Archive | January, 2013

What is Extreme Hardship?

28 Jan

With all the excitement and buzz about the new I-601A Provisional Waiver process, described in Benach Ragland’s live video chat and our previous posts, it is important to remember that what has changed for certain non-citizens and their family members is the procedure for applying for a waiver of inadmissibility, not the substance of the legal standard.  I-601A Provisional Waivers of inadmissibility for unlawful presence in the United States will soon be available to assure family unity for certain eligible applicants who seek permanent resident status.  Among other requirements, to be eligible for such a waiver of inadmissibility, applicants for I-601A Provisional Waivers must demonstrate that they have the requisite qualifying relative – in this case, a United States citizen spouse or parent – and that their U.S. citizen spouse or parent will suffer “extreme hardship” if the applicant is not allowed to re-enter the United States as a lawful permanent resident.  Of course, every family member who is forcibly separated from their loved ones suffers some degree of hardship.  But the I-601A Provisional Waiver requires a showing that the hardship would be extreme.  So, what is extreme hardship, and how can an applicant demonstrate extreme hardship?

Extreme hardship is hardship beyond the normal hardship that is suffered when family members are separated from one another.  This can be a difficult standard to meet and requires substantial supporting evidence, so it is important that applicants retain competent immigration attorneys who are experienced in preparing extreme hardship waivers.  The factors considered in determining whether the U.S. citizen spouse or parent will suffer extreme hardship may include:

  • The presence of family ties within and outside of the United States, particularly within the country of relocation;
  • The emotional and psychological impact of separation on the U.S. citizen relative;
  • The political, economic, and social conditions in the country of relocation;
  • The financial and professional impact on the U.S. citizen relative;
  • Any significant health conditions, particularly when tied to the unavailability of suitable medical care in the country of relocation;
  • The U.S. citizen’s ability to raise children in the country of relocation and other quality of life factors; and
  • The U.S. citizen’s age, length of residence in the United States, health, technical skills, employability, and other factors.

These factors are weighed in the aggregate, so it is important to highlight and thoroughly document every possible hardship factor – what matters in the extreme hardship analysis is the totality of the circumstances.  Moreover, the applicant should show extreme hardship to the U.S. citizen spouse or parent in each of two different scenarios: (1) if the U.S. citizen remained in the United States without the applicant; and (2) if the U.S. citizen accompanied the applicant to his or her home country.

The process of preparing an I-601A Provisional Waiver application, similar to preparing an I-601 application for a waiver of inadmissibility based on extreme hardship, is labor intensive and requires extensive documentation.  The applicant must document who he or she is, as well as any connections to the United States, familial and otherwise.  Such documentation may include government-issued identification, passports, marriage certificates, children’s birth certificates, a list of all U.S. citizen and permanent resident family members with proof of their immigration status and relationship to the applicant, a list of all relatives in the country of relocation, photographs with family members, personal declarations, and letters of support from relatives, employers, friends, and community members.  The applicant and the qualifying relative’s personal declarations are quite possibly the most important documentation for demonstrating extreme hardship, as they fully describe in the applicant’s and relative’s own words the totality of all of the hardship factors that would affect their family if the I-601 Provisional Waiver is not granted.  At Benach Ragland, we spend a significant amount of time with our clients, working with them to draft these important documents.

The applicant and U.S. citizen relative should also submit documentation that shows their financial ties to the United States, debt incurred in the United States, and the financial hardship that would be caused by the applicant’s continued inadmissibility to the United States.  This may include mortgage, lease, or deed documentation; documentation of property ownership; evidence of loans or other debts; monthly bills; insurance; other regular family expenses; tax returns and W-2 forms; social security records; evidence of current employment; or documentation showing financial support of family members in the U.S. and abroad.  Additionally, evidence of the economic and financial conditions in the applicant’s home country may assist in establishing extreme financial hardship.  If a country has a high unemployment rate or significantly lower wages than those paid for the same job in the United States, those factors may be helpful in showing that the U.S. citizen would suffer financially, either because she no longer has her husband’s income to help support the family or because she would be unable to obtain a similar position in the applicant’s home country.

