In this era of post-truth politics, it is more important than ever to uphold one of the central pillars of good lawyering: making arguments that are clear and precise. Given that our profession (at least for litigators) is based on urging the court to make a decision based on an assessment of the facts, it would behoove us to also be careful with making (or agreeing with) conclusions before confirming at least the bare minimum of facts.
A good illustration of this need is going on right now with our national debate about immigration–and the right of the President to limit it per his liking. I've been highly alarmed by the observations and comments I have observed from attorneys who themselves seem to have no knowledge about existing immigration laws and procedures, or how the recent Executive Order relates to them.
I am in no way claiming to be an immigration expert or specialist, but during the 10+ years I have been assisting lawyers with brief writing (through my service, On Point Expertise) I have written numerous appellate and motion briefs for the Board of Immigration Appeals, the Administrative Appeals Office, and the 2nd Circuit Court of Appeals involving a variety of issues. To write those briefs, I have read thousands of pages of Immigration Court transcripts and done hundreds of hours of research on a wide range of immigration topics, including refugee law, visas, greencards, and the procedures followed in order to get them. So, in the interest of cutting through some of the political rhetoric and aiding my lawyer readers in their understanding of what is going on right now, here are three clear points.
First, refugees are already vigorously vetted prior to being permitted to enter the United States. The vetting process has included extensive interviewing, biological screening (i.e., iris scans), background checks, etc. since the aftermath of September 11th–and it is famously more intense than what occurs in Europe. All refugees entering the US–who, by the way, are mostly women and children–are rigorously screened and interviewed during a process that takes between 18 months and 3 years. Thus, the Executive Order, which calls for "uniform screening standards" and a "mechanism to ensure the applicant is who the applicant claims to be" is redundant (and, it seems, scarily unaware) of the procedures that already exist.
Second, suspending the entry of refugees into the US appears to be based on hyperbolic exaggeration (or, in the worst case point of view, are conclusions based on made up "alternative facts"). As the libertarian think tank the Cato Institute recently reported, of the 860K refugees who entered the US since 2001, only 3 were convicted of planning a terrorist attack abroad–and not a single one has carried out an attack on US soil. Why would that be? According to the Cato Institute, it's because the US has an extensive vetting process that takes up to 3 years; and ISIS fighters or other terrorists are unlikely to wait around in a refugee camp for 3 years just to get into the US.
Third, people who hold greencards or valid visas–even if they are from one of the 7 countries named in the Executive Order–have also already been vetted through a process that includes a background check, fingerprinting, and consular or USCIS interviews. And you can bet that the immigration authorities are communicating with the federal counter terrorism agencies to track and address any individuals they deem a threat. Without any evidence identifying gaps in this vetting process, it seems completely irrational to suddenly bar valid visa/greencard holders from returning to the US after a trip abroad. And this is quite possibly the most troubling aspect of the unclear discussion about this topic: the relation between immigration and counter terrorism is complex and creating policies to keep Americans safe will require rational, fact based problem solving–which is far from the reactionary, fact-less demand made in the Executive Order.
While we are at it, I want to make clear one more point (because this is bound to be an issue soon): it is not possible for a human being to be "illegal" so the term "illegal immigrant" is a misnomer. The immigration process is more like a licensing system than a criminal one: an immigrant applies for a license to enter and stay in the US for a defined limited or unlimited time. While in the US one can apply to change the license, or to make it permanent (i.e., getting a "greencard" as a Legal Permanent Resident). It is true, some people enter the US without first obtaining the license. If they are caught without the license, they are not tried, convicted, and thrown in jail; rather, they are "removed" from the US and "banned" for either 5 or 10 years (depending on the circumstances). But here's the rub (and why the process is more akin to licensing): even if someone is banned they can apply for a waiver to stay in the US through a process known as Prosecutorial Discretion. And up until now, it's a process that is invoked fairly frequently.
So, to be precise, please refrain from saying "illegal immigrant" and instead say what it is: an immigrant without a license, in other words, an "undocumented immigrant."
If you are a lawyer who needs help assisting a client with an immigration issue, or you just want to talk more about what I've written, please get in touch here. If you know someone who needs to file an appeal of an immigration order or decision, then please send them here.
Disclaimer: the content in this post is intended as general information for attorneys and law firms; nothing stated on this site or on the blawg should be taken or used as legal, accounting, or other professional advice. None of the content contained on this site constitutes grounds to establish an attorney-client relationship, and you should not consider it as such. Updates in the law may or may not be discussed; please do not rely on any information contained on this site or the blawg as currently applicable.
ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE SIMILAR OUTCOMES.