Understand Your Rights. Solve Your Legal Problems
The peer-to-peer (P2P) lending market is a young phenomenon. So young, in fact, that the Financial Conduct Authority (FCA) is still working out how best to regulate it. This week Lawyer monthly benefits from expert analysis by Angus Dent, CEO at ArchOver, who delves into the potential for consensus on this complex discussion.
With the authority playing catch-up, many P2P companies have waited months for their full permissions. Twelve years after the first P2P platforms launched, there is still no unifying regulatory manifesto for P2P.
At the same time, the FCA is trying to protect investors and borrowers and ensure that companies adhere to client money regulations. The P2P market needs to have security models in place to mitigate the risks associated with lending in the space.
This is still a work in progress, so many companies represent their own island of regulation at present, distinct from their peers. Best practice directives are handed out on a case-by-case basis. Running a business in these conditions is hard - you never know when the hammer may fall, or when you may suddenly be given your wings.
That makes it extremely difficult to plan for the future and build security into your business model. Many of the sector’s key players are running at a loss as they try to stabilise their costs against seasonal fluctuations in income. Patchy regulation only adds to those challenges - how can you stabilise if you don’t know whether your services will be deemed appropriate in six months’ time?
In short, uncertainty is the enemy of profitability. To counter that, robust investment in security is essential to keep users’ confidence high.
The rulebook
A large part of the problem facing the industry is that you can’t play the game if you don’t know the rules. The rules we do have are being made up as we go along. Instead, the FCA needs to start doing its job and build a proper framework if it is to fulfil its primary purpose - to stimulate competition in the sector while protecting borrowers and investors.
The FCA is due to release a new set of regulations this summer, which should in theory lay out a unifying set of best practices for the whole sector. This is a great opportunity to put into writing the original founding principles of peer-to-peer lending - namely, innovation, a reduction in red tape, a more transparent approach to lending and borrowing and a steadier, less market-linked rate of ROI.
The FCA should be looking to incorporate the successful elements of P2P lending into its plans and strategy. Ultimately, the best practices that become enshrined in regulation should be set out by the industry, not the regulator. Importantly, the FCA should also keep in mind that P2P lenders operate under a very different set of principles to that employed by the banks. It should encourage the flexible and straightforward approach that has helped companies like Zopa and Funding Circle pass the £2bn lending mark, helping the P2P sector reach the next level of success, with healthy competition rules and firmly established best practices.
At the same time, it’s important to ensure that that flexibility is backed up with security. The FCA needs to focus on building lender assurance into its regulation - P2P’s viability in the future will rely on proving to investors that their money is secure and carefully looked after.
Current obstacles
There are several roadblocks in the way of that ideal scenario. First, the lobbying power of the established banks. P2P lending is still an unpredictable factor in the market. If it grows fast enough and builds a solid reputation, it could pose a serious challenge to the high street banks’ low-cost capital, targeting money that’s currently running at extremely low interest in deposit accounts. Until the banks can be certain of the competition posed by P2P, they will always have a certain amount of resistance to full regulatory acknowledgement. Again, the FCA needs to counter that instinct by treating P2P platforms as a different beast with different goals.
There’s also a temptation for regulators to lean too far towards a box-ticking mentality. This means laying out a set of specific regulations and not asking too many questions so long as the appropriate tests and measures are met. Although this approach seems orderly on the surface, it can also lead to a patchy mess if you don’t give enough thought to whether the boxes are worth ticking in the first place.
Instead, the P2P market would benefit from a new set of broad regulations that acknowledge the scope and breadth of the services it offers and place security at the heart of the industry. These practices should then be applied rigorously in spirit, allowing for multiple interpretations while also keeping the brake on unethical practice and keeping.
This is how a lot of British law works - it relies on the common sense of its interpreters rather than presuming their imbecility. The FCA needs to do the same with regard to P2P regulation. The new rules published in the summer should allow P2P companies to maintain their rapid fulfilment model, whilst always remaining vigilant against malpractice and ensuring funds can be recouped in the case of a loan default.
