Location, Location, Location

A simple, relatively unspoken reality exists within immigration law. Location can be the difference between winning and losing in removal proceedings, no matter whether the case involves an asylum claim, cancellation of removal, or any other asserted defense. TRAC, an agency dedicated to monitoring immigration judges' rates of asylum denials, recently published decision statistics for every immigration judge in America. You can check your immigration judge here.

The statistics tell a disturbing story. The story is one of preference to people who are lucky enough to live in certain cities. The often random fate of geographic location should not play a prominent role in their odds of success on an asylum application. But it clearly does. Consumers of immigration legal services, or attorneys looking to hire another lawyer to help a client in need of those services, can sometimes better their chances of success by simply.........moving.

There is no law or regulation that prevents a person from moving to take advantage of a better forum in the EOIR or agency context. A forum can increase the odds of success in several ways - immigration judges may be more disposed to granting application for relief, or better law might exist on a particular issue in a given jurisdiction. The latter is true because while immigration law is indeed federal, it is not uniform. There are many instances where federal appellate law differs from Circuit to Circuit in the morass of tangled laws and regulations that make up the black letter immigration and nationality law in the U.S.

The most favorable Circuits are the Ninth and Seventh, in that order (depending on the issue at hand). The lesson? If you live in the Midwest, consider moving to Indiana, Southwest Wisconsin or Illinois to avail yourself of the Seventh Circuit decisions and of the Chicago Immigration Judges, who are far more likely to grant an asylum case (and every other kind of relief in my experience) than the very conservative immigration judges in Detroit. Similarly, the Sixth Circuit, while showing signs of following its sister circuit in Chicago, is historically much less apt to remand a case to an immigration judge on appeal.

Immigrants often feel helpless in the face of removal efforts instituted by the government. Rarely is that true. Relocating to a favorable jurisdiction may make it more likely that relief is available.

The Dream Act

Mark Brown, a columnist with the Chicago Sun-Times, recently wrote about the plight of many school-age kids who have no status. They typically entered the U.S. at a young age with their parents.

No matter your position on relief for foreign nationals who are in the U.S. unlawfully, it is difficult to argue that children who came with their parents unlawfully should suffer the consequences of those actions. Even to those who would argue they should go home, I'd say this: We need the ideas of bright, ambitious young people, no matter where they happen to be born. Our country thrives on that influx of intellect and diversity. It always has.

I was asked to comment on Mark Brown's article on WGN Radio in Chicago, and enjoyed the live conversation. I tried to give a backdrop to the discussion that ensued between host John Williams and listeners. I explained that the inequity of imposing the penalty of having no chance to regularize a teen's status, thereby preventing her from attending college, is exactly what The DREAM Act legislation seeks to remedy.

Call your Senator today to voice your support for this bill.

Full Speed, uh, Reverse!

The US CIS has reversed course on refusing to accept EB-based adjustment of status filings in July. This is welcome news for many people who faced having to leave the U.S. because of the broken promise caused by the CIS's shutting down the EB categories an hour into July.

The agency will now accept all EB filings that were current under the original July Visa Bulletin until the close of business on August 17, 2007. The extra time has been allotted to atone for the previous closure, which the agency evidently decided was not a defensible action when faced with litigation.

More information will be provided later.

Miscellaneous Observations

Immigration reform is dead for the time being. The prospects of a new law seemed good - so long as public opinion was in favor of legislation. But that changed at about the same time the immigrant rights demonstrations were held. Public opinion suddenly swung the other way, and not surprisingly, Senators began reversing course, which is what they are supposed to do. They are, after all, supposed to represent the majority's view. The Constitution represents the minority's interest, and that is the ying and the yang of our brilliant system.

The sudden change in the political wind should come as no surprise. The 12 million undocumented foreign nationals in the United States were on the precipice of being given a gift. A chance at becoming legal in the greatest country on Earth. The phrase "don't look a gift horse in the mouth" comes to mind. I'm not the only one to question the wisdom of holding demonstrations on the eve of getting what they wanted. The demonstrations were a bad idea.

I understand this view will not be popular with many of my readers, clients and colleagues. Sometimes the truth hurts.

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Maribel & Juan, detailed in the last entry, recently appeared for Juan's first removal hearing. The removal proceeding was terminated. This is a good thing that happens once in a blue moon, usually when someone fights back and/or the government's actions are indefensible. Updates will continue.

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You'll never guess who reads this blog quite often. The Department of Homeland Security. I am not sure if I'm more frightened by the fact that a national security agency doesn't mask its IP address, or more irritated that they evidently don't think I'm smart enough to track that stuff. Either way, welcome DHS agents. You are the 10th most frequent server to visit this blog.

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Speaking of wondering what we are up to, the employment-based priority date debacle is front- and-center on our plate, as it is with every immigration lawyer's office of late.

