Annual Meeting Immigration Panel: Complementary or Contradictory to the Rule of Law?
Panelists at the Annual Meeting program. George Fishman, Esq., Lisa Johnson-Firth, Esq., Dean Emerson Douglas, and Jacob Tingeman, Esq. (Dee Norman, Virginia State Bar)
By: Chris Fortier
Immigration remains a hot topic for discussion. While this topic holds much interest with the public, lawyers are focused on Immigration Law for different reasons. Between the changing policy with the Department of Justice, increasing workloads for judges, and the quick hearings that immigrants in the system face, the topic always provides content for a quick hour of CLE. The Annual Meeting panel consisted of Lisa Johnson-Firth, Esq. (Immigrants First, PLLC, Manassas), George Fishman, Esq. (Department of Homeland Security, House Immigration Committee Counsel), Jacob Tingeman, Esq. (Solo Practitioner). Dean Emerson Douglas of William & Mary Law moderated the program. Dean Douglas emphasized that lawyers need to play a critical role in the immigration debate, as they have the ability to see both sides and to be objective.
Mr. Fishman provided a history of immigration law from the 1990s through today. He cited Congressional studies in 1981 and 2016 where the illegal immigrant population grew from 4-6 million to 11 million, respectively. He noted that Deferred Action for Child Applicants (DACA) was based on inherent executive power of prosecutorial discretion. DACA was initially meant to assist children brought to US under age 16 before 2012. He reminded attendees that Article I Section 8 gives Congress the power to determine immigration policy and that Article II Section 3 provides the President the ability to execute these laws. He urged limits on immigration and recommended actions such as setting a fair process to challenge the government’s immigration determinations.
Ms. Johnson-Firth noted the principles in the United Nations Secretary General Report on the Defined Rule of Law (S/2004/616), alluding to international human rights norms and four key principles: 1) law applies to everybody 2) law is not secret or arbitrary, 3) law is just, 4) law is fair (double check this). Ms. Johnson-Firth argued that that United States did not adhere to rule of law, propping up military dictatorships in Guatemala and El Salvador.
Ms. Johnson-Firth also pointed out the challenges that our Immigration courts and parties in front of that court face. For example, she noted that there were no ex post facto, no Miranda warnings, long waits for hearing, no right to speedy trial, no discovery process (surprise impeachment using evidence they do not give you), and administrative warrants for parties in front of the court. Ms. Johnson-Firth also stated that Immigration judges adjudicate 700 cases per year and are employees of the Department of Justice without judicial independence.
Mr. Tingen reviewed case law affecting immigration. He urged creation of a district court to adjudicate these asylum claims, as opposed to DOJ Immigration judges. He noted Pereria v. Sessions, which held that a summons to appear needs to have a date, time, and place of appearance. He reviewed the Matters of MS, LABR, and AB, which redefined widely accepted social groups in asylum analysis and took gangs out of the analysis of social structure in an immigrant’s country of origin.
Chris Fortier serves on the Board of Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.