Law Talk Episode 11: Current Events in U.S. Immigration

In this episode of Law Talk, Jacob and Andrew discuss recent events in the U.S. immigration scene, specifically in regards to asylum claims!

Andrew Michael: Cool.

Jacob Tingen: You kick us off, man.

Andrew Michael: I’m kicking us off?

Jacob Tingen: Sure.

Andrew Michael: All right. Today is Wednesday morning. We are gonna start law talk. Today we’re talking about immigration, because it’s been all over the news recently, and it’s an important topic I think we should probably discuss.

Jacob Tingen: Yeah, yeah. I agree.

Andrew Michael: Especially from the legal standpoint, just because there’s been so much hype around it and interesting ways of reporting it, so having an actual legal expert chat about it would be really helpful, I think.

Jacob Tingen: Yeah, I mean so a lot of people have a lot of questions about what’s going on. I, myself, have seen a lot in the news, go to the gym, it’s all over the news. Check news online, it’s everywhere. What do you want to know?

Andrew Michael: I mean, the whole thing over the last two weeks has been a whirlwind, like I’ve been seeing conflicting news stories, a lot of sensationalist reporting, so maybe just starting at the beginning with Jeff Sessions’ interpretations of the law, and then moving forward from there to see where we’re at right now might be a good way of beginning.

Jacob Tingen: Yeah, so what we’re seeing out of Jeff Sessions in the Trump Administration is just a tightening of immigration enforcement. Basically, what they’re doing is they’re saying, “Well prior administrations didn’t follow the law on immigration, and so we’re going to follow it to a T,” but what they’re doing is they’re interpreting the law in the most stringent, nonsensical way possible, frankly in an effort to deter immigrants coming to the border.

Jacob Tingen: What they don’t appear to understand is that people aren’t coming to the border because we have a lax border. They’re coming to the United States because if they stay in their home countries, they will die. That’s just something that needs to be part of the debate, and I don’t think that people recognize that clearly enough, that these aren’t people trying to take advantage of America, these are people who are trying to survive and that’s an important distinction that the executive branch should know, should be aware of, but for whatever reason, they are either denying the facts or don’t care, which, I mean, I hope that’s not the case, but those are the only two options at this point.

Andrew Michael: Yeah, so it seems like the original intent is as a deterrent, but that’s really not working. What happens when they do get to … Actually, bring me back a little bit. What exactly are the legal codes, pretty much what’s the legal backbone of Trump’s argument? I know I’ve been reading a little bit on it, and it seems like there’s three different things that they’re sort of playing with. I don’t know, have you looked into it extensively?

Jacob Tingen: This is what I can tell you as a practitioner and we see people who come across, who have recently crossed the border all the time in our office. We help them and we’ve been helping them for years, and so I can tell you that’s what’s happening now is unique and people who’ve been doing this longer than we have can tell you that it’s unique to Trump, it’s not even a Republican administration thing. This is a new view of enforcement of our immigration laws and human trafficking laws, so this is just Trump’s administration. This isn’t Republican or Democrat, it’s just flat out immoral.

Jacob Tingen: Here’s where all the action happens. I am, let’s say I’m an immigrant and I’m being extorted or threatened or persecuted in one way or another and I’m from Central America or further south and I say, “You know what? I’m gonna hike north, I’m gonna get to the United States. There, I will be safe.” The reason that these people don’t stop in countries like Mexico, for example, is unfortunately, the criminal groups in their home countries are interlinked with the criminal groups in Mexico. Los Zetas Cartel and other criminal organizations. They’re organized now, frankly because of the internet, and modern communication in a way that if you’re not safe in Honduras, frankly you’re not safe in Mexico either.

Jacob Tingen: The US is their only reasonable safe spot. They come here. Now, what a lot of people don’t know is that if you’re an immigrant and you don’t have any kind of permission or visa to get into the United States, but you come up to an authorized port of entry and you say, “Let me in. If I go back, they will kill me,” then our people have to interview you and if they find that you have a reasonable or credible fear of danger or harm or persecution, they have to let you in and let you have a hearing, okay?

Andrew Michael: Yeah.

