Wednesday, February 11, 2015

Lessons for Immigration Lawyers -- From Saul Goodman of Breaking Bad and Better Call Saul

Better call saul

Robert Fojo, Principal at Fojo Dell'Orfano, P.L.L.C., and Co-founder and CEO of LSAT Freedom Follow, has a great article on 12 Things Every Lawyer Should Learn From Saul Goodman.  Goodman (a/k/a Jimmy McGill) was the lawyer for meth manufacturer Walter White in the amazingly popular television series Breaking Bad.  The prequel, Better Call Saul, premiered earlier this week to rave reviews. 

Here are lawyering lessons from Saul Goodman:  


1. Be a Zealous Advocate

SAUL GOODMAN:  “I fight for YOU, Albuquerque!”


 2.  Plan ahead

SAUL GOODMAN:  “Did you not plan for this contingency? I mean the Starship Enterprise had a self-destruct button. I’m just saying.”


3.  Provide comfort

SAUL GOODMAN:  “You’re now officially the cute one of the group. Paul, meet Ringo. Ringo, meet Paul.”


4.  Be creative

Skyler White: “Do you even know Walt? I mean, how would he of all people buy a laser tag business? It doesn’t add up.”

Saul Goodman: “It adds up perfectly. Walt’s a scientist. Scientists love lasers. Plus, they got bumper boats, so . . .”


5.  Provide value

SAUL GOODMAN:  “Don’t drink and drive. But if you do, call me.”


6.  Tell a compelling story

SAUL GOODMAN:  “If you’re committed enough, you can make any story work. I once told a woman I was Kevin Costner, and it worked because I believed it.”


7.   Get to know your client

SAUL GOODMAN [Talking to Skyler after Walt introduced his wife to Saul]:   “Hello. Welcome. What a pleasure it is to have you. Just gonna call you Skyler if that’s OK. It’s a lovely name. It reminds me of the big, beautiful sky. Walter always told me how lucky he was, prior to recent unfortunate events. Clearly his taste in women is the same as his taste in lawyers: only the very best with just the right amount of dirty.”


8.  Be candidly honest

SAUL GOODMAN:  “Look, let’s start with some tough love, alright? Ready for this? Here it goes: you two suck at peddling meth. Period.”


9.  Take on your client’s problems and solve them

SAUL GOODMAN:  “As to your dead guy, occupational hazard. Drug dealer getting shot? I’m gonna go out on a limb here and say it’s been known to happen.”


10.  Don’t be afraid to encourage your clients to do better

SAUL GOODMAN:  “Alright, $16,000 laundered at 75 cents on the dollar, minus my fee, which is 17%, comes out to $9,960. Congratulations. You’ve just left your family a second hand Subaru.”


11.  Incorporate flat fees into your business model

SAUL GOODMAN:  [To a client who has been arrested] “I’m gonna get you a second phone call, OK? You’re gonna call your mommy or your daddy or your parish priest or your boy scout leader, and they’re gonna deliver me a check for $4,650. I’m gonna write that down on the back of my business card. Four, Six, Five, Zero. OK? And I need that in a cashiers check or a money order, doesn’t matter. Actually, ah, I want it in a money order and, ah, make it out to ‘Ice Station Zebra Associates.’ That’s my loan out. It’s totally legit. It’s done just for tax purposes. After that, we can discuss Visa or Mastercard, but definitely not American Express, so don’t even ask, alright? Any questions?”


12.  Get out there and network

SAUL GOODMAN:  “Better call Saul!” 






February 11, 2015 in Current Affairs, Film & Television | Permalink | Comments (0)

Parking Dispute? Three Muslim University Students Killed in North Carolina

Unc students



Here is some extremely sad news from North Carolina. 

Three university students were shot and killed in a residential complex of the University of North Carolina at Chapel Hill and a suspect has been arrested over the incident. Chapel Hill police told local news outlets that Craig Stephen Hicks, 46, was arrested and charged with killing the three Muslim students. He is being held at the Durham County Jail, and is expected to make a first court appearance Wednesday morning.

