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Farewell, Obama Administration — Hello Anxieties Relating to the Incoming Trump Administration

robert gard

By: Robert Gard

 

immig1First, a little background history, from an April 30, 2011 article in the Daily Caller by Steven Nelson: “President Barack Obama’s father was forced to leave Harvard University before completing his Ph.D. in economics because the school was concerned about his personal life and finances, according to newly public immigration records. Harvard had asked the Immigration and Naturalization Service to delay a request by Barack Hussein Obama Sr. to extend his stay in the U.S., “until they decided what action they could take in order to get rid of him,” immigration official M.F. McKeon wrote in a June 1964 memo. Harvard administrators, the memo stated, “we’re having difficulty with his financial arrangements and couldn’t seem to figure out how many wives he had.”

An earlier INS memo from McKeon said that while the elder Obama had passed his exams and was entitled on academic grounds to stay and complete his thesis, the school was going to try and “cook something up to ease him out.” “They are planning on telling him that they will not give him any money, and that he had better return to Kenya and prepare his thesis at home,” the memo stated.”

Ultimately, Obama Sr.’s student visa extension request was denied by the INS, he divorced the future President’s mother, Stanley Ann Dunham, and returned to his native Kenya in July 1964; never completing his Ph.D. He died in a car crash in Kenya in 1982, when the future President was a 21- yearold student at Columbia University.

Given this background, one might reasonably have believed 2008 Democratic Party candidate for President, Barack Hussein Obama, Jr., when he stated that comprehensive immigration reform would be a top priority for him, if elected; and that he would have moved forcefully and quickly on immigration issues during his first year in office when Democrats held control of both the House and the Senate. If you did believe that, you were wrong, mislead, or a combination of the two.

President Obama pretty much gave lip service only to comprehensive immigration reform throughout his 8 years in office, fine-tuned an impressive recordmaking enforcement program that earned him the sobriquet of “Deporter-in-Chief,” and consistently tried to win the cooperation of recalcitrant Republicans by implementing their many demands for more and tougher enforcement measures, and higher “quotas” for detained aliens, often in substandard private for-profit detention centers, resulting in several unnecessary deaths of immigrants in detention facilities.

For context, here are a few facts and statistics. Between 2009 and 2015 his administration has removed more than 2.5 million people through immigration orders, which doesn’t include the number of people who “self-deported” or were turned away and/or returned to their home country at the border by U.S. Customs and Border Protection (CBP). The Obama administration has deported more people than any other president’s administration in history. In fact, they have deported more than the sum of all the presidents of the 20th century.

When President Obama finally did exercise his administrative authority in 2014, he didn’t follow through with appropriate administrative notice, publication, and comment procedures, which left his executive orders subject to politically motivated judicial attacks and roll-backs. Meanwhile, the talented well-intentioned administrators he selected to run his triad of USCIS, ICE and CBP allowed their rank and file officers and subordinate managers to ignore and undercut any efforts to reform, improve, streamline, or hold accountable the line officers; leading to increased fees, backlogged and inconsistent adjudications, and generally scandalously poor performance all around.

Now, the Obama Administration is about to turn this poorly performing regime of adjudications functions and well-oiled enforcement apparatus over to a malignant group of anti-immigrant enforcement zealots, who have truly bad intent and the belief that they have a popular mandate to act on that intent.

As Donald Trump’s inauguration approaches, his hard-line supporters and the unauthorized immigrants he has pledged to oust are waiting to find out how Trump will define a group that he has often railed against — “criminal immigrants.” Both words of that phrase raise questions about Trump’s main targets for immigration policy. The rogue’s gallery of immigration hardliners currently advising Mr. Trump, and already selected by Mr. Trump for key positions in his administration give rise for concern as to how key words and concepts will be defined, and how discretionary authority will be used. Immigration advocates are also concerned with comments and hints from the incoming Administration that even “legal immigration” will be further curtailed or impeded through restrictive regulations on the H-1B Specialty Occupation Temporary Worker and L-1 Intracompany Transferee programs, other employment-based nonimmigrant and immigrant programs, elimination of citizenship by birth in the U.S., imposing new restrictive standards for qualifying for asylum (which concerns all communities, but particularly the LGBTQ communities who believe that standards are already too stringent, as proving that someone has fled a country because they’re gay or trans is hard when immigrants often hide their gender and sexual identities in their home countries because they fear persecution,) and elimination or restriction of various family based immigrant categories.