Can we reach consensus?
Ultimately, peer-to-peer lending provides a unique and much-needed service in a time of extremely low interest rates and tight banking purse-strings. It helps investors build their portfolio, whether it be to increase the size of their pensions pot or get closer to house deposits, and it provides the ready cash to help small and medium-sized businesses grow.
That role will be best served by a comprehensive review of regulations, providing a single basis for the industry to work from and a solid security stance to mitigate risk for investors and borrowers.
It’s time to end the confusion - 2017 must be the year that P2P gets the regulation it deserves.
A recent study by Dun & Bradstreet shows compliance professionals anticipate a more complex and uncertain future, which will increase data governance challenges and cause difficulties in the customer journey. The research, which surveyed compliance professionals in the UK financial sector, found that almost half (49%) believe that it will become harder for their organisation to comply with financial regulation over the next twelve months. Reflecting this, two fifths (40%) of compliance professionals also expect customer onboarding times to increase over the next five years.
42% of respondents say it currently takes them three to four working days to onboard a new customer, with 12% saying it takes up to six working days. Three-quarters (75%) of respondents believe that CDD (Customer Due Diligence)-related delays have a negative effect on the customer experience, with increased regulation resulting in significant business impact such as taking on less business and a third (32%) of respondents saying they have had to build larger teams to manage the process.
About half of respondents (45%) say that monitoring the compliance status of customers on an ongoing basis is “fairly” or “very” difficult. Moreover, over a quarter (28%) say that increased time - between 3 and 4 working days - to identify and compile a report on a client that posed a regulatory risk could strain sales and compliance teams, with the potential for revenue loss.
“By valuing the positive impact of a healthy compliance function on the rest of the business, banks and financial institutions can create CDD processes that will meet current and future demands,” said Thomas Cosgrove, Strategy Leader, Global Compliance Solutions, Dun & Bradstreet. “Through intelligent compliance practices, teams can not only manage risk effectively, but actually improve the onboarding process, thus enhancing the customer experience and creating a competitive advantage over rival firms. An effective compliance team not only protects the bank from risks (financial, regulatory, reputational), but also serves as a showcase of the institution’s commitment to responsible business and its ability to protect the interests of customers.”
Compliance professionals believe that using technology is the way to respond to the changing regulatory landscape, with 50% saying they will need to invest in solutions within the next five years. Currently, few organisations are proactively enhancing their level of sophistication around CDD, as only 7% have taken steps to centrally manage and automate procedures. Compliance professionals recognise the advantages that automation would bring to the onboarding process, in particular, including faster times to revenue (60%) and improved customer experience (56%).
“In an age where the regulatory landscape is becoming more challenging and evasion techniques are growing in sophistication, businesses should look to arm their compliance teams with the best tools available,” continued Cosgrove. “Intelligent application of robust data can automate parts of the compliance process, enabling knowledge workers to focus on exceptional cases, improving onboarding speeds and focusing scarce resources on higher value activities. The latest technology is important, but systems are only as powerful as the information that flows into them. Ultimately, teams must ensure the quality and timeliness of the data they use is as robust as possible.”
(Source: Dun & Bradstreet)
There is a sharp drop in the amount of the public expressing concern about identity theft, according to a new survey conducted for Chartered Professional Accountants of Canada (CPA Canada).
Two-thirds (66%) of the respondents agree that they are concerned about identity theft but the number is significantly down from 74% in 2016. At the same time, 72% of the survey participants agree that Canadian businesses, in general, are doing the best they can to safeguard the personal information of their customers, up from 66% last year.
However, for the second straight year, 73% of the respondents agree that they are concerned that Canadian businesses are vulnerable to cyberattacks regarding personal information.
"In this era of ever-evolving technology and data management challenges, it is good to see an increasing number of Canadians recognizing the efforts that the business community puts into protecting personal information," says Cairine Wilson, vice-president, corporate citizenship, CPA Canada. "It's also encouraging that the respondents understand that, while the business community is doing what it can in terms of information protection, risks do remain."