The EB-3 category, which includes professional workers, has been backlogged since October 2005. This means that foreign nationals for whom labor certification has been filed and certified, have had to wait for their priority date (their place in line) to become current before pursuing their green card. That all was to change on July 1, 2007, according to the June 2007 Visa Bulletin, published by the State Department. The numbers were current, meaning anyone with labor certification done could file for adjustment of status and remain in the U.S. until the application was adjudicated. The CIS's own regulations prescribe this procedure.

The CIS announced, at 10:30 a.m. cst on July 2, 2007, that it would not honor the system that it had set up. The State Department received so many applications for adjustment of status over the weekend that at 9:00 a.m. Monday, July 2, 2007, it projected all employment visas to be used for the rest of the fiscal year. The CIS, instead of honoring it's rules and accepting applications for adjustment of status, instead said no more would be accepted.

Some members of Congress have recognized the dangerous inequities of this development. AILA refers to it for what it is - a bait and switch move that will effect tens of thousand of law-abiding immigrants.

Our office is still filing those applications. The rejection notices will be exhibits for our suit in the Northern District of Illinois Federal District Court against the DHS for this radical departure from its own rules. AILF is planning to file suit in the DC District as well.

I'll provide updates on our suit, as well as AILF's, as both go forward.

A Cold Drink in the Desert

This photo is from Red Rock Canyon, Nevada. The photo, as is true with most beautiful places, doesn't do the landscape justice. It is rugged, very arid, and extremely hot. The beauty can be deceiving. One must proceed with caution and a plan, or the environment will get the better of the unprepared.

I recently had the chance to hike a difficult route through the Sierra Madre mountains at Red Rock. That experience reminds me of a current legal dialogue the Courts and Administration have been engaged in since 9/11.

I knew Red Rock would be a difficult hike, but hard hikes are generally my favorite variety. The two guys I brought didn't know what to expect, but that was fine; we stopped at a store for supplies before setting out, and I shopped for necessities. There is really only one true necessity for a day-hike: Water.

I bought 12 one-liter bottles of water and they both scoffed. I packed my pack full of the bottles, and we headed out. Four hours later, we were walking down from the altitude across a desert plain that undulated significantly making the end of the hike very difficult. There wasn't an iota of shade. In the sun, it must have been 100 degrees. I finished my fifth liter of water, which was more than my share, but only because neither of my friends would drink water. I warned them, but to no avail. Both had trouble getting back, and one nearly didn't make it. We poured water over his head to cool him - a waste of the most valuable resource out there - just to avert disaster. He made it back after coming very close to graduating from heat exhaustion to heat stroke.

We are now able to chuckle about it, and I guarantee he'll never hike again without drinking throughout the hike. He learned that once the damage of dehydration is done, re-hydrating is painful and time-consuming, and sometimes, it's too late. We caught it just in time.

And so it is with our democracy and civil rights. It is easy to lose the fluid of liberty. An arrogant government whose unobstructed, potent rays of fear tend to sap every ounce of hydration from a functioning democracy in very short order. Returning reason to a national dialogue can take time, and sometimes, never happens. History's lessons teach us this if we'll listen.

The concept of enemy combatants is not a new one. Using it as a label to avoid Due Process with regard to civil arrests within our country most certainly is new, and strains credulity in some instances. President Bush's use of the terms to obviate the most basic tenets of Due Process in order to detain people indefinitely, without a lawyer, a hearing, and without producing a scintilla of evidence or explanation is much like setting out for a hike in the high desert without listening to the surrounding natural law.....it tempts disaster.

Fortunately for our country, we have the wisdom and the means to restore balance. The checks and balances that our Forefathers set in place are starting to reposition themselves. The Fourth Circuit Court of Appeals recently provided cause for optimism in a case about enemy combatants and Due Process. The decision is called Al-Mari v. Wright.

Al-Mari is a detainee who has been categorized as an enemy combatant by the Bush administration. He has been accused of being a terrorist, but no proof has been offered of that fact, primarily because he's been sitting in solitary for much of that time without any facts, charges, lawyers or courts in his case.

Because of another defeat to the Bush Administration's attempt to destroy Habeas Corpus in Hamdan v. Rumsfeld , the Administration orchestrated a new Congressional enactment taking away the right to Habeas. Habeas is one of the major pieces of spine holding up our democracy. It has a long and storied history, and serves to safeguard the most basic idea of freedom and liberty.

The Fourth Circuit Court of Appeals not only invalidated his detention without these basics - it spoke directly to us, and to President Bush and Attorney General Gonzalez about our Constitution. Here are some of the beautiful excepts of the opinion. The opinion itself is in excess of 80 pages, so I tried to boil it down without losing the coherent train of reasoning it invokes. The decision is like a cold drink in the desert to this lawyer:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper....Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian...For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

The military has held al-Marri as an enemy combatant, without charge and without any indication when this confinement will end. For the first sixteen months of his military confinement, the Government did not permit al-Marri any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence. A pending civil action challenges the “inhuman, degrading” and “abusive” conditions of his confinement.

“Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that [the Due Process] Clause protects.”Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). This concept dates back to Magna Carta, which guaranteed that “government would take neither life, liberty, nor property without a trial in accord with the law
of the land.” Duncan v. Louisiana, 391 U.S. 145, 169 (1968) (Black, J., concurring). The “law of the land” at its core provides that “no man’s life, liberty or property be forfeited as
a punishment until there has been a charge fairly made and fairly tried in a public tribunal.” In re Oliver, 333 U.S. 257, 278 (1948). Thus, the Supreme Court has recognized that, because of
the Due Process Clause, it “may freely be conceded” that as a “‘general rule’ . . . the government may not detain a person prior to a judgment of guilt in a criminal trial.” United States v. Salerno, 481 U.S. 739, 749 (1987).

...As the Government recognizes, the Alien Enemy Act, the statute the Court considered in Eisentrager and Ludecke, does not apply to al-Marri’s case – in fact, al-Marri
is not an “enemy alien” but a citizen of Qatar, with which the United States has friendly diplomatic relations; and the Government does not seek to deport al-Marri. Therefore neither of these exceptions is offered by the Government as a basis for holding al-Marri without criminal charge, and neither is applicable here..... Among these recognized exceptions is the one on which the Government grounds its principal argument in this case: Congress may constitutionally authorize the President to order military detention, without criminal process, of persons who “qualify as ‘enemy combatants,’” that is, fit within that particular “legal category.” Hamdi v. Rumsfeld, 542 U.S. 507, 516, 522 n.1 (2004) (plurality).

The act of depriving a person of the liberty protected by our Constitution is a momentous one; thus, recognized exceptions to criminal process are narrow in scope, and generally permit only limited periods of detention. See, e.g., Jackson v. Indiana, 406 U.S. 715, 738 (1972). And, of course, the Government can never invoke an exception, and so detain a person without criminal process, if the individual does not fit within the narrow legal category of persons to whom the exception applies.In Hamdi, the plurality explained that precisely the same principles apply when the Government seeks to detain a person as an enemy combatant. Under the habeas procedure prescribed in Hamdi, if the Government asserts an exception to the usual criminal process by detaining as an enemy combatant an individual with
constitutional rights, it must proffer evidence to demonstrate that the individual “qualif[ies]” for this exceptional treatment. 542 U.S. at 516, 534. Only after the Government has “put[] forth credible evidence that” an individual “meets the enemy-combatant criteria” does “the onus” shift to the individual to demonstrate “that he falls outside the [enemy combatant] criteria.” Id. at 534. For in this country, the military cannot seize and indefinitely detain an individual -- particularly when the sole process leading to his detention is a determination by the Executive that the detention is necessary6 -- unless the Government demonstrates that he “qualif[ies]” for this extraordinary treatment because he fits within the “legal category” of enemy combatants. Id. at 516, 522 n.1.

Moreover, when the Government contends, as it does here, that an individual with constitutional rights is an enemy combatant, whose exclusive opportunity to escape indefinite military detention rests on overcoming presumptively accurate hearsay, courts must take particular care that the Government’s allegations demonstrate that the detained individual is not a civilian, but instead, as the Supreme Court has explained, “meets the enemy-combatant criteria.” Id. at 534. For only such care accords with the “deeply rooted and ancient opposition in this country to the extension of military control over civilians.” Reid v. Covert, 354 U.S. 1, 33 (1957) (plurality). Under such an interpretation of the AUMF, if some money from a nonprofit charity that feeds Afghan orphans made its way to al Qaeda, the President could subject to indefinite military detention any donor to that charity. Similarly, this interpretation of the AUMF would allow the President to detain indefinitely any employee
or shareholder of an American corporation that built equipment used by the September 11th terrorists; or allow the President to order the military seizure and detention of an American-citizen physician who treated a member of al Qaeda.

To read the AUMF to provide the President with such unlimited power would present serious constitutional questions, for the Supreme Court has long recognized that the Due Process Clause “cannot be . . . construed as to leave congress free to make any process ‘due process of law,’ by its mere will.” See Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,276-77 (1855). In sum, the holdings of Hamdi and Padilla share two characteristics: (1) they look to law-of-war principles to determine who fits within the “legal category” of enemy combatant; and (2) following the law of war, they rest enemy combatant status on affiliation with the military arm of an enemy nation.....In view of the holdings in Hamdi and Padilla, we find it remarkable that the Government contends that they “compel the conclusion” that the President may detain al-Marri as an enemy combatant. For unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat
with United States forces anywhere in the world. See Rapp Declaration (alleging none of these facts, but instead that “Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States”).