Jacob Tingen: That’s true whether you go up to an authorized port of entry or whether you sneak across the border and get caught.

Andrew Michael: You’re a refugee under this sort of-

Jacob Tingen: Yeah, yeah, so that you’re supposed to get an interview if you express fear of persecution, you’re supposed to get an interview and be considered for asylee or refugee status. Now, what’s happening is Trump and Sessions have said, “Well, it’s happening way too much,” and they’re saying it’s happening way too much because of lax immigration policies from the Obama Administration, and they’re saying, “Well, then the way for us to deter this kind of mass exodus from these countries to the United States is to just be mean. And one of the ways that we can be mean is by saying if you’re an adult and you present with a child, that makes you a human trafficker. Period.” Whether or not you are, and they’re assuming that if you present with a child, that the child isn’t yours.

Jacob Tingen: Now, admittedly there are cases, and you can research it, there are some people who will present with a child and say, “It’s my child,” even if it’s not. But let’s get real. The vast majority of these people who present with a child are the parent of that child or other family member, an uncle or an aunt or that kind of thing, and they’re related. To separate these people, to accuse someone of being a trafficker as justification for separation in order to deter fleeing for your life is immoral. That’s what it’s coming down to and I think everybody tends to agree on that point.

Andrew Michael: Yeah, well, it seems to me that the biggest change over the last two weeks has been from the assumption of person seeking asylum into human trafficker, which then turns into assumption from innocent until proven guilty/refugee into like we’re assuming they’re guilty, taking the kids away, and housing them in repurposed Wal-Marts, which is where we’re getting this whole human rights violation side of the argument that’s coming in from a lot of other news outlets.

Jacob Tingen: Yeah, and when it comes to these kinds of numbers and this volume of people, the likelihood that we reunite a two year old with their parents is extremely low. Even in a system where we computerize everything, the sad truth of this is, and it’s a disaster, is that some of these two year olds or three year olds are never gonna see their parents again. I mean, and we can say all we want, “Oh, well the majority of them are 17 year old or teens,” or whatever, but this is not the case.

Andrew Michael: There’s still that one kid and that’s, even if it’s just one person that’s not reunited with their parents, that’s still a huge issue, like that’s something that needs to be addressed, and that’s in like the best case scenario.

Jacob Tingen: Yeah, yeah, I mean Jeff Sessions will tell you and others who are talking of the administration’s enforcement efforts, will tell you that, “Oh yeah, no, they’re in good hands, and by the way, we’re gonna reunite these people with their parents, and if their parents are deported, they’ll go back with them, but if their parents are gonna stay and be treated as asylees and be placed in removal proceedings and be able to present an asylum case, well by golly, they get to stay with their parents.” I mean, as someone who practices in this area of law, I know that that’s not realistic. Not by any stretch of the imagination.

Andrew Michael: I’m just looking at my notes right now. From the legal standpoint, let’s talk about Trump’s argument again, or at least the executive argument of why they can do this. It seems to me that the basic argument is there’s a US code that is we can imprison illegal immigrants.

Jacob Tingen: That’s true.

Andrew Michael: Then there is a decree from a couple years ago that says that imprisoning the children of immigrants is immoral and we need to release them into protective custody of some kind, which generally would be a family member. Either their parents, a related family member, or, and this is the important part, a certified caretaker or caretaking facility, which is where we’re getting this, “Put them into the private prison system,” essentially of repurposed Wal-Marts.

Andrew Michael: Lastly, is there’s an 2018 anti-trafficking statute, which says that they must be released within 72 hours, which is speeding this whole process up and where a lot of this chaos and other kind of stuff seems to be coming from. At least in my research, those are the three most important legal things, I just want to see what you thought on that and how that comes, how you can approach that from a legal standpoint as an immigration lawyer yourself.

Jacob Tingen: Yeah, I mean, first of all, the intent of Trump’s Administration’s current actions is to dissuade immigrants from coming to the United States and by saying, essentially, “You’re not welcome here.” Which is not true. The Statue of Liberty still stands, she’s holding her torch high, and this is still a just and free country once you get here, but the border is currently very problematic. If you get into removal proceedings, you do have a right to a hearing and you should get representation, so let’s start there.

