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The Green Card The Green Card Welcome to the Newsletter of the FBA’s Immigration Law Section LARRY BURMAN, CHAIR Quote of the Month so as to do justice in the instant case before him. He “My root belief is that the proper role of a judge is to need not wait for the legislature to intervene, because do justice between the parties before him. If there is it can never be of any help in the instant case. “ any rule of law [that] impedes the doing of justice, then it is the province of the judge to do all he legiti- Lord Denning (Alfred Thompson Denning), The Family mately can to avoid that rule—or even to change it— Story 174, (1981) PUBLISH IN THE FEDERAL LAWYER! The Federal Lawyer continues to accept submissions for feature articles of 3000 to 8000 words, as well as letters to the editor, book reviews and commentaries. Guidelines for submission can be found at the fedbar.org website under publications/federal lawyer. Deadlines fall on the first of each month from December 2016 through most of 2017. The Immigration Law issue will be May 2017 and submissions are due Jan. 1, 2017. If authors wish to submit an article with the official endorsement of ILS, they can send their draft at least two weeks in advance of the FBA deadline to Dr. Alicia Triche at [email protected]. She will consider whether ILS will endorse the submission and, if so, provide edits and submit on the author’s behalf. Dr. Alicia Triche is Chair of the Section’s Publications Committee. In This Issue Immigration Rant .................................................................................................................. 2 Immigration Law Section News ............................................................................................... 6 Immigration Muse .................................................................................................................. 6 DMV FOIAs become better practices for Immigration cases where a beneficiary has or had a Florida Driver’s License .........................................................................................................10 Disparate Definitions: Uncertainty Regarding What Constitutes “Sexual Abuse of a Minor” ......11 One Person’s Freedom Fighter, Duress, and the Terrorism Bar ................................................ 20 DISCLAIMER: The Green Card is a journal of opinion by and for immigration professionals. All opinions expressed herein are those of the writers alone, and do not represent the official position of the Federal Bar Association, the Immigration Law Section, or any organization with which the writer is associated. Spring 2017 Published by the Immigration Law Section of the Federal Bar Association Opinion Immigration Rant BY JASON DZUBOW An Open Letter to My Friends at DHS and DOJ that Judges, BIA Board Members, and OIL attorneys are Former House Speaker, and Donald Trump adviser, reasonable, and do their best to follow the law. Sometimes Newt “The Brain” Gingrich recently made plain what that means deporting people who are very sympathetic; Mr. Trump has been arguing for months: The new other times, it means allowing people to stay who they Administration is planning “straight-out war” against the believe should be deported. The problem comes when we federal bureaucracy. But in my time, there are two things have DOJ attorneys who are more concerned with ideolog- that I’ve learned about ideological wars: (1) The casual- ical ends than with due process. We saw this most clearly ties are flesh-and-blood human beings, and (2) Everyone when Attorney General John Ashcroft purged liberal (or involved thinks that G-d is on his side. supposedly liberal) BIA Board Members at the beginning In this case, Mr. Gingrich was speaking specifically of the George W. Bush Administration. Perhaps we will about the troubled Department of Veterans Affairs, which see a similar reshuffling in the months ahead. he accused of various sins amounting mostly to half-truths For fair-minded attorneys, Judges, and Board Members (or perhaps whole lies). But we’ve seen a pattern with Mr. at DOJ, that’s a frightening prospect. Are their jobs in Trump’s appointments. For example. the new head of the jeopardy? Will they be forced to take positions contrary to Department of Energy wanted to eliminate that agency their conscious, or contrary to their interpretation of the in 2012. The leader of the Environmental Protection law? Many immigration benefits–such as asylum–contain Agency doubts human-influenced climate change and will a discretionary element. Will the ability to exercise discre- likely prevent that organization from issuing regulations tion be intolerably curtailed? to protect public health. And the new Secretary of the It’s still unclear whether attorneys and officers at the