About Me

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Beverly Hills, California, United States
Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Wednesday, February 27, 2019

Data show allegations of sex abuse of migrant children

By Colleen Long

WASHINGTON — Thousands of accusations of sexual abuse and harassment of migrant children in government-funded shelters were made over the past four years, including scores directed against adult staff members, according to federal data released Tuesday.

The cases include allegations of inappropriate touching, staff members allegedly watching minors while they bathed and showing pornographic videos to minors. Some of the allegations included inappropriate conduct by minors in shelters against other minors, as well as by staff members.

Rep. Ted Deutch, D-Fla., released the Health and Human Services Department data during a hearing on the Trump administration’s policy of family separations at the border. The data span both the Obama and Trump administrations. The figures were first reported by Axios.

From October 2014 to July 2018, the Office of Refugee Resettlement, a part of Health and Human Services, received 4,556 complaints. The Department of Justice received an additional 1,303 complaints, including 178 allegations of sexual abuse by adult staff.

Health and Human Services officials said the vast majority of allegations weren’t substantiated, and they defended their care of children.

“We share the concern,” said Jonathan White, a Health and Human Services official who was in charge of the effort to reunify children with their parents, testifying before the House Judiciary Committee on Tuesday. “Any time a child is abused … is one time too many. We abide fully with the laws this Congress has passed, and we are very proud of our outstanding track record of full compliance including referring every allegation for investigation. The vast majority of investigations prove to be unsubstantiated.”

The Office of Refugee Resettlement manages the care of tens of thousands of migrant children. More than 2,700 children were separated from their parents over the summer at the border, and were placed in shelters. But most of the children in government custody crossed the border alone.

Children are placed in government custody until they can be released to sponsors, usually a parent or close relative, while awaiting immigration proceedings. The shelters are privately run under contracts with the government.

Youth are held for increasingly longer periods of time, currently about two months. As of the first week of February, more than 11,000 migrant toddlers, children and teens were in federal custody as unaccompanied minors, up from about 2,500 detained children three months after Trump took office. Tens of thousands of children cycle through the system each year.

Sexual abuse allegations are reported to federal law enforcement, though it’s not clear whether anyone was charged criminally. In many cases, staff members were suspended and eventually fired.

Deutch said the data were clearly alarming.

“Together, these documents detail an unsafe environment of sexual assaults by staff on unaccompanied minors,” he said.

Health and Human Services officials say all allegations must be reported to the Office of Refugee Resettlement, child protective services and the FBI, and all allegations involving adults to local law enforcement. The department must cooperate with all investigations.

Facilities must provide training to all staff, contractors and volunteers. Background checks are completed on potential employees, and facilities are prohibited from hiring anyone who has engaged in inappropriate sexual behavior.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

House Democrats Press for Data on Immigrant Children Separated From Parents

By Natalie Andrews and Louise Radnofsky

WASHINGTON—House Democrats voted to require the Trump administration to turn over documents on the policy that separated children from parents at the U.S.-Mexico border.

In its first subpoena-related vote of the administration since Democrats took control of the House, the House Oversight committee moved Tuesday to require the Departments of Justice, Health and Human Services, and Homeland Security to deliver documents regarding the Trump administration’s zero-tolerance policy last year on illegal immigration, which led to the separation of more than 2,700 children.

Democrats on the committee said they have requested information for seven months from the agencies, including a request earlier this month. While the agencies have sent some documents, the Democrats said, the administration hasn’t fulfilled the requests of the committee, which is asking for specific information about each child separated from a parent or guardian at the border.

“I did not make this decision lightly,” said committee Chairman Elijah Cummings (D., Md.) at Tuesday’s meeting. “When our own government rips vulnerable children, toddlers, and even infants from the arms of their mothers and fathers with no plan to reunite them, that is government-sponsored child abuse.”

All Democratic lawmakers on the panel voted for the subpoenas, along with two Republicans, Reps. Chip Roy of Texas and Justin Amash of Michigan. Ohio Rep. Jim Jordan, the top Republican on the panel, said the decision was hasty.

“Your decision will disincentivize entities from providing documents on a voluntary basis,” Mr. Jordan said to Mr. Cummings. “They will just wait now for the inevitable subpoena.”

A spokeswoman for HHS said the agency had communicated “regularly and in good faith” with the committee and had already supplied 792 pages of documents related to its request. DHS and the Justice Department didn’t immediately respond to requests for comment.

Democrats have said they would use their new control of the House of Representatives to re-examine the zero-tolerance policy that resulted in the separation last year of thousands of children from the adults with whom they arrived at the southern border, before the Trump administration declared it was reversing course.

At a House Judiciary Committee hearing also on Tuesday, Democratic lawmakers questioned top officials from the U.S. Border Patrol, Immigration and Customs Enforcement, the Justice Department and HHS over the implementation of the policy, including which officials were aware of it and the preparations they made.

Democrats described the policy as “barbaric,” “scandalous” and undermining the U.S.’s “moral standing in the world.” Republican lawmakers countered by asking the officials about possible justifications for separation, including the prospect that U.S. border policies were providing an incentive for more adults to bring children on dangerous journeys from Central America to the U.S. border.

The zero-tolerance policy was implemented last year in response to a surge of largely Central American immigrants fleeing gang violence at home who crossed the border and sought asylum in the U.S. Under the policy, anyone caught crossing the border illegally would be criminally prosecuted. Because laws forbade children from being kept in jail, they were separated. Previous practice had generally been to release adults with children into the U.S. together while their cases were adjudicated.

Mr. Trump stopped the zero-tolerance policy after a public outcry, but confusion has continued. Last month, officials at the HHS inspector general’s office said that the federal systems tracking children who arrived with adults were inadequate and informal, and that the policy appeared to have been in place before and after the period generally known. As a result, the inspector general said, the number of children taken into custody by HHS and subsequently released is likely thousands more than the 2,700 figure released at the time, and the total will likely never be known.

Since the policy ended, the Trump administration has sought to detain families together while they wait to appear in court.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

House Votes to Block Trump’s National Emergency Declaration About the Border

By Emily Cochrane

WASHINGTON — The House voted on Tuesday to overturn President Trump’s declaration of a national emergency on the Mexican border, with just 13 Republicans joining Democrats to try to block his effort to divert funding to a border wall without congressional approval.

House Republican leaders kept defections low after feverishly working to assuage concerns among rank-and-file members about protecting congressional powers and about the precedent that Mr. Trump could be setting for Democratic presidents to use for their own purposes.

“Is your oath of office to Donald Trump or is it to the Constitution of the United States?” Speaker Nancy Pelosi asked her Republican colleagues in a speech on the floor ahead of the vote. “You cannot let him undermine your pledge to the Constitution.”

The resolution of disapproval, which passed 245 to 182, must now be taken up by the Senate, where three Republicans have already declared their support, only one short of the number needed for Congress to ratify a stinging rebuke of Mr. Trump’s efforts.

It remains highly unlikely that opponents will muster the votes to overturn a promised veto of the resolution. But final passage of a measure to assert Congress’s constitutional authority over spending is sure to bolster numerous lawsuits that maintain that Mr. Trump’s declaration is an unconstitutional end run around Congress’s lawful power of the purse.