Jacob Tingen: But secondly, the 2008 law, the anti-human trafficking law actually includes many provisions that are intended to help children.

Andrew Michael: Yeah, because that’s the one where they’re blaming it on the Democrats, where they’re saying, “Our hands are tied because the Democrats passed this law,” when in reality it’s just the way they’re interpreting it.

Jacob Tingen: Yeah, well, and it’s the way that they’re doing things, I mean the Democrats aren’t making them accuse everyone who crosses the border as a human trafficker. No one is making them do that and there will be a series of civil rights litigation on all of these issues and we’d like to get involved, so if you’ve got a case, come talk to us.

Jacob Tingen: Yeah, I mean, there’s no reasonable interpretation that’s forcing Trump to act in this way, and every time he says it’s the Democrats or something else, shifting the blame on that is pointless. No one is making them act in this way. Obama, the Obama Administration didn’t act in this way, the Bush Administration didn’t do this with people who came to the border as family units. This is just them acting this way in order to deter immigrants and Sessions is currently trying to close what he views as loopholes in the immigration process by issuing, essentially executive-style decisions that are shaping interpretation of asylum law in the immigration courts and that’s something else that we can talk about.

Jacob Tingen: This idea that they have to pretend everyone who presents at the border as a human trafficker is false. They don’t have to do that, that’s just a current policy, and that policy can and should change because it’s not based on … One, it’s not deterring anything, so it’s not even fulfilling its purpose, and two, it’s a human rights violation and it’s causing all sorts of havoc and harm to people, individuals, and our country’s reputation as a whole.

Andrew Michael: Yeah, so which one of those issues do you want to chat about now?

Jacob Tingen: Which one, what do you mean?

Andrew Michael: Well, you just brought up several things, like the way they’re interpreting it, the human rights violations from a legal standpoint, things that we as a practice could do, for example, for representing people.

Jacob Tingen: I was looking at a couple of things, so recently I’ve been looking at what we can do in our federal practice, and we’ve done some cases in the past in the eastern districts of Virginia about treatment of immigrants in local detention facilities and state facilities and their interaction with ICE. We’re looking at some potential future strategies like toward litigation against ICE and USCIS and others for what they’re doing now, and my guess is that there will be some kind of negligent or potential harm that CBP or DHS will end up causing these families.

Jacob Tingen: If I’m separated from my mom and I never see her again, not to be callous, but there’s no dollar amount to that, but somebody should pay for that, you know what I mean? If I’m a two year old kid and I win my asylum claim because I get in the system and I get lucky enough to get good counsel and they help me represent myself and then I grow up and I never, ever have my parents again, well somebody should be held accountable for that.

Jacob Tingen: Yeah, there’s gonna be litigation on these issues because again, when the Trump Administration says, or Jeff Sessions says, “We’re taking care of these kids and we’re gonna reunite them with their families,” I mean, it’s not true. How can it be true? It’s not the first time that we’ve seen DHS or other arms of enforcement in this mass kind of immigration movement that’s happening mess up in a way that’s irreparable. There will be a reaction.

Andrew Michael: Okay. I’m sort of interested personally in what sort of shaped this reaction with like take place in. For example, if we represent someone that is either currently a client for us or thinking about becoming a client in the future, how does this situation affect their asylum case, their immigration, all of that sort of thing? Because obviously, the entire tower has toppled down. All the immigration law from the last 15 years or so is up for grabs at this point and being re-shifted by these decisions. On one hand, it sucks, and things need to be readjusted, but at the same time, there are opportunities for doing immigration cases, so how can you speak to that?

Jacob Tingen: We would need a case, like I mentioned, so somebody who’s been separated from their children, so if we get a mom in here so says, “HHS, Health and Human Services, can’t find my child and I’ve won my asylum claim, and I have lawful status now, and I’m not a human trafficker, and that was proven in a court of law, and they took my child away from me and now I’ll never see them again,” if that happens to you, we want to know. I mean, and you shouldn’t just take that and let it roll. Again, that’s a case that we would take.