Department of Housing and Urban Development will be Department of Homeland Security will face the same Dr. Ben Carson, whose main qualification seems to be that potential dilemmas as their DOJ counterparts. The new he lives in a house. Secretary for DHS will be retired Marine Corps General But the situation for the Departments of Justice and John Kelly, who is widely viewed as non-ideologi- Homeland Security are a bit different, at least in terms cal. Under the DHS ambit are several agencies that impact of those agencies’ oversight of our nation’s immigration immigration, including U.S. Immigration and Customs laws. In those cases, it’s more likely that Mr. Trump will Enforcement (“ICE”), which is basically the immigra- be ramping-up enforcement at the possible expense of tion police and prosecutors, and U.S. Citizenship and other immigration functions (like processing immigration Immigration Services (“USCIS”), which administers immi- benefits). gration benefits, including asylum. We have yet to learn Senator Jeff Sessions will lead the DOJ as Attorney who will lead these agencies, and probably the choices General. He is known for his opposition to immigration for those posts will have more effect on the officers and reform and his belief that legal immigration to the United attorneys “in the trenches” than General Kelly, who is States should be reduced. So how will Senator Sessions’s overseeing the entire agency. appointment affect DOJ in terms of immigration enforce- Currently, DHS attorneys, Asylum Officers, and ICE ment? DOJ administers the nations Immigration Courts officers have a fair bit of discretion in handling cases, and the Board of Immigration Appeals (“BIA”), and especially cases where the alien has no criminal record. (within some limits) interprets our immigration laws. DHS attorneys often can decide whether to keep an alien As Attorney General, Mr. Sessions has the power to nar- detained, they can offer prosecutorial discretion, and they row precedents favorable to non-citizens. He can do this can decide how aggressively to pursue an individual’s directly, by issuing Attorney-General opinions, which deportation or whether to agree to relief. Asylum Officers supersede decisions made by the BIA. He can also do it also have a fair bit of discretion to determine credibility indirectly, by appointing ideologically like-minded Judges and decide on relief. and BIA Members. DOJ also administers the Office of The attorneys, officers, and Judges I know at DHS and Immigration Litigation (“OIL”), which defends BIA deci- DOJ are generally intelligent, caring individuals who do sions in the federal courts. Mr. Sessions could order OIL to their best to follow and enforce the law without inflicting take more hard-line stances, and he could push litigation undo harm on individuals and families. They are aware that reflects his restrictonist viewpoint. of their power and their responsibilities, and they take How would this be different than what we have now? their jobs seriously. Sometimes, I disagree with them on The atmosphere for aliens in immigration proceedings has their interpretation of the law. Sometimes, I think their never been easy. That’s particularly true for aliens con- approach is unnecessarily aggressive. In some cases, we victed of crimes. But at least in most cases, I have found evaluate the merits of a case differently. While we do not 2 | The Green Card always agree, I can see that they are performing an essen- The goal of the pilot program was to help develop tial function by fairly enforcing our nation’s immigration policies and processes for the standardized use of social laws. media department-wide. “USCIS had previously used In speaking to some DOJ and DHS attorneys and offi- social media in a limited capacity, but had no experience cers since the recent election, I have seen a certain level using it as a large-scale screening tool.” The pilot pro- of demoralization. Some people have expressed to me gram relied on manual and automated searches of social their desire to leave government service. While these media accounts to “determine whether useful information individuals respect and follow the law–even when the for adjudicating refugee applications could be obtained.” results are harsh–they are not ideological. They do not It seems that the ability of DHS to investigate social media hate immigrants (or non-white people, or Muslims) and accounts was limited by technology: At the time the pilot they do not want to enable or contribute to a system that program was launched in 2016, “neither the private sector they fear will become overtly hostile to immigrants that nor the U.S. Government possessed the capabilities for President Trump considers undesirable. I suppose if I have large-scale social
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