Posted by: Floyd J Fernandez, J.D. | February 27, 2018

Crazy Like A Fox—February 26, 2018

I would have to say that one of the great challenges of our time is understanding the mind of the 45th President of the United States.  He is truly a man who has broken all the rules for following the pathway to policy making, or dealing with an often hostile public, and with a constantly hostile media and Washington political establishment.  Indeed, outside of Israel, and maybe a handful of Eastern European nations, Donald Trump must be as hated a figure as anyone who has occupied the residence at 1600 Pennsylvania Avenue.

The man has acted as if he wishes to deport every single undocumented resident from the U.S.A tomorrow.  At least, to hear the public media talk about it, he hates Muslims, blacks, Latin Americans, Koreans, and just about everybody except Russians and rich white people.  His comments concerning DACA-DREAM youth, that he wishes to help them has been met with blind, sputtering, unwavering rage and rejection.  And anyone who would even speak respectfully of him or his family is marked with a vendetta that remind one of Versailles before the French Revolution—that is, in a Gene Wilder movie, “The poor are not so bad. ‘God forbid! Shut your mouth!’.”

We now have two orders from U.S. district judges, one from San Francisco, the other from New York, that have held that President Trump’s orders to terminate the DACA program, issued on September 5, 2017, and set to go into effect on March 5th, are unconstitutional.  The first one, issued in January, only forbade any restriction on renewals of those presently holding DACA status until the matter could be fully adjudicated in both district court and before the Federal Court of Appeals for the 9th Circuit, headquartered in San Francisco.  The second one, also issued in January, went farther, holding that all filings, both new ones and renewals, are to be allowed to continue without interruption and be fully reviewed and ruled upon.

President Trump, knowing that a considerable portion of his political base wants to see massive deportations on the same level as a lynch mob in a Southern town 125 years ago, authorized Attorney General Jeff Sessions (who Trump now despises) to proceed with appeals of both rulings.  Using a seldom-exercised tactic allowed to those appealing decisions affecting the actions of a federal agency, Sessions engaged in both a regular appeal of the injunctions handed down by the district judges (going to the Federal Circuit Courts also in San Francisco and New York), but also a request for an emergency review by the U.S. Supreme Court.  In it, Sessions demanded the Court allow the expiration of the DACA program to take place on schedule on March 5th, which of course would allow mass deportations to take place, since that was their intention.

But the Supreme Court said no.  And in doing so, delayed the cases for a year.  It will force Congress to compromise with him, and force the hardliners like Sessions to back away.

Which is probably what Donald Trump intended all along.

Crazy….like a fox.

Posted by: Floyd J Fernandez, J.D. | February 7, 2018

Lost Perspective, Lost Judgment— February 7, 2018

”The fear of the LORD is the beginning of knowledge, but fools despise wisdom and understanding.”—-Solomon, The Holy Bible, Proverbs 1:5.

Last week, when I last wrote, I discussed the reactions of so many on the political Left, especially those who have taken the lead in defending the interests of undocumented immigrants.  I focused on the fact that in so many situations of individuals getting arrested for unlawful status in the USA, a closer look at the individual case held up as a controversy and example of the brutality alleged against President Trump’s regime would reveal serious flaws and legal violations on the part of the individual, and definite loss of a reason to claim lack of compassion or legal support for such sweeps of otherwise innocent individuals to take them into deportation.

That was then, this is now.  This week you have more instances of ICE, led by the non-illustrious Tom Homan, engaged in arrests of people who should be getting legal authority to live in the USA, getting arrested, and in some cases deported.  And on top of that, you have policies propounded by either ICE’s Homan, or by the uttterly feckless and spineless Attorney General Jeff Sessions that are not only a reflection of bigotry, but that of blithering incompetent stupidity as well.

It has become clear that the U.S. Departments of Labor and Homeland Security have banded together to make the H-1B program a virtual dead letter.   In case after case, the Department of Labor, either in determining the basic wage-prevailing wage to pay a worker that would occupy a position offered by that employer, USCIS will send a Request for Evidence, which is really just an excuse to say that the employer fails to have qualified the position that would be occupied to avoid going through a humiliating audit.  Either U.S. DOL or DHS would say that the salary for an applicant is inadequate for his qualifications, or that the position is too demanding in terms of job duties to fit to the position, with the qualifications, with the salary that is being paid.  This kind of Catch-22 strategy on the part of DHS is guaranteed to insure confusion, for practitioners and local situations.

It has been highlighted just lately, yesterday to be exact, how ICE’s professed claim they are concentrating on removing criminal aliens or those with outstanding removal-deportation orders is being frequently violated.  An adjunct professor in a university in the college town of Lawrence , Kansas was arrested on the front lawn of his home, as he was walking out to take his daughter to school.  The man had no criminal record, was married to an American citizen, with a family of American citizen children.  He had been given permission to continue to stay by the judge overseeing his case, which came from withdrawing the order of his voluntary departure.  He had a string of transferred work and student visas, all valid, which had him staying 30 years.  When challenged, an ICE spokesman blandly said that, “there are no categories not subject from removal,” even though they had professed that they were prioritizing criminal aliens for removal.