In a statement posted online, Chapel Hill police said that "preliminary investigation indicates that the crime was motivated by an ongoing neighbour dispute over parking." "We understand the concerns about the possibility that this was hate-motivated and we will exhaust every lead to determine if that is the case," the statement said quoting Police Chief Chris Blue.  Here is the full statement:


Date: February 11, 2015

Contact: Lt Josh Mecimore (919) 968-2866

UPDATE – Shooting Investigation on Summerwalk Circle

At 5:11 PM yesterday, Chapel Hill Police Officers responded to a report of gunshots in the area of Summerwalk Circle in Chapel Hill. When officers arrived, they located three subjects who had been shot. All three subjects were pronounced dead at the scene.

The Chapel Hill Police Department has arrested Craig Stephen Hicks, 46 years of age, of 270 Summerwalk Circle, Chapel Hill. Mr. Hicks has been charged with 3 counts of 1st Degree Murder for the murders of;

- Deah Shaddy Barakat 23 years of age of Chapel Hill,

- Yusor Mohammad 21 years of age of Chapel Hill, and

- Razan Mohammad Abu-Salha 19 years of age of Raleigh.

Mr. Hicks is currently being held, without bond, in the Durham County Jail.

Our preliminary investigation indicates that the crime was motivated by an ongoing neighbor dispute over parking. Hicks is cooperating with investigators and more information may be released at a later time.

“Our investigators are exploring what could have motivated Mr. Hicks to commit such a senseless and tragic act. We understand the concerns about the possibility that this was hate-motivated and we will exhaust every lead to determine if that is the case. Our thoughts are with the families and friends of these young people who lost their lives so needlessly,” said Chief Chris Blue of the Chapel Hill Police Department.


The victims were identified as 23-year-old Deah Shaddy Barakat, his 21-year-old wife, Yusor Mohammad, and her sister, 19-year-old Razan Mohammad Abu-Salha, police said. The university said that Barakat was a second-year student at its dentistry school, his wife was planning on starting there in the fall, while her sister was a student at North Carolina State University.

According to the New York Times, "Global outrage over the murder of [the] three Muslim students in North Carolina spread quickly through social media on Wednesday, with the hashtag #muslimlivesmatter appearing in scores of posts shared all over the world, from Southeast Asia, to the Middle East and Europe."

UPDATE (Feb. 12):  For more from the victims' families about the case and the possibility that it was a hate crime, click hereAnalysis of the incident continues.


February 11, 2015 in Current Affairs | Permalink | Comments (0)

Is the New Boss the Same as the Old Boss? Dems Block Rep Efforts to Take Immigration Action


For years, Republicans in Congress blocked Democrats from moving forward on various immigration reform measures.  Once again, turnabout is fair play.

Reuters reports that Republicans have hit an impasse over a Homeland Security funding bill that would block President Barack Obama's immigration actions, with Senate leaders suggesting the House of Representatives try another approach. Senate Majority Leader Mitch McConnell said Republicans could not get around Senate Democratic opposition to the House-passed legislation, which failed to get the 60 votes needed to clear procedural hurdles in three separate votes last week.

For analysis on Politico, click here.


February 11, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

Deportees Will Risk Harsh Penalties to Return to Families in the U.S.

Center on poverty

Erin R. Hamilton in a Center for Poverty Research report (Deportees Will Risk Harsh Penalties to Return to Families in the U.S.)  examine how having family in the U.S. affects the intent to return among migrants deported to El Salvador. It finds that being separated from their families in the U.S. is the most important factor in the intent to return, even despite the severe penalties if caught. 

In the two-year period between July 2010 and September 2012, the U.S. Department of Homeland Security deported 204,810 parents of U.S.-citizen children, who made up one-fourth of all removals.] In 2013, the U.S. Immigration and Customs Enforcement agency deported 72,000 parents of children who are U.S. citizens.

Key Facts

•    In 2013, the U.S. Immigration and Customs Enforcement agency deported 72,000 parents of children who are U.S. citizens. These parents make up one-fourth of all deportees.

•    Deportees with children in the U.S. have spent, on average, six years longer in the U.S., are more likely to be employed and more likely to speak English.