Medical and psychological hardship is often one of the strongest hardship factors to highlight in preparing an extreme hardship waiver application, such as the I-601A Provisional Waiver.  To document this factor, applicants should obtain letters from medical professionals (including treating physicians, specialists, psychiatrists, psychologists, or therapists), which explain the family member’s diagnosis and his or her medical and treatment needs.  It is also helpful to submit documentation of doctor and hospital visits, prescription medications, and evidence of family medical history or risk factors.  Quite possibly the most important piece of evidence of medical hardship is a thorough report prepared by the family member’s treating physician or licensed mental health professional.  At Benach Ragland, we work with our clients’ doctors and therapists to finalize their reports and to ensure their legal sufficiency and effectiveness.  If mental health is a relevant hardship factor in our client’s case, we also assist our client in working with a forensic psychologist who is experienced in documenting extreme psychological hardship, which can range from anxiety and depression to more serious psychological disorders.  Finally, it is important to also document the health care system of the applicant’s home country, as well as any deficiencies, to demonstrate that the U.S. citizen family member could not relocate to that country without experiencing extreme medical hardship.

Although children are not considered “qualifying relatives” for purposes of the I-601A Provisional Waiver process, their hardship factors may still be relevant as well, as they could add to the qualifying relative’s own hardship.  For instance, if a child has a learning disability that requires special education and increased parental involvement, the inability of the applicant to remain with that child in the United States may cause his U.S. citizen spouse to suffer extreme hardship, because without the applicant, she would suddenly have to provide for that child’s needs on her own.  Thus, any documentation of children’s special needs, their progress in school, and their awards and activities may also be helpful evidence in demonstrating extreme hardship.

Finally, since there is an element of discretion involved in the adjudication of an I-601A Hardship Waiver, it is important to document the applicant’s good moral character and contributions to the communities of which the applicant is a part.

Of course, the hardship factors and types of evidence mentioned above are not exhaustive.  At Benach Ragland, we spend a significant amount of time with our clients to determine each individual’s extreme hardship factors and how they can best be presented through documentary evidence to achieve a successful resolution to a waiver application.  We plan to continue with this practice in our clients’ I-601A Provisional Waiver applications, and look forward to assisting our clients in fighting for togetherness based on the extreme hardship that a separation or relocation would bring to their families.

What is the Deal with the Immigration “Line?”

28 Jan

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This morning, we had a chance to review the five page blueprint for immigration reform produced by a bipartisan group of eight Senators.  There is a lot to discuss on the blueprint, but one thing specifically jumped out at me:

“Once the enforcement measures have been completed, individuals with probationary legal status will be required to go to the back of the line of prospective immigrants, pass an additional background check, pay taxes, learn English and civics, demonstrate a history of work in the United States, and current employment, among other requirements, in order to earn the opportunity to apply for lawful permanent residency. Those individuals who successfully complete these requirements can eventually earn a green card.

Individuals who are present without lawful status – not including people within the two categories identified below – will only receive a green card after every individual who is already waiting in line for a green card, at the time this legislation is enacted, has received their green card. Our purpose is to ensure that no one who has violated America’s immigration laws will receive preferential treatment as they relate to those individuals who have complied with the law.”

As an immigration lawyer, I have to ask “which line?”  There are dozens.  Let’s try to figure out what they could mean.  There are two basic ways that people seek residence, these are: (1) through family; and (2) through employment.  There are other means, but these represent the bulk of immigrant visas.  The Immigration & Nationality Act limits the number of immigrant visas can be issued annually.  The allocation of that finite number of visas is divided by type of application and country of nationality.  Demand exceeds supply and backlogs in each category have developed.  For example, the Jamaican unmarried son or daughter over 21 of a U.S. citizen would have had to  start the immigration process prior to December 22, 2005 to receive an immigrant visa today.  If the same immigrant were from the Philippines, she would have had to started the process fifteen years ago in 1997.  In the employment based context, an employer who seeks an immigrant visa on behalf of an Indian professional with a bachelor’s degree but no advanced degree would have had to start the process before November 8, 2002 for that employee to obtain a visa today.  On another note, the law allows immigration judges to grant residence to 4,000 people a year if they can demonstrate that they have been in the U.S. for ten years, have good moral character, and their removal would cause exceptional and extremely unusual hardship on their U.S. citizen or permanent resident spouse parent or child.   That cap has already been reached for this year and no new visas through cancellation may be granted until October 2013.  Thus, there are a variety of lines that immigrants may fall into.

