that very few of these neighbors are from Mexico.  Most are, in fact, from three countries referred to as the “Northern Triangle,” Honduras, El Salvador, and Guatemala.  But you have really avoided the real reason they are coming.  They aren’t coming because they know they will be “fed, medicated, and treated humanely.”  In many cases, they are not even given that. 

But the real reason they are coming is the disastrous conditions in their own countries.  I wish you had explored that more instead of concluding that are coming here to get government freebies.  Over 90% of the persons arriving from those countries are determined by our government to have a “credible fear of persecution.”  This doesn’t allow them to stay permanently in the U.S. but does give them the right to have a claim for asylum heard before an immigration judge, where the difficult standard to meet is a “well founded fear of persecution.”  I wish you had heard some of women’s stories of why they left their homeland.  If you had, I think you would be convinced as I am that they are incredibly heroic in making the decision to come here to try to save their families.  Not just from poverty, but from persecution by corrupt governments and those their governments are unwilling to control, on account of their helpless condition.  But, as mentioned above, this administration is doing everything it can to limit who can qualify for that, despite our laws and international standards.

But there is something even more insidious in your suggestion as to the reasons they come.  That is, that they are a drain on society.  I think the opposite is true.  If admitted to the U.S., they will contribute to our society both economically and culturally.  Many economic studies have shown this.  Even the poorest of the poor, over time, contribute more to our society economically than they take from it.  Sadly, the administration clearly believes that every immigrant is a burden that diminishes our own happiness and is to be avoided if possible.  In a country of aging workers and low unemployment rates, that is a profoundly stupid conclusion from an economic standpoint.

"This is the system set up by a liberal Congress and judges. It is a well-known fact that President Obama’s administration established many of these unworkable policies, and Congress is steadfastly unwilling to change them. Every effort at reform has been overridden or ignored. It is set in stone. Democrats want massive numbers of immigrants who will someday become voters. Some Republicans support the policies because they want cheap labor for agricultural purposes. The border could be fixed, but there are very few in authority who seem to care."

This is where your partisanship is really showing.  You fail to assign any responsibility to an administration that, in my observation, hates immigrants.  Stephen Miller, the presidential advisor who is the architect for the President’s immigration policy, reportedly said that he would be happy if no more refugees ever set foot on American soil.  You want to blame the Obama administration (and I also have some criticisms of policy during that era), but fail to tell us what “unworkable policies” he initiated?  If anything, the Obama administration was harsher on immigrants than the previous Bush administration.

But I’m wondering what policies you don’t like?  That immigrants have the right to seek asylum?  And what immigration reform proposals has congress avoided?  The Republicans controlled both houses of congress for two years.  What reforms did they propose?  Instead, the President repeatedly sought to do by executive order what was unconstitutional.  On the other hand, the House this year has passed an immigration reform bill which the Republican controlled Senate has refused to even consider.

And the comment about “Democrats want massive numbers of immigrants who will someday become voters” is ridiculous on its face.  First, there is nothing that says that any immigrant will necessarily become a Democratic voter.  If Republicans are concerned about that demographic, why don’t they reach out to them?  Lots of immigrants are Republicans in my experience.   I’m sure you realize that persons admitted to the U.S. to seek asylum don’t have the right to vote.  Only citizens can vote and even if these asylum seekers are part of the lucky few that are given asylum, they can’t become citizens until many years later.  And by then, who knows who they will vote for?  Or do you suppose that there is something inherent in the Republican party that will not appeal to non-white voters?  I hope not.

Or are you subtlety suggesting that the immigrants admitted to seek asylum will illegally vote in large numbers?  That canard, repeatedly suggested by conservatives, has been debunked even by this administration.  So why are you assigning a corrupt motive to Democrats?  Perhaps they care about compassion and justice – ie. Christian virtues in our society? 

When you say the “border can be fixed” what do you mean?  We know the president means a wall where we don’t have to deal with the problems to our south any longer.  Although this is pure fantasy on his part, do you really think a wall will fix this humanitarian crisis, or will it just allow us to not have to see it?  I can think of many much more humanitarian, and Christian, approaches to this.  Jesus said that his opponents have neglected the “weightier matters of the law – justice, mercy, and faith.”  Where is any of that in any Republican proposals about the border?

"The would-be immigrants are taken to the center and given cursory medical exams. Then they are segregated by sex and age and placed in the fenced-in areas to be held for the next 20 days until they are processed and given a Notice to Appear. If that sounds inhumane, what would you or I do? There is simply no other place to “house” them."

