This text in this post within the ## marks is taken from posts by Matt Cameron, a Boston-based attorney with special interests and experience in immigration, civil rights, and criminal defense, via his Faecebook page: facebook.com/mattcameronlaw
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WHAT IS TRUMP ACTUALLY DEMANDING IN EXCHANGE FOR REOPENING THE GOVERNMENT?
PART I: IT’S NOT A #DACA EXTENSION
Of all of the lies the people keeping your government hostage will tell you about their most recent offer in negotiations to end the crisis they created in the least democratic way possible, this is the big one.
Let’s start with the simple fact–which Trump and most supporters can’t seem to understand or acknowledge–that #DACA is not the #DREAMAct. It’s a temporary status with no path to residency or citizenship. #DREAM could pass Congress today. There’s no legal, political, or rational reason to accept anything less than that.
This proposal would not only do nothing to further a path to residency or citizenship for #DACA holders, but would in actual fact create an entirely new (and much worse) form of temporary immigration status and impose some absolutely bonkers new conditions on #DACA itself.
Let’s run those down:
(1) Permanent end to #DACA.
This bill would specifically legislate the termination of DACA with no further extensions.
(2) DACA applicants have to return all earned IRS income tax credits to qualify for an extension.
I could *not* believe this one. I still can’t. People who worked legally in the US, paid their taxes, and received tax credits to which they were as legally entitled as anyone else would have to *pay them back.* That’s potentially tens of thousands of dollars for many people since DACA began in 2012.
(3) Up to 5 years in prison for any mistakes or misstatements on an application.
As someone running an office which prepares a lot of these kinds of things, I will admit that this one terrifies me. DACA in particular requires a full address and employment history, which has the potential for all kinds of minor errors. Can you really reconstruct the exact dates and places you were living and working for your entire time in the US since you were a baby? If you’re not totally sure, it really might not be worth the risk.
(4) Cutting off existing paths to residency for DACA recipients and separating recipients from US citizen family members.
Although there is no path to residency directly through DACA, current law allows some people who came without visas to leave the US and re-enter legally with permission so that they can apply for residency– usually through spouses, which is not an easy option otherwise for most people in this situation. This bill would specifically end this, cruelly separating families who would otherwise have a legal option. It’s just one more example of #MAGAworld screaming “get in line!” while destroying whatever paths are left in the system.
(5) Total bar for anyone with a prior deportation order.
Like Temporary Protected Status, DACA currently allows people with old deportation orders (usually incurred from a notification problem from the immigration court which results in an automatic deportation) to receive this temporary status. This is especially important for #DREAMers, as many of them received these orders as infants or pre-adolescents while traveling with family at a time when they weren’t responsible for getting themselves to court. While the old orders would have to be dealt with before any future path to citizenship, this is an enormous hardship to people trying to regularize their status and a direct attack on the purpose of the program.
(6) Much higher new standard of proof.
Applicants for the new status created under this bill would have to prove each element by “clear and convincing evidence.” This is a major change, and one which could exclude tens of thousands of people from reapplying–but if you are not a lawyer and this is not registering, two examples:
DACA recipients have to prove that they came to the US before the age of 16. I’ve worked with many who came within months of that birthday, and have no school transcripts, health records, or other hard evidence to prove it. We’ve been able to use photos, Facebook posts, money transfers, etc in the past, but this new rule would likely preclude that.
The bill also requires clear and convincing evidence that applicants were never in or involved with a gang. How do you prove this negative? Worse, as we have seen from many years of working with young Salvadorans, DHS doesn’t have to have much (or really anything) to make a gang allegation and this would make them nearly impossible to counter.
(7) Applying the “public charge” requirement to DACA
I am not aware of this provision ever being applied to a temporary immigration benefit, but the short version is that anyone who has ever had a few months out of work, has ever lawfully accepted *any* welfare or housing benefits (in any amount), or used any federally-subsidized healthcare could be excluded. This is a natural extension of the new Trump public charge rules, but taking a perfectly bad joke waaaaay too far when it comes to applying it to such a temporary benefit.
(8) Doubling filing fees.
A new “security fee” of $500 will be tacked on to the current filing fee of $495. A small injustice compared to anything above, but an obvious ploy to squeeze a few more bucks out of working-class immigrants.
And this is all just the * DACA* part of this monstrous, undemocratic ransom note. Will try to hit the lowlights of the rest (and there are many) as I continue to travel back from Tijuana today.