In place of the “classic wartime detention” that the Government argued justified Hamdi’s detention as an enemy combatant, see Br. of Respondents at 20-21, 27, Hamdi, 542 U.S. 507
(No. 03-6696), or the “classic battlefield” detention it maintained justified Padilla’s, see Opening Br. for the Appellant at 16, 20, 29, 51, Padilla, 432 F.3d 386 (No. 05-6396), here the Government argues that al-Marri’s seizure and indefinite military detention in this country are justified “because he engaged in, and continues to pose a very real threat of carrying out, . . . acts of international terrorism.” And instead of seeking judicial deference to decisions of “military officers who are engaged in the serious work of waging battle,” Hamdi, 542 U.S. at 531-32, the Government asks us to defer to the “multi-agency evaluation process” of government bureaucrats in Washington made eighteen months after al-Marri was taken into custody. Neither the holding in Hamdi nor that in Padilla supports the Government’s contentions here....Thus, the Government is mistaken in its representation that
Hamdi and Padilla “recognized” “[t]he President’s authority to detain ‘enemy combatants’ during the current conflict with al Qaeda.” No precedent recognizes any such authority.....Rather than supporting the Government’s position, the Supreme Court’s most recent terrorism case provides an additional reason for rejecting the contention that al-Marri is an enemy combatant.

In Hamdan, the Court held that because the conflict between the United States and al Qaeda in Afghanistan is not “between nations,” it is a “‘conflict not of an international character’” -- and so is governed by Common Article 3 of the Geneva Conventions. See 126 S.
Ct. at 2795; see also id. at 2802 (Kennedy, J., concurring). Common Article 3 and other Geneva Convention provisions applying to non-international conflicts (in contrast to those applying to international conflicts, such as that with Afghanistan’s Taliban government) simply do not recognize the “legal category” of enemy combatant. See Third Geneva Convention, art. 3, 6 U.S.T. at 3318. As the International Committee of the Red Cross -- the official codifier of the Geneva Conventions -- explains, “an ‘enemy combatant’ is a person who, either lawfully or unlawfully, engages in hostilities for the opposing side in an international armed conflict;” in contrast, “[i]n non-international armed conflict combatant status does not exist.” Int’l Comm. of the Red Cross, Official Statement

Notwithstanding this principle, we recognize that some commentators have suggested that “for such time as they take a direct part in hostilities,” participants in non-international
armed conflicts may, as a matter of customary international law, be placed in the formal legal category of “enemy combatant.” See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2115 & n.304 (2005) (internal quotation marks omitted). No precedent from the Supreme Court or this court endorses this view, and the Government itself has not advanced such an argument. This
may be because even were a court to follow this approach in some cases, it would not assist the Government here. For the Government has proffered no evidence that al-Marri has taken a “direct part in hostilities.” Moreover, the United States has elsewhere adopted a formal treaty understanding of the meaning of the term “direct part in hostilities,” which plainly excludes al-Marri. See Message from the President of the United States Transmitting Two Optional Protocols to the Convention on the Rights of the Child, S. Treaty Doc. No. 106-37, at VII (2000) (distinguishing between “immediate and actual action on the battlefield” and “indirect participation,” including gathering and transmitting military information, weapons,
and supplies). Terrorism, at 1, 3 (Feb. 21, 2005), http://www.icrc.org/Web/Eng/
siteeng0.nsf/htmlall/terrorism-ihl-210705 (emphasis added). Perhaps for this reason, the Government ignores Hamdan’s holding that the conflict with al Qaeda in Afghanistan is a noninternational conflict, and ignores the fact that in such conflicts the “legal category” of enemy combatant does not exist. Indeed, the Government’s sole acknowledgment of Hamdan in its appellate brief is a short footnote, in which it asserts that “the Court took it as a given that Hamdan was subject to detention as an enemy combatant during ongoing hostilities.” The weakness of this response is apparent.....Moreover, even were the Supreme Court ultimately to approve the detention of Hamdan and those like him, that would not bolster
the Government’s position at all in the case at hand.14 This is so because, since the legal status of “enemy combatant” does not exist in non-international conflicts, the law of war leaves the detention of persons in such conflicts to the applicable law of the detaining
country. In al-Marri’s case, the applicable law is our Constitution. Thus, even if the Supreme Court should hold that the Government may detain indefinitely Hamdan and others like him, who were captured outside the United States and lacked substantial and voluntary connections to this country, that would provide no support for approving al-Marri’s military detention. For not only was al-Marri seized and detained within the United States, he also
has substantial connections to the United States, and so plainly is protected by the Due Process Clause.

The core assumption underlying the Government’s position, notwithstanding Hamdi, Padilla, Quirin, Milligan, and Hamdan, seems to be that persons lawfully within this country, entitled to the protections of our Constitution, lose their civilian status and become “enemy combatants” if they have allegedly engaged in criminal conduct on behalf of an organization seeking to harm the United States. Of course, a person who commits a crime should be
punished, but when a civilian protected by the Due Process Clause commits a crime he is subject to charge, trial, and punishment in a civilian court, not to seizure and confinement by military authorities.