How does one get into the queue?  A priority date is established when an immigrant petition or application for a labor certification is filed.  If the petition and/or labor certification is approved, an applicant may take her spot in line depending upon the category.  The immigrant visa backlog is maintained by the Department of State, which does not track applications for labor certifications until an immigrant petition has been filed.  Thus, there are many more thousands of people beginning to get in the queue by filing applications for labor certifications.  Also, the State Department is not aware when people drop off the queue.  A person can die while waiting and, obviously, leave the queue.  People get married, divorced or just grow disinterested in immigrating.  The queue is highly dynamic and fluctuates often.

So, which line do individuals go to?  The blueprint seems to require everyone in the queue to obtain residence before a single beneficiary of the new plan gets residence.  That might take a while.  After all, visas are now available for the Filipino brothers and sisters of American citizens if their American brother or sister originally sponsored them prior to April 15, 1989.  Twenty three years.  Does the plan truly require everyone in the queue to get their residence before anyone who applies under the new program?  Does this mean that no one will get a green card for at least 23 years??  It’s amazing that in an era where there is so much concern over “big government,” members of the Senate would propose a process that takes a quarter century to begin.  At least the Soviets stuck to five year plans.

Here is another sneaky fact that makes this whole idea unworkable.  Many of the undocumented in the U.S., the eleven million, that would supposedly benefit from this program, are already in the queue!!!  Many of them have sought immigration benefits and it is only due to the outrageous backlogs that they become undocumented. They have played by the rules, too, but the system has failed them.   It is a myth that there are so many people abroad who “play by the rules” and are waiting patiently for their turn to come in.  Yes, they exist, but not likely in the numbers that the back of the line crowd says, and should be immediately let in with residence rather than waiting in these atrocious backlogs.

There are, in fact, many highly skilled employees, waiting their turn to apply for residence due to backlogs in employment visas.  These folks are here on temporary visas, working and waiting.  They would seem to have a legitimate gripe if the undocumented got immediate residence.  But the solution is not this garbage about the back of the line.  Raise the immigrant visa numbers to an amount that is commensurate with the American employers’ demands for a workforce.  Don’t make immigrants pay for the arbitrary levels of immigration that were created nearly half a century ago.

So, that’s the issue with the line.  So far, the only politician we have seen who gets this is Jeb Bush, who published the most sane piece on immigration that we have seen during this discussion.  The former Florida governor wrote:  “There is no “line.” Critics of comprehensive reform often argue that illegal immigrants should return to their native countries and wait in line like everyone else who wants to come to America. But unless they have relatives in the U.S. or can fit within the limited number of work-based visas, no line exists for such individuals.For most aspiring immigrants, the only means of legal admission to this country is an annual “diversity lottery” that randomly awards visas to 55,000 foreigners. There are roughly 250 applicants for each visa every year. The absence of a meaningful avenue of access increases the pressure for illegal immigration.”

There are many lines; there is no line.  The line moves, grows and contracts.  Immigration reform will have to deal with this messy reality rather than attractive soundbites such as “go to the back of the line.”

Opportunity Lost- Administration Seeks Supreme Court Review of De Osorio

26 Jan

On the same day that the immigration world was abuzz with news that the President would unveil his immigration reform plan next week, the administration filed a brief to preserve the unnecessary family separation caused by its cramped  understanding of the Child Status Protection Act reflected in the Board of Immigration Appeals decision in Matter of Wang.  The juxtaposition of the prospect of common sense immigration reform with the wholly unnecessary appeal of the U.S. Court of Appeals for the Ninth Circuit’s decision in Cuellar de Osorio v. Mayorkas provides significant doubt that the administration really understands the pain caused to American families by the immigration laws and the decisions that the administration takes on a daily basis that make those immigration laws worse than perhaps Congress even intended.  When the administration is more restrictive then Congress, that is a sorry state of affairs.