Many of the 13 Republicans who defected in the House were adamant in their arguments. Representative Jim Sensenbrenner of Wisconsin, a veteran lawmaker who once helped manage Republican efforts to remove Bill Clinton from the White House, made it clear he supported the border wall.

But, he said, “insufficient action — however frustrating it may be — is still the prerogative of the legislative branch. It is imperative that no administration, Republican or Democratic, circumvent the will of Congress.”

In the Senate, where lawmakers are required to vote on the resolution in the coming weeks, those concerns persisted. Even Senator Mitch McConnell of Kentucky, the majority leader and an open supporter of the declaration, declined to offer his opinion on the legal merits.

“We’re in the process of weighing that,” Mr. McConnell said when asked at a news conference on Tuesday. “I haven’t reached a total conclusion.”

“You can’t blame the president for trying to use whatever tool he thinks he has to address it,” he added.

But ahead of the Senate vote, lawmakers have not said what their next steps would be if the resolution to stop the emergency declaration fails.

Three Republican senators — Susan Collins of Maine, Thom Tillis of North Carolina and Lisa Murkowski of Alaska — have said that they will support the resolution, and several others have expressed extreme unease. Vice President Mike Pence and a Justice Department lawyer joined Republican senators on Tuesday for a lunch on Capitol Hill to outline what they maintained was the president’s statutory authority for the declaration and need for additional money.

Mr. Pence faced some frustration from senators about Mr. Trump’s decision to make the declaration and the legal grounds for doing so, particularly from Senator Rand Paul, Republican of Kentucky, according to three people familiar with the exchange who asked for anonymity to describe a private meeting.

When Mr. Paul argued that Mr. Pence, a former representative, would have opposed Mr. Trump’s use of an emergency declaration and compared it to President Barack Obama’s use of an executive order to establish protections for young undocumented immigrants under the Deferred Action for Childhood Arrivals program, Mr. Pence objected, according to one person. He argued that there was a difference between the two uses of executive power, according to two people.

A spokesman for Mr. Paul said that the senator had raised concerns, along with other senators, about the declaration in an exchange, but did not raise the comparison to DACA.

Mr. McConnell acknowledged that there had been “a fulsome discussion” during the meeting, and Senator Lindsey Graham, Republican of South Carolina and a close ally of the president, said he hoped that as a result of the discussion, “we will prevail.”

But some senators emerged from the lunch still reluctant to say how they would vote.

“Any action by the administration must comply with federal law, so I am reviewing and assessing the specific legal authorities and justifications put forth by the administration,” said Senator Ted Cruz, Republican of Texas. “I am very worried about the slippery slope that could occur.”

Some Republican lawmakers and aides said they were unconcerned because they were confident that they could prevent the two-thirds majority needed in both chambers to override a presidential veto, possibly the first delivered by Mr. Trump.

“There will be nowhere near the votes to override a veto,” Representative Steve Scalise of Louisiana, the Republican whip, said Tuesday morning at a news conference. “Ultimately, we’re going to stand with the president in making sure we can secure this border.”

The resolution of disapproval, under the National Emergencies Act of 1976, serves as the easiest mechanism for Congress to end Mr. Trump’s declaration. House Democrats are still weighing the possibility of joining one of the lawsuits that have been filed to challenge the merits of the declaration.

Democrats, who overwhelmingly endorsed the resolution of disapproval, framed the vote as an ultimatum on whether lawmakers would buck party loyalty in order to protect Congress’s constitutionally granted powers. Ms. Pelosi, in a floor speech on Tuesday, listed a number of instances in which House Republicans had objected to Mr. Obama’s use of executive power, vowing that “we are not going to give any president, Democratic or Republican, a blank check to shred the Constitution of the United States.”

Mr. Castro, Democrat of Texas and the author of the resolution, warned Republicans that if the president’s declaration went unchallenged, the issue would resurface.

“If Congress lets this stand, if the courts let it stand, how am I to tell a future president that gun deaths that number in the tens of thousands every year in this country, or opioid deaths that number in the thousands in this country, are not an emergency?” Mr. Castro said in a brief interview. “Or climate change is not a national emergency?”

“If this becomes a short circuit to get other things done,” he added, “then how is a president not expected to use that tool in the future?”

The debate over the merits of Mr. Trump’s national emergency declaration has led some lawmakers to suggest that Congress should re-evaluate how much power it has shifted to the executive branch and the scope of the National Emergencies Act.

“The larger issue is Congress has delegated its authority to the White House in hundreds of instances,” said Senator John Cornyn, Republican of Texas. “I think we need to have a bigger conversation about the separation of powers and whether we want to continue to delegate all this authority to the next president.”

Overruling concerns from other Republicans, Mr. Trump this month outlined his intent to use $3.6 billion from military construction projects to build his promised wall along the southwestern border. In the lunch with Mr. Pence and the Justice Department lawyer, Republican senators secured a promise that they would be notified about details of which military construction projects would be affected before they voted on the resolution, according to two people familiar with the discussion.

Mr. Pence also assured senators that any money diverted from projects would most likely be replaced in the next year’s funding allocation, according to one person familiar with the discussion. While Senator Richard C. Shelby of Alabama, the chairman of the Senate Appropriations Committee, later told reporters that he was confident that effort would be successful, Democratic appropriators would most likely object.

House Democrats also pressed the Defense Department on Tuesday to release those details to Congress.

“We fear that reprogramming funding intended for military construction projects and counterdrug activities will come at the expense of troop readiness and departmentwide efforts to address the military’s aging infrastructure,” wrote Representatives John Garamendi, Democrat of California, and Doug Lamborn, Republican of Colorado, both members of the House Armed Services Committee.

Members of the House Appropriations Committee will hold a hearing on Wednesday to examine the effect of the declaration on military construction and readiness, and members of the House Judiciary Committee will hold a hearing on Thursday in part to examine Mr. Trump’s use of powers under the National Emergencies Act.

“The Congress of the United States needs to have a spine, and not lay at the feet of the president,” said Representative Steny H. Hoyer of Maryland, the majority leader. “That’s not what the people elected us to do.”

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Tuesday, February 26, 2019

Arrey v. Barr

The Board of Immigration Appeals erred in denying asylum relief to an applicant without considering whether the conditions of her offer of resettlement in South Africa were too restricted for her to be firmly resettled. The board also erred in applying the firm resettlement rule as a limitation on the evidence the board considered in support of the applicant's claim for relief from removal and in applying the rule to bar the applicant's withholding of removal claim.

Arrey v. Barr - filed Feb. 26, 2019 
Cite as 2019 S.O.S. 16-73373 

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Worker Visas in Doubt as Trump Immigration Crackdown Widens

NEW YORK — Immigrants with specialized skills are being denied work visas or seeing applications get caught up in lengthy bureaucratic tangles under federal changes that some consider a contradiction to President Donald Trump’s promise of a continued pathway to the U.S. for the most talented foreigners.

Getting what’s known as an H-1B visa has never been a sure thing — the number issued annually is capped at 85,000 and applicants need to enter a lottery to even be considered. But some immigration attorneys, as well as those who hire such workers, say they’ve seen unprecedented disruptions in the approval process since Trump took office in 2017.

“You see all these arguments that we want the best and the brightest coming here,” said John Goslow, an immigration attorney in Ann Arbor, Michigan. “Yet we’re seeing a full-frontal assault on just all aspects of immigration.”