Almost four-in-ten (39%) of the respondents agree they fear that someone has personal information about them that they should not be in possession of, up from 35% in last year's survey.
"Fraudsters target many avenues to gain your personal information including social media and emails," explains Wilson. Of note, the survey found that 81% of the respondents use a mobile device, such as a cellular phone or tablet as one of their sources for accessing the internet, up from 76% just a year ago.
A majority of respondents (71%) agree that they are concerned that electronic payment methods, such as tapping debit and credit cards or using smartphone apps to make payments, actually makes fraud easier.
In addition, 43% of those surveyed in 2017 either strongly or somewhat agree that they are uncomfortable when making online purchases.
In terms of experiencing financial fraud, 32% of the respondents reported they had been a victim at some point in their lives, basically unchanged from 2016 (33%). Among those who reported being a victim of financial fraud, credit card fraud had the highest incidence rate (74%) followed by debit card fraud (28%). Those were the top two forms of fraud cited in 2016 as well.
"Keep your guard up at all times," stresses Wilson. "Being skeptical is a good thing when it comes to protecting yourself."
An interesting finding to emerge from the survey is that three quarters (75%) of the participants have learned information about how to protect themselves from fraudulent activities through the news media.
March is Fraud Prevention Month in Canada. Actual or suspected frauds can be reported to the Canadian Anti-Fraud Centre (antifraudcentre.ca or toll free at 1-888-495-8501).
The 2017 CPA Canada Fraud Survey was conducted by Harris Poll via telephone between January 31st and February 8th 2017, with a national random sample of 1,001 adult Canadians aged 18 years and over and is considered accurate to within ±3.1%, 19 times out of 20.
(Source: CPA Canada)
Houston patent trial lawyer Demetrios Anaipakos of Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA, has won a $9 million federal jury verdict for Texas-based patent licensing company Saint Lawrence Communications LLC against technology heavyweight Motorola Mobility LLC for patent infringement.
After a week-long trial, jurors in the US District Court for the Eastern District of Texas decided that Motorola had "willfully" infringed on five Saint Lawrence Communications patents relating to HD Voice technology. Willful infringement allows US District Judge Rodney Gilstrap to potentially triple the nearly $9.2 million verdict delivered last week.
"The jury agreed Saint Lawrence has world-class technology that Motorola has known about for a decade and has refused to license. They gave Saint Lawrence every penny we asked for," said Mr. Anaipakos, who led the trial effort along with AZA lawyers Amir Alavi, Alisa Lipski, Brian E. Simmons, Michael McBride, Masood Anjom, Kyril Talanov, Nathan Campbell, Jamie Aycock, Scott W. Clark, Weining Bai and Justin Chen.
Saint Lawrence owns six families of patents that are essential to the Adaptive Multi-Rate-Wideband (AMR-WB) standard, which provides excellent speech quality transmission. The company, headquartered in the Dallas suburb of Plano, is pursuing claims against multiple communications companies that are using its technology without paying license fees. It has achieved significant injunctive relief in Germany against big players there.
In the case tried in Marshall, jurors found that Motorola infringed on Patent Nos. 6,795,805, 6,807,524, 7,151,802, 7,260,521 and 7,191,123. The case is Saint Lawrence Communications LLC v. Motorola Mobility LLC, No. 2:15-cv-00351.
Wesley Hill of Longview-based Ward Smith & Hill, PLLC, was local counsel in the case. Houston lawyer Christopher M. First of Heim Payne & Chorush LLP also worked with the AZA team.
(Source: AZA)
By Anthony Robinson, Excello Law.
WikiLeaks’s latest dump of 9,000 CIA files revealed that US spies, in collusion with British intelligence services, had, as well as targeting smartphones and computers, developed a programme called Weeping Angel, which is allegedly able to turn a television set into a monitoring device – even when it appears to be switched off.
Frightening indeed – and it is all down to something called the Internet of Things. As the physical and online worlds merge, IoT devices of every type become able to gather information and communicate with each other.