We recognize the understandable instincts of those who wish to treat domestic terrorists as “combatants” in a “global war on terror.” Allegations of criminal activity in association with a
terrorist organization, however, do not permit the Government to transform a civilian into an enemy combatant subject to indefinite military detention.....To be sure, enemy combatants may commit crimes just as civilians may. When an enemy combatant violates the law of war,
that conduct will render the person an “unlawful” enemy combatant, subject not only to detention but also to military trial and punishment. Quirin, 317 U.S. at 31. But merely engaging in unlawful behavior does not make one an enemy combatant. Quirin well illustrates this point. The Quirin petitioners were first enemy combatants -- associating themselves with the military arm of the German government with which the United States was at war.
They became unlawful enemy combatants when they violated the laws of war by “without uniform com[ing] secretly through the lines for the purpose of waging war.” Id. By doing so, in addition to being subject to military detention for the duration of the conflict as enemy combatants, they also became “subject to trial and punishment by military tribunals for acts which render their belligerency illegal.” Id. Had the Quirin petitioners never “secretly and
without uniform” passed our “military lines,” id., they still would have been enemy combatants, subject to military detention, but the distinction between organizations and nations is not without rationale. The law of war refuses to classify persons affiliated with terrorist organizations as enemy combatants for fear that doing so would immunize them from prosecution and punishment by civilian authorities in the capturing country. See,
e.g., Message from the President of the United States Transmitting the Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflicts, S. Treaty Doc. No. 100-2, at IV (1987) (explaining
President Reagan’s recommendation against ratifying a treaty provision that “would grant combatant status to irregular forces” and so “give recognition and protection to terrorist groups”).

Moreover, a rule permitting indefinite military detention as “enemy combatants” of members of an “armed” organization, even one “seek[ing] . . . to . . . overthrow” a government, in addition to being contrary to controlling precedent, Milligan, 71 U.S. at 130, could well endanger citizens of this country or our allies. For example, another nation, purportedly following this rationale, could proclaim a radical environmental organization to be a
terrorist group, and subject American members of the organization traveling in that nation to indefinite military detention.

Neither Quirin nor any other precedent even suggests, as the Government seems to believe, that individuals with constitutional rights, unaffiliated with the military arm of any enemy government, can be subjected to military jurisdiction and deprived of those rights solely on the basis of their conduct on behalf of an enemy organization.“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Youngstown, 343 U.S. at 637 (Jackson, J.,concurring). As the Supreme Court explained just last term, “[w]hether or not the President has independent power . . . he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” Hamdan, 126 S. Ct. at 2774 n.23 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). In such cases, “Presidential claim[s]” to power “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Youngstown, 343 U.S. at 638 (Jackson, J., concurring).

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Our system works if we let it - that is, we cannot allow one branch to usurp the other, which is exactly why habeas cannot be suspended by this or any other President. The Fourth Circuit - not a bastion of liberal thought - agrees, and has made a significant in-road to the arrogance of this Administration's heretofore unchecked power.

Owning Oneself is the American Dream

Explaining ideas to children that are second nature to us as adults is a useful exercise. It forces us to give real definitions to concepts that might seem simple at first, but are multi-layered and complex at their core.

Defining the concept of Liberty is one such endeavor. Freedom is certainly a component of Liberty, but Liberty is a larger concept, at least in this adult's internal dictionary. Freedom is, well, the ability to be free to move about and to do certain things physically. To say certain things, to write certain things, etc.

Liberty is larger than simply Freedom - Liberty connotes the ability to make decisions without oversight, worry or fear. Liberty is to have freedom on every level, including the emotional plane of our existence. It is a conglomerate of all of the rights set forth in the Bill of Rights, with the sum total of those rights adding up to it as a concept.

In short, owning oneself, or more accurately, being free from the fear of someone else owning you, is Liberty in a nutshell.

Defined in this way, we are in dire danger of losing a chunk of that concept.

As I pondered the draconian and cowardly acts of the government against the Parlak family that transpired nearly a month ago (and have for nearly 4 years now), I thought about other cases I am involved with that are startlingly similar. This happened in earnest while I recently watched a piece on Frontline about the domestic spying programs President Bush has instituted. I'd strongly recommend that you set aside an hour and watch the piece. You can do so online, and everyone should watch the piece, because after all, wouldn't you like to know who's looking through your emails, calls and tracking your web viewing to places like this? I now know, and will conduct myself with more caution with regard to my clients, and with less caution about my opinions on the topics at hand. Less caution because we are at a cross-road: we, the everyday folks who vote and who have a voice, can either look the other way and hope the government is telling the truth when they say that the compromise of our civil liberties will be as minimal as possible, or we can probe. We, as lawyers, can litigate. The press can write. People can become angry and can decide to turn off their TV on election day, get up off of the couch and vote for change.