For American businesses, there is a bottom-line impact.

Link Wilson, an architect who co-founded a firm in Bloomington, Minnesota, said finding enough qualified workers within the U.S. has been a problem for years. That’s due to a shortage of architects, but also because his firm needs people with experience developing senior housing. He said employers who turn to international applicants do so as a last resort, putting up with legal fees and ever-expanding visa approval times because they have no other choice.

“We’re just at the point where there’s no one else to hire,” said Wilson, who hired an architect under an H-1B visa last year after enduring a long wait. He estimates his firm turned away about $1 million in projects in 2018 because it didn’t have enough staff to handle them.

Three months after taking office, Trump issued his “Buy American and Hire American” executive order , directing Cabinet officials to suggest reforms to ensure that H-1B visas are awarded to the “most-skilled or highest-paid” applicants to help promote the hiring of Americans for jobs that might otherwise go to immigrants.

Subsequent memos have allowed for greater discretion in denying applications without first requesting additional information from an applicant, tossed the deference given to people seeking to renew their H-1Bs, and raised concern that the government would revoke work permits for the spouses of H-1B holders. One order restricted companies’ ability to use H-1B workers off-site at a customer’s place of business, while another temporarily rescinded the option of paying for faster application processing.

Attorneys who handle these applications say one of the biggest shifts is an increase in “requests for evidence,” or RFEs, from U.S. Citizenship and Immigration Services. An RFE can delay a visa for months or longer as applicants and employers are forced to submit additional documentation over things such as the applicability of a college degree to a prospective job or whether the wage being offered is appropriate. If the responses are unsatisfactory, a visa may be denied.

“They’re just blocking the avenues so that employers will get frustrated and they won’t employ foreign nationals,” said Dakshini Sen, an immigration lawyer in Houston whose caseload is mostly H-1B applications. “We have to write and write and write and explain and explain and explain each and every point.”

USCIS data released on Friday shows an increase in the number of completed H-1B applications receiving an RFE, from about 21 percent in the 2016 fiscal year to 38 percent last fiscal year. The number continued to rise in the first quarter of this fiscal year, to 60 percent.

A growing number of applications with such requests were ultimately denied, while the approval rate among all applicants has fallen. Approvals also dipped in two other visa programs for foreign workers, including one for individuals with extraordinary abilities in areas such as science, sports and the arts.

Jessica Collins, a spokeswoman for USCIS, linked the changes to the president’s executive order, saying the goal was to reduce “frivolous” petitions and that “it is incumbent upon the petitioner, not the government” to prove eligibility.

Some employers note traditional three-year renewable terms of H-1Bs have also been changing; one lawsuit by an organization representing information technology companies claims some visas were valid for only a few days or had expired before they were even received.

Meantime, a vague entry published in the Federal Register last fall advised that the Department of Homeland Security would propose additional revisions to focus on attracting “the best and the brightest” and to “ensure employers pay appropriate wages” to H-1B visa holders, which has raised alarms that the administration will move to narrow the definition of who qualifies.

Caught in the crosshairs of all this are workers like Leo Wang.

Wang, 32, spent six years after college in his native China learning all he could about data and analytics. He got into the University of Southern California, interned at a major venture capital firm and wasted no time after finishing his master’s before starting on another degree. He couch-surfed, passed up an enticing foreign job offer and amassed educational debt all in pursuit of the dream that ultimately came true: A six-figure Silicon Valley job.

As long as it took Wang to achieve his goal, it disappeared in record time.

Wang was working at Seagate Technology under an immigration provision known as Optional Practical Training, which gives those on student visas permission to work. But that expired last year, and because his H-1B application was in flux, he was forced to take a leave from Seagate and withdraw from the master’s program he was pursuing at Berkeley. He says he and his company dutifully responded to an RFE, compiling examples of his work at Seagate. But on Jan. 11, Wang got a final answer: He was denied an H-1B.

“All I wanted was to be able to see my American dream,” he said.

Sandra Feist, an immigration attorney in Minneapolis, said talented foreigners discouraged by the visa process are beginning to look at opportunities in other countries, and she questions what that means for America’s future, especially if top-tier researchers who could contribute to science and medicine are turned away.

One of her clients, a computer systems analyst from India with a master’s degree from a U.S. college, filed his petition for an H-1B in April 2017 with 101 pages of documentation. He received an RFE, and a 176-page response was filed, with additional paperwork attempting to prove just how complicated the position was. He was denied. Feist filed a 282-page appeal, requesting that the file be reopened. Though the appeal was approved, there was a second RFE, which Feist said raises the same issues she already responded to.

With a U.S. work visa unlikely, that client is applying for permanent residency in Canada with his wife and U.S. citizen child.

CEOs for companies including Apple, Ford and Coca-Cola penned a letter to Homeland Security Secretary Kirstjen Nielsen in August, saying immigration policy changes were undermining economic growth. “At a time when the number of job vacancies are reaching historic highs due to labor shortages,” they said, “now is not the time to restrict access to talent.”

A provision for immigration based on skills, education and employer needs dates back to the Immigration and Nationality Act of 1952, and the visa now known as the H-1B has until recently enjoyed wide support among politicians on both the left and the right. A Pew Research Center survey last year found broad approval for high-skilled immigrants among the public, as well, with support at 83 percent among Democrats polled and 73 percent of Republicans.

Trump has vacillated on the issue. During a March 2016 presidential debate, then-candidate Trump was asked about his opposition to visas for skilled workers, to which he said “I’m changing” and that he saw such policies as a way to keep top international students in the U.S. “We absolutely have to be able to keep the brain power in this country,” he said.

His campaign followed that with a statement saying: “The H-1B program is neither high-skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay.”

Last month, Trump again reverted to a more conciliatory note, tweeting that H1-B holders “can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship.”

Back in China now, Wang isn’t sure what to make of Trump’s words. He’s talked to a friend from Seagate, now at a Swedish firm, about openings there, and a former boss in Singapore has some prospects for him as well.

“I still believe in the American dream,” he says. “It’s just that I personally have to pursue it somewhere else.”

Lawmakers Face Pressure to Resolve Fate of ‘Dreamers’

By Louise Radnofsky and Natalie Andrews

WASHINGTON—Lawmakers return to Washington with a monthslong fight over border-security spending behind them, another battle over the national emergency declaration just beginning, and a familiar dilemma ahead: the unclear fate of hundreds of thousands of young immigrants brought to the U.S. illegally as children.

Democrats in control of the House are under pressure to take action on two intertwining issues: resolving the legal status of the young immigrants dubbed “Dreamers,” and reckoning with calls from some within the party for a more aggressive approach in the broader immigration debate.

Potential legislation on the matter of Dreamers has support from both sides of the aisle, but Republicans would likely want to pair the bill with more border-security measures. Interest in the GOP-led Senate in taking up any bill is unclear.

Settling the Dreamer question is possibly the easier of the two issues. A majority of Americans want Congress to maintain protections for these immigrants, and they see them in a favorable light, Wall Street Journal/NBC News polls have found. In a 2018 poll, 58% of voters said a candidate would be more likely to win their vote by supporting a program to help Dreamers work or attend college legally in the U.S., while 22% said they would be less likely to support that candidate. Just over half of Americans had a favorable view of them, while only 19% held a negative view, in a 2017 poll.

