Mass Roundup of Undocumented Immigrants Comparable to Shooting Fish in a Barrel

Remember the old “shooting fish in a barrel” simile, connoting “ridiculously easy” according to the dictionary?

It apparently dates from the 1940s, presenting the idea that while free-swimming fish have a fair shot at survival, ones that you’ve captured in a barrel are, to mix metaphors, sitting ducks. None other than Mythbusters found that “you don’t even have to be a good shot to take out a barrel of fish with a single bullet.”

The phrase also carries a suggestion that, in a country that adulates sportsmanship and a fair fight, shooting fish in a barrel demonstrates neither.

Which brings me to current U.S. immigration enforcement actions.

Per the terms of Trump’s “Presidential Executive Order: Enhancing Public Safety in the Interior of the United States,” pretty much everyone has become a top priority for removal from the United States. (In the past, criminals were the top priority, but the order redefined “crime” to include everything from crossing the border without papers to using a false Social Security Number in order to work to having been deemed, in the jaded eyes of U.S. immigration officials, a risk to public safety.)

We’re already seeing raids in workplaces, homes, and churches; denial of individual benefits that were previously granted; and reports that the National Guard will be deployed to round up undocumented immigrants.

So here’s the thing: rounding up undocumented immigrants is pathetically easy. Any number of U.S. government agencies have information on where they live. In many cases they pay taxes using a substitute number called an “ITIN” (a dead giveaway that they don’t have a real Social Security Number), have been named by their family members on immigration petitions starting the green card process for them (which petitions require an address but don’t give them any short-term rights to be in the U.S.), have obtained special drivers’ licenses in the handful of states that allow these to undocumented persons, and have been granted either DACA status or prosecutorial discretion.

That last one, prosecutorial discretion, is especially important to understand in the current climate. It’s at the knife edge of the difference between President Obama’s immigration policy and that of Trump.

The Obama policy (set forth in a November 2014 memo) addressed the reality that deporting everyone in the U.S. would not only overload the system, but separate families (particularly ones that include U.S. citizen spouses or children). People who were low on the priority list could not only ask that their removal proceedings be suspended, but receive a sort of quasi-status under which they regularly reported to immigration officials and might be granted a work permit.

Now, however, that regular check-in has become the ultimate fish-in-a-barrel way to deport someone. The case of Guadalupe “Lupita” García de Rayos seems to be the first in which someone showed up for the regular meeting and was deported. Other recipients of prosecutorial discretion are already in fear, such as Jeanette Vizguerra, an immigrant mother of four who has reportedly taken refuge in a Denver church.

So what’s next? The Trump executive order hasn’t answered the question of how a system that was truly overloaded already (with years-long backlogs in U.S. immigration court, the next stop for many persons affected by this order) is going to deal with this new influx of arrested or detained persons.

What Does Judge Robarts’ TRO Regarding Trump’s “Muslim Ban” Executive Order Actually Do?

A federal judge’s February 3 ruling in Seattle, Washington, responding to an emergency motion brought by Washington State, issued a Temporary Restraining Order invalidating key parts of President Trump’s executive order entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals.”

The judge’s order applies nationwide and is still in effect as of February 15, due to followup action by the federal Ninth Circuit Court of Appeals. How much of Trump’s order is actually undone by this, and how long the effect will last, is worth a closer look.

First, let’s understand the nature of a TRO. As its name implies, it’s temporary. It just puts a hold on things, maintaining the status quo (pre-executive order), until further court hearings can be held. So it’s not a final decision, and could later be reversed.

Nevertheless, a TRO points in the direction of how a court might treat the subject at hand, due to the list of items that must be proven before the court issues it. These include:

  • That the plaintiff is eventually likely to succeed on the merits (the main substance) of the case.
  • That the plaintiff is likely to suffer irreparable harm if the TRO is not granted.
  • That the balance of equities tips in favor of the plaintiff, and
  • That the TRO is in the public interest.

These raise the question of who is the “plaintiff” in this case. Technically speaking, it’s the states of Washington and Minnesota. Because a state is essentially a caretaker of its residents, it can take legal action to protect their interests. In this case, the two states alleged that the executive order adversely affected their residents in matters of employment, education, business, family relations, and freedom to travel.