Enough editorializing.  We can write more about what a disastrous decision this was for the administration once emotions are less raw.  For now, we will focus on what happens.

The administration has filed a petition for a writ of certiorari to the Supreme Court to review the decision of the 9th Circuit.  A writ of certiorari is a statement from the Supreme Court that they will review a case.  “I will review” is the basic Latin translation of certiorari.  By petitioning for the writ, the government is asking the court to review a case.  Review at the Supreme Court is discretionary, meaning that the Supreme Court does not review all cases in which certiorari is sought.  In fact, the Supreme Court rejects the overwhelming majority of cert petitions filed each year.  The Supreme Court grants only about 2% of all petitions for certiorari. That might be comforting, but the odds are improved when the petitioner is the Department of Justice, as it is here.  In addition, other factors, such as the split between circuit courts to have reviewed the CSPA, and the national implications of the decision are factors that indicate that the government’s petition for a writ of certiorari in de Osorio are better than the 2% average.

The Supreme Court will vote on whether to hear the case.  Four justices must vote in the affirmative to hear the case. It is difficult to say when the Supreme Court will rule on whether to grant certiorari.  A good discussion of Supreme Court procedure can be found here. If the Supreme Court denies the petition for certiorari, the decision of the Ninth Circuit will stand.  If the Supreme Court grants the petition, it will receive briefs from the parties and all sorts of other interested people and organizations.  It will hold oral argument.  It is unlikely that the Supreme Court will hold oral argument before October as the Court recesses from June to October.  A decision would likely come about a year from now.

So, there remain two more opportunities to end this struggle.  The first chance is whether the Supreme Court grants cert.  The second is when, if it grants cert, it decides on the case.

There remains substantial hope.  The lawyers handling this are some of the best in the business.  Many other interested parties will weigh in.  Benach Ragland will continue to be a part of this litigation and continue to advocate for sane immigration laws.  Also, cert is rarely granted.  The government still has an uphill road to follow.  This is a setback and not a defeat.

Time to Decide in de Osorio

24 Jan

The Obama administration has until tomorrow January 25, 2013 to file a petition for a writ of certiorari with the U.S. Supreme Court to seek review of the U.S. Court of Appeals for the 9th Circuit decision in Cuellar de Osorio v. Mayorkas, which provided a humane and reasonable interpretation of the Child Status Protection Act.  If the government does not seek review in the Supreme Court, the decision of the 9th Circuit becomes law nationwide and thousands of people will be eligible to apply for adjustment of status using their old priority dates.

If the government does seek review, the case will remain on hold.  However, a petition for a writ of certiorari does not mean that the Supreme Court will take the case.  The Supreme Court does not take every case that comes before it and must agree to hear the case.  If the Supreme Court declines to hear the case, then the 9th Circuit decision becomes law.  If the Supreme Court takes the case, we will need to wait for a ruling from the Court before knowing the fate of the de Osorio class of potential applicants.

We have explained in multiple posts the reasons why the government should let the de Osorio decision stand and how this single act could improve the immigration system for thousands of American families.  In the week of the President’s inauguration with its soaring hopes and promises, the President has an immediate opportunity to translate those words into policy and law.  Let’s hope he takes it.

What do Dostoyevsky and Sam from Zambia have in common?

18 Jan

On December 23, 1849, Fyodor Dostoevsky, who went on to become Russia’s greatest novelist, and several other members of the so-called Petrachevsky Circle were taken out into the courtyard of the Semonyonov Prison in St. Petersburg.  The tsarist government had sentenced them to death.  Men were blindfolded and tied to posts.  The firing squad was locked and loaded when a cart with a reprieve from the Tsar himself commuted the sentence to exile and hard labor.  The execution, minutes away from proceeding, was stopped.