PART II: MASSIVE PENALTIES FOR ASYLUM SEEKERS
Donald Trump has sent the U.S. Congress and 800,000 federal workers a monstrous 1,301-page list of demands which he and the party which voluntarily chose to take the government hostage during a time when it had total control over it are well aware is DOA and manifestly unpassable under any circumstances. Having already broken down the fundamental lie about the alleged “DACA extension” included within in my last post (see link in comments below), let’s move on to the enormous damage this bill would do to American asylum law, policy, and practice—and all of the different ways that it’s going to get innocent people killed.
(1) SEVERELY PUNISHING ASYLUM SEEKERS SIMPLY FOR APPLYING
Under current law, a “frivolous” asylum application is one which is knowingly based on false statements. It’s an extremely high burden for the government, essentially requiring DHS to prove that you made all (or even much) of it up. If an application is found to have been frivolous, applicants are permanently barred from EVER receiving lawful permanent residency in the future. It’s a harsh punishment—but, again, essentially only allowed if the government can prove that applicants perjured themselves. (Asylum fraud, while nowhere near as widespread as former Attorney General Jeff Sessions would have had you believe, is still an issue within the system and does make things that much harder for legitimate asylum seekers.)
This proposal would radically redefine the word “frivolous” to include, among other things:
(a) Applications filed “in whole or in part” for the purpose of obtaining a work permit or being placed in removal proceedings in order to file an application for cancellation of removal.
There is a whole cottage industry of shady notaries and shadier attorneys encouraging immigrants to file weak, unwinnable, or even fraudulent asylum claims just to qualify for a work permit. (This is bad, but even worse considering that denial of an asylum application subjects an undocumented applicant to deportation.) So pretty much anyone who was an unwitting victim of this kind of fraud could now be subject to the harshest possible penalty in the entire Immigration and Nationality Act. It is also not at all unusual to have a work permit be an incentivizing factor for someone with a decent (but not overwhelmingly strong) asylum claim (and/or a compelling cancellation of removal claim once in immigration court) to file when they wouldn’t have otherwise. A judge could easily make a frivolousness finding under this standard in either of these very common situations.
(b) Applications which are “wholly unfounded in credibility even if not deliberately fabricated.”
Credibility is a totally subjective determination, and I’ve had judges find that important elements of a claim don’t come off as wholly credible after testimony while still granting the claim because it is so plainly true and valid overall. I have more to say about this than any other part of this proposal, but the short version is that this provision could essentially allow a judge to deny a claim for totally arbitrary reasons (including personal dislike of the applicant, cross-cultural misunderstandings, or even just personal prejudice) that have nothing to do with the law.
(c) Applications which include even a single piece of false or fraudulent evidence.
This may sound pretty reasonable, but (like nearly every other provision here) it’s going to result in the immiseration, persecution, and deaths of many people who would have otherwise qualified for protection. I can easily imagine this being applied to cases in which applicants have an extremely strong legal claim to asylum based on things that actually happened to them, but where the application has also been supplemented with documentation provided by family/friends in their home countries obtained after the applicant left. It is impossible to independently verify many of these supporting documents, and it is not at all unusual for bad evidence to be in used in some small part (often without the asylum seeker’s knowledge or consent) to bolster an already-strong case.
(d) Applications which were “filed solely to delay removal from the United States.”
“Solely” is a subjective assessment. It is not at all unusual to strategically file a reasonably meritorious (but not necessarily winnable) claim to asylum in order to cover the time it will take for a lawfully-present spouse to become a U.S. citizen or a U.S. citizen child to turn 21 so that they can sponsor the applicant for residency. I’ve even seen well-meaning immigration judges *suggest* this exact strategy to people before them. And what if it was filed solely to stretch things out for a year or two, but with the express purpose of applying for lawful status immediately upon eligibility? Is that “solely to delay removal”? This whole thing is so sloppy.
(e) Applications which are “clearly foreclosed by applicable law” and/or filed after one year after entry to the U.S.
This horrific affront to due process should provoke vein-popping fury in any experienced trial or appellate litigator in any field. The fact is that quite a lot of “applicable law” is very bad, and it will never be changed unless we continue to have the right to preserve our rights to challenge it in higher courts.
To name only one recent example: Jeff Sessions’s heartless decision to issue a ruling (binding on all immigration judges) intended to foreclose most asylum claims based on domestic violence and/or persecution by gangs. This decision was lengthy, with plenty of potential gray areas which will need to be ironed out by federal judges on appeal in individual cases. This bill would severely chill the basic right to challenge this kind of executive lawmaking.