The problem that keeps reoccurring is the unwillingness by the two parties to compromise.  Both sides accuse the other of betraying the immigrants, both claim to be upholding the interests of the American public, both refuse to move off their most cherished positions, or the opposition to the other side’s fundamental policy objective.   President Trump wants The Wall.  The Democrat base considers it a symbol of racism they would rather die than see built.  The Democrat base insist on a large group of DREAMer immigrants included in any legalization, with a pathway to citizenship.  The pundits and commentators like Laura Ingraham would  rather just proceed with the mass deportation of all 11-12 million undocumenteds with no exceptions, and then shut down legal immigration to less than half present levels, or maybe to none at all.  One obstinate posture is a detriment to national security.  The other insures that the USA would be at a massive competitive disadvantage in the future, and would probably constitute violations of international treaties.

There needs to be some serious time out for these infantile people.  We keep watching them play with the lives of innocent people, and with little movement toward a positive resolution.  Ah, but prayer does work.


—-Consigiliere Pacifica—

Posted by: Floyd J Fernandez, J.D. | February 1, 2018

The Reality & The Fog—February 1, 2018

dreamstime_xxl_96034876The reality of what I am seeing, when one looks at the details, is very different from the appearance given by most media networks.  I have looked at the hysteria, the hystrionics of those who are opposing President Trump’s immigration proposals, and I find that the reality of his proposals is nothing like the image being projected:

Donald Trump is a racist.  Donald Trump is an hysterical loon, a moron, an idiot.  Donald Trump is mean, hateful; he insults anyone who disagrees with him.  He is an emotional flamethrower.  He is an evil man to women.  He is evil to disabled people. He is degrading, disrespectful.  He will take us to nuclear war.  He doesn’t understand the nuances of nations and the difficulties that we must “massage” to get “peace.” Oh, we must have “peace”, let’s all join hands and sing kumbayah.

No issue highlights that narrative like immigration (with the possible exception of all the women who keep making either false or dated accusations of sexual assault against Mr. Trump, or who twists his own “locker room talk”—yes, I have boasted of a conquest or two I didn’t actually achieve).  From the Middle East travel ban (called the “Muslim travel ban”) to the actions against “sanctuary cities”, to the declared phase-out of the Deferred Action for Childhood Arrivals (DACA), and now his proposals on limitations on legal immigration, and of course “The Wall”, everything President Donald Trump has wanted to do, is immediately denounced as hateful and racist, and therefore unconstitutional and banned.  That is launched against even programs and measures that his enemies admit would be acceptable for anyone else.

What has made the situation worse are the hysteria stories of individual cases of ICE arrests of people who had committed no offenses except being in the country illegally.  Instances that shock the conscience, such as those arrested near schools and hospitals or in the very interviews with USCIS that are supposed to grant legal status and avoid the arrest that happens, usually done by stealth or by an induced appointment by USCIS agents that have arranged it with ICE agents.  And now ICE is noised in the press as having announced plans that courthouses are to be targeted to arrest those who are set for removal.  

But what I have found out, in case after case, the reality is much more rational and conventional in their actions than what would appear to be the case in the sensationalistic headlines.  The ICE directive referred to above excepted a whole series of instances where no one would be arrested (divorce courts, workers compensation boards, small claims courts, traffic courts with non-DUI cases).  The ICE directive specified those who were subject to arrest, none of which were those with even minor misdemeanor offenses, but those who have been convicted for felonies, misdemeanors involving drug use, human trafficking, domestic violence, and or DUI.  None of the stories in the media have included those facts, just the outrage over the headlines, and the general animosity toward ICE.  Indeed, what has made it worse is the penchant by ICE Director Thomas Homan to say outrageous and heartless things about arresting anyone at anytime.  From expressing happiness at the arrest of a DREAM kid while picking up his date at a high school prom, to threatening to arrest governors and mayors who don’t cooperate in arresting any undocumented, at any time, at any reason, Homan is certainly writing the journal on “jerk.”  If anyone is writing a book on how not to use effective public relations, they should use a hundred quotes and actions of Thomas Holman.

I have just taken a look at the proposed Congressional Act that has been authored by a cadre of Republican congressman, led by Rep. Robert Goodlatte, Chairman of the House Judiciary Committee.  It is the core of the proposals made by President Trump at the State of Union Address just this past Tuesday.  It has been pilloried by those on the Left as drastically curtailing legal immigration.  But a closer examination reveals a remarkably modest set of proposals.  The bottom line is that the Goodlatte bill calls for legal immigration to have changes in cutting off areas of eligibility that have been criticized by members of both political parties as unhelpful to America’s economy and sometimes a means for terrorists and criminals to enter the country to do harm.

One criticism was that parents of U.S. citizens would no longer have immediate relative eligibility for green card sponsorship.  That is true.  What is also true is that the bill creates a non-immigrant visa, called a “W” status visa, that is good for 5 years, and can be renewed indefinitely for 5 years at a time.  Hardly an act of gross cruelty.  It is claimed that the number of immigrants would be cut to 400,000 with the bill.  It is not.  From an average of 1,060,000 over the last decade, it is set to decline under the Goodlatte plan to about 800,000, over a 10-year period.  And those are estimates.  One thing noticed in the immigration process, the numbers of immigrants, when a law is about to be passed, are always larger than what is predicted.  I suspect that will happen again.