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This morning, around 10:15, I received a phone call from Immigration & Customs enforcement (ICE) informing me that our request to stay the removal of our client, Sam from Zambia, had been granted and that ICE agents had removed him from a plane bound to depart the U.S. at 10:30.  Like Dostoevsky, Sam was all set and ready to go.  Seat beat buckled.  Tray in upright and locked position and all luggage safely stowed.  And while the stakes were much higher for Dostoyevsky, it is not hyperbole to wonder how Sam would survive in Zambia, an extraordinarily poor country where he has not lived in twenty years and has no family.  However, ICE granted the stay at the last minute and Sam was removed from the airplane.

This is the second time I have been lucky enough to have the remarkable emotional experience of snatching victory from the jaws of defeat by having a person removed from an airplane bound to deliver them to an unknown fate in a country that has become foreign to them.  Years ago, over the Christmas holidays, I, and FOBR Nadeen Aljijakli, worked day and night to stop the removal of our client to Haiti.  They flew her out of Baltimore to Miami, where she was to board a plane to Port-au-Prince,a  charter full of deportees.  The Board of Immigration Appeals granted our stay while the plane was en route to Miami.  She was taken onto the plane in Miami when the ICE agents got the word of the stay.  They came onto the plane and pulled her off.  As she struggled to get her bags, the entire plane, full of people living through the tragedy of their own deportation to Haiti, cheered for the one lady who avoided their fate.  I wish I could have seen and heard that.

I knew that they were planning on removing Sam today.  We had been on it for two days.  He had a final removal order, but, as the victim of a serious crime, potentially qualified for a U visa, available to foreign nationals who have been the victim of a serious crime and were helpful in the investigation and/or prosecution of that offense.  A prerequisite for seeking a U visa is obtaining a signed certification from the law enforcement agency that investigated or prosecuted the crime.  Obtaining that certification is often a challenge as many agencies do not have established or easily ascertainable policies on signing off on certifications.  They take weeks or months.  However, due to the presence of some outstanding people in the Baltimore County Police Department, we got one turned around in an hour and sent it to ICE.  That was about 4:30 yesterday and it appears that the decisionmakers on the stay had gone for the day.

Friday morning is pancake morning in the Benach household.  By 7:30 AM, we had pancakes on the table and I was on the phone with ICE.  I knew Sam was either at or on the way to the airport.  At that point, the pancake breakfast turned into a war room.  My oldest Paloma, was writing down phone numbers as I barked them out from the phone.  Teddy, the youngest, kept me supplied with coffee.  And Alex, sensed opportunity and ate everyone’s pancakes.  Not only were the Benach children conscripted into helping Sam from Zambia, but I abused my colleagues in the immigration bar.  I love being a part of this community of lawyers who care about their clients and will help you at the drop of a hat.   So many people made this happen.  When I needed to find someone  in Baltimore County, Paula Xinis of the amazing Baltimore firm of Murphy, Falcon & Murphy got a partner there to make calls to people he knew on behalf of a young man he never met.  This morning, when I needed phone numbers and emails, FOBRs Sandra Grossman, Jay Marks and Michelle Mendez of Catholic Charities rode to my rescue.  Let me just say that this is not the first time that Sandra Grossman delivered for me in a huge way.  Jay helped me keep a sense of humor with his infectious laugh.  And, for Michelle, I will root for the Ravens this weekend in your honor.  Now, that is no biggie as they are playing the Patriots, but I will be loud for the Ravens

Ravens

Finally, the stay was filed yesterday only because BR’s own Liana Montecinos is charming and delightful and she convinced the ICE officials to take the application even after the official cashier had left for the day.

Sam’s fight is not won.  So much of immigration is living to fight another day.  But now, with the gift of time, we can do for Sam what he needs and give him a chance to stay.

The Provisional Waiver and Removal Proceedings

17 Jan

 

Over the last few weeks we have answered dozens of questions about the provisional waiver.  One group of questions keeps appearing- questions about how people in removal proceedings or with a removal order can qualify for the provisional waiver.  Whereas, the initial rule announced by the Department of Homeland Security indicated that the provisional waiver would be unavailable to people in removal proceedings, the final rule is somewhat more forgiving.  The final rule states that an individual in removal proceedings can not seek a provisional waiver with the Citizenship & Immigration Service (CIS) unless proceedings have been administratively closed or terminated.