But this year, when the White House and Republicans offered a bill allowing a three-year extension of protected status for the young immigrants, Democrats rejected it, both sides said. Democrats were reluctant to engage in negotiations over anything less than a permanent legislative resolution for Dreamers, which a year ago they had been willing to consider trading for wall funding.

Even when lawmakers began meeting behind closed doors to hammer out a 2019 spending deal that would include some money for border barriers, Democrats in both chambers agreed early in the process in a meeting in Minority Leader Chuck Schumer’s office that the Dreamer issue would stay off the negotiating table unless the president intervened and insisted on it.

Some argued that temporary protections in exchange for a permanent wall was a bad deal. A senior Democratic aide said the decision was made because there was limited time to resolve a range of spending issues, and throwing immigration policy into the mix could have thwarted negotiations.

House Democrats now plan to introduce a version of a bill next month to grant permanent protections to the Dreamers, an aide to Rep. Lucille Roybal-Allard (D., Calif.) said. But the measure will be heard by the Judiciary Committee before it has a vote, meaning it could be several weeks, if not months, before a floor vote.

The specifics of the legislation aren’t yet clear. Several versions have been introduced in past years; the bill is intended to grant conditional residency to illegal immigrants brought to the country as children and later, upon meeting set qualifications, permanent residency or citizenship.

Republicans have accused Democrats of sacrificing the Dreamers simply to deny President Trump anything that would give him credit ahead of the 2020 elections.

“Sadly, the Dreamers are being held hostage to a Democratic strategy for 2020,” said Ralph Reed, head of the conservative Faith and Freedom Coalition, which has come out in support of legal status for the Dreamers.

A few Democrats, too, objected. Rep. Adriano Espaillat (D., N.Y.) was among a handful of lawmakers who voted against the spending bill that funded the government through September because it didn’t have a proposal for Dreamers. “I say that the Dreamer’s middle name is mañana,” he said, using the Spanish word for tomorrow.

Some advocates want Democrats to take on an even more daunting fight now: a potentially bruising debate in which they articulate their own immigration vision.

“What we want to see is for the Democrats to invest time in a proactive, affirmative conversation,” said Kamal Essaheb, policy and advocacy director for the National Immigration Law Center. “We can’t just be on our heels responding to the latest thing.”

President Obama established through executive action the Deferred Action for Childhood Arrivals program for the young immigrants after some bills to protect the immigrants failed in Congress. President Trump canceled it in 2017, saying he believed the administration lacked the authority to act without backing from Congress, but that he was sympathetic to the program’s participants.

Several lawsuits have put a stay on stopping the program and allowed participants to continue to apply for renewals to the program.

In January, the Supreme Court made clear it would take no immediate action on the Trump administration’s request to hear cases involving the president’s planned cancellation of the program.

The court’s decision to postpone any DACA action made it all but impossible the court could hear the case this term. DACA beneficiaries, currently numbering near 700,000, will be able to retain their benefits during that time.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

G.O.P. Tries to Hold Down Defections Before Vote to Block Trump’s Emergency

By Emily Cochrane

WASHINGTON — Republican leaders scrambled to keep rank-and-file members in line ahead of a House vote on Tuesday to kill President Trump’s declaration of a national emergency on the Mexican border, as Democrats appealed to Republicans to protect Congress’s constitutional power to control federal spending.

The House’s vote on a declaration of disapproval will force Republicans to choose between the congressional prerogative over federal spending established in the Constitution and a president determined to go around the legislative branch to secure funds for a border wall that Congress has refused to grant.

Many Republicans were clearly uneasy with the president’s action, but few were ready to declare their support for legislation overturning it.

On Monday, Senator Thom Tillis, Republican of North Carolina, became the second Republican senator to say he would support the Democratic resolution.

“There is no intellectual honesty in now turning around and arguing that there’s an imaginary asterisk attached to executive overreach — that it’s acceptable for my party but not thy party,” Mr. Tillis wrote in an opinion article published Monday in The Washington Post.

Last week, Senator Susan Collins, Republican of Maine, said she would support a resolution, barring any extraneous additions. Other Republicans were holding their fire.

“I wish it wasn’t necessary” for Mr. Trump to have declared a national emergency, said Senator John Cornyn, Republican of Texas, arguing that the issue could have been avoided if Democrats had agreed to more funding for physical border barriers.

“I think it’s a shame that what should be a nonpartisan issue has turned into obviously a very partisan issue,” he added. “I’m still considering my alternatives.”

The resolution is expected to sail through the House on Democratic votes, but significant Republican defections would give it momentum in the Senate and could raise the specter — however remote — that Congress could override Mr. Trump’s promised veto, should the resolution reach his desk.

Democrats framed Tuesday’s vote as a referendum on protecting the separation of powers and Congress’s constitutional right to determine federal spending levels — an argument that appealed to several conservatives in both chambers.

Representative Joaquin Castro, Democrat of Texas and the author of the resolution, warned Monday at a news conference that without congressional interference, Mr. Trump would “try this again on other issues,” while Speaker Nancy Pelosi of California expressed confidence that her Republican colleagues’ belief in the separation of powers would push them to support the one-page resolution.

“This isn’t about the border,” she said. “This is about the Constitution of the United States.”

But Democrats were also making a less lofty case to wavering Republicans. They circulated a list of all of the possible military construction projects in each district that could lose money shifted instead to Mr. Trump’s wall.

Several lawsuits have already been filed to challenge the merits of the declaration, but the easiest way for Congress to counter it is through the resolution of disapproval, authorized by the National Emergencies Act of 1976. Once it passes the House, the Senate is required under the law to take it up within 18 days.

On Monday, Mr. Trump trained his attention on the Senate, where only four Republican votes are needed to pass the measure, should Democrats remain united, as expected. The president warned Republicans, via Twitter, not to “fall into the Democrats ‘trap’ of Open Borders and Crime!”

Several conservative senators have expressed concern that Mr. Trump’s declaration is setting a precedent that could be used by a Democratic president determined to secure funds that Congress will not give.

Others have balked at the prospect of siphoning money away from military projects. Senator Charles E. Grassley, Republican of Iowa — who said he was “leaning no” on voting for the resolution — suggested that Congress review the power to declare national emergencies granted to the president under the National Emergencies Act.

Senator Lamar Alexander, Republican of Tennessee, called Mr. Trump’s declaration “unnecessary, unwise and inconsistent with the Constitution.” Yet he declined to say how he would vote on a resolution ending it, telling reporters, “I’m going to wait and see what the resolution says.”

In the House, top Republicans were urging their members to focus on what they say is a legitimate need for border security money and the precedent set by other presidents who have declared their own national emergencies, according to one Republican aide.

Only one House Republican, Representative Justin Amash of Michigan, has signed on to the resolution to block the declaration, scorning the idea that congressional Republicans who attacked President Barack Obama’s use of executive powers “now cry out for a king to usurp legislative powers.”

Top Republicans, including Representative Kevin McCarthy of California, the minority leader, said they were confident that there will be enough support to prevent the two-thirds majority needed to override the veto. But Representative Steve Scalise of Louisiana, the Republican whip, and other members of his vote-counting team were set to lobby for votes against the resolution during a session on Monday night.