Are there instances of enforcement gone awry? Yes, and some of them are downright disgusting.  But indulging in the hysteria is not nearly as appropriate or productive as the activists on either side would tell you.  Calling people lawbreakers or sellouts aren’t going to make them willing to sit at a conference table and work out a deal.

Consigiliere Pacifica

Posted by: Floyd J Fernandez, J.D. | January 11, 2018

January 11, 2018–The Season’s Surprise March

President Trump Meets With Bipartisan Group Of Senators On Immigration

WASHINGTON, DC – JANUARY 09: U.S. President Donald Trump (R) presides over a meeting about immigration with Republican and Democrat members of Congress, including Rep. Martha McSally (R-AZ) (L) and Senate Minority Whip Richard Durbin (D-IL) in the Cabinet Room at the White House January 9, 2018 in Washington, DC. In addition to seeking bipartisan solutions to immigration reform, Trump advocated for the reintroduction of earmarks as a way to break the legislative stalemate in Congress. (Photo by Chip Somodevilla/Getty Images) ORG XMIT: 775100905

On this day, I am witness to what appears to be something historic.  The President of the United States, who has been vilified the world over as a racist, a misogynist, a white supremacist, an anti-Muslim and nativist, is advocating for comprehensive immigration reform (CIR).  That cannot be underestimated in its potential effect on American life for a considerable time to come.  Considerations of how his enemies characterized him as incompetent for referring to a “clean DACA” bill as including a border security portion enabling the Wall to be built, or that he is inept for allowing the Republican Congressional leadership to “redefine” what he meant in saying that he wanted CIR, are all specious, both in what he meant and in what his cohorts in the GOP were saying.  The fact is that President Donald Trump knew exactly what he was doing, and the adage “crazy like a fox,” seems to suit him well.

The President seems to be embracing two apparently contradictory ideas, the principles which underlie his opinion on immigration, and for that matter, the prevailing philosophy of conservatives on race, ethnicity, and national origin.  On one hand, a strong belief in the absolute right of a sovereign nation, any sovereign nation, to have a unique identifying heritage and culture, and to expect that nation, in this case America, to insist on its people, including new arrivals to educate themselves on that unique heritage, and embrace it.  It is the belief in assimilation, and it goes to the heart of the increased strictness in reviewing almost all applications for legal visas in the immigration system, and especially the travel ban of the six mostly-Muslim nations that has been issued four times in various forms, and attacked each time as racist, even though his detractors admit that the policies would be instantly approved if they were created and implemented by any other President.  

Second, the desire to crackdown on everything from “chain migration” to “sanctuary cities” is tempered by the desire to engage in “fairness”, as Trump would define as lenience toward those who would need time to change their status after the end of Temporary Protected Status status for residents from Central America, or as is most dramatically in the public’s eye, the very gradual phase-out of the program called “Deferred Action for Childhood Arrivals”, or “DACA.”  From the time of Lincoln and Theodore Roosevelt to Reagan and G.W. Bush, and now Trump, the romance of America as a land of immigrants is believed in devotedly.  As a result, Trump is proposing a solution that is likely to remove the issue of immigration from the public discussion, which will make one of the major constituencies of his opposition useless to them.

First, he makes an exchange of the Wall for DACA.  But not just the DACA involving 800,000 young illegal immigrants that applied for coverage beginning in 2012.  But the class of people who came to the U.S. as children that would encompass some 2.5 to 4 Million undocumented aliens, effectively gouging a whole in the body of people unlawfully in the country.  That is an open door to ensure that the numbers of people subject to deportation shrinks by a third, and enables Immigration & Customs Enforcement (ICE) to have a stronger hand in the effort to remove those who will never have the ability to obtain legal status.

Second, he moves on to establishing a network of controls that eliminate the ability of individuals who overstay visas to do so.  A tracking system for their travel, work or student “non-immigrant” visas that would latch onto their I-94 numbers, and electronically track their whereabouts.  A fully-imposed e-Verify program requiring its use by all U.S. businesses, at least above a certain number of employees, probably 50 or even 25.  As Congressman Bob Goodlatte (R-VA), Chairman of the House Judiciary Committee, said in an interview with Fox News on January 10th, the e-Verify system will now be user friendly, to the point of being instantly activated with an employer or HR department officer’s iPhone, and with a 99.7% degree of accuracy.

Third, the legal immigration system is changed into a points-based system, where skills, education, and effective match of abilities with jobs available in the labor market will be prioritized.  One of the factors that is overlooked in the proposals in the new program will be that family relationships would not be eliminated, but would in fact have equal value to that of work qualifications.  While adult children would not be sponsorable by their parents, minor children would be, and adult children, with their by-then developed skill sets, would have their own ability to qualify for admission into the USA.

Those who have criticized the points-based format as a solution for the immigration mess, or that it would harm the immigration legal community, are blissfully ignorant of two facts.   The nations that are presently using such a system, Canada, Australia, and Great Britain, have rates of immigration that are nearly as high, if not higher than the U.S., factoring down their populations compared to ours.  And their practicing lawyers have no shortage for work, especially considering the need to successfully process the applications of immigrants and conform their backgrounds and qualifications to that of what would be an ever-shifting criteria set by the bureaucrats working in the Department of Homeland Security.