What would I do?  I would determine if they have a credible fear of persecution, or other immigrant remedies, issue them a notice to appear, and release them to relatives in the U.S., with some kinds of assurances that they return for their hearings.  This can be done, as I said, with reasonable bonds and/or ankle monitors.  Studies have shown these to be effective to assure return for their hearings.  Do you find this repugnant that they can stay in the U.S. awaiting trial?  This has been our policy for many administrations before Trump.  Surely this is more humane than the current policy of indefinite detention or return to Mexico and other active measures to prevent or deter even the applications for asylum.

And yes, there are other places to “house” them in a compassionate way.  But where the fault lies is our assumption that they must be detained to await a trial before an immigration judge.  They are not criminals and shouldn’t be treated that way.

Your section on “Fake Families” is really disappointing.  You criticize the Flores decision, and yet it is that decision that says that children should be kept in safe and sanitary conditions.  Do you oppose that?

You say that a “single male typically seeks to find a child and a woman to help him ‘game the system.’”  Although there may be some anecdotal evidence of this occurring, there is no evidence that this is “typical.”  And final approval of family units would require proof of family relationship, even if they have to resort to DNA evidence.  You suggest, without evidence, that many of these are “fake families.”  Does this assuage our conscience for our failure to reunite children with their families, following an administration policy (which is still happening) of separating children from their parent as a deterrent to further immigration?  Oh well, probably a lot of those are “fake families”?

"These people are given a court case and released. The vast majority are never seen again. Most then become “anchor babies” who are citizens with rights to bring members of their families. Others are given transportation to an American city where they disappear into the culture."

That the “vast majority are never seen again” is flatly false by any measure of statistics.  Not sure what your source is, but the Department of Justice (DOJ) reports 23% didn’t show up over a five-year period.  Not great, but also not a “vast majority.”  For those seeking asylum, only about 10% were no shows, according to the DOJ. 

There is much in your paragraph above which is simply nonsensical.  Any comment that uses the term “anchor babies” displays a real ignorance of the law and is used to poison the discussion.  You are using that term, but I don’t think you know what it means.  First, any child admitted to the U.S. at the border does not qualify as an “anchor baby,” because, by definition, they are not born here.  But babies that are born here are not “anchoring” anything.  It is true, they are U.S. citizens in the same way that you became a U.S. citizen by being born here (consistent with the 14th amendment to the U.S. Constitution), but that doesn’t prevent their parents from being deported.  Parents of U.S. citizens are being deported every single day in this country.  Children born here cannot even petition for parents to come to the U.S. until they turn 21, and even then, the parents may have accrued bars to legally coming to the U.S.  Hardly an anchor, but the terms serves to rile up conservatives, which I assume was your point in using it.

"In addition to this influx of people from places around the world steeped in poverty and despair, Senator Chuck Schumer authored and helped pass a “lottery” system, whereby winners are brought to the United States. They become permanent residents, who then begin bringing their families to our shores. Thank you, Senator." 

I know members of Congress often rail against the “green card lottery” and want to eliminate it, but I’m not sure what the problem is?  I know many persons who have benefitted from this program and they are wonderful people who provide much economic and cultural benefit to the U.S.  The program was conceived as a way of bringing diversity to the U.S., so only certain countries qualify for the program.  Do you find diversity threatening?  I’m not sure what the problem is.  Is there evidence that diversity winners are more likely to be criminals (they undergo background checks), or more likely to go on welfare?  The answer to both is “no.”

And why are you targeting Chuck Schumer, other than the fact that he’s a Democrat?  The diversity program was approved by Congress with bipartisan support and signed by George H.W. Bush.  The kingdom of heaven will be composed of people from “every tribe and tongue.”  The U.S. isn’t the kingdom of heaven, but I don’t see any reason why we should fear diversity.  It’s one of the strengths of our nation of immigrants.

And as far as “bringing their families to our shores,” I’m not sure what the problem there is either.  I know it is raising the specter of “chain migration,” but understand that someone who comes on this program isn’t eligible for citizenship for five years, and after that, it may take many more years or decades to bring immediate relatives, such as parents, adult children, or siblings to the U.S.  The principle in our law that supports this is called “family unity.”   Surely you support families getting to stay together?