Jacob Tingen: Additionally, we do a lot of deportation defense. We practice in the Arlington Immigration Court, so if you have an asylum case at all, if you’re a child who has been separated or deemed abandoned in one way or another by your parents, so you can’t find your parents, there are avenues for you to get protection here in the United States, so we’d be happy to talk to you. If you’re an aunt or an uncle of a child like this, reach out, or if you’re just friends with someone who’s going through a situation like this, we’re available to help.

Andrew Michael: Yeah, so where do you see this entire issue going from here? What do you expect to see in the next couple of weeks? I think it was yesterday, for example, there was talks and reporters were everywhere across Capitol Hill in D.C., everywhere. Just talking about these issues, where can we go from here, so what are your thoughts about that? What are gonna see for the next week, month, year?

Jacob Tingen: I’ve been waiting on immigration reform since 2013. I don’t think that’s what we’re gonna get. It’s what we desperately need and that reform should restrict the executive branch’s power significantly. Fortunately and unfortunately, the executive branch has been given a significant amount of flexibility when it comes to the enforcement of immigration laws. The purpose behind that flexibility very clearly and explicitly, in the law, if you look at it, is so that the executive branch can act quickly where Congress can not to act in a humane manner.

Jacob Tingen: I mean, this is why executive functions like designating countries for temporary protected status stems from, this idea that, “Oh, a country just had a disaster, Congress doesn’t need to pass a bill to help these people, let’s just give the executive branch of government, who we expect to be humane, will just grant some kind of status to allow these people a temporary reprieve.”

Jacob Tingen: Well, so far, Trump has been canceling TPS to all countries it’s been granted to willy nilly, and calling countries like Haiti, he’s just profane. Anyway, what the law is intended to do is to enable our government to be a humane government. That’s not how it’s turning out, unfortunately, under the current administration.

Jacob Tingen: Any reform that has been proposed over the past five years seems to be inadequate. It’s difficult to see how Congress can get to an equatable deal with Trump right now. I’m not saying that’s impossible, it’s something that’s needed and it’s something that Congress should fight for, especially given what’s happening. I think growing numbers of people, even within Trump’s own party, are viewing current actions as inappropriate.

Jacob Tingen: Given that there’s probably no forthcoming action from Congress, you ask the question, what are we gonna see in the next couple of weeks? This is what we’re gonna see. Jeff Sessions, as the attorney general, has the opportunity to appoint certain immigration cases to himself and essentially opine on the law and create precedent for the immigration courts. That’s because the immigration courts are administrative courts under the authority of the attorney general, the Department of Justice, and what’s interesting here is that the prosecuting attorneys in the immigration courts, the Department of Homeland Security attorneys, they’re also an administrative agency under the DOJ.

Jacob Tingen: The courts and the DHS are supposed to be separate, but essentially we’ve got the prosecutors and the judges on the same side, and that is interesting. Now, the court’s supposed to be impartial and many judges, of course, make that effort to be as impartial as possible and we have pretty good relationship with the judges in the immigration court and appreciate the work that the judges do, but because Jeff Sessions can certify cases to himself, he’s essentially taken an opportunity to try to rewrite law, to rewrite precedent over the last 15 years.

Jacob Tingen: What you said, what’s gonna happen in the next couple of weeks? He tried to rewrite some specific asylum cases to essentially say that these people that we interview at the border and present and say, “I’m afraid to go back,” he’s tried to rewrite asylum law in such a way that we can just turn them away and say, “Well that doesn’t mean fear for our laws, so goodbye,” and turn you around.

Andrew Michael: Basically what you’re saying is that the asylum defense of, “I’m going to die if I stay in my home country,” is no longer a valid defense for people seeking asylum under his new-

Jacob Tingen: I wouldn’t go that far. There have been some existing precedent decisions and a body of law that’s developed from the immigration judges and frankly, some of the federal circuits, regarding how we should treat cases of women in El Salvador, Guatemala, Honduras, who are suffering domestic violence. There’s extensive evidence and a large body of cases that show that these women are unable to escape the domestic relationship with spouses and partners.