•    Salvadoran deportees with both a spouse and children in the U.S., and those whose children are U.S. citizens, are especially likely to intend to return despite severe penalties that can include from two to 20 years in prison and losing the chance to qualifying for legal immigration status


February 10, 2015 in Current Affairs | Permalink | Comments (0)

House Immigration Strategy Would Widen Federal Deficit

From Politico:

In Congress’ standoff over immigration policy, Republicans seem to be battling not only President Barack Obama but their own rhetoric on government spending.
Immigration riders attached to the Homeland Security spending bill by the House GOP turn out to actually widen the budget deficit over the next 10 years, according to the Congressional Budget Office. As a result, the $39.7 billion measure will need a supermajority of 60 votes under Senate budget rules, even if Republicans get past the Democratic filibuster.
Faced with a Feb. 27 deadline and the Presidents Day recess next week, time is short. And the CBO report never addressed an added cost implicit in the Republican position: How much would it cost for the government to deport all the undocumented workers who stand to benefit from Obama’s most recent executive order?
That could be upward of $20 billion to $25 billion, according to the best estimates collected by POLITICO.
It’s a sum hard to find these days, given the Republican-backed spending caps imposed on the House and Senate appropriations committees. Indeed, just last week, the GOP leadership ridiculed Obama’s proposal to amend the law to increase discretionary funding — including money for DHS — above the freeze set for fiscal 2016.
The president’s critics on immigration, like Sen. Jeff Sessions, argue that the fight is not about dollars but the will to enforce the law. “Has the Obama administration ever asked for the resources necessary for the task of enforcing the law? Of course not,” said a spokesman for the Alabama Republican.
But what’s most striking is how each side has invoked Congress’ power of the purse to bolster its arguments in the immigration fight.
Republicans are employing their constitutional power to deny funding to the executive agencies that would carry out the president’s November order, as well as a 2012 order which deferred deportations for young undocumented immigrants. But Obama essentially makes the same argument in reverse to justify himself: He says Congress left him with this discretion precisely because it failed to give him the money to fully enforce the immigration laws.
“The proposed policy is designed to respond to the practical reality that the number of aliens who are removable under the [Immigration and Naturalization Act] vastly exceeds the resources Congress has made available to DHS for processing and carrying out removals,” reads the 33-page opinion from the Justice Department’s Office of Legal Counsel. “The resource constraints are striking. … DHS has informed us that there are approximately 11.3 million undocumented aliens in the country but that Congress has appropriated sufficient resources…to remove fewer than 400,000 aliens each year, a significant percentage of whom are typically encountered at or near the border rather than in the interior of the country.”
For all the political stakes, it’s surprisingly difficult to get an estimate of how much it costs the government to deport an individual. But money appears to make a difference. Tables compiled by DHS show that the number of annual removals has risen more than 80 percent in the past decade, while enforcement and detention appropriations have doubled in inflation-adjusted dollars.
POLITICO published its own calculations in November after comparing 10 years of appropriations with the number of annual removals listed by DHS. There were spikes and dips along the way, but the results showed a relatively consistent pattern of about $7,200 — plus or minus $1,000 — for each removal. Read more....

February 10, 2015 | Permalink | Comments (0)

European Commission: Smuggling of Migrants in Europe and the EU response

This Fact Sheet provides some very interesting pieces of information about migration in the EU.

What is smuggling of migrants?

To enter the EU, irregular migrants often turn to smugglers. Smuggling of migrants is commonly understood as the intentional organisation or facilitation of the irregular movement of persons across state borders, which is provided in return for financial gain (or other gain) by the migrants to the smugglers.  Smuggling of migrants generally takes place with the consent of the person willing to move. However, the act of smuggling itself is often dangerous and violent, forcing people to unsafe and inhumane travelling conditions.

This is nevertheless distinct from trafficking in human beings, which does not require crossing of international borders, involves physical or psychological violence, coercion, exploitation of position of vulnerability, and is aimed at the exploitation of the victim. The distinction between these two types of crimes can however become blurred in practice because smuggled people can also become victims of violence or some form of exploitation.

Who are the people arriving to Europe?

In 2014, more than 276 000 migrants irregularly entered the EU, which represents an increase of 155% compared to 2013.

Syrians together with Eritreans were the largest group of person apprehended at EU external borders trying to enter the EU in an irregular manner. Other large groups included nationals from Afghanistan, Mali and Kosovo.


February 10, 2015 in Current Affairs | Permalink | Comments (0)

Paddington: The Unaccompanied Minor

Photo via Fandango

We've written about Paddington before, noting that he's a "model immigrant" who humanizes the migrant experience.

I took my boys to see Paddington this weekend, and I can report that Paddington is something more. He is a child. And he doesn't travel to London because he wants to. He travels to London because he has to. In short, Paddington is an unaccompanied minor.

SPOILER ALERT - the next two paragraphs contains plot points from the first part of the movie.