While the benefits are convenience and efficiency for the consumer, there are serious concerns that the IoT creates dangerous vulnerabilities to data protection and may infringe the rights of consumers.
A study published last September co-ordinated by the Global Privacy Enforcement Network found that 59 per cent of devices failed to explain how information was collected, used and disclosed, 68 per cent failed to explain how the information was stored and 72 per cent neglected to explain how the information gathered could be deleted.
It is this lax attitude that is key to the privacy issue; the sheer number and range of IoT devices being rushed to market mean that security and protection from hacking or data breaches have been pushed low on the list of priorities.
While most people are aware of the need to protect information such as bank account details, the collection of seemingly trivial data hoovered up in vast quantities by devices has yet to sink in.
The UK Data Protection Act 1998 draws a clear distinction between personal data and sensitive data, with far greater controls being applied to the use of the latter. Sensitive data is currently defined as that which applies to areas such as race, politics, religion and sex. The obvious problem with this distinction is that, in the age of so-called big data, all data can become sensitive by sheer weight of accumulation.
A thousand tiny bits of information per hour, relatively harmless in isolation and offered freely without protection, can merge to build a thoroughly detailed picture of an individual – a picture that would be of interest to hackers, corporations and, it seems, our own governments.
When the EU’s General Data Protection Regulation comes into force in May 2018, it will introduce much tighter controls over the information that companies gather and the amount that the consumer will have to be told about this information. The hope must be that manufacturers will begin incorporating security measures when developing IoT devices, offering greater protection to consumers.
The problem with this scenario, as far as the UK is concerned, is that we appear to be moving inexorably towards a hard Brexit. If this means ditching the EU regulation then it is to be hoped that the equally tough regulations are introduced into UK data protection law.
Declan Harrington is a financial advisor at Savage Silk, a multi-disciplinary practice that specialises in offering legal and financial advice. In this article, he offers Lawyer Monthly an auto-enrolment checklist for getting your firm ready for the new pension rules, as well as information about what the penalties are if you don’t.
For the best part of a decade now, auto-enrolment has been a hot topic in the financial sector. The government’s plans for revolutionising UK pension regulations was announced back in 2008 as part of the Pensions Act 2008, with the aim of boosting the low level of savings among UK workers.
The new rules came into force in October 2012, and have been gradually rolled out for employers since — a process that is still ongoing. While many businesses have already had to meet their staging dates, there are many companies that still need to prepare themselves (the last date is in February 2018). If your business’ deadline is still forthcoming, there are a few things that you need to consider beforehand in order to meet the requirements. Take a look at the checklist below to get up to speed.
Be aware of your staging date
As we’ve just mentioned, auto-enrolment has been gradually introduced to employers over a few years. The regulations are compulsory for every employer in the UK so, if you haven’t had to introduce them yet, you need to know what staging date you should be preparing for. The easiest way to find out what deadline you are working to is to use the Pension Regulator’s staging date tool, which will give you an exact date.
Arrange a qualifying pension scheme
In advance of your staging date, you will need to arrange a qualifying pensions scheme that your employees will be enrolled in. Any plan you offer your staff must meet the automatic enrolment criteria, the qualifying criteria, and the minimum requirements as set out by the government. You can find out more about each of these in this detailed guidance document from the Pensions Regulator.
Know which employees need to be enrolled
It’s important that you know which of your employees need to be enrolled onto your chosen qualifying scheme. Any staff members that are between 22 years old and the state pension age must be included in the plan, as long as they are earning more than the ‘earnings trigger’ in each pay reference period — visit the government’s earnings trigger and qualifying earnings page for the most up-to-date information on these figures.
Be ready for staff who choose to opt-out
While it’s likely the majority of your staff will be more than happy to receive a contribution towards their pension fund as part of auto-enrolment, there may be some who decide to opt out. There will be a designated one-month opt-out period where they can give you notice of their choice, and they must be refunded any contributions that have been made within a month of giving notice. The regulations state that they will be automatically re-enrolled every three years, so they will need to give you a new notice each time this occurs. The op-out notice that they must submit is usually provided by the pensions scheme.