More will argue about the pressure on Congress and President Trump to achieve a workable solution before the DACA program is set to end on March 5th (I am giving no credibility on any chance that the San Francisco federal judge’s order stopping expiration of the DACA program is going to survive a week from emergency appeals to the 9th Circuit Court of Appeals or the Supreme Court.  Congressional leadership is proceeding with negotiations as if that judge’s order will be set aside quickly).  I am betting that the biggest set of immigration reform measures will pass, first in February, and the rest before the end of spring.

The effect of this will be electrifying.  Hispanics and Asians and those whites who sympathize will have a serious case of cognitive dissonance; the issue of a person whose beliefs do not correspond with reality as he then perceives them.  Some will simply deny the President any credit for this reform.  But many, possibly a majority, certainly a majority of Asian-Americans, will deal with the fact that a supposedly racist President has signed into law the most generous immigration law in more than 30 years, and the most dramatic change in immigration since the 1965 Immigration Act that serves as the structure for the present system.  And they will reconsider their overwhelming and traditional support for the Democrat party.

That reconsideration would be devastating in more than a dozen U.S. Senate races, from Alaska to Florida, more than 50, maybe 80 U.S. House races, a dozen or more governorships, and hundreds of state legislative races across the country.   This reform, along with the recently-passed tax reform law, will be enough to inflict heavy damage on Democrat hopes in the elections this fall.  And if success occurs in President Trump’s desire to pass a massive infrastructure rebuilding law this year, it will lead to a result possibly more surprising that Trump’s own victory in 2016.

—Consigiliere Pacifica— 

Posted by: Floyd J Fernandez, J.D. | December 19, 2017

Wars & Rumors of Wars—Dec. 19, 2017

I am always looking for ways to have hope.  The announcements that have come, or that are said to be coming are not supposed to give anyone hope in the realm of immigration law.  Spouses and children of people who have H-1B work visas are going to be deprived of the ability to obtain work permits with their H-4 co-habiting visas.  Those who have depended upon Temporary Protected Status permits to maintain status for two decades from El Salvador, Honduras, Guatemala and Nicaragua are about lose them, probably within a year and a half, in Nicaragua’s case even sooner.

The Immigrant Entrepreneur Rule (IER), the policy allowing business executives and inventors to obtain advance parole while attempting to obtain a longer term visa, such as the EB-5 visa, for as long as 3 years, is about to be terminated, though a federal district judge held the President Trump order delaying its implementation until March unlawful under the Administrative Procedure Act.  The word is that more arrests of illegal immigrants are going to happen, even though the backlog of cases are getting completely out of hand, with less immigration judges hearing three times as many cases.  More people from Central America are rushing to the border, perceiving that it is only a matter of time before President Trump’s border barriers are up, but knowing that his political opponents are becoming more or less successful in stopping his effort to build “the Wall” for now, both in courts and in the Congress’ budget process.  Worse, many hundreds, if not thousands of those coming over the border in the last three months have come from Pakistan, Indonesia, and Muslims from the large minority group in India.

Other things, such as the use of the tiny island nation of Grenada by Chinese obtain access to the U.S. with E-2 treaty investor non-immigrant visa status, the use of unprincipled attorneys to act illegally as brokers to obtain EB-5 visa seekers to invest in USCIS Regional Centers that misuse investment money intended for job and business creation, and the use of Requests for Evidence (RFE) by USCIS, not to obtain information necessary to round out otherwise valid applications-petitions for employer-sponsored visas, but to find ways to deny them with bogus interpretations of what the job descriptions and their educational requirements would entail, have shown the present administration’s determination to use poor judgment in keeping out, not job stealers, but job creators.  The well-intentioned desire to keep big business from exploiting foreign workers has been clouded by actions that harm the very people who are needing opportunities to get work; people in the technology sector who have been thrown out by large corporations like Microsoft and Disney.

To be depressed would be an easy thing to do.  But what I am also reading are about the world of opportunity that awaits those with the heart and determination to overcome these obstacles and create new avenues of obtaining visas for the bright, the talented, and the determined who can add so much to America.  I am myself looking for ways to take advantage of those opportunities.  Especially available for someone to exploit is the fact that there are more than double the number of international students that studied in the United States just 20 years ago.  A veritable flood has come to America, especially from China and India.  And rather than being a threat, it is in fact a promise.

Great shortages exist for teachers, for nurses, for doctors, for physical therapists, for graphic designers, even for computer programmers (notwithstanding those American programmers who were laid off of their jobs, and “forced” to create businesses of their own).  Great opportunities exist for those who have the wisdom to develop new concepts, new programs, reach out to new sources of people who have the education to succeed in their professions, but whose own nation’s economies will never grow enough to employ them.  “America First” as an economic policy need not be a code word for protectionism, but a guiding principle on how to bring the best and brightest to build a better country.

So sometimes one needs to learn how to “game a system”, not to cheat, defraud, or con, but to build, create, and benefit, both foreigners and one’s own fellow countrymen.

