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I went to bed around 9:30 p.m. on election night. I just knew that the results would not be final that evening, and watching the news through the night was going to do nothing but stress me out (and it was). I was also having this strange sensation of “deja vous all over again” from election night four years earlier.
When I started writing this article, Vice President Biden had taken a small but meaningful lead in the Commonwealth of Pennsylvania which, if it held, would bring him over the 270 electoral votes that he needed to become President-elect of the United States. The wind was at his back.
The wind kept up and yesterday morning (again, as I write this), the major news organizations called the race, and Joseph R. Biden will become the 46th President of the United States. It’s been a long four years (for me anyway, and for many of the clients we represent).
About a week before the election, NBC News and other news outlets were reporting that the Trump Administration, through its immigration minion-in-chief, Stephen Miller, was setting out an aggressive and hardline immigration agenda for the President’s second term. I couldn’t bear to read it, but of course I had to and did. Mr. Miller’s proposed second term agenda included the following:
(a) the Administration would expand its policies that now require asylum seekers in the United States to first seek protection from other countries, which currently includes Guatemala, El Salvador, and Honduras, to now include the rest of the world.
(b) the Administration would aggressively crack down on sanctuary cities by punishing those cities that prevent law enforcement from turning undocumented immigrants over to Immigration & Customs Enforcement (“ICE”).
(c) the Administration would expand what is commonly known as the “Muslim travel ban” by taking an applicant’s “ideological sympathies or leanings” into account during the visa interview process.
(d) the Administration would seek to “curtail” H-1B nonimmigrant specialty occupation visas, get rid of the current lottery process during the initial allocation process and replace it with a system that prioritize visas for those being offered the highest wages.
Please, enough already. This morning the American Immigration Council reported that there have been over 900 changes to the U.S. immigration system over the past 4 years. 900!!! Imagine trying to keep up on your practice area or trade when there’s that much change on an almost day-to-day basis.
As I’ve noted before, it amazes me that Mr. Miller, himself a descendent of immigrants, advocates for such restrictionist positions. According to published accounts, Mr. Miller’s family arrived through Ellis Island from what is now Belarus. His relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and became very successful. It’s a great American success story.
And yet Mr. Miller became the poster-child for President Trump’s anti-immigrant policy. It just makes no sense (to me anyway). Well, I hope the door doesn’t hit him in the ____ on his way out of the White House. His days are over.
Not to overdramatize this, I do have a short-term concern about what the President will do between now and inauguration day (not on the legal front in terms of contesting the election, but more so on the executive order policy front and what further damage he and Mr. Miller can do to U.S. immigration policy).
Many of the 900 changes that President Trump has implemented over the past four years have been through the stroke of his pen (i.e., executive action, etc.) as opposed to actual legislation (given the fact that the House of Representatives is controlled by the Democrats). Assuming the wind at Vice President Biden’s back continues to blow, I presume (or at least I am hopeful) that it will be easier for him to unwind all of the terrible wrongs that President Trump has performed over the last four years.
Just this morning, the New York Times reported that President-elect Biden, on Day 1, would begin a “yearslong effort to unwind President Trump’s domestic agenda and immediately signal a wholesale shift in the United States’ place in the world.” I am tired of this election season. I am also tired of what I’ve watched and listened to from the White House over the last four years. Our country is deeply divided, and President-elect Biden will now, and for the foreseeable future, have to govern in President Trump’s America. I look forward to Day 1.
I started writing this blog in 2013. I’ve actually enjoyed writing (just about) every piece. It gives me time to step away from my daily practice, put “pen to paper”, and educate some of you on the complexities of my world (i.e., my law practice).
Since 2016, this article has also given me the opportunity to vent, perhaps a lot, and maybe even too much. Many of you have noticed. As if the practice of immigration law is not complex enough, it became unbelievably more so, unnecessarily in my opinion, when Donald Trump was elected as our 45th U.S. President.
Right now, the field for 2020 is narrowed down to two. The race has been fully joined. Donald Trump versus Joe Biden. What does that mean for “immigration”? A lot!
Let’s reflect back to the President’s inaugural speech. “We, the citizens of America, are now joined in a great national effort to rebuild our country and to restore its promise for all of our people.” These were just about the first words uttered by President Trump in his inaugural address. Almost four years later, given the President’s rhetoric on the campaign trail (both then and now), I continue to find it ironic that he in the same sentence speaks how “the citizens of America” would restore our country’s promise “for all of our people.”
Hindsight is 20/20. “All of our people” does not mean everyone that’s here. Nope, citizens only for our President. “Every decision on … immigration … will be made to benefit American workers and American families.” Well he’s held true to that statement. Fewer (and in some case almost no) rights for almost everyone else, whether they are lawfully living in the United States or not.
You might recall that President Trump quoted the Bible in his inaugural speech; specifically, “how good and pleasant it is when God’s people live together in unity.” I agree. “All of our people” should be able to remain here and live here in unity.
Joe Biden strikes me as a person of profound compassion. Among other things, his platform advocates for immediately reversing the Trump Administration’s cruel and senseless policies that separate parents from their children at our border. His platform also advocates for ending President Trump’s detrimental asylum policies, reversing Trump’s public charge rule, ending the so-called “national emergency” that bleeds federal dollars from real national security concerns to build a wall (that Mexico was supposed to pay for), and protecting Dreamers and their families. Mr. Biden also advocates for rescinding the President’s travel and refugee bans, commonly referred to as “Muslim bans.” He also advocates for restoring sensible enforcement priorities (at our border and within the U.S.).