Keep up with your responsibilities and compliance
As an employer, you have a responsibility to make sure that you keep up to date with your duties and compliance for employee pensions. For example, how much you need to be contributing should be reviewed regularly, particularly if an employee gets a pay rise or starts to work more hours (or anything else that increases their earnings). A proactive attitude will ensure you remain on target and avoid any penalties.
Furthermore, you must prove through compliance to the Pensions Regulator that you are fulfilling your role. You must be able to provide details of the scheme you have set up for your employees , and how you have met your responsibilities, within five months of your staging date. These details will be checked against your employer PAYE scheme data, and the process must be repeated every three years. Take a look at AccountingWeb’s guide to a declaration of compliance to find out exactly what information you need to submit.
What happens if I fail to meet the requirements for auto-enrolment?
The Pensions Regulator does exactly what its name suggests: it checks that you have met your staging date, and are keeping up with your duties. If you fail to meet either of these requirements, they also have the power to issue penalties and larger fines. These include, but are not limited to:
Read the Pension Regulator’s compliance and enforcement strategy document for full details of all fines, penalties, and measures that can be used to punish businesses that don’t fulfil their responsibilities.
Keep these guidelines in the lead-up to your staging date and you will be best placed to make a successful transition into the new auto-enrolment scheme.
The present wave of automation, driven by artificial intelligence (AI) – the development of computer systems able to perform tasks normally requiring human intelligence – is creating a gap between current legislation and new laws necessary for an emerging workplace reality, states a report recently published by the International Bar Association Global Employment Institute (IBA GEI).
Gerlind Wisskirchen, IBA GEI Vice Chair for Multinationals and coordinator of the report, commented: “Certainly, technological revolution is not new, but in past times it has been gradual. What is new about the present revolution is the alacrity with which change is occurring, and the broadness of impact being brought about by AI and robotics. Jobs at all levels in society presently undertaken by humans are at risk of being reassigned to robots or AI, and the legislation once in place to protect the rights of human workers may be no longer fit for purpose, in some cases.”
She added: “The AI phenomenon is on an exponential curve, while legislation is doing its best on an incremental basis. New labour and employment legislation is urgently needed to keep pace with increased automation.”
Titled Artificial Intelligence and Robotics and Their Impact on the Workplace, the 120-page comprehensive report focuses on potential future trends of AI, and the likely impact intelligent systems will have on: the labour market, the structures of companies, employees” working time, remuneration and the working environment. In addition to illustrating the thread and importance of law in relation to these areas, the GEI report assesses the law at different points in the automation cycle – from the developmental stage, when computerisation of an industry begins, to what workers may experience as AI becomes more prevalent, through to issues of responsibility when things go wrong. These components are not examined in isolation, but in the context of economics, business and social environment.
In the example of the automotive industry, the report identifies competitive disadvantage between Europe and the United States in the developmental stage of autonomous driving. Germany and the US are recognised as the market leaders in this area. However, in contrast to the US, European laws prevent autonomous driving on public roads, though there are some exceptions for research vehicles. US companies are not faced with the same restrictions; they are therefore able to develop at a faster pace and as a result are likely to bring products to market sooner than their European competitors. Europe’s restrictive older regulations impede technical progress of autonomous driving for companies operating within its borders, potentially placing them at a disadvantage in the marketplace.
Since motor vehicles will be driven by fully automated systems in the future, it is conceivable that jobs such as truck, taxi or forklift drivers will be eliminated in the long run. The report states there is a 90% likelihood of this happening, with developers of connected trucks stating: “technical changes that will take place in the next ten years will be more dramatic than the technical advancements over the last 50 or 60 years.” The report points to cost savings of up to 28% as logistics become cheaper, more reliable and more flexible. At the fully automated stage, costs will be further reduced as the requirement for rest breaks is eliminated, illness or inebriation is no longer a risk factor, and accidents are minimised.