Consigiliere Pacifica—

Over the last week or more, I have seen the following actions:  1) the Supreme Court uphold the travel ban created by the Trump administration’s DHS, as most recently imposed, in full, applied to 6 mostly Muslim failed states, along with North Korea and selected members of the Marxist Madura regime in Venezuela; 2) the DOJ-EOIR announced that the policies that allowed additional categories that created 12,000 places for cancellation of removal to be awarded had been rescinded, with a more restrictive interpretation of applicable regulations (or outright termination of them), with the effect that, with 650,000 cases now in the immigration court dockets of the U.S.A., a grand total of 4,000 places are all that are left; 3) the same DOJ-EOIR changed policy now will refuse to keep forestalled cases in immigration courts claiming cancellation in abeyance until a final determination can be allowed by judges under the quota, but that the judge can rule against the claimants at any time, even after receiving a positive ruling, but after their eligibility has been negatively effected; 4) a large drop in border apprehensions have happened in the last 10 months, but a large increase in removals have occurred in the same time (though still much less than what happened during the peak years of Obama’s reign of terror from 2009-2014; 5) but while there have been notable instances of individuals with no serious criminal convictions or orders of removal getting sent out of the USA, 92% fit within the stated priorities that DHS and DOJ have said they would follow; 6) the Kate Steinle killer got acquitted of almost all charges in San Francisco; 7) the abortive suicide bomber in New York on Monday, that fortunately mischarged his explosives where no one was seriously hurt but himself on what could have been either a busy subway train or the middle of a crowded Times Square; he was found to have been admitted to the U.S.A. on adjustment of status as the minor son of a U.S. citizen; 8) triggering sputtering rage by fellow Republicans and President Trump about ending “chain migration,” which was little more than the process of U.S. citizen parents wanting their foreign minor children to join them in the U.S.A.

I am, admittedly, standing on the sidelines, waiting for the next shoe to drop, either good or bad, but wondering and praying that something resembling pragmatism wins over hysteria.  I will let others search out the sources for the details of what I’ve shared.  Trust me, a little visit to Google will turn out all these stories and verify them.  What I am going to tell is what people don’t seem to understand.

First, when you have failed states, or hostile nations, who are either unable or unwilling to properly verify, or “vet”, the acceptability of a would be immigrant or refugee of war to the USA (or any other developed country), creating the real possibility of wholesale entry of large numbers of criminal or terrorist operatives into the country, it is the height of criminal irresponsibility to admit such people.  And that bar of such individuals has to be done to entire categories of people until you can choose between “sheep and goats,” metaphorically meaning culling out those who mean harm from those who mean only to live and study and work in America and bring positive benefit to the society, or just simply find refuge from a homeland turned into hell.  The lower level federal district and circuit court judges from Honolulu and Seattle, from Richmond and Portland and New York, all seem to have become so determined to punish their “racist and criminal” President (or fake President, if you have a liking for progressive Kool-Aid), that they forgot that what they are to do is apply the law.  Fortunately, the Supreme Court reminded them of their responsibility.  They may not get the message, but they will be stopped from contributing from their contribution to a would-be coup that seems to be going on right now.

But I am also bothered by the fact that at every turn, whether undocumenteds, those who came through the DV Lottery Visa program, the 52-year process of admitting as residents the very children—minor children— of U.S. citizens or legal residents into the U.S.A., which truly is an extension of the age-old process of men calling for their wives and children to join them in a new land, to be united as a family, any act of violence, no matter how rare or unrepresentative of those they are a part of, is a conviction of guilt upon all.  It is a frustrating sight—normally logical and reasonable people, using every means at their disposal to condemn people who not only are of no harm to anyone, but who are in fact, a great and positive force in the future of America.  Using the few, the very few, to condemn and disenfranchise the great many.

What is escaping those who actually think they can use a points-based system to drive out undocumenteds or manipulate Congress into accepting a drastic drop in the number of immigrants, are smoking dope for a living.  There are at least 10 Republican U.S. Senators I can think of, and probably at least 4-5 times that many GOP Congressmen, who will absolutely not approve of a Cotton-Purdue style reform law that would drop legal immigration by half, even within 10 years.  Those who refer to countries that employ a points-based system, namely Australia, Canada, and the United Kingdom, are misrepresenting their performances.  All three of them, proportionately comparing their population size to ours, have higher rates of immigration than ours, and I mean 2-3 times that of America’s.  You may cut the numbers temporarily, but the lobbying industries and businesses that will want immigrants will get them, at very high numbers.  And you will get enough heat from the hospitality industry to make sure you get those that are less-skilled but more likely to increase their skill sets while working here.   The anti-immigrant crowd will be very disappointed in that ploy’s value to their cause.

Those who are choosing to abuse their authority in the immigration enforcement system, whether in gaming regulatory policy in making relief from a deportation that many of those in deportation proceedings don’t deserve, or in using high-handed, even false and unconstitutional methods of stopping people fleeing war and chaos in their homelands, are going to invite the very international opposition that they think they are avoiding by taking the hard line.  They may not stop “The Wall” (and they shouldn’t), but the world can turn the plight of helpless people turned away from the USA into an economic weapon against American business.  When the global village figures out they can pull that off, they will successfully do what has not been done in generations: force America to change laws to bend to the collective will of the rest of the planet.  And in doing so, our very nativist streak may open a door for globalism to begin harming our sovereignty, our very independence.  “Whatsoever a man soweth, that shall he also reap.”