But they didn’t stop there. The two states also alleged that they themselves were harmed by the damage Trump’s order inflicted on the operations and missions of their public universities and other institutions of higher learning, as well as the states’ operations, tax basis, and public funds.

The Washington court agreed, and issued the TRO “until such time as the court can hear and decide the states’ request for a preliminary injunction.”

Now, as to which parts of the order were affected. It covered sections 3(c), and 5(a), (b), (c), and (e). That means that:

  • The 90-day ban on people entering the U.S. on immigrant or nonimmigrant visas from certain countries (all Muslim-majority) contained in Section 3(c) is now blocked.
  • The 120-day suspension of the refugee admissions program contained in Section 5(a) is now blocked.
  • The prioritizing of refugee claims based on religious persecution where the religion is a minority in the refugee applicant’s country of nationality contained in Section 5(b) (most likely to favor Christians in the countries where refugees are now coming from) is now blocked.
  • The indefinite ban on Syrian refugees contained in Section 5(c) is now blocked.
  • The order that refugees may still be admitted on a case-by-case basis but only if their entry is in the U.S. interest, in particular where the person is a religious minority in the country of nationality facing religious persecution, the person would enable the U.S. to conform its conduct to a preexisting international agreements, or the person is already in transit and denying admission would cause undue hardship, all contained Section 5(e), is now blocked.

Some sections of Trump’s executive order will remain in force. For example, refugee admissions are still limited to 50,000 total in fiscal year 2017.  (It’s within the president’s power to set such a limit.)

And a section requiring all visa applicants to attend an interview (instead of benefiting from a waiver) remains in force as well.

Nevertheless, the substantive and discriminatory parts of the order have largely been gutted–for now.

Trump’s Executive Orders a Slap at Bush-Era Enhancements to Visa Security?

Donald J. Trump stated, in the introductory material to his January 27, 2017 Executive Order on “Protecting the Nation From Foreign Terrorist Entry Into the United States,” that “while the visa-issuance process was reviewed and amended after the September 11 attacks . . . these measures did not stop attacks by foreign nationals who were admitted to the United States.”

The order doesn’t mention which attacks Trump thinks could have been prevented, but here’s a handy article on “How Many Terrorist Attacks in the U.S. Have Been Carried Out by Immigrants from the 7 Banned Muslim Countries?”.

The Executive Order goes on to call for a “uniform screening standard,” suggesting that Trump and his advisers think that what’s already in place is haphazard at best.

Interesting, given that at the time, the changes to visa screening procedures were considered so severe that some worried they were causing a decline in travel to the United States and “hurt businesses by straining relationships with customers and hindering opportunities for new business.”

Let’s take a look back at what new immigrant-screening measures were implemented after September 11, initially by President George W. Bush and then followed up on or adjusted by President Obama:

  • Creation of the Department of Homeland Security (DHS), which brought together 22 separate agencies, including all immigration and border-related ones, into a single, Cabinet-level department.
  • Requirement that airlines send passenger lists in advance of flights, for review by the Transportation Security Administration (TSA). (See Aviation Security.)
  • More scrutiny of fingerprints, names, and other records before approval for visas for tourists, business visitors, students, and others, thus adding 50 days to visa approval times in many cases.
  • Creation of machine-readable, tamper-proof visas.
  • Enhanced use of technology and data sharing between federal agencies.
  • Requirement that all visa applicants from certain countries undergo an in-person interview at a U.S. embassy or consulate before visa approval.
  • Additional training of U.S. consular officers who review visa applications to help them identify fraud and terrorist links.
  • Increased visa fees.
  • Creation of US-VISIT, a program that captures biometric data from foreign nationals both at visa-issuing U.S. consulates and embassies and at U.S. ports of entry. (It’s now called “Office of Biometric Identity Management.”)
  • Implementation of the SEVIS database, an online tracking system under which schools are made responsible for tracking foreign students enrolled there.
  • Implementation of the Alien Absconder Initiative, which involved interviewing non-citizen men from “MASA” (Muslim, Arab, and South Asian) countries.
  • Creation of the NSEERS (National Security Entry-Exit Registration System) special registration program), under which adult males from 25 predominately Muslim countries were required to register and be fingerprinted and photographed at ports of entry or present themselves at immigration offices inside the U.S. for fingerprints and photographs. This was later ended.
  • Other changes that were not publicly disclosed.