"Ten years ago, 90 percent of illegals apprehended at the border were single males, mainly from Mexico. Now, more than 50 percent show up with babies and children, and 90 percent of them are from countries other than Mexico, with 64 percent being family units or unaccompanied alien children. Together, they claim to be “families” and within three weeks, they will be home free in America. Is there any doubt why there have been more than half a million illegal immigrants this year alone?"

Please don’t use the word “illegal.”  It is pejorative and dehumanizing.  The fact that now most at the border are with babies and children doesn’t mean that there is more fraud going on, as you suggest.  It means that conditions in their countries are so bad that it’s women and children who are most vulnerable and are fleeing for their lives.  They are “families” and they aren’t “home free” in America in three weeks.  The surge in migrants fleeing Honduras, El Salvador, and Guatemala, have to do with the conditions in those countries.  These conditions are well documented through the UNHCR and other human rights organizations, but you seem to think that the real reason is to take advantage of the U.S. and take something you think belongs solely to you.

Lastly, you have your homage to the CBP.

"They obviously care about the detainees, and I respect them highly. They work tirelessly feeding people three times a day and providing clean clothing. They must also maintain the portable toilets in the cells. It is a never-ending task. There are only two large showers in the facility, one for males, the other for females. Their capacity is for only 20 people at a time, which is insufficient."

While I do know that many CBP officers are in fact compassionate and conflicted about their jobs, we, as a nation, are falling short in our care for our neighbors.  Have you heard about the other recent visits to the facilities, other than your own?  Where CBP officers are asking other children to care for the younger children?  Where diapers aren’t changed?  Where diseases are spreading and children have died?  Let’s not try to whitewash the situation.  Law enforcement deserves our praise, but also deserves our accountability.  There are extremely high rates of turnover in this agency (as well as ICE), and I believe part of the reason is that they are conflicted.  There is an injustice about much of what they have to do to uphold the law.  Why don’t you look at the for-profit prison industry when you look at the conditions in the prisons?  Can they provide better care for the $775 per child per day they receive, or does their profit margin forbid it?  Greed, as you know, is a sin.

Your suggestion that CBP agents are so consumed with caring for refugees that the borders are neglected is way off base.  Most contraband, including drugs, comes through guarded ports of entry.  There is no suggestion that these have been left unmanned to care for detained asylum applicants.  Proposals have been floated in Congress to increase protections at the border points of entry but have been rejected by the administration in favor of funding for a vanity wall.

I agree with you that our agents deserve our prayers.  They also need to be accountable to justice and bad agents should be removed.  The Facebook page referred to above and recently discovered is inexcusable and anyone associated with that or abuse of immigrants should be fired.  Good agents should be rewarded but I’m not going to whitewash abuse simply because they are involved in law enforcement.  Again, much of the blame for abuse, in my mind, falls on the administration, which has encouraged this in the same way it has encouraged torture and turned the other way when subordinates act accordingly.

You conclude with a plea for the “overhaul of the law.”  I would like more specifics on what overhaul you would like to see?  I’m afraid that is revealed in the rest of your paragraph.

"I can only report that without an overhaul of the law and the allocation of resources, millions of illegal immigrants will continue flooding to this great land from around the world. Many of them have no marketable skills. They are illiterate and unhealthy. Some are violent criminals. Their numbers will soon overwhelm the culture as we have known it, and it could bankrupt the nation.

America has been a wonderfully generous and caring country since its founding. That is our Christian nature. But in this instance, we have met a worldwide wave of poverty that will take us down if we don’t deal with it. And it won’t take long for the inevitable consequences to happen."

Sadly, your real feelings about immigration are revealed here.  You, like generations before you, worry about illiteracy and violent criminals with no marketable skills and “overwhelming our culture” and “bankrupting the nation.”  This is hogwash.  Our immigration system screens for criminal aliens, and immigrants as a whole are much less likely to be criminal than native born.  Economically, we need immigrants to be a great nation, and it is immigration in large part, that has made this a great nation.  Even the poorest unskilled immigrants add value to our economy over time.  To think that the few immigrants we admit each year have the potential to bankrupt the nation is ridiculous fear mongering. 

What I am seeing is a fear that you think immigrants will take something that you believe you are entitled to.  Even if this is true, and I think it is not, can you honestly say that this is what Jesus would do?

I hope as a Christian you will see that a true focus on family has to be more than just U.S. families.  If the U.S. family focusses only on itself and its own needs, it will not be blessed.  I hope my comments are not perceived as too critical of you personally, but frankly, I think your response to this crisis is more about partisan politics than about Christian ethics.  As a fellow believer, I think if all we have to offer in this crisis is a wall, we are lost.