I have some unbelievable stories from my practice that involve lots of lies, deceit and arrogance on the part of the government. I believe it's time to start telling them here. Not that I haven't told them in the past - I have, but usually to courts - both immigration courts and appellate courts. Usually I win and am happy that the cases are resolved in my client's favor and that's that. Occasionally I don't win, or suffer temporary setbacks, as with Huseyin, that we rectify though the federal courts. Telling the stories of injustice in court is obviously an important tool in my bag. But rectifying injustices case by case is a band-aid to the overall problem. We have an arrogant government with arrogant leaders, who boldly do things that are not in step with their mandate and sometimes violate the law. That is a problem. I don't want my children growing up with that problem, much less with what that problem could become in 10 years if unchecked.

I've spoken at my kids' school about the Bill of Rights and the Freedom of Speech. I take both very seriously. I tell the kids that our Bill of Rights, and our system in general, only works if you know your rights and are willing to assert them. I explain that like voting, standing up for your rights is each and every one of our responsibilities.

The soapbox on the street is now the world of blogs. Technology has led us to spend more time at a screen than at public debates. It has also made the debates online much more popular. This blog had more than 1000 views following Huseyin's deportation.

So, I'm going to practice what I preach to the grammar school kids. I have my soapbox out, but just to do some storytelling, with the permission of each client whose case is mentioned here.

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Juan and Maribel are both from Mexico originally. Maribel is a U.S. Citizen working for a major insurance company. The couple has two children and recently bought their first home. Juan has never been arrested, other than when a company that he working at in Michigan was raided by immigration in the early 1990s. He was arrested during the raid, released, and asked to assist with a criminal case against the employer, who was employing many illegal workers. Juan agreed to help. He was told by an Assistant Attorney General that they would send him a subpoena for his testimony in front of a Grand Jury. Juan's brother Ramon, worked with him and received the same offer of release in exchange for later testimony. He too agreed. Both were also told that their arrest and any deportation hearings or orders would be "wiped" clean so that they could acquire visas in the future so long as they honored their end of the bargain by testifying for the Grand Jury.

His employer learned it was under investigation and offered all of its illegal workers jobs in Mexico for more money than they made in the U.S. Presumably, the employer thought it could entice its workers to leave thereby taking their testimony with them.

Juan left with his brother for Mexico during the first week of November in 1992. He has proof of this, by virtue of payroll records and a Mexican national ID he was issued in person.

The INS sent a deportation court notice to his last address in the U.S. on December 15, 1992. He of course did not get it, and of course did not go to his hearing.

The Attorney General's office knew the brothers' location in Mexico and sent the Grand Jury subpoenas to them there a short time later. Both brothers returned, testified and there was a conviction of certain people in management of the employer. All good for everyone, or so Juan and Ramon thought.

Ramon eventually acquired his permanent residency and is now a U.S. citizen.

Juan is not so lucky. He faces deportation.

Juan married Maribel, started a family and applied for permanent residency. After nearly five years, they were interviewed with me present in 2004. Another year passed. I made some noise about the delays, and we were given another interview date on December 23, 2005. We attended the interview, and the officer asked about a deportation order that was entered in absentia (without his presence) in February of 2003. We explained that he was in Mexico at that time, and could not have had notice of the hearing. This was the first Juan had every heard about the order. The officer left for a while, and asked us to follow him to a conference room. Juan and Maribel's children were there, and were well-behaved.

A few moments later, the security guard who I had seen 1000 times came in and appeared to guard the door preventing us from exiting. I asked if we could leave. He said no. I explained that I certainly could leave anytime I wished unless I was under arrest, and demanded to know if that was the case. He didn't answer. I demanded to see a supervisor immediately, or there would be litigation over the situation (there was eventually anyway....see below). A supervisor came in and explained that they were going to arrest and detain Juan, and "reinstate the old order", but that I was free to leave. I left to make calls for case law, because I was quite sure the government couldn't re-instate an order that was entered when the foreign national had departed before the order was entered. His wife and children sobbed as he was taken away on the eve of Christmas Eve. The deportation officers yelled at me to be quiet or I too would be arrested when I explained that the law they were citing was wrong.

The day after Christmas he was released, after I delivered a lawsuit on December 24th to the Attorney General and ICE outlining why reinstatement could not possibly apply. I also filed an Emergency Motion to Reopen the case from 1993 in Detroit, citing the correct law and attaching evidence that showed Juan was in Mexico when the proceedings began and couldn't have received notice of the hearing. I attached an appearance, with my current address, to the Motion.

The Assistant Attorney General handling the case was previously a trial attorney for ICE, and knew immigration law well (Unfortunately, she is now on leave, and her case load is handled by 10+ other Assistant A.G.s, most of whom have little or no immigration background). We came to an agreement together that the way the government handled the case was wrong, and that the correct procedure, if the CIS wanted to deny his adjustment of status application, would be to issue a new removal court notice. That is what eventually happened.