This information was compiled from various resources, such as an American Bar Association Article on “9/11 and Immigration Law and Policy,” and this DHS report on Implementing 9/11 Commission Recommendations.

And although it’s a long list, I may have missed a few. One wouldn’t think that one Republican president would so easily forget or dismiss such significant efforts by another. But then, a list of forgotten lessons of history would be even longer than the list above.

Selling a House in 2017? What to Consider

If you’ve already decided that this is your year to sell, you’ve probably been monitoring the housing market and enjoying the steady price appreciation that the last few years have brought to most parts of the United States.

That appreciation is projected to continue through 2017—albeit not as dramatically. The National Association of Realtors’ Senior Economist Joe Kirchner says that, “Nationally, home prices are forecast to slow to 3.9 percent growth year over year, from an estimated 4.9 percent in 2016.”

Part of the issue, according to Kirchner, is that interest rates will likely go up to 4.5 percent, driven by inflation.

The rising interest rates reduce the buyer pool somewhat, which isn’t good for sellers like you. On the other hand, with some homeowners changing their mind about selling (as they wait for prices to move up again), inventory may go down, and your house may become the plum that the remaining buyers are seeking.

As always, remember that in the final analysis, it’s your local market that determines how quickly and profitably your home sells—and there’s nearly always something new happening there, with or without a new calendar year.

As Las Vegas-based Realtor Rob Jensen (who contributed to the recently issued second edition of Nolo’s book Selling Your House) explains, “You’ll want to look carefully at your nearby competition including new builds.  Some people would rather buy a new home than a resale, so you are competing with new construction as well as resale homes. Comps tell the past of what has sold, but what’s for sale now? Regardless of how special or amazing your home is, buyers have choices, so do your best to look objectively at all the competition.”

How a Repeal of Obamacare Could Affect Persons With Disabilities

The Affordable Care Act’s ban on preexisting condition exclusions was a big benefit to those with disabilities: they were allowed to purchase insurance despite having preexisting medical issues, without having to pay higher rates or suffer through waiting periods. But the Affordable Care Act (“Obamacare”) has also had a positive effect on Social Security disability, Medicare, and Medicaid. Repealing it, or reversing course on preexisting conditions, could be a big setback for these programs.

The Affordable Care Act undeniably helped lower the number of people on Social Security disability and disability-related Medicare. Since it went into effect, annual applications for Social Security disability have decreased by over 12%. And 150,000 fewer people are receiving disability benefits today then were in 2014. While there were economic factors at play, affordable health care played a role. Historically, many folks with preexisting conditions who lost their work-based health coverage applied for disability benefits so they could get health care benefits. They knew that an approval for Social Security disability meant they could either qualify early for Medicare, or, if they had very low income (or somewhat low income and very high medical expenses), for Medicaid. After Obamacare was passed, some of these folks undoubtedly were able to buy insurance on the health care exchanges—or get coverage through their state’s Medicaid expansion—and didn’t have to file for benefits.

Not only that, better-health-more-likely-employedbut since the Affordable Care Act gave persons with disabilities or chronic medical conditions access to good health care and reasonably priced medications, more of them were no doubt able to work despite having physical or mental impairments; fewer of them may have needed to apply for disability benefits.

And because of better health care and access to medications, those who couldn’t work due to a temporary illness or injury might have been less likely to need to be off work indefinitely. They might have recovered sooner, thanks to regular doctors’ visits and proper medication, and not have had to apply for disability benefits.

A repeal of the Affordable Care Act and/or the preexisting condition exclusion could reverse these improvements. In addition, taking health care away from people with severe disabilities makes it harder for them to get approved for the benefits they need. Disability applicants who aren’t able to see a doctor for treatment regularly, and who don’t have lab results or MRIs to prove their disability, are often denied. When applicants have poor medical records, Social Security spends more money to send applicants to consultative medical exams—and then often denies them anyway. In short, a repeal of the Affordable Care Act or the ban on preexisting condition exclusions is likely to affect the disabled more than others.