Democrats’ argument was buoyed by two letters from more than 25 former Republican lawmakers and nearly 60 former senior national security officials, who appealed to Congress to end the national emergency declaration.

“It has always been a Republican fundamental principle that no matter how strong our policy preferences, no matter how deep our loyalties to presidents or party leaders, in order to remain a constitutional republic, we must act within the borders of the Constitution,” wrote the former members of Congress, including Senators John C. Danforth, Chuck Hagel, Olympia J. Snowe and Richard G. Lugar, who implored Republicans to protect Congress’s constitutionally mandated power of the purse.

The security officials said there is neither a “documented terrorist or national security emergency at the southern border” nor an “emergency related to violent crime.”

Mr. Trump’s assertions “are rebutted not just by the public record, but by his agencies’ own official data, documents and statements,” the officials, including Madeleine Albright, the former secretary of state, and John O. Brennan, the former C.I.A. director, said in their declaration.

“Under no plausible assessment of the evidence is there a national emergency today,” they wrote.

“This isn’t about Trump or the wall, this is beyond that,” said former Representative Mickey Edwards, Republican of Oklahoma and the author of the letter to conservative lawmakers. “This is about the constitutional obligations of Congress and how much Congress is going to surrender those duties.”

“If Congress gives up the power of deciding what money you can spend and where,” he added, “it has basically surrendered its entire constitutional obligation.”

Members of the House Appropriations Committee will hold a hearing on Wednesday to examine the effect of the declaration on military construction and readiness, and members of the House Judiciary Committee will hold a hearing on Thursday in part to examine Mr. Trump’s use of powers under the National Emergencies Act.

“If we’re going to let the president, any president, on a whim declare emergencies simply because he or she can’t get their way in Congress, we have fundamentally changed the building blocks, the strong, proud building blocks that the Founding Fathers put in place,” said Senator Chuck Schumer of New York, the Democratic leader, in a speech on the Senate floor.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Friday, February 15, 2019

Teen Migrant Detention Facility Allows a Glimpse Inside Gate

HOMESTEAD, Fla. — Journalists were given a glimpse Wednesday of a newly expanded south-Florida detention facility where nearly 150 teenage migrants sleep in rows of bunk beds in a large windowless room and use portable toilets housed in adjacent tents.

The sleeping area in a converted Job Corps building in Homestead, Florida, is just part of the growing detention center operated by a private company for the U.S. Department of Health and Human Services.

With a high, steel-framed ceiling and exposed ducts, the large room has an industrial feel, in contrast with smaller dorms where younger children sleep up to 12 per room that reporters saw on a similar tour of the facility last June. In the room where 17-year-old boys sleep, there are 144 bunk beds lined up in eight rows of nine. One of them had a red rosary hanging from the top bed frame.

Journalists were not permitted to interview the children Wednesday, and no cameras or recorders were allowed inside the tightly controlled compound surrounded by a chain-link fence. The children wore badges and walked in groups of 10 to 15 in single file, usually led by a uniformed employee who would frequently order them to stop so they didn’t come across other groups while trying to enter buildings. Some said “hello,” and a group of girls in pink sweatshirts offered a “good morning” in English and Spanish, but others avoided eye contact.

Comprehensive Health Services, which runs the facility, has hired 230 new employees and received 225 more children since December, when federal officials announced the expansion. Health and Human Services spokesman Mark Weber said none of the children were transferred from a controversial facility that shut down in January in Tornillo, Texas.

The Tornillo facility had opened in June in an isolated pocket of the Texas desert with capacity for 360 children. It expanded into a guarded detention camp that in mid-December held more than 2,700 largely Central American teens in rows of canvas tents. Politicians and advocates for immigrants and human rights protested at the site over the seven months it was open, with some even taking up vigils.

Since the Tornillo tent city closed, the Homestead center is the only temporary facility in use, Weber said. Lawmakers and immigrant rights advocates are fighting to shut this one down too, saying it does not comply with state child welfare laws.

Homestead is now one of the facilities with the largest number of migrant children in the U.S. Screens at the command center on Wednesday showed a population of 1,575 children, ages 13-17. Of the group, 670 are being housed in the new section.

The children in custody now are teenagers who arrived on their own, hoping to join relatives. Last summer, Homestead had taken in about 140 children who were separated from their families at the border.

New federal requirements mandating more stringent background checks on their families since last summer have slowed the children’s release to family members. The average length of stay at Homestead has gone up from 25 days last June to 67 days as of December.

The children eat three meals and also have three snacks, a program official told the media.

On Wednesday, a group of boys formed a line with trays in hand and got served white rice, red beans and fish.

Managers say there are attorneys at the facility every day and they meet privately with the children. There are four doctors and other physicians are on call.

Weber said the Homestead facility has approximately one mental health clinician for every 15 children. Under federal policy, migrant youth shelters generally must have one mental health clinician for every 12 kids.

A legal team visited the shelter last week to verify whether it complies with a 1997 agreement known as the Flores settlement, governing how migrant children are housed in custody. J.J Mulligan Sepulveda, an attorney at the Immigration Law Clinic at University of California, Davis, said they interviewed children and described a few instances in which they broke into tears describing the “military-style” conditions at the facility where they can’t hug one another.

Some feared that expressing emotion could get them referred to mental health services.

“A lot of them saw mental health services as a punishment, and thought it would affect their immigration case,” Mulligan Sepulveda said. The attorney also said he met a boy who was separated from his brother when the center began its expansion. He said they are only allowed to see each other once a week.

The Florida Department of Children and Families said in an emailed statement last month that because it is a federal facility the state agency “does not have any jurisdiction or involvement with children placed there.”

Comprehensive Health Services, which is part of Virginia-based Caliburn, isn’t able to use Florida records to screen the staff for child abuse and neglect because Florida law bans any outside employer from reviewing information in its child welfare system. Child abuse and neglect checks were waived because of these limitations, officials say.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Trump Says He Does Not Want a Government Shutdown as He Moves Toward Embracing Border Deal

By Emily Cochrane and Catie Edmondson

WASHINGTON — President Trump declared on Wednesday that he does not want to see the government shut down at midnight Friday and hinted that he has “options that most people don’t understand” to build his border wall without congressional approval.

The remarks, which were made to reporters in the Oval Office as he met with the president of Colombia, inched him toward embracing a bipartisan border deal that fell far short of his demands. But without a shutdown as leverage, he appeared to have little choice but to sign it if it clears Congress.

“I don’t want to see a shutdown. A shutdown would be a terrible thing,” Mr. Trump said.

The president’s comments came as Speaker Nancy Pelosi urged her House Democratic troops to fall in line behind the border-security agreement, which deprived Mr. Trump of a win on his wall but gave more money for border fencing and detention beds than the left wing of her party wanted.

“As with all compromises, I say to people, support the bill for what is in it,” Ms. Pelosi told reporters on Wednesday. “Don’t judge it for what is not in it. We have other days to pass other legislation.”

Lawmakers and aides were rushing to resolve lingering issues in a broader spending bill before the Friday deadline to prevent another government shutdown, but Mr. Trump and key lawmakers indicated they would support a final agreement.