Paddington is an orphan. The uncle who cared for him is dead, and his last remaining relative, an aunt, is too old to care for him anymore.

But it's the parting words of his aunt, sending him onwards to London because she can't think of how else to provide for him, that really hit home the UMC angle of this movie:

Long ago, people in England sent their children by train with labels around their necks, so they could be taken care of by complete strangers in the country side where it was safe. They will not have forgotten how to treat strangers.

It's that last bit that really gets me: They will not have forgotten how to treat strangers. I think, unfortunately, we have.


February 10, 2015 in Current Affairs, Film & Television | Permalink | Comments (0)

Grammys Lifetime Achievement Award to Flaco Jímenez


The Grammys have been covered here on ImmigrationProf. Kanye West made international  news with a much-publicized attack on Beck or publicity stunt, depending on how one looks at it.

One musician award winner should not get lost in the shuffle.  The Recording Academy also honored recipients of the 2015 Lifetime Achievement Award, including Flaco Jiménez.  Jiménez is a Conjunto, Norteño and Tejano music accordionist from San Antonio, Texas.

Jiménez began performing, at the age of seven, with his father, Santiago Jiménez Sr, who was a pioneer of conjunto music and began recording at age fifteen as a member of Los Caporales. He played in the San Antonio area for several years, and then began working with Douglas Sahm in the 1960s. Sahm, better known as the founding member of the Sir Douglas Quintet, played with Jiménez for some time.

Flaco then went on to New York City and worked with Dr. John, David Lindley, Peter Rowan, Ry Cooder and Bob Dylan. He appeared on Cooder's world music album Chicken Skin Music and on the Rolling Stones' Voodoo Lounge. This led to greater awareness of his music outside America and, after touring Europe with Ry Cooder, he returned to tour in America with his own band, and on a joint bill with Peter Rowan.Jiménez, Peter Rowan and Wally Drogos were the original members of a band called The Free Mexican Airforce.

Jiménez won a Grammy Award in 1986 for Ay Te Dejo en San Antonio, one of his father's songs. He was also a member of the Tejano fusion group Texas Tornados, with Augie Meyers, Doug Sahm and Freddy Fender. The Texas Tornados won a Grammy Award in 1990, and Jiménez earned one on his own in 1996, when his self-titled album Flaco Jiménez won the Grammy Award for Best Mexican-American Performance. In 1999, Flaco earned another Grammy Award for Best Tejano Performance for Said and Done and one for Best Mexican-American Performance as a part of supergroup Los Super Seven.

Jiménez has also won a Best Video award at the Tejano Music Awards and earned a Lifetime Achievement Award from Billboard Latin Magazine for "Streets of Bakersfield" with Dwight Yoakam and Buck Owens.


February 10, 2015 in Current Affairs, Film & Television, Music | Permalink | Comments (0)

No comprehensive immigration reform until 2017?

MacArthur Foundation awards $1 million to Berkeley Law Human Rights Center


The MacArthur Foundation has recognized the Human Rights Center at Berkeley Law for its investigations and research on war crimes and human rights abuses with a 2015 MacArthur Award for Creative and Effective Institutions.

The UC Berkeley Human Rights Center is one of nine nonprofit organizations worldwide receiving the award, announced on February 5. The award comes with $1 million, which the center will use to establish an endowment and to expand its sexual violence program. The MacArthur Foundation, known for its “genius awards” to exceptional individuals, also honors extraordinary organizations that tackle some of the world’s most challenging problems.

In honoring the Human Rights Center, the foundation cited decades of work on war crimes and abuses in more than a dozen countries, spotlighting recent research on wartime sexual violence.


Researchers at the UC Berkeley Human Rights Center discuss their efforts to investigate war crimes and other serious violations of human rights. (Video courtesy of the John D. and Catherine T. MacArthur Foundation.)

For more details, click here.