The incoming Administration has proposed reviving registration requirements for certain groups of nonimmigrants and immigrants, and has proposed an “extreme vetting” process for all nonimmigrants and immigrants. After the 9/11/2001 attacks on the U.S., a registration program, the National Security Entry-Exit Registration System (NSEERS), was in use for nine years before being suspended in 2011, largely because other, newer systems had proved more effective at tracking and monitoring foreign travelers before and after they entered the country. President Obama recently formally abolished the program (previously, it had only been “suspended) to make it more difficult for the incoming Administration to resurrect the program.

Automated systems now collect and store biographic and biometric data including digitized fingerprints, iris scans and facial data for most foreigners entering the country, including students. Foreign nationals from or those who have visited high-risk countries such as Syria, Iraq, Libya and Yemen are already ineligible for participation in the U.S. visa waiver program, meaning they are subject to extra scrutiny when applying to come to the United States.

Government databases are increasingly searchable and better at helping officials spot those who may pose threats to national security. Those systems and programs, detailed by Homeland Security in explanation of NSEERS’s obsolescence, provide federal authorities with a range of tools to verify foreigners’ identities and monitor their movements. They apply broadly to visitors, travelers and immigrants. They also comport with constitutional standards and American values.

There is also concern over the plans to increase the use of long term (“indefinite”) detention, and to overturn previous Supreme Court decisions that require periodic assessments of continuing detention, so that only flight risks and those who present a threat to their communities remain in long term detention. Many immigrants remain in detention for long periods of time while waiting for hearings before backlogged immigration courts (many hearings in Chicago immigration courts are now being scheduled for 2019 and beyond) or while awaiting removal to countries that don’t want to accept their return.

The immigration detention system has grown exponentially over the past 20 years from fewer than 7,500 beds in 1995 to the 34,000 beds mandated by federal law today.

Over this past summer, the U.S. Department of Justice announced plans to phase out the use of for-profit private detention facilities for immigration prisoners, finding that abuse and neglect, substandard healthcare, and poor supervision has lead to scores of deaths of immigrant detainees each year. Unfortunately, there appears to be a reversal of this policy taking place right now.

The United States has, in the month of December 2016, signed contracts with for-profit private prison companies to make available an additional 3,000 “beds” for immigration detainees during the first quarter of 2017. Corrections Corporation of America (CCA, recently “re-branded” as “CoreCivic”) CEO Damon Hininger said this week that he expects profits to soar under the new president’s immigration policy. Although CCA’s stock dipped over the summer after the Justice Department announced plans to phase out the use of private prisons, Donald Trump’s win caused the company’s share price to skyrocket 43% on election day alone.

On a more positive note, on December 9, 2016, Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Lisa Murkowski (RAK), Dianne Feinstein (D-CA), Jeff Flake (R-AZ), and Chuck Schumer (D-NY) introduced the “Bar Removal of Immigrants Who Dream and Grow the Economy,” or BRIDGE Act, to provide temporary protection for undocumented immigrants who have participated in President Obama’s Deferred Action for Childhood Arrivals(DACA) program. The Senate bill was later modified to include enforcement provisions required to attract more bipartisan support.

The revised bill, now known as the Securing Active and Fair Enforcement Act of 2016 (SAFE Act), would require mandatory detention and prompt removal of certain criminal aliens, and their removal proceedings would have to be completed not later than 90 days after they are detained. Senator Flake’s SAFE Act would make it possible for the attorney general to hire 100 emergency immigration judges for renewable 6-month terms.

This temporarily would increase the number of judges from approximately 250 to 350, but this only would be a 40 percent increase for a court that had a backlog of 526,175 cases at the end of Nov. 2016. The average wait for a hearing was 678 days. Flake is right that criminal aliens are being released.

According to statistics provided by ICE, in fiscal year 2015, ICE had to release 19,723 criminal aliens with a total of 64,197 convictions. This included 101 homicide convictions, 216 kidnapping convictions, 320 sexual assault convictions, 352 commercialized sexual offenses, 1,347 domestic violence convictions, 1,728 assault convictions, and 12,307 driving under the influence convictions.

The Democrats have a choice. They can continue to oppose interior enforcement efforts, which has been an obstacle to the passage of another comprehensive immigration reform bill for more than 30 years. Or, they can use the opportunity Flake has offered them to work with the Republicans by supporting a new approach to immigration reform that includes effective interior enforcement measures. The Republicans also have a choice. They can continue to pursue futile enforcement measures or work with the Democrats on a legalization program that would reduce the population of undocumented immigrants to a manageable level. form. COPYRIGHT BY AUTHOR — This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation.

 

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