Consigiliari Pacifica—


Posted by: Floyd J Fernandez, J.D. | November 16, 2017

Fear & Haste—16 November, 2017

What I have been reading in immigration-related stories in the media and the professional immigration media, seems to be typical of an age in which fear motivates people to take swift positions and make snap judgments.  It is no different for left as for right.

The USCIS has engaged in new changes in policies that have affected people as varied as those from poor nations who seek to come as refugees and asylees and those highly educated who come from rich countries who would be technology workers and executives for American companies and foreign subsidiaries.  They are now subjected to bizarre policies ranging from refusing to interview green card applicants and saddle them with rejection based upon petty misunderstandings of questions that would be easily corrected with a simple clarifying statement in the interview that would be customary for a person applying for permanent residency; to engaging in rejection of expert testimony of esteemed university professors commenting on the suitability of job positions and the immigrants who would occupy them.  This is so for both H-1Bs and employer-sponsored green cards, but especially H-1Bs and L-1s.

The appointment of Thomas Homan as the permanent head of ICE, upgrading him from the status of Acting Director, is just confirming what has been greatly feared.  A man who brazenly boasts that everyone who is undocumented, no matter when he/she came to this country, no matter how young, how old, how long they have lived here, how many American citizens in their families, they must all “be looking over their shoulders.”  This is born of a fear that is as old as the Republic, the fear of strangers, of “the Other.”

The incessant fear and hypocrisy at the same time that demands that “a clean Dream Act” come with no conditions or exchanges is wrong.  The notion that a “wall” must of definition be something racist is inherently dishonest.  It is only unacceptable when a conservative Republican wants to do so.  It doesn’t matter, they think, that it would probably dry up crime on both sides of the border with Mexico, would probably have negligible effects on the environment, would probably result in a regulated border economy that would create greater prosperity.  They don’t care.  They are only wanting to recreate the world where the America of limited government, freedom of the individual, the Judeo-Christian ethic, a powerful military, free markets, and leadership of the world, is not acceptable.

Donald Trump is evil, so by definition he is not allowed to do anything constructive.  This is not a way to get positive change done.

Consigiliere Pacifica—

Posted by: Floyd J Fernandez, J.D. | November 7, 2017

On Saipov and Maria Hernandez—Bigotry and Discernment—November 6, 2017

Sayfullo Saipov, an immigrant from Uzbekistan, self-radicalized by viewing ISIS-run websites on the Internet, took his taxi in a New York neighborhood, and took off a bike path, screaming “Allahu akbar”, as he mowed down nearly two dozen people, killing eight.  Immediate calls for the end of the DV Lottery Visa program, which the INA authorizes to admit up to 55,000 persons per year, erupted in the media, since Saipov received his green card through the DV program.  No one bothered to notice that almost 1,500,000 people have been admitted since its opening in 1995, and that the level of education, job creation, low crime rate, by almost any measure has brought people of quality in great numbers from countries where immigration is difficult due, not to terrorism or armed conflict, but due to poverty.  The rage of the moment brought forth the predictable blame game on immigrants.

Rosa Maria Hernandez is a 10-year old undocumented immigrant from Mexico, who lives in the Long Beach, California area.  She has severe physical abnormalities and was suddenly in need of a liver transplant.  A liver transplant.  Something without which you die.  And it was an emergency surgery.  And she was being transported in an ambulance to the hospital near her home.  But someone alerted the police, or ICE directly, about her status.  At the hospital, as she was about to be pulled out of the ambulance for that surgery, Customs officers came, pulled her off the gurney, and took her away in an official SUV, and placed her in detention at the regional ICE detention center in Santa Ana, CA.  Up to this moment all that is happening is that ICE claims that she has medical care, and is being held, with a removal proceeding coming up.

The thing that these two occurrences have in common is that the innocent pay for the sins of the guilty.  Hundreds of thousands of people are held out to be parasites upon American society because they were smart and fortunate enough to obtain legal residency through the DV Lottery Visa program.  A suffering little girl was held up as a dangerous threat to American society and a thief of taxpayer dollars, and taken into jail, where she is denied basic medical assistance, which may eventually hasten her death.

We who believe in both vigorous opposition to terrorism and Islamism and to bigotry against those who have come to America in search of a better life are going to have to keep beating the drum of common sense against fear and prejudice, from any quarter.  You don’t stop terrorism by fixing it so that decent people of education and healthy ambition can’t come to America, and you don’t stop the bleeding of the health care and welfare system by illegal immigrants through seizing 10-year old girls about to get emergency surgery and putting them in detention, cutting them off from their parents and family.

Let us hope that Congress will get a reasonable immigration reform law passed early next year, with “the better angels of our nature,” as Lincoln said, prevailing in the minds of our legislative branch of the federal government.