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As Julie Andrews sang, let’s start at the very beginning as it is a very good place to start.  Removal proceedings are initiated when the DHS issues a charging document known as a Notice to Appear (NTA) and lodges it with the Immigration Court.  Any of the three immigration agencies, Immigration & Customs Enforcement, Citizenship & Immigration Services and Customs & Border Protection has the authority to issue NTAs.  Usually, the time between DHS issuing an NTA and filing it with the court is close to simultaneous.  However, on occasion, the NTA is issued and not filed with the court for days, weeks, months or even years.  An individual is not “in removal proceedings” until an NTA has been filed with the court.  Until the NTA is filed with the court, DHS has exclusive authority to choose not to bring removal proceedings against an individual.  In cases where an NTA has been issued and not filed with the court, that individual is not in removal proceedings and should remain eligible for the provisional waiver.  Removal proceedings continue until the immigration judge grants relief and terminates the case or the person departs the U.S. either under an order of voluntary departure or an order of removal.  In cases where there is a final order of removal, but the individual has not been removed yet, even though there are no more proceedings before the court, that individual is still “in proceedings” and would be ineligible for the provisional waiver.

Once a person is in removal proceedings, the provisional waiver rule is clear that those proceedings must be administratively closed or terminated before that individual can seek the provisional waiver.  Termination of removal proceedings can happen in one of two ways.  First, proceedings are terminated where the immigration judge grants relief, allowing an individual to remain in the U.S. in some sort of legal status.  Second, and this is the rarer form of termination, ICE may elect to terminate proceedings because it has decided that seeking removal in a particular case is no longer in the interests of the government.  Although the DHS has exclusive authority to issue and to decide whether to file a Notice to Appear in immigration court,  once proceedings have been initiated, DHS becomes a party to litigation and only the immigration judge has the authority to terminate removal proceedings.

Administrative closure is a tool of convenience for immigration courts.  Administrative closure allows the court to take a case off an active docket and place it into “hibernation.”

clipart_sleepingbearBy administratively closing a case, the case remains pending before the immigration court, but it is taken off the active calendar.  When a case is pending before the court, it is on an active calendar and at the end of each hearing another hearing must be calendared.  When a case has been administratively closed, it is not on any calendar and no hearings are scheduled.  The case remains before the court, but the court is not acting on the case.  In order to get the case back on the active docket, one of the parties must file a “motion to recalendar” the case.  Cases can be administratively closed for months or years at a time.  Either party may request administrative closure and the immigration judge has authority to grant it.  Until recently, the law required the concurrence of both the foreign national and the government to allow for administrative closure.  However, last year, in Matter of Avetisyan, the Board of Immigration Appeals held that an immigration judge may grant administrative closure over the objection of one of the parties.  In other words, DHS can not unilaterally deny the foreign national’s  ability to obtain administrative closure.

People currently in removal proceedings who would otherwise qualify for the provisional waiver can seek both termination and administrative closure.  We expect that ICE, who represents the government in removal proceedings, will be fairly accommodating to requests to terminate or administratively close cases where the foreign national can present a prima facie case for eligibility for the provisional waiver.  In these cases, your lawyer ought to prepare a motion to terminate or administratively close demonstrating that you qualify for the provisional waiver and that the pending removal proceedings are the only impediment.  These individuals should be able to demonstrate that they are the spouse, parent or children of a U.S. citizen and that their only violation of law relates to entering illegally.  By presenting evidence to the government of qualification for the provisional waiver and readiness to file it, it seems that ICE would exercise its discretion to administratively close the case to allow the applicant to file the provisional waiver application.  Upon approval, termination seems appropriate.  If the case is not approved, it is reasonable to expect that ICE would seek to recalendar the case and proceed with removal proceedings.  Should the government refuse to join a motion for administrative closure, the immigration judge has the authority under Matter of Avetisyan to close the case nonetheless upon the motion of the foreign national.