February 10, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Regulating Crimmigration by Evan Tsen Lee


Regulating Crimmigration by Evan Tsen Lee, University of California Hastings College of the Law February 2, 2015 UC Hastings Research Paper No. 128

Abstract: In the last decade, federal prison populations and deportations have both soared to record numbers. The principal cause of these sharp increases has been the leveraging of prior criminal convictions – mostly state convictions – into federal sentencing enhancements and deportations. These increases are controversial on political and policy grounds. Indeed, the political controversy has overshadowed the fact that the Nation’s Article III and immigration courts have struggled with an exquisitely difficult set of technical problems in determining which state criminal convictions should qualify for federal sentencing enhancements and/or deportation. The crux of the problem is that the underlying crime can be viewed in a fact-sensitive manner – which usually benefits the government – or in an abstract, “categorical” manner – which usually benefits the individual. In two recent decisions, Descamps v. United States and Moncrieffe v. Holder, the U.S. Supreme Court has squarely sided with a categorical approach. Yet the implementation of a categorical approach faces three huge challenges: first, it cuts against the widely shared intuition that just punishment should turn on the facts of the case in question; second, it presupposes that federal courts will always be able to ascertain the essential elements of state offenses; and third, a categorical approach resists application to a significant number of existing federal statutes. This Article sketches out a coherent framework for administering a categorical approach across both federal sentencing and immigration, in the process reconciling seemingly inconsistent Supreme Court decisions and suggesting how several circuit splits should be resolved.


February 10, 2015 in Current Affairs | Permalink | Comments (0)

Monday, February 9, 2015

Obama's Exeutive Actions Subject of Powerhouse Panel Discussion at ABA Mid-Year Meeting in Houston


Michael Olivas, Leticia Saucedo (middle), and Tom Saenz

Photo Courtesy of ABA Journal

As readers of this blog know, there were quite a few immigration law events this weekend.

Professor Leticia Saucedo filled us in on the panel discussion at the ABA Mid-Year meeting in Houston Texas:

The ABA Commission on Hispanic Legal Rights and Responsibilities (ABA Hispanic Commission), in collaboration with the ABA Commission on Immigration, hosted a panel discussion on The Pros and Cons of the Exercise of Executive Action in Immigration Law at the American Bar Association’s Midyear Meeting on Saturday, February 7, 2015 in Houston, Texas. The panelists explored President Obama’s recent executive action decision to provide temporary legal status to certain undocumented immigrants. Panelists discussed the impact of this decision and how the pending lawsuits against the President will impact its implementation. Panelists included Thomas A. Saenz, President and General Counsel of the Mexican American Legal Defense & Educational Fund, Prof. Michael Olivas, the University of Houston Law Center, and Leticia Saucedo, UC Davis School of Law.


February 9, 2015 in Current Affairs | Permalink | Comments (0)

Pew Call for Proposals: fiscal and economic impacts of immigration on states and localities

The Pew Charitable TrustsImmigration and the States project has issued a Request for Proposals to engage in research in three areas: 1) the impact of federal immigration laws and policies on states and/or localities; 2) the impact of immigrants admitted by the federal government in the states and/or localities where they settle; and 3) the impact of immigration-related state and/or local laws and policies on states and/or localities.


The Immigration and the States project examines the intersection of federal, state, and local immigration laws and policies and their potential impact on all levels of government. Proposals will be accepted to through 5:00 pm EDT on Friday, March 20, 2015. Contracts will be awarded for those proposals Pew chooses to fund. Please see below for the anticipated timeline for proposal review, award, and completion. Individuals and research teams from academic institutions, for-profit organizations, nonprofit organizations, and those without affiliations are eligible to apply.


Please see the attached document for more information:

  • Request for Proposals
  • Appendix A: Conditions of Agreement
  • Appendix B: Budget Template



Issuance of Request For Proposals (RFP)

February 9, 2015

Deadline for Questions

February 23, 2015

Answers/ Addenda from Pew

March 2, 2015

Proposal Submission Deadline

March 20, 2015

Anticipated Notification Date

April 13, 2015

Contract Award*

April – June, 2015

Final Deliverable Due Unless Otherwise Determined by Pew*

March 2016

*For projects Pew selects at the proposal stage.


February 9, 2015 in Current Affairs | Permalink | Comments (0)

LA Dodgers Pitcher Detained at Airport

From CBS:

The immigration nightmare that Los Angeles Dodgers right-hander Joel Peralta recently endured is a strong example of why major league ballplayers always should carry their own baseball cards for identification.

Peralta and his wife were stopped at the Miami International Airport for six hours this past Friday night because the ICE official handling their entry from the Dominican Republic into the United States found Peralta's visa to be insufficient for "signing autographs" at the Dodgers fan fest. For activities like that, Peralta needed a work visa, instead of the 10-year visitor's visa he carried. If it sounds like a distinction without a difference, you're not alone, but when the season comes around, players residing in the Dominican Republic and elsewhere do need work visas. But this is a fan fest. Read more....