Thanks for letting me set the record straight.

Monday, September 10, 2018


We need to be searching for a better definition of patriotism in our country than what is currently on display.  It should have something to do with a willingness to sacrifice one’s own wishes and comforts to serve a higher ideal.  It has little to do with whether one stands or kneels during the national anthem, or whether one wears a flag pin, or observes any of a number of symbolic gestures.  It certainly has nothing to do with loyalty to the president or any particular political party.  For the president to suggest, therefore, that a staffer’s criticism of him is treasonous is way off base.  The president does not embody what it is to be an American, and our favor or disfavor of him does not encapsulate love for the country.

What higher ideals should we adhere to as Americans?  How about, all people are created equal and endowed by their creator with certain inalienable rights – among those, life, liberty, and the pursuit of happiness?  How about the ideals enshrined in the bill of rights to the Constitution?  Free speech, freedom of the press, freedom of religion, freedom of assembly and association, due process, equal protection, and so on. When these ideals are sacrificed for expediency, or for the convenience of some temporary leader, patriotism is lost, not gained.

By this standard, someone who kneels during the anthem to bring attention to the fact that not everyone is treated equally in this country is, in my mind, more patriotic than those who insist on conformity while ignoring injustice that shames the country.  That person is willing to endure the scorn of others and more for the sake of a higher ideal that America embodies in its foundational documents.

Unfortunately, our president embodies none of these ideals.  He is no true patriot to insist on loyalty to himself above our foundational ideals and the constitution.  He sacrifices nothing for his position of leadership.

When people are judged by the color of their skin, or their religion, or nationality, rather than the content of the character (as MLK, Jr. would say), the notion of what it means to be an American is violated.  When immigrants and the poor are despised and the wealthy and powerful favored in our laws, the notion of what it means to be American is violated.  Even seemingly small things like campaign finance reform, or ending the gerrymandering of congressional districts, are patriotic because they seek to give voice to the powerless in our society.  To oppose them for the sake of retaining power in one party, regardless of which party, is anti-patriotic because it violates our ideals of human equality.

The recent passing of Sen. John McCain illustrates this well.  Though flawed in many ways like all of us, he was willing to sacrifice his own comfort and safety for a higher ideal of honor and solidarity with his fellow soldiers.  What has the President sacrificed?  He won’t even give up his business interests temporarily to serve the country.  He won’t disclose potential conflicts of interest by revealing his taxes.  He insists on absolute loyalty to himself rather than the democratic ideals of the country.  He desires to destroy a free press and free speech as an “enemy of the people” rather than endure criticism of himself.  He pardons criminals that praise him and leads chants for prison for his political enemies. He demands respect of himself but refuses to respect others (unless they praise him).  He suggests that libel laws should be changed so that it is easier for him to sue and crush those that criticize him.  He suggests that protesting should not be allowed – at least not if it is critical of himself or his policies.

These are not the actions of an American patriot.  They are the opposite.

Wednesday, July 4, 2018

Independence Day.  2018

Almost three years ago I spent a week helping to represent women and children in a “family detention” prison in South Texas.  This group was part of the “surge” of asylum seekers from Central America, overwhelmingly from three countries: El Salvador, Guatemala, and Honduras.

I wasn’t that well prepared for this.  But I wanted to help support an initiative to provide legal representation for these women and children.  In my early years of practice as an immigration lawyer, I had been heavily involved in asylum work, mostly with people arriving from Somalia, Ethiopia, etc.  Ramon, my associate and a native Spanish speaker, did the heavy lifting in working with these women, and then later returned for several months to continue working with them.

Lots of people have chronicled the detention of women and children at Dilley, Texas, and I don’t need to go over all that ground again, except to point out a few things.  Prior policies had been to permit asylum seekers to enter the country if they could show a “credible fear” of persecution.  They would be given notice for a future court date and released to prepare for that eventual hearing.  As the surge intensified, the administration sought to discourage the flow and began detaining families, sometimes for extended periods.  In the early days of this policy, more than 90% of the families arriving were determined not to have a credible fear and were sent back.  As volunteer lawyers started showing up, that number dropped dramatically. 

But prolonged detention was still a real humanitarian problem.  Lawsuits resulted in the Flores decision which set limits on how long children could be detained in certain kinds of facilities (like the private prison at Dilley).  Cynical attempts were made to qualify the Dilley prison as a “child care facility” so that detention could be maintained.  Finally, women and children began being released with ankle monitors or bonds to ensure attendance at their asylum hearings. 