Upon securing his release, I waited to hear from Detroit EOIR on the Motion to Reopen. And waited. And waited. Eventually, I received a notice from Chicago ICE requiring Juan to appear for deportation. I immediately called the deportation officer, who to her credit, was willing to listen. She explained that Detroit EOIR had denied the Motion to Reopen in January of 2006, nearly 18 months ago.

I called Detroit EOIR and spoke to the Clerk of the Judge who denied the Motion to Reopen. I asked where the denial was sent. She proudly proclaimed that they sent it to me. I asked for the address to which it was sent. It was sent to One E. Wacker Drive in Chicago. My firm resided at that address until.........1998. That's right, we haven't been there for nearly 10 years. I told her this, and pointed out that I submitted an appearance form with our correct address with the Motion. She told me, and this is a quote, "well, we don't even look at the appearance form. We use the address from the national database". National database?

After a few moments of trying not to explode, I calmly asked if they would be reissuing the decision now that their mistake had been brought to light. She laughed and said no, the mistake was ours, and that notice of the decision was accomplished under the law upon EOIR's sending it in the mail, regardless of the address. I swallowed hard, and again used every ounce of my energy to contain myself. I confirmed that her position was that notice was proper even if they sent the decision to the North Pole. She hung up. I was done talking to her anyway.

To date, I still have not seen the denial of the Motion, because Detroit EOIR won't send it to me. I've instead appealed the denial that I still haven't seen, and filed an Amended Motion to Reopen. For now, I've prevented the government from deporting Juan. I'm waiting for my appeal to the Board of Immigration Appeals to be denied so that I can march into federal court and explain to a Constitutionally created judge what this agency is up to.......I can only imagine the reaction.

More later as this case develops.

A Sad Day in SW Michigan & Everywhere in the U.S.A.

Huseyin Parlak, a Turkish national who fears for his life in Turkey, was deported by trickery yesterday. His case doesn't enjoy the notoriety of his brother Ibrahim's case, but is connected to it by blood and legal theory. For anyone who knows the Parlak brothers, this is truly a sad development. For anyone who doesn't, read on. My guess is that you'll be a bit annoyed by the end of this entry.

Ibrahim Parlak and Huseyin Parlak are Kurdish, which is to say they are members of an ethnic minority in Turkey that has long been persecuted and mistreated by the government of Turkey. Ibrahim Parlak successfully applied for asylum in the U.S. in the early 1990s, and converted it to lawful permanent residence. His problems began when he applied for U.S. citizenship five years later. The government decided that he had lied on his naturalization application by not checking the box asking if he had ever been arrested.

His only arrest was by Turkish forces who arrested, beat and tortured him for months at a time for his outspoken views on Kurdish independence. He was convicted of "separatist activities" by a Turkish Security Court, which has since been disbanded because it used torture and other inhumane techniques to extract confessions.

Ibrahim knew that the U.S. government was aware of those "arrests", because they were precisely why he was given asylum. He and his lawyer at that time did not believe it was necessary to check yes when it was clear the government knew of those detentions. He had never had any real criminal problems anywhere, at any time.

After Ibrahim's naturalization case was denied, they put him in removal proceedings for the unchecked box. Ibrahim did what any one of us with a small child and life in the United States would do. He fought back. Ibrahim and his supporters dug their heals in, and got organized, American style. They formed committees, they told his story, and told it well.

The U.S. government wasn't pleased with Ibrahim's competence in getting his message out. Senators and other Congressional members became irritated that our country was doing this to a man who had seemingly done nothing wrong. He is a pillar of his community. He is a family man.

The government became so annoyed, they decided to up the ante and retaliate against Ibrahim. While I don't profess to know what they were actually thinking, the circumstantial evidence in their actions is enough for me to comfortably label it as retaliation. The government alleged that Ibrahim's activities as a Kurdish rights activist constituted acts of terrorism under the new definitions provided by the Patriot Act. This included an alleged affiliation with an organization that he was allegedly sympathetic to in Turkey 15 years prior to it being characterized as a terrorist organization. In other words, the government applied the Patriot Act retroactively to his same activities that had once garnered him asylum and permanent residency. Even a federal judge eventually agreed that what they were doing was "piling on". A federal judge ordered Ibrahim to be released from custody while his case was appealed. It remains on appeal.

Enter Huseyin, his soft-spoken brother who kept the restaurant open while Ibrahim was being held in a maximum security federal penitentiary in Battle Creek for nearly a year. Huseyin came to the United States as a student, attended school and was prepared to return to Turkey. He changed his mind when the the U.S. government broke out the terrorist label. He knew returning to Turkey would now be a problem for his safety.