This provision also specifically ends any safe opportunity to argue that someone should have a right to file for asylum after more than one year in the country, which is just as awful but I really don’t want to take much more space to get into here.)
I can’t imagine having to tell a client that making an argument that the law should be changed and/or that they should qualify for an exception to the one-year filing bar could result in a finding that they had committed immigration fraud. It’s inhumane and illegal and just completely unconstitutional and please for everyone’s wellbeing be sure that I am never left in a room alone with whoever came up with this.
SEVERE PENALTIES TO ASYLUM SEEKERS SIMPLY FOR *WITHDRAWING* THEIR APPLICATIONS
Under this new legislation, asylum applicants who withdraw their applications would not be allowed to file ANY OTHER FORM OF IMMIGRATION RELIEF other than a request for voluntary departure from the United States. I flinched a little as I typed that. It’s horrific. Here’s just one of many possible examples of why:
Imagine you’re on a student visa from a country that descends into a brual civil war while you’re studying in the U.S. You immediately file an application for asylum, and (for whatever reason, it doesn’t matter for our purposes here) it is not approved and referred for review by an immigration judge. Immigration court proceedings can take many years, and perhaps in the intervening time that you are waiting for a full hearing on your application for asylum the war ends and your country is once more peaceful and (relatively) safe—and you have met and married a U.S. citizen and are now eligible to gain residency through this marriage. Under normal circumstances, we would withdraw the asylum application (which may still have some merit, but is much more difficult and far less likely to succeed than residency through a valid marriage) and proceed with a marriage visa. But this proposal would allow immigration judges to force you to go through the asylum case instead and potentially face separation from your new spouse. (It also specifically precludes you from appeal and/or filing a motion sto reopen proceedings for even the most compelling reasons.)
This is a war crime in the Trump administration’s ongoing battle against the entire concept of asylum.
PERMITTING SEVERE, LIFE-THREATENING VIOLATIONS OF THE PRIVACY OF ASYLUM SEEKERS
Under current law, asylum applications are afforded the highest levels of privacy regular people can receive in court proceedings. Only the Department of Homeland Security, the asylum applicant, and the applicant’s authorized legal representative are permitted to review or obtain copies of anything in an asylum application, for obvious reasons. One tiny little provision of this massive bill that Trump is trying to force through by fiat would seriously jeopardize this by allowing information to be shared and disclosed “as part of any criminal investigation or proceeding” or “for any other purpose of any proceeding” brought under the Immigration and Nationality Act.
I have to wonder if whoever wrote this actually considered just how broadly this could be applied. Imagine a state prosecutor requesting a copy of an asylum application from the federal government to impeach a witness in a criminal trial (even inadvertently) with sensitive details that could subject him to extreme danger in his home country. Or, FAR worse: an applicant’s home country could fabricate a criminal charge against a political dissident for the sole purpose of obtaining a complete copy of everything he has written in his application to further persecute him, his family, and other dissidents. (Again, this incredibly sloppy bill allows information sharing for the purpose of “any” criminal investigation. Anywhere.)
The catchall “for any other purpose” provision also opens up another can of nightmares. Imagine a woman who has survived severe domestic violence in her home country who files an application for asylum on that basis which is never granted. Years later, her new U.S. citizen spouse files a marriage visa for her some time later which is investigated for fraud. (This is a fairly routine occurrence even in a totally valid marriage.) This provision may allow USCIS to freely obtain and reference the contents of her prior asylum application in the course of this investigation and disclose details from it in the denial of her marriage visa—including extremely traumatizing events which she had never shared with her new spouse in a decision which would be addressed directly to him as the visa petitioner. Would this be a regular issue? Probably not, but it absolutely will happen at some point if this provision is passed.
I’m about to board my connecting flight back to Boston. I’m going to leave the analysis here and try to pick up with the provisions relating to Central American minors–a whole other legal horrorshow–sometime soon.
NOW WHAT? Please contact your elected officials. You can find their contact info by clicking HERE. And, here is suggested text (thank you, Eric!)
“Please vote no on Trump’s offer to reopen the government in exchange for $5.7 billion of border wall money. The parts involving Trump’s offer of a DACA extension are particularly bad, as they permanently end DACA after the extension, they demand payback for earned income tax credits (bizarre!) and send people to jail for 5 years for a mistake on an application.”