Mr. Trump said the White House has yet to see the legislative text of the deal, and when aides do, “we’ll be looking for land mines.”

The compromise measure, assembled by senior members of both parties on Monday night, includes just $1.375 billion for new fencing along the border with Mexico, far short of the $5.7 billion Mr. Trump sought for a steel or concrete wall — and less even than the deal that he rejected in December, which prompted the longest government shutdown in American history.

But the president got some cover from some of his Republican allies in the Senate and at least one of his hard-line immigration critics in the media, Laura Ingraham, who have claimed some measure of victory by recalling that Ms. Pelosi had said last month she would approve only one dollar for a wall on the southwestern border.

“Well, try $1.375 billion,” Ms. Ingraham crowed on Fox News Tuesday night. “She might not want to call it a wall, but that’s what it is. And that’s not all bad.”

Remaining issues in the spending package, which includes funding for the Department of Homeland Security and six unfinished spending bills, include restrictions on where new fencing can be built in the Rio Grande Valley and whether the legislation should include back pay for federal contractors affected by the shutdown, according to a congressional aide familiar with the negotiations. There is also debate over whether to include an extension of the Violence Against Women Act, which is set to expire on Friday.

The legislation is expected to be finalized Wednesday, with a House vote on Thursday night, followed by Senate passage.

Several Democrats indicated that they would support the legislation, even before the text was finished, in part because it would stave off another government shutdown and includes Democratic priorities in the other six bills. Other liberal lawmakers expressed concerns about the funding levels for detention beds and Immigration and Customs Enforcement, which some had campaigned to abolish.

“I’m trying to maintain an open mind, but I need details,” said Representative Veronica Escobar, a freshman Democrat whose district includes most of El Paso, Texas.

“The barriers are going to be an issue,” she added, noting that she would prefer no funding for the Homeland Security Department until it is audited. “I want to know where and what they look like.”

At least one, Representative Juan Vargas, Democrat of California, said he would vote against the bill, but he was not actively seeking support from other members.

Speaker Nancy Pelosi at the Capitol today. “As with all compromises, I say to people, support the bill for what is in it,” Ms. Pelosi said Wednesday. “Don’t judge it for what is not in it.”CreditTom Brenner for The New York Times
Speaker Nancy Pelosi at the Capitol today. “As with all compromises, I say to people, support the bill for what is in it,” Ms. Pelosi said Wednesday. “Don’t judge it for what is not in it.”CreditTom Brenner for The New York Times
“I think most people just want to get this thing over with,” he said. “I’m not one of those people.”

For some Democrats, the biggest issue is detention slots under the control of the Trump administration. The agreement authorizes the Department of Homeland Security to fund about 40,000 beds for detainees, many of them in centers run by for-profit companies and Immigration and Customs Enforcement near the border in Texas, Arizona and California.

House Democratic aides described the language as a “glide path” from the current level of 49,000 detention beds back to Obama-era levels of 35,000 or fewer.

But a summary of the provisions drafted by Senate Republican staff members placed the average number of beds funded under the deal at a much higher number — 45,274, including 2,500 for families. And that could rise to as many as 58,500 beds, Republican aides asserted in internal communications, because federal cabinet departments have latitude in how they use funds.

Under the complex funding formula in the agreement, the Department of Homeland Security would have “reprogramming authority” to transfer as much as $750 million from other programs into detention.

Democrats have argued that with a new House majority, they can provide much harsher oversight than their Republican predecessors and push back on that maneuvering within the department and other federal agencies.

“We’re intent on making sure that this process reflects the congressional intent of where they should be on barriers, on beds, on all these issues that matter to us,” said Representative Pete Aguilar, Democrat of California and one of the 17 negotiators working on a border security agreement.

“We’re going to respect Article I of the Constitution here and do our job,” he added, referring to the article in the Constitution that gives Congress the power of the federal purse. “If they don’t, they can expect to be up here quite a bit.”

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Thursday, February 14, 2019

Szonyi v. Whitaker

No circuit precedent has held that the text of 8 U.S.C. Sec. 1227(a)(2)(A)(ii) unambiguously foreclosed an interpretation that an alien will be deportable when he again commits an act, which, in and of itself, constitutes a complete, individual, and distinct crime, and then commits another such act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct.

Szonyi v. Whitaker - filed Feb. 13, 2019 
Cite as 2019 S.O.S. 15-73514 

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The border-security compromise is a good start. Now help the ‘dreamers.’

CONGRESSIONAL NEGOTIATORS have reached a compromise on border security that delivers half a loaf or, as President Trump sees it, less than a quarter of a wall — just $1.375 billion of the $5.7 billion he wanted for construction of a barrier along the Southern border. It’s a modest deal that doesn’t address the most important immigration issues, such as the status of the “dreamers,” undocumented immigrants predominately brought to the United States as children. But with dysfunction having become the Washington norm, it is practically a triumph that GOP lawmakers summoned the will to break an impasse, forged an accord with Democrats knowing it would displease Mr. Trump and plan to send it along to him to sign or veto.

Barring last-minute snags, the president appears set to sign the measure to build 55 miles of new fencing and fund the Department of Homeland Security and other agencies, thereby averting another government shutdown. That would end a gratuitous standoff that could have been avoided in December had Mr. Trump supported legislation that provided more border security funding than he ended up securing after a five-week partial government closure. Pandering to his base, he opted for a fight, venomous tweets and paralysis.

Good for Congress, and good for the Senate majority leader, Republican Mitch McConnell of Kentucky, for schooling Mr. Trump on the art of the possible. Even better, though, if Mr. McConnell and other congressional leaders now take further steps to resolve immigration disputes wrongly deemed irresolvable by conventional wisdom.

They should start by defusing the time bomb ticking for the more than 1 million young dreamers, whose lives and livelihoods will be devastated if Mr. Trump’s decision to rescind their protections from deportation, and work permits, gets the green light from the Supreme Court. That’s possible, and should it happen, it will destroy families and communities in districts represented by Republicans and Democrats alike. (The Center for American Progress has published an online interactive map showing the number of dreamers in every congressional district.)

Mr. Trump signaled his willingness last month to negotiate over Deferred Action for Childhood Arrivals , albeit with a narrow proposal that would exclude many dreamers and extend others meager relief: just three years of work permits and deportation protections, with no pathway to legal status or citizenship. Congress would be wise to improve now on Mr. Trump’s blueprint with legislation that would provide permanent protections for young migrants who have been raised in this country and are Americans in outlook, allegiance and expectations.

Congress could also legislate relief for hundreds of thousands of people who have been living legally in this country with temporary protected status, in many cases for decades, having fled conflict and natural disasters in their home countries. The administration has ordered their protections withdrawn, as well. A proactive Congress would intervene to ensure that those migrants, often the parents of U.S. citizens, have a viable and secure future in communities where they are well integrated.

Problem-solving was once taken for granted in Congress. Regaining that muscle memory is a matter of embracing bipartisan compromise.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Lawyers sue ICE over videoconference immigration hearings

By Deepti Hajela

NEW YORK — A group of detained immigrants and the lawyers representing them filed a federal lawsuit against Immigration and Customs Enforcement, accusing the agency of violating their constitutional rights by forcing them to use videoconferencing for their court appearances instead of bringing them in person.