Consigiliere Pacifica— 


Posted by: Floyd J Fernandez, J.D. | October 19, 2017

The Battle Continues – October 18, 2017


The U.S. District Court in Hawaii has once again decided that one statement, later retracted, that Donald Trump wanted a temporary ban on all Muslims who would immigrate to the U.S. until “extreme vetting” could be done, is an anti-Muslim animus that would disqualify any executive order restricting travel or immigration to the U.S. from nations that are war-torn, failed states, or that are led by regimes that pledge jihad and destruction against the U.S.A., or for that matter, pledged Communist-based war against America or that are possessed of extreme, Marxist-based corruption.  (Venezuela, North Korea, Libya, Iran, Syria, Yemen, Somalia, and Chad).  This is the third time such a violation is alleged, as anti-Muslim animus disqualifies any such order, because there is no proof of anyone killed by terrorists from any of those countries inside the United States.   In effect, Donald Trump is legally disallowed from acting as President of the United States, in the eyes of those who support this decision.  That does not even consider the issue of whether there has to be an actual mass murder of Americans by ISIS members from each one of these countries to constitute such proof to satisfy the judge in this case.

Attorney General Jeff Sessions made a speech on Monday decrying the present asylum-seeking system, stating that most people seeking asylum status are criminals who are acting on the advice of “dirty immigration lawyers.”  He felt that no one coming from Mexico or Central America could possibly have legitimate grounds to obtain asylum or refugee status.  He expressed “concern” that the entry of so many people into the U.S.A. from nations south of our border would undermine America’s economy and heritage.  It did not matter that the unemployment rate is the lowest since 2000, that the labor participation rate is the highest since 2006, that the number of new persons on unemployment insurance is the lowest since 1970, that the stock and equity markets are exploding with grown (DOW JONES reached 22,000 just yesterday.  “These immigrants are coming over and stealing our jobs,” he says.

A final proposed legislative arrangement has been made within the Senate Judiciary Committee concerning the EB- 5 self-petition investment visa, which is subject to expiration if it is not renewed by Congressional act by April of next year.  A major part of that proposed renewal involves the failure to allow the reinstatement of thousands of unused visas, due to failure to award within the fiscal year caused by bureaucratic inability to process review of financial supportability.  Worse, the policy intended by Congress when the EB-5 Program was passed in 2000, that 10,000 visas should be awarded to 10,000 investors, has been distorted by DHS to have family members of investors included against the cap.

The State of California now has as official policy “sanctuary” from turning over undocumented criminal aliens over to ICE, when their undocumented status is discovered after a background check.  That decision now has ICE going into neighborhoods and camping out outside of schools.  That action now puts large areas of the cities of California on the tinderbox of urban riots.  Whereas, President Trump put out his 70-point list of policy changes that he wants passed into law in exchange for relief for undocumented aliens brought here as children, the so-called DREAM kids.  Some of these policy proposals are sound, but some, such as eliminating exceptions to inadmissibility, include things like DUI-charged (not just convicted) individuals.  There are already controls since 1996 that have shredded the constitutional rights of people living in America, most with long-standing roots to the country.  Mr. Trump’s proposals, which are largely pushed by Attorney General Sessions, compound those denial of rights, especially of judicial review and of equal treatment of the laws of aliens versus citizens.

The use of policy in creating law is inevitable.  The thought that it can, or even should be avoided, is naive and silly.  But there has to be some relationship with logic and reality, and usually, that means compromise with what the more zealous portions of the constituencies of left and right would want.  In this climate, such is virtually impossible.  Even such a lioness of liberalism in California, Sen. Dianne Feinstein (D-CA), has now received two primary opponents for next year.  Her crime, acknowledging that President Trump will probably last the entirety of his presidential term, and that she hopes that he would succeed in improving his actions over those she has strongly objected to.  That used to be called “objective analysis.”  Now it’s called “treason.”

What is now happening is the failure to govern.  When an election ends, you stop campaigning and you govern.  You appoint officials, you pass laws, you create a budget, you argue over how far you can implement your policy, based upon simple math; whether you have the votes to pass items into law.  You decide whether your actions will survive a court challenge that is based upon reality.  If you’re a judge, you look upon challenged laws and regulations based upon the plain meaning of the documents themselves, not what somebody said in a campaign speech a year and a half earlier.

A basic principle of contract law is the parole evidence rule, which is also a part of statutory construction.  All prior statements or agreements are eliminated in favor of the final contract or legislation, in the “four corners of the documents” containing the contract or law.  When a law is being interpreted, one looks to the “plain meaning” of the law before a judge looks to the lawmaker’s intent to clarify its meaning.  That principle is ignored in these cases, especially that of the Trump travel ban case.

Furthermore, the determinations made in the California “sanctuary city law”, or the proposals on law enforcement, or Attorney General Sessions’ contempt of immmigrants, are all built in one attribute—fear.  Fear that somebody who differs from a person will get credit for having an intelligent point of view.  Fear then leads to illogical thought and behavior, which in turn become policy, or failure to make policy or law, which ends in the failure to govern a country.  That is what we have in American government, and that is why we have virtual paralysis in government.

—-Consigiliare Pacifica


Posted by: Floyd J Fernandez, J.D. | September 22, 2017

September 21, 2017–Part Two: DACA & Other Painful Realities

On this day I have several matters to reveal.