February 9, 2015 | Permalink | Comments (2)

Europe or Die

OECD International migration policies and data


The OECD manages several databases dedicated to international migration that might be of interest to ImmigrationProf readers: 

OECD International Migration database Provides tables with recent annual series on migration flows and stocks in OECD countries 

Database on Immigrants in OECD countries (DIOC)

Provides comprehensive and comparative information on a broad range of demographic and labour market characteristics of immigrants living in OECD countries
Database on Immigrants in OECD and non OECD countries (DIOC-E)

An extention of DIOC to a number of non-OECD countries for the year 2000


February 9, 2015 in Current Affairs | Permalink | Comments (0)

Senator Sessions: Immigration Handbook for the New Republican Majority

Jeff sessions

The new chairman of the Senate Immigration Subcommittee, Jeff Sessions (R-AL), wasted no time in advertising his antipathy towards immigrants. Shortly after assuming his post, Sessions released an “Immigration Handbook for the New Republican Majority.”   

The handbook, which consistently claims that immigrants hurt citizen workers and the middle class,  includes sections entitled

Executive Amnesty

Enforcement Collapse

Immigration and the Economy

Immigration and the Welfare State

Immigration Polling and Messaging

The Silicon Valley STEM Hoax

The handbook concludes as follows:

"The immigration debate can be reduced to three essential questions:

Is America a sovereign nation that has the right to control its borders and decide who comes to live and work here?

Should American immigration laws serve the just interests of the country and its citizens?

And do those citizens have the right to expect and demand that the laws passed by their elected representatives be enforced?

If we believe the answers to these questions are "yes," then we have no choice but to fight—and to win."

Immigration Impact notes that, "in only 23 pages, managed to distill just about every fact-free sound bite ever conceived by the nativist imagination. From Tea Party mythology about President Obama’s executive action on immigration to old fables about immigrants on `welfare,' the Sessions document runs the gamut of anti-immigrant errors, distortions, and fabrications."  However one looks at the Sessions handbook, it does not bode well for the passage of comprehensive immigration reform in the near future.

Why were we elected, if not to serve the people who sent us here?"


February 9, 2015 in Current Affairs | Permalink | Comments (0)

Grammy Wrapup - the Immprof Version

Last night's big winner at the Grammy's was Sam Smith. The British singer took home the honors for best new artist, song of the year, and record of the year for his hit “Stay With Me.”


The night also featured a performance by Australian singer Sia, with her hit Chandelier.


Brittish singer Ed Sheeran performed his beautiful ballad Thinking Out Loud.


And Irish singer Hozier teamed with Scottish songstress Annie Lennox, bringing down the house with their version of Hozier's Take Me To Church.


In short, the 2015 Grammys were brought to you by the letters P and O.


February 9, 2015 in Current Affairs | Permalink | Comments (0)

White House: Need Develepment in Central America to Reduce Migration


Photo courtesy of Wikipedia

Immigration Impact reports that President Obama requested $1 billion in his fiscal year 2016 budget proposal to address the root causes of unaccompanied children fleeing to the United States. Vice President Joe Biden announced the plan for these funds in a New York Times op-ed, saying that “[a]s we were reminded last summer when thousands of unaccompanied children showed up on our southwestern border, the security and prosperity of Central America are inextricably linked with our own.” He listed some of the challenges that El Salvador, Guatemala, and Honduras face, including “inadequate education, institutional corruption, rampant crime and a lack of investment.” -

February 9, 2015 in Current Affairs | Permalink | Comments (0)

Timothy Dugdale: Why the Supreme Court Should Revisit the Doctrine of Consular Nonreviewability


Two weeks from today, the Supreme Court will be hearing oral argument in Kerry v. Din, a case involving application of the doctrine of consular nonreviewability.  ImmigrationProf has posted a number of items about the case.  See here, here, here, here.   Timothy Dugdale in this exclusive guest post considers the issues raised by the case:

Shortly after the fall of the Berlin Wall, books began appearing with titles like, "The Short Century 1914-1989" and "The End of History." After 9/11, it became clear that it would be wise to mothball the kind of dreaming larded through "The End of History" and instead crack the spine of Benjamin Barber's very prescient and gimlet-eyed work, "Jihad vs. McWorld."