In the suit, which the seven detainees along with three public defender groups filed in Manhattan on Tuesday, the plaintiffs said the reliance solely on videoconferences has “had disastrous effects on detained immigrants, the ability of their attorneys to effectively represent them, and the efficiency of the immigration court” and said the motivation was “the government’s nationwide effort to expedite deportations at the expense of due process.”

ICE said it does not comment on pending litigation.

Prior to last June, detained immigrants facing deportation hearings in New York City were brought in person to the court at Varick Street.

But ICE suspended transfers, in favor of video conferencing. At that time, the agency said it was due to safety concerns over protests outside the facility, which demonstrators then discontinued. But the use of videoconferencing remained, and according to the lawsuit, ICE said there were other reasons including cost effectiveness.

The public defender groups in the suit make up the attorneys who represent detainees pro-bono through a New York City program.

In the suit, they said not having detained immigrants come to the court has impacted their ability to represent them effectively. They said there are also confidentiality issues, that immigrants had no way to speak to their attorneys privately if they were on videoconference, and also pointed to technological and logistical issues, like whether the facilities where they are detained could effectively carry out the number of videoconference calls required, and whether interpretation could be done properly.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

ICE director nominee in limbo after criticism from union

By Geneva Sands

Washington (CNN)President Donald Trump’s pick to lead Immigration and Customs Enforcement remains in limbo after the union representing ICE officers opposed the nomination.

The Senate Homeland Security Committee on Wednesday postponed a scheduled vote on Ron Vitiello’s nomination.

“Never before have we seen so many warning signs with respect to a nominee prior to confirmation and we believe him to be unfit to serve as Director,” wrote National ICE Council President Chris Crane.

Crane outlines a series of concerns, including accusations that Vitiello prevented employees from performing their official duties. The union also said that the ICE acting director’s social media content was “unacceptable” and “shows a lack of sound judgment.”

Last August, the President formally nominated Vitiello, the acting director of ICE, to hold the position permanently.

But he has run into trouble amid social media controversy and criticism from the union representing ICE officers.

“We are going to hold over the ICE director nomination there are some issues that continue on that so we will not be voting on the ICE director,” said Sen. Ron Johnson, R-Wisconsin, during a committee meeting Wednesday.

Vitiello has been leading ICE in an acting capacity since the end of June. He previously was chief of the US Border Patrol and acting deputy commissioner of Customs and Border Protection.

“I’m not going to say anything, other than we are holding it over and we will continue to sort through the issues,” said Johnson after the meeting Wednesday.

Vitiello faced criticism at his hearing in November for refusing to rule out potential future family separations, and was questioned about his personal tweets and an immigration event he had attended.

Michigan Democrat Gary Peters asked in the hearing about a 2012 tweet, in which Vitiello “suggested that the Democratic Party should be renamed the ‘liberalcratic party’ or the “Neo-Klanist party.'”

Vitiello acknowledged “it was a mistake” and said “he was trying to make a joke,” adding that he thought it was a direct message.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Wednesday, February 13, 2019

Lawyer: Rapper 21 Savage Granted Immigration Bond

ATLANTA — Grammy-nominated rapper 21 Savage was granted bond for release Tuesday after spending more than a week in federal immigration custody, but he wasn’t freed right away, his lawyer said.

The rapper, whose given name is She’yaa Bin Abraham-Joseph, was arrested during a targeted immigration operation early on Feb. 3. Immigration and Customs Enforcement officials said at the time that the British citizen had overstayed his visa and had a felony conviction.

Abraham-Joseph, 26, was granted bond too late Tuesday to be released right away, immigration lawyer Charles Kuck said by phone, adding that he anticipates his client will be released Wednesday.

In an emailed statement, lawyers Kuck, Dina LaPolt and Alex Spiro said they’ve been speaking with ICE since his arrest to “clarify his actual legal standing, his eligibility for bond, and provide evidence of his extraordinary contributions to his community and society.”

They said they received notification in the previous 24 hours, “in the wake of the Grammy Awards at which he was scheduled to attend and perform,” that he was granted an expedited hearing. The Grammy Awards ceremony was held Sunday.

Abraham-Joseph was nominated for two awards at the Grammys, including record of the year for “Rockstar” alongside Post Malone. His second solo album “I Am I Was,” released in December, debuted at No. 1 on the Billboard 200 albums chart.

After his arrest, ICE said Abraham-Joseph entered the U.S. legally in July 2005, when he was 12, but has remained in the country illegally since his visa expired in July 2006. He was convicted on felony drug charges in October 2014 in Fulton County, Georgia, ICE said. He was placed in deportation proceedings in federal immigration court.

Abraham-Joseph’s lawyers disputed that. They said last week that Abraham-Joseph came to the U.S. when he was 7 and remained in the country until June 2005, when he went to visit the United Kingdom for a month. He returned on a valid visa on July 22, 2005, they said.

“Mr. Abraham-Joseph has been continuously physically present in the United States for almost 20 years, except for a brief visit abroad,” his lawyers said. “Unfortunately, in 2006 Mr. Abraham-Joseph lost his legal status through no fault of his own.”

Federal immigration officials have known Abraham-Joseph’s status since at least 2017, when he applied for a new visa. That application is pending, his attorneys said.

The attorneys also said ICE was incorrect that Abraham-Joseph has a felony conviction on his record. Fulton County prosecutors said they could not provide information on that case because it is sealed.

Abraham-Joseph’s lawyers said Tuesday that he asked them to send a message to his supporters.

“(H)e says that while he wasn’t present at the Grammy Awards, he was there in spirit and is grateful for the support from around the world and is more than ever, ready to be with his loved ones and continue making music that brings people together,” they said.

He added that he “will not forget this ordeal or any of the other fathers, sons, family members, and faceless people, he was locked up with or that remain unjustly incarcerated across the country. And he asks for your hearts and minds to be with them.”

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Border Deal Doesn’t Resolve Detention Questions

By Louise Radnofsky, Kristina Peterson, and Natalie Andrews

Democrats largely came up short in their quest to limit the detention of immigrants as part of a bipartisan border deal reached this week, but the arcane math left lawmakers citing different numbers and activists on both sides crying foul.

The dispute over funding for Immigration and Customs Enforcement detention beds emerged as a late sticking point in the negotiations, and its resolution was key to the deal. Democrats wanted fewer beds and sought limits designed to prioritize the detention of criminals over other immigrants, such as people who overstayed their visas. Republicans wanted more beds and no constraints on which immigrants ICE can detain.

The complications arise in part from the way funding for ICE detention facilities is determined. The formula includes the agency’s average daily population of detained immigrants, but ICE has also moved money around to fund the beds.

In the last fiscal year, Congress funded ICE’s average daily population at 40,520. Under the agreement reached by Democrats and Republicans this week, the administration will get funding for an average daily population of 45,274 in the current fiscal year, congressional aides say. ICE currently holds over 49,000 people in custody.

Democrats have pointed to the possibility that the negotiated number means ICE will have to reduce detention to make the new average work. Republicans have countered that ICE has the ability to transfer money, as it has been doing, to maintain a higher level of beds. Democrats aren’t disputing that they can transfer money, though they note that money will have to come from another account.

The complexities led to varying takes on Capitol Hill, with lawmakers disagreeing on whether the deal increased or decreased the number of detention beds.