People with old orders of removal who have not yet departed the United States would need to reopen removal proceedings so that removal proceedings can be administratively closed or terminated.  This is a heavy lift.  If the removal order is more than 90 days old, a foreign national will, generally, need the government to agree to reopen for the purpose of closing.  Makes sense, right?  However, there may be circumstances where the hardship is so clear and extreme and the facts are so compelling that the government agrees to this.  By asking the government to join a motion to reopen, an individual with a final order of removal, who may or may not be on the government’s radar screen for removal, makes herself vulnerable to enforcement of the removal order should the government prove unwilling to join in reopening.  While there are limited circumstances in which an immigration judge can reopen on his own motion, those instances are rare and should not be, generally, relied upon.

Finally, people who have been deported or departed the U.S. under an order of voluntary departure or removal are ineligible for the provisional waiver and must seek the waiver through the traditional means at the consulate in their home country.

The provisional waiver has the potential to help thousands of people in removal proceedings.  Many of them may be waiting for hearings on cancellation of removal which requires a much higher level of hardship than the provisional waiver’s standard of extreme hardship.  It is not really conceivable that anyone can navigate this thicket without experienced counsel.  Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.

 

Someone(s) at ICE Needs to Be Fired

11 Jan

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Those of us on the East Coast woke up this morning to the news that Maria Arreola and her son Heriberto Arreola were arrested in their home Thursday night by Immigration & Customs enforcement in Phoenix, Arizona.  Another day in immigration, where ICE enters people home’s homes and removes individuals who have done little more than entered into or remained in the country without permission.  Yep, this was a normal case except that Maria is Erika Andiola’s mother and Heriberto is her brother.  And Erika is one of the most, to paraphrase Junot Diaz, activistingest activists of activism on immigrant rights and reform and by the time ICE officials in Washington had their morning coffee, their inboxes were full of email, the phones full of messages and their press representatives scrambling to figure out what happened in Arizona.  Why is it always Arizona?

Well, it did not take long for the ICE brass to realize something was dreadfully wrong.  After all, the Director of ICE states that ICE has priorities and those priorities were securing the homeland, protecting the national security, keeping our communities secure, and maintain the integrity of the immigration system.   Memos have been written!  Trainings have been held!  Testimony has been given!  ICE is going to focus on the worst of the worst.  ICE is going to engage in smarter law enforcement and target those who threaten our national security and our public safety.  Fifty something women who entered illegally and never left and their teenage son are not considered priorities!

So, what happened in Phoenix?  Was this the action of local ICE agents who were just going about business as usual?  Was this the action of local ICE agents who had an axe to grind against Erika Andiola?  Did they even know that Maria was Erika’s mother?  If they knew, did they clear this with headquarters?  Did they consult the guidance on enforcement priorities before acting?

Evidence seems to point to another circumstance where ICE agents in a district far away from Washington went about their business without regard to the multiple expressions of policy from headquarters.   As readers of this page know, much of the ICE bureaucracy has been in open rebellion against the political leadership since the President took office and his ICE Director assumed controlIn addition, by mid morning, ICE had reversed itself.  An ICE spokeswoman stated: “One of two individuals detained by ICE in Phoenix, AZ has been released. The other individual will be released imminently. Although one individual had been previously removed from the country, an initial review of these cases revealed that certain factors outlined in ICE’s prosecutorial discretion policy appear to be present and merit an exercise of discretion. A fuller review of the cases is currently on-going. ICE exercises prosecutorial discretion on a case-by-case basis, considering the totality of the circumstances in an individual case.”  Maria was on a bus heading to Mexico when she learned of the stay of removal.  Looks like Phoenix ICE was trying to get her out as fast as possible before Washington could react.

I really hope that there was a lot of anger at ICE headquarters when they learned of the actions.  I hope that phones were slammed down and much screaming occurred.  I hope that people within ICE headquarters said “This is it!  This is the last straw.  Heads are going to roll!”  By