Jacob Tingen: It has essentially become a standard, so an asylum you have to prove that you have to persecuted on a protected ground: race, religion, nationality, political opinion, or your membership in a particular social group. Well, over time, certain social groups become part of accepted body of law, like, “Oh, this group is a social group,” so as long as you can present that you were persecuted on your membership in that group, then you’re good.

Jacob Tingen: Well, essentially, a group of victims of domestic violence in certain countries, if those countries are unable to help you, has been widely accepted as a social group by the BIA, that’s the Board of Immigration Appeals by immigration judges and by many federal circuits. Well, Jeff Sessions decided to certify one of these cases to himself and said, “Nope, that’s not true.”

Andrew Michael: Okay, and does his decision in this case overwrite all the other precedent?

Jacob Tingen: Yes.

Andrew Michael: Oh, that’s interesting. That’s terrible, but interesting.

Jacob Tingen: Yeah, so the attorney general has wide discretion to make this decision. Now, of course, every decision has nuance, right? I’ve been reading through, it’s called Matter of A-B- myself, to get a better understanding of how we can represent our clients. I had a client who had been prepping asylum application for and she has a domestic violence based asylum claim. I went and presented that after Matter of A-B- had been presented by Jeff Sessions, been issued by Jeff Sessions, and the judge asked me to write a brief now before her individual hearing explaining how her case differs from Matter of A-B- and how I can distinguish the case.

Jacob Tingen: We’re looking into that issue, but yeah, I mean that decision is a [C 00:23:24] change in interpretation of certain immigration cases and it’s intent, it’s purpose, is to enable the people on the border who are interviewing immigrants to say, “Well, that might be a difficult situation, but that doesn’t count for asylum, so we can’t help you. You’re not even entitled to a hearing with the judge. Turn around and go back, even though you’re probably going to die when you get home, turn around and go back.”

Andrew Michael: Just this one further distinction, what is the difference between the case you just described of someone arriving at the border with this defense and someone who’s already in the country, who’s currently applying for their status?

Jacob Tingen: If you’ve already been placed in removal proceedings, you passed the credible fear of barrier, right, so when you’re interviewed, they have to establish that you have a credible fear of persecution. If you’re in removal proceedings now, then you just need to get creative with your attorney. If you’re at the border, you’re not necessarily in removal proceedings yet. You don’t have an opportunity for your case to be heard by a judge until you get over that first barrier.

Jacob Tingen: If you’re in the country now, then you’ve got over that first hurdle, and you need to work with your attorney and we’ll work with you on that and we’ll talk to you about how we can frame your case in a newer way or a different way that can still qualify for your asylum and do the best we can to present your case.

Andrew Michael: Okay, well, we’ve been going at it for quite some time. Is there anything else you want to say as we wrap up our half our this beautiful Wednesday morning?

Jacob Tingen: Yeah, call us. If you are an immigrant or if you have friends who are immigrants or if you’re concerned about actions that have been occurring from the Trump Administration or Jeff Sessions, give us a call. Just because the government is making these kinds of decisions, it doesn’t necessarily mean all is lost. You have right to counsel and you should use it, especially right now, it’s very tricky and sticky.

Jacob Tingen: The good news is, is that you have an automatic right to appeal to a federal judge and while the immigration courts and the Board of Immigration Appeals are beholden to Jeff Sessions’ interpretation of law, the federal circuits are not necessarily beholden to his interpretation of law and so the likelihood is that many of these cases will be appealed to those federal circuits. We’ll see some splits, we’ll get some precedent out of the Supreme Court eventually.

Jacob Tingen: It’ll take years, and hopefully by then Congress will have stepped in, so don’t give up, that’s the message, and get counsel. You need a lawyer on these issues, and if you know of anything, see something, say something, right? We can apply that to immigration law and fighting for civil rights and human rights, and I think that’s the big issue here is that you need to understand that these are human rights. It’s not just an immigration thing, it’s a civil and human rights thing, so get involved, meet an immigration attorney and shake their hand and have a conversation.

Andrew Michael: All right, sounds good. That’s it for today. Join us next week, same time, same place, and I hope everyone has a wonderful rest of their week and weekend.

Jacob Tingen: Thanks Andrew.

Andrew Michael: Yep.

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