Nevertheless, the report examines the issue of liability when failure does occur, concluding that: “The liability issues may become an insurmountable obstacle to the introduction of fully automated driving.” Currently, in most cases driver responsibility is assumed, with the manufacturer liable only for product defects, and vehicle owners subject to special owner’s liability, particularly in European countries. However, if a vehicle is fully automated, with a human driver no longer actively steering, the question arises as to whether damage can still be attributed to the driver or the owner of the car, or whether only the manufacturer of the system can be held liable.
The report’s authors examine whether rules applicable to other automated areas, such as aviation, can be applied, but reason that: “it is not possible to apply the liability rules from other automated areas to automated driving”, and that international liability standards with clear rules are needed.
Pascale Lagesse, Co-Chair of the IBA GEI, commented: “Without doubt AI, robotics and increased automation will bring about changes in society at every level, in every sector and in every nation. This fourth industrial revolution will concurrently destroy and create jobs and paradoxically benefit and impair workers in ways that are not entirely clear or not yet imagined. What is evident, however, is that a monumental paradigm shift is occurring and that concurrent legal uncertainties need to be addressed within labour and employment laws geared to the technological developments.”
She added: “Greater governmental collaboration across borders may be necessary if commerce is to thrive. States as lawmakers will have to be bold in decision, determining what jobs should be performed exclusively by humans, for example: caring for babies; perhaps introducing human quotas in different sectors; taxing companies where machines are used; and maybe introducing a “made by humans” label for consumer choice. Our new report posits these ideas and more, and could not be more timely.”
(Source: IBA)
Tens of thousands of Orthodox Jews gathered last Tuesday to protest Israel's Military Draft Law, resulting in the forced enlistment of many Orthodox Jews. The protestors also decried Israel's brutal tactics to crack down peaceful protestors.
The demonstration was organized by the Edah HaChareidis – a Rabbinic umbrella association representing hundreds of Orthodox Jewish congregations with a combined membership of over 250,000. During the protest, leading Rabbis sharply attacked Israel's conscription policy, passed in 2014, curtailing a 60 year old policy exempting all Yeshiva students from military service. Since then, many who refused to enlist were incarcerated for weeks and even months under brutal conditions. Those who peacefully protest those policies are subject to harsh punishments as well.
For instance, a father of seven, Rabbi Binyumin Friedman was recently incarcerated for peacefully protesting the draft. He was denied bail and is now scheduled to remain detained until the completion of his trial, which can take many months.
"The Israeli Army is an irreligious entity, and it is impossible for Orthodox Jews to fully practice their religion while in the army. We cannot serve in the army; because, the Torah prohibits us to create a state before the coming of Messiah… because, the Torah prohibits us to wage war against any sovereign nation!" declared Rabbi Issac Mark, the intergovernmental liaison for the Edah HaChareidis.
Forcing Orthodox Jews to serve in the army against their religious convictions violates Resolution 1989/59, passed by the UN Commission on Human Rights on March 8, 1988, Rabbi M. Weiss said. The resolution: "Recognizes the right of everyone to have conscientious objections to military service as a legitimate exercise of the right of freedom of thought, conscience and religion as laid down in article 18 of the Universal Declaration of Human Rights."
At the conclusion of the demonstration, organizers declared that they will continue protesting until all confined in prison are released and while the current evil draft policy remains in place. The E.H. is determined to continue and ramp up the campaign to awaken the international community to Israel's suppression of the religious freedoms of its Orthodox Jewish citizens.
Source: Edah HaChareidis
The President of the Ontario Public Service Employees Union is renewing his call to have Canadian government contractors covered by the Public Sector Salary Disclosure Act.
"The problem with the 'Sunshine List,' released last week, is that it doesn't show the whole picture," Warren (Smokey) Thomas said. "Kathleen Wynne's Liberals are pouring billions into the private sector through public-private partnerships and other forms of privatization, yet the public has no idea where that money goes.