The truth that you have to understand about DACA is that it was never meant to be a program that would have permanence.  It was basically an act of frustration against a state of stubborn refusal.  Barack Obama, and before that, former President George W. Bush and Senators and Congressmen from both parties (mostly Democrat), wanted to pass an Act of Congress protecting those undocumented immigrants who came to the United States as small infants or young children.  These individuals have lived in the U.S.A for 15, 20, 25, 30 years or more.  They have been completely Americanized, speaking English as a first language, educated in American schools, familiar only with American culture.  If they do speak the language of their parents’ home country, it is as a second language.  They have started careers in many cases, have started businesses, have often themselves begun families of their own with American citizen spouses, with American citizen children of their own.  The overwhelming majorities of members of both political parties, and of independents and Americans in general, strongly favor granting legal status to these immigrant youth, called DREAM kids.  They are so named because of the original title to the Immigration Act applicable to them, called appropriately, the DREAM Act, introduced in the early 2000s by Senators John McCain (R-Ariz.)  and the late Edward Kennedy (D-Mass.).

And yet, the DREAM Act has, up to now, had virtually no chance of passage.  The DREAM Act was advanced in 2005, in 2007, in 2009, in 2010, and as part of a larger bill in 2013, and again now.  Each time the result was the same.  The Democrats, and about a quarter of the Republicans support it, but more than enough Republicans oppose it, driven by their fear of a segment of the party’s rank and file that will hear of any reform and respond with “Amnesty!” Doesn’t matter the amount of time these people have lived here, the youth or infancy of their age when they were brought here, their education, the degree in which they were Americanized, the businesses they may own, the American citizen families they have married and raised, the lives they have invested into.  It’s “Amnesty! They’re stealing our jobs! They steal our tax dollars by going to school! How dare they go to the emergency room! They should just die, or go back to Mexico! Stealing our tax dollars doing that! Join the military? No! They’ll take a place in the Army from a ‘real American!’ ” It doesn’t matter how many things are incorrect with those statements, they’re too busy yelling and screaming to bother letting you be heard.  Being heard means they might have to do something about it.

So, the most conservative of Republicans stop bills from being passed, people I normally would agree with, and so frustration builds until the man occupying the White House at the time decides to take advantage….a man who didn’t lift a finger to get the law passed when his party controlled Congress….and utters two executive orders that benefit DREAM kids and more…..both of which either would be struck down by the federal courts, or were about to be.  So now it is up to a bunch of conservative Republicans to pick up the pieces.

Fortunately, there are options.  There are seven different prime means that people who have had the benefit of DACA, or would have received it, had they applied:

1) Section 245(i): The amnesty of 1986, continued with a revision of 1998, in the form of The LIFE Act, gives the affected person the ability to obtain legal residence, if they have a former petition for them before April 30, 2001, and have a petitioner now who is either a U.S. Citizen spouse or a child over 21, or a parent for a child under 21;

2) I-601A: The program of waiver of unlawful presence, as long as there is a willing and eligible U.S. Citizen spouse or child over 21, willing to petition for them with an I-130 petition for alien relative, will then be eligible to apply for waiver of unlawful presence, if the immediate relatives, or another eligible immediate relative will suffer extreme hardship if they are forced to move to their country of birth;

3) U Visa:  This program protects those who are victims of crime in the U.S.A., or who have family members who are victims of crime, and who are certified as victims of crime by a judge or a prosecutor or responsible member of a law enforcement office.  They are then given a temporary, that is a non-immigrant visa, that lasts for 4 years, and grants the right for an affected individual to self-petition for permanent legal resident, in the fourth year of that temporary visa grant;

4) T Visa:  This program is a companion to the U Visa, that gives the same benefits, under the same conditions, for those who are verified that they are victims of sex or human slave trafficking.  The option to self-petition, as granted by the Violence Against Women Act (VAWA), is likewise extended to the victims of human trafficking;

5) Special Immigrant Juvenile Status (SIJS):  The program is available for those unaccompanied children or juveniles, who are forced by their presence to be placed as wards of the state in which they reside through a formal court order, placing them either in foster care, or through court-ordered guardianship.  That placement will allow them to self-petition for permanent legal residence, as long as the application is made by the individual alien before they turn 18;

6) Violence Against Women Act (VAWA):  Those individuals, or their children, who are categorically and documentedly shown as victims of U.S. Citizen or legal resident spouses or parents, are allowed to self-petition and then adjust status for permanent legal residence.  Those individuals are even allowed as an exception to the rule against departing the U.S.A., and then returning, without suffering the permanent ban from immigrating, as long as the violation listed in Section 212(a)(9)(C) of the Immigration & Nationality Act (INA), is shown to have been caused by the violent abuse;

7) Asylum/Refugee/Withholding of Removal:  While there has been a move by the Trump administration to restrict admissions of those seeking asylum or refugee status, that is still available to those, with ultimate access to opportunity for permanent residence, who can demonstrate the reasonable fear of persecution or harm, in their home country, either by their governments or by those criminal cartels like those of Mexico, and when the government is shown as unable or unwilling to stop them.

To ensure that those application opportunities are successful, there must be the kind of legal help that can only be provided by an experienced attorney and his/her staff.  The good news, is that while the DREAM battle is still raging, there are still good options to take that can protect many from that dreaded “knock on the door.”

Consigiliari Pacifica–

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