Senate Majority Whip John Thune (R., S.D.) estimated that once ICE has transferred money, it could fund up to “58,000 or thereabouts” beds. Sen. Mazie Hirono (D., Hawaii) argued the agreed-to number of beds was actually a reduction. “They are pretty much at 45,000 or so,” she said.

Rep. Mark Meadows (R., N.C.), a hard-liner on illegal immigration, made the GOP’s initial goal his baseline. Comparatively, “it’s less than that,” he said. “It’s about 7,000 beds less.”

Pro- and anti-immigration activists both saw problems with the deal. Sandra Cordero, director of Families Belong Together, said the deal would keep detention levels steady and was “funneling more money to agencies that ripped thousands of children from their parents’ arms.” Mark Krikorian, head of the Center for Immigration Studies, said the reduction in ICE detention capacity “more than cancels out any benefit from that small amount of extra fencing.”

Others saw the result as more clear-cut.

Sen. Mitch McConnell (R., Ky.), the Senate majority leader, claimed victory on the issue and applauded Democrats for abandoning what he called “extreme positions,” including “the idea that we should impose a hard, statutory cap on ICE detainees.”

Sen. Dick Durbin (D., Ill.), a member of the 17-lawmaker group that negotiated the border deal, said Tuesday the Democrats didn’t get everything they had hoped for on beds, a reflection of GOP control of the Senate and White House.

“We had hoped to not only stop the grand and glorious wall, paid for by Mexico, but also to deal with detention beds. I don’t know what the final wording is on this,” Mr. Durbin said, but “we wanted to address both, and it became more difficult when we realized the political reality.”

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

Trump’s Wall ‘Emergency’ Would Be The First To Overrule Congress On Spending

By S.V. Date

WASHINGTON — While six previous presidents declared dozens of national emergencies, Donald Trump’s threatened one over a border wall would be the first to finance an unpopular construction project that congresses both in his own country and in a neighboring one have refused to pay for.

Trump has been warning for months that he would declare an emergency if Congress failed to appropriate $5.7 billion for a wall along the border with Mexico, and he repeated the threat at a re-election rally in El Paso, Texas, Monday night. “As I was walking up to the stage, they said that progress is being made with this committee,” he said of a bipartisan deal that would provide $1.375 billion for border barriers. “Just so you know, we’re building the wall anyway.”

For Trump, though, choosing to declare a national emergency would likely trigger a law from Congress finding his declaration invalid, lawsuits challenging its legality or both.

“The National Emergencies Act does not give the president the authority to throw a tantrum just because Congress chooses not to give him the toys that he likes,” said Greg Chen, the head of government relations for the American Immigration Lawyers Association.

“I’m sure the legal challenges would be filed instantly,” said Elizabeth Goitein, an expert on national emergencies at the Brennan Center for Justice.

Of late, Trump and his allies have argued that national emergencies are nothing extraordinary, that every previous president going back to the passage of the National Emergencies Act in 1976 has used it and that nearly three dozen are still in force.

On Sunday he tweeted to his 58 million followers a statement from Rep. Tom McClintock (R-Calif.): “There have been 58 National Emergencies declared since the law was enacted in 1976, and 31 right now that are currently active, so this is hardly unprecedented.”

Yet what the White House and Trump’s defenders do not mention is that no previous president has declared a national emergency for a pet project that most Americans oppose, that Congress has refused to support and that he promised during his campaign that he would force Mexico to pay for.

Douglas Rivlin, a spokesman for the pro-immigration group America’s Voice, said Trump is primarily trying to work up his hard-core base by painting immigrants as criminals, just as he did in the weeks leading up to the November midterm elections.

Rivlin added that it was ironic that an absurd campaign promise has now become the singular focus of his administration. “It’s always been a joke. It’s always been a promise that didn’t make sense,” he said. “It was an applause line. And yet it is driving national policy at this point.”

Of course, Trump did not offhandedly joke about forcing Mexico to pay for a massive, 30-foot-tall, reinforced concrete wall. He promised that he would force Mexico to pay for it — literally hundreds of times in his rallies, and even in interviews when he was asked whether he was serious.

In a March 2016 memo, Trump claimed he would force Mexico to make “a one-time payment of $5-$10 billion” or face garnishment of remittances from Mexican immigrants to their families in Mexico.

“That fit into his brand of being this master negotiator able to make people do what they didn’t want to do,” Rivlin said. “But even that was being pulled out of his ample presidential butt.”

Upon taking office, Trump did not once broach the idea of Mexico paying in his conversations with that country’s leaders, according to the Mexican government. In fact, in his first conversation with Mexico’s then-President Enrique Peña Nieto days after taking office, Trump acknowledged that Mexico would never pay for the wall but asked Peña Nieto not to say that publicly to avoid hurting Trump’s standing with his supporters.

After that phone call, more than a year passed before Trump started demanding a wall, only this time from U.S. taxpayers and Congress, which led to his claims starting in October that he had the power simply to ignore Congress.

“When the rules don’t suit him, he breaks the rules, and then it gets tied up in courts,” Rivlin said. “This has been the pattern of his life.”

At issue is the exclusive role given to Congress in the Constitution to decide whether and how much to spend for any given priority, Chen said.

All but a handful of the previous five dozen emergency declarations over the past four decades have imposed trade restrictions or other economic sanctions against nations for their aggressive behavior and human rights abuses.

A May 22, 1997, declaration by Bill Clinton prohibited new investment in Burma. An April 3, 2014, declaration by Barack Obama imposed sanctions on leaders of South Sudan. The very first emergency — which is in place to this day — was declared by Jimmy Carter to impose sanctions on Iran after the 1979 revolution.

Only a handful of the declarations have dealt with national policy outside of targeted sanctions. One, declared by Ronald Reagan in 1983, reinstated a ban on the export of technologies that could be used for military purposes. Congress had allowed the ban to lapse but did not oppose his use of the Emergencies Act to put it back into force.

Another came in 2005, when George W. Bush, without technically declaring an emergency, decreed the suspension of a requirement to pay workers involved in the Hurricane Katrina recovery a certain minimum wage. Democrats and some Republicans did object to that one, and set a vote in the House to disapprove it. Bush rescinded his decree the day before the scheduled vote.

Not one of the previous emergencies, however, did anything close to what Trump is trying to do: pay for a project not only without Congress’ approval, but after Congress has specifically rejected his request several times.

“The law was intended to authorize a president to take action in a crisis that was unfolding too quickly for Congress to respond,” Chen said. “Congress has, in fact, made a decision. Congress has chosen not to give him the funds that he would like.”

It is not clear if or when Trump would actually declare an emergency. Republican senators have already expressed their fears that enough of them would side with Democrats on the issue that a law rescinding the emergency would clear Congress, forcing Trump to back down or veto it — a choice that would likely lead to an attempt to override the veto. White House officials would say only that Trump is considering all his options and that he would do everything necessary to deal with the “crisis” at the border.

Chen, though, said that Trump’s actions — threatening an emergency, but only if Congress refused to give him what he wanted — have undermined the legal basis for one.

“The longer he waits and flirts publicly with the concept of declaring an emergency, the more he weakens the case that there is an actual emergency,” Chen said.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/