Equally as important, Mr Biden’s platform calls for modernizing America’s immigration system, including creating a roadmap to citizenship for the nearly 11 to 13 million people who are present in the United States, have been living in the country for years, but are without status and often are here through no fault of their own. I’m all for that.
Of course, he cannot do it alone. He’ll need lots of congressional support in order to accomplish any of this. For starters, though, we must do our part. We need to vote. We need to vote like our country depends on it. Because it does.
Although it feels like it’s never stopped, election season is now officially in full swing. I’ve spent the last three years whinging about our current president’s immigration policies. My feelings are no doubt clear. But where do his challengers stand on important issues like the right to counsel, the travel ban (which is now in version 3.0), legalization, and so on. What follows is the beginning of a periodic look at the Democratic candidates on these and other important issues. Let’s start with the right to counsel.
Our immigration laws are very complex. If you’re not an attorney, or if you’re an attorney but don’t practice in the area of immigration, you might be surprised to see the back-and-forth that immigration practitioners themselves engage in on various professional listservs about the meaning of a statute, rule or agency memorandum. If we as practitioners in our own specialized field often cannot understand or come to agreement as to what the Congress has written, or a Court has decided, do we really expect a pro se respondent to?
The law guarantees an individual facing removal from the United States with the right to counsel. The law does not, however, guarantee that legal counsel be paid for by the government if someone cannot afford it. The data is very clear that having legal counsel is the most decisive factor in determining whether someone will obtain a grant of legal relief before an Immigration Judge. Indeed even Immigration judges say that cases before them are resolved far more expeditiously when people are represented by counsel.
Yet only a small fraction of those who are in removal proceedings are represented by an attorney. My personal opinion is the government should establish a right to legal counsel, paid for by the government when necessary, to all people facing removal. So that’s my opinion; what do the candidates believe?
When he was mayor of New York City, Mike Bloomberg pledged $2 million to provide training for lawyers who wish to represent immigrants in immigration court. Thus far, however, he has not publicly stated whether or not he supports the right to counsel at government expense at a national level. In a piece written in 2017 for his media company, he wrote that “speedier case handling must also make a provision for the adequate legal representation that judges have called for.” He’s right.
In 2019, Senator Amy Klobuchar cosponsored S. 2113, the Stop Cruelty to Migrant Children Act, which would mandate that the Department of Homeland Security (“DHS”) provide access to counsel for all people detained in facilities administered by Immigration & Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”) and Health and Human Services (“HHS”).
In a response to a survey put out by the American Immigration Lawyers Association (“AILA”), Mayor Pete Buttigieg stated that he would “urge Congress to pledge funds and to work with legal service providers and state and local governments to create a system to substantiate this guarantee, building off of the success of programs like the New York Immigrant Family Unity Project.”
In response to the same AILA survey, Senator Bernie Sanders stated the following:
Currently, our immigration adjudication system is so broken that immigrants often do not receive notice of their hearings, notices are received in a language the recipients do not speak, and immigrants are sometimes even marked absent for hearings that did not even physically take place. Navigating the immigration system without legal counsel is next to impossible. To ensure that people can actually access their legal counsel, Bernie will adopt community-based alternatives to detention. When Bernie is in the White House, immigrants will have access to counsel, as well as other supportive services as they wait for their hearings.
His immigration platform, available on his website, goes further; it states that he will “ensure justice and due process for immigrants, including the right to counsel and an end to cash bail, create a $14 billion federal grant program for indigent defense, ensure access to translation and interpretation services throughout every stage of the legal process,” and “end the use of video conferencing for immigration cases.”
Interestingly, to me anyway, former Vice President Joe Biden has no public stated position on access to counsel for those in removal proceedings.
And finally, to round out the discussion, not only does President Trump oppose access to counsel in removal proceedings, his administration’s policies have made simple access to counsel so much more difficult. By way of example, his administration’s Remain in Mexico policy has made it incredibly difficult for asylum seekers to obtain information about legal service providers and, for those who have counsel, to meet with and have access to their counsel.
Providing meaningful access to counsel not only ensures that immigrants are treated fairly and appropriately in removal proceedings, but it will also makes their removal proceedings more efficient. Indeed, if more individuals are represented in removal proceedings, the currently untenable backlogs would be reduced as well.
The landmark case Gideon v. Wainwright required state courts to provide counsel in criminal cases for defendants who could not afford lawyers. Unfortunately, the immigration law, unlike criminal law, does not provide a right to counsel. While immigrant detainees are allowed to hire their own lawyers, more often than not, they cannot afford counsel. Those who cannot are often the most vulnerable in our population, including children, the mentally disabled, victims of sex trafficking, refugees, and even torture survivors. We can do better, and we should provide those who need free representation the most the right to receive it.
 See, e.g., “Access to Counsel in Immigration Court,” American Immigration Counsel, Ingrid Eagly, Esq. and Steven Shafer, Esq., Special Report, September 2016.
 AILA Doc. No. 19093005. (Posted 9/30/19)
 AILA Doc. No. 19093005. (Posted 9/30/19)