"Let's shine the light on construction companies like EllisDon, and law firms like McMillan LLP, and all the Bay Street banks and hedge funds that are getting fat off public dollars," he said. "Let's follow the money."
Thomas pointed to the recently-privatized Hydro One, whose top five executives raked in $11 million last year, as a perfect example of a company whose high-end salaries should be public.
"I had to laugh when I saw Treasury Board President Liz Sandals say that those salaries wouldn't affect electricity prices because $11 million is just a drop in the bucket," he said. "It's no wonder Ontarians think the Liberals are out of touch with regular people."
Thomas said the rise in the number of high-income earners on the Sunshine List revealed a provincial public sector that has become increasingly top heavy under the Liberals.
"I've been saying for a long time that there are too many managers in many areas of the public sector, from hospitals to conservation authorities to you name it," he said. "And the wages of those managers have all been paid for, for close to a decade, by austerity, layoffs, and real wage cuts for frontline workers.
"The true message of the Sunshine List is this: we need to move money to the frontlines of public service delivery. Too many people – and too many of my members – are struggling to survive in precarious jobs where they can't get enough hours and their wages aren't enough to live on.
"This has to stop."
(Source: Ontario Public Service Employees Union)
A new report published by the Center for Immigration Studies describes the undermining of federal immigration courts and outlines recommendations to fix the chaos. Under former President Obama, immigration adjudication nearly halted due to Department of Homeland Security (DHS) policies that prosecuted fewer cases and removed fewer of those ordered removed from the United States, including criminal aliens. Lack of enforcement by DHS was matched by court evasion, resulting over the last 20 years in 37 percent of all aliens free before trial failing to appear for court.
Mark Metcalf, a former judge on the Miami Immigration Court and author of the report, writes, "From 1996 through 2015, removal orders for failure to appear numbered 918,098. Among those who absconded from court were 3,095 aliens from the 36 countries that promote terrorism. A disproportionate number — 338 altogether — came from those countries the US State Department labels state sponsors of terrorism: Iran, Sudan, and Syria."
Metcalf interviewed immigration judges across the country in writing "Courting Disaster: Absent attendance and absent enforcement in America's immigration courts": "They described a system plunged into turmoil by appointees at the Departments of Justice and Homeland Security who ignored statutes, precedent, and regulation and imposed policies that dramatically increased backlogs and nearly halted adjudication. Misusing the tools of 'prosecutorial discretion' — justifications for not prosecuting a case — and 'administrative closure' — continuances granted to avoid trial — prompted dismissals and ever-growing caseloads."
Congress and the public were misled by skewed numbers, painting a dishonest picture of court dynamics and displaying an indifference to public safety and national security. The high number of those abandoning their cases—without fear of incarceration or removal— was artificially reduced by a political numbers game. The difference between the actual absconding rate and the rate reported to Congress understated court evasion in some years by more than 100 percent.
Metcalf writes: "In a time of porous borders, drug cartels, alien smuggling, human trafficking, immigration fraud, and a still-raging War on Terror, gamed numbers conceal risk to national security and compromise to American neighborhoods. They disguise the actual weakness of courts and enforcement in addressing chaotic conditions entirely the making of those in charge."
Moreover, the actions of the Obama administration over the past 8 years were inconsistent with due process and equal protection among citizens and the foreign-born who reside here legally and illegally. "Were citizens, visa holders, or lawful permanent residents to commit crimes that ICE declared insufficient to arrest and remove an illegal entrant — crimes such as shoplifting and identity theft, low-level DUIs, misdemeanor assaults, and illegal voting — law enforcement response would be prompt and certain … Visa holders would be denied extensions of their US stays or become inadmissible when applying to reenter. Lawful permanent residents would be subject to removal proceedings for committing crimes of moral turpitude or aggravated felonies. " In many instances, illegal aliens were simply released by ICE, despite committing crimes that would have landed others in jail.
Metcalf concludes his report with a list of recommendations to restore enforcement and bring integrity back to the US immigration courts. His practical reforms include:
(Source: Center for Immigration Studies)