In two weeks, the Supreme Court is going to hear oral arguments in Kerry v. Din. It is a case that strikes at the heart of America's millennial heartbreak. America was a country that thought it had won the gold medal as history crossed a profound finish line in 1989, only to know by noon on September 11, 2001, the medal was made of tin. The technocratic neo-liberalism of McWorld may have vanquished the commies but other discontents were ready with projects of mayhem and menace.  America would have to go out into the world - specifically Afghanistan and Iraq - and root out the irritants. And keep the irritants from infiltrating America.

In 2006, Ms. Din, a naturalized American, filed a petition for her betrothed who lived in Kabul. USCIS approved the petition and Din went with her gent to the US Embassy in Islamabad, Pakistan to secure the visa. During the interview, the husband discussed how he had been a low-level functionary in the Taliban government. In 2009, a consular official at the embassy denied the visa petition, citing 8 USC 1182(a)(3)(B) for terrorist activities. Din was having none of it. She filed in federal district court asserting three claims: a claim for a writ of mandamus directing government officials “to adjudicate properly [the] visa application not on the basis of any bad faith or illegitimate reasons”; a claim for a declaratory judgment that 8 U.S.C. 1182(b) is unconstitutional vis-à-vis a U.S. citizen as a violation of procedural due process; and a claim that petitioners had violated the Administrative Procedure Act by arbitrarily misconstruing and misapplying 8 U.S.C. 1182(a)(3)(B).

Eventually the case reached the Ninth Circuit, a circuit that has repeatedly championed the INA as an ur-text of family unity. The judges ruled in favor of Din saying she had a protected liberty interest in her marriage. The consular official was obligated, even though the denial may have been based on one of the security-based exemptions located in a subset of the statute, to tell her why the husband was deemed inadmissible and denied a visa. The judges played it cagey and focused on did the consular official read the statute properly rather than getting to the root of the inadmissibility.

Amongst the amici briefs filed in this case is a very interesting one from a group of retired consular officers. [For discussion and analysis of the brief, see Professor Amanda Frost's post here.].  They freely admit that consular officers make mistakes all the time. Why? Because the officers either don't have access to reliable information about a petitioner or they receive erroneous information about the petitioner through a vast network of interconnected databases, many of them put in place during the War on Terror and have questionable maintenance.

The government has already lost big in Ibrahim v. DNS (ND California 2014), a case concerning a Muslim university student who erroneously ended up on a terrorist watch list because a US  immigration functionary filled out the wrong form. She flew home to attend a conference in Malaysia and was not allowed to return to the United States to complete her doctorate at Stanford. How many other thousands of bogus no-fly and watch list listings are out there? Latif v. Holder (D Oregon 2014) is pretty damning.

It's not just consular decisions that need working on. One of the key expedited removal cases, Li v. Eddy (Ninth Circuit 2001, 2003), involved a Chinese businesswoman arriving in the US with a valid L-1 visa. The local INS charged her with fraud, based on a previous denial that loomed in their database. 1252(e)(5) prevented the Ninth from even considering if she was admissible. Lack of reliable data netted this poor woman a five year ban from the United States, a ban that is really a permanent ban under INA 212(a)(6)© (i).

The Supreme Court should treat Kerry v. Din not as an individual case of a US citizen securing a visa for her alien spouse but rather as a historic reassessment of judicial review of consular decisions. Has America's war on terror created an inadvertent war on free trade, including the free movement of valuable human capital? If the country wants to attract and keep the best and brightest of the world, it has to make sure those people can get into the country, stay in the country and keep coming back to the country that will be their home.

In its Din brief, the government relies on its usual Cold War warhorses of plenary power, Knauff, Mezei and Mandel, to argue that Congress has final say in who can come into the United States. Din could enjoy marital bliss with her alien hubby anywhere but the United States because Congress determines who is an alien and aliens have no due process rights. In light of Kennedy's reasoning in Boumediene and his concurrence in Verdugo, this kind of old school natavism is unacceptable. Family based immigration is one thing; business is another. America now has many trading partners whose citizens enter the US on treaty trader visas and establish meaningful connections to the US. They may be aliens but they are resident aliens. They should not have to leave the US to renew their trading visas. If they must, they should have the safeguard of judicial review of consular decisions, just as they should have the safeguard of full review of border agent decisions. Overhaul of consular reviewability and the expedited removal system should go hand-in-hand.

Timothy Dugdale, Ph.D.
Atomic Quill Media

February 9, 2015 in Current Affairs | Permalink | Comments (0)