I should clarify that these events took place during the Obama administration.  We did not support family detention for asylum seekers during that time, and do not now.  Children do not belong in prison, even with their mothers.  But that is not to be confused with the current attempts at “deterrence” by the Trump administration, which have included charging asylum seekers with criminal entry and forcing the separation of children from their families, a situation that has still not been rectified, and is nothing short of a humanitarian evil.

It should also be noted that although the Trump administration has announced no more family separations, the apparent plan is to provide for long term family detention.  They have sought to modify the Flores requirements.

Again, children do not belong in prison.  We referred to the prison at Dilley as “baby jail.”

This would seem to be self-evident, that children don’t belong in prison.  Lots of people have described the damaging effects on developing children to undergo this kind of loss of freedom.

Make no mistake.  These private prisons like the one at Dilley are real prisons.  Guards are everywhere.  We had to go through metal detectors every day.  I had a can of peanuts confiscated because, although the can was cardboard, the bottom was aluminum.  One female attorney was told she couldn’t enter the facility with high heels.  We weren’t allowed to touch or hug the children.  We weren’t allowed to even bring in crayons and coloring books.  I would bring in M&Ms for myself and then slip one to a child every now and then when the guards weren’t looking.

We prepared affidavits describing the abuse of the families that took place at this private prison (I emphasize “private” because it is a “for profit” institution, whose purpose is to make money for its investors).  Children were not given proper medical treatment.  On more than one occasion we saw children who had 101+ degree fevers for days, made to wait in line in the Texas sun to see a doctor, only to be told to “drink more water.”

The legal situation there was also a mess, with the government trying to move as many people through the system as quickly as possible, and worn out legal staffers working around the clock trying to keep up with the workload and with clueless volunteers like myself, and give the families a chance for a minimal amount of preparation before their credible fear interviews.

A lot could be said about all that, but what I remember most about Dilley are the women.  They sat across from us, often cradling an infant, and told horrific stories.  Stories of rapes, death threats, businesses destroyed by gangs, extortion, murder and terror.  They told about reporting these things to the police and being ignored, or having their attacker arrested, and then released the next day only to terrorize again.  They told about trying to escape to another part of the country for safety, and still being pursued and found.  They told about their sons being recruited by the gangs that run the country as soldiers and their daughters as “wives” for the gang members. 

And the children.  Some almost comatose and unresponsive, staring into space, not acknowledging us.  Others were still keen eyed and even smiled at us.  Almost all of them seemed sick in one way or another.

These were not “economic migrants” as the current administration wants to characterize them.  Indeed, although they should not have been treated as criminals and placed in prison, I didn’t meet one that said they would prefer returning home.  They didn’t belong in prison, but they preferred that to returning.

And they hoped.  Hoped America would fulfill the promise they had grown up with.  A promise of compassion from the “Mother of Exiles” for the wretched, poor, and tired.

As I looked at these women, my overwhelming conviction was not one of pity, or even of anger at our defective system.  But admiration.  Admiration for the courage these women showed in taking their most precious possessions – their children – and making the dangerous crossing through Mexico (where they were often robbed, raped, beaten, and turned back many times before making it across), and then arriving in the U.S. only to be detained and treated as criminals.  But still having hope and a steely determination.

These are courageous people.  These were heroic journeys they had undertaken.  Not everyone has the courage to leave their home, even in the most catastrophic circumstances.  But these ladies risked their own lives and futures to protect their children.  What an abomination for them now to be characterized as criminals or drug dealers or freeloaders, wanting to find loopholes and take advantage of American generosity.  They aren’t asking for a handout – only the opportunity to breathe free.

There was a saying in the early days of U.S. immigration and the settlement of the west:

“The cowards never started. The weak died on the way. Only the strong arrived. They were the pioneers.”

I still see immigrants that way.  The most patriotic Americans you will ever see are immigrants.  If you don't believe me, attend a naturalization ceremony some day.  I picture these ladies as just like our lionized ancestors that settled this country.  They are the new Irish, the Italians, the Chinese, etc. – once despised as unworthy arrivals but contributing immeasurably to the fabric of the country.  Brave, free, strong, and hopeful for the future. 

On this Independence Day, I choose to recognize that the spirit of courage that settled this country decades ago continues to rest in these strong families seeking refuge and opportunity.