Like his brother Huseyin has never been arrested or convicted for any crime, and has not been accused of any nefarious activities anywhere, at any time. The government caught up to Huseyin and put him in deportation proceedings as well, perhaps figuring they could demoralize Ibrahim by taking a run at his family (again, circumstantially, there is no other explanation) Oh, and while the government was at it, they tried to shut down the brothers' enormously popular restaurant, Cafe Gulistan. They tried to revoke his liquor license because he again did not list his arrest and torture from Turkey on his liquor license application.

I am not making this up.

He hired lawyers and once again beat the government back from taking away his livelihood.

Huseyin's bid for asylum was denied by an immigration judge who (1) didn't believe his story of past persecution because of minor differences between his written application and his testimony, and (2) because the IJ viewed the country conditions in Turkey as vastly improved and downright balmy. The problem with this view is that it is fiction. The U.S. State Department's own country condition report on human rights belies the immigration judge's conclusions that all is well in Turkey. It is still crucible of persecution for Kurds and especially Kurd activists, and is a very dangerous place indeed if you are of that ethnicity.

Huseyin appealed the Immigration Judge's decision to the Board of Immigration Appeals. It is the administrative appeals unit for the immigration court system, and is severely over-taxed by too many cases and too few judges. Meaningful reviews are hard to come by in this forum, but one has to exhaust his appeals there before proceeding to the federal courts, where resources flow freely, as does intellect and thoroughness. Very bright people have come to see that the administrative forum for removal and asylum cases is completely inadequate. This includes Judge Posner from the Seventh Circuit, as well as other circuit court judges.

The Board upheld the immigration court's denial of his claim, without discussing those problematic country condition reports at all. That's a problem according to all of the precedent decisions in the federal courts. Huseyin and his lawyer (me) appealed to the Sixth Circuit Court of Appeals where he will point out these significant shortcomings when the briefing schedule is issued. In the meantime though, Congress, in its infinite wisdom, decided that the government ought to be able to remove foreign nationals while their first appeal to the federal courts is pending. The idea of that being fair and American is quite a stretch, but it is what the law currently provides.

We filed a Motion to Stay his removal, which is a very difficult remedy to gain. This is because courts don't like to step on Congress's will unless the situation is extreme. We argued that Huseyin's case presented those extremes, but the Sixth Circuit denied the motion. It should be said that very few of these motions are granted, and many appellate courts that eventually sustain appeals first deny motions for a stay. Most foreign nationals in that situation are issued orders of supervision and are permitted to stay pending their appeal. Huseyin was treated a bit differently, because he is the brother of a person who has made the government look bad by publicizing their over-zealous action.

I attended his first check in appointment with the Detroit office of ICE with him and met with his deportation officer. The officer explained that because he has a valid appeal pending, and because he was not a flight risk or a danger to others, he would be permitted to stay in the United States, without detention, on a OS ("order of supervision"). That order was given to me on April 10, 2007. It required that Huseyin return to Detroit on May 14, 2007 to check in. This is all very standard in a case like this. Except that the officer lied to us.

Our motion for a stay was denied on Friday, May 11, 2007. This came as no surprise, and did not cause us alarm, because Huseyin had been given an order of supervision. Furthermore, the fact that the motion was pending does not stop the government from executing an removal order. The Sixth Circuit's opinion was very brief, and did not arrive by mail until Monday, May 14 at about 2:00 p.m. Huseyin was on a plane at the time I opened the decision.

Huseyin was detained, cuffed and whisked - triple time - away yesterday when he reported at his check in appointment. The government usually takes at least several days to actually deport someone in custody once the decide to take that step. Sometimes it takes weeks or even months. Not this time. They had him on a plane within an hour or two.

The most disturbing part of this case is that the merits of his case - the objective country conditions in Turkey with respect to vocal Kurds, or those perceived as taking part in Kurdish activism - has yet to be addressed in his case. The immigration judge didn't discuss that evidence. The Board of Immigration didn't bother explaining why it wasn't important, or why it didn't apply to Huseyin; nor could it in its one page opinion. The Sixth Circuit Court of Appeals is the first forum that will discuss that evidence. Now, it could be too late.

This isn't sour grapes, or one man's thoughts. The government's overreaching not only in this case, but in many others, is becoming frightening. It would be downright disingenuous to even suggest that Huseyin would have been lied to, arrested and deported so quickly if he wasn't Ibrahim's brother. The government can say what it wants about following the law and its own procedures, but the way they handled this stinks.

His family is devastated, and worried, and most of all disappointed. They thought the government of the United States stood for justice, and stood for what is right. They thought the government's agents could be trusted. They were wrong.

Governments are made of people, and people are fallible. Systems break down. It's not as easy as good vs. evil, competent vs. incompetent. It's history's oldest lesson: Too much power mixed with the wrong messages from leadership creates an inevitably poison cocktail.

Drink at your own risk, or contact your Senator or Congressional Rep to express your discontent. Or do nothing at all and hope U.S citizens who express their opinions aren't treated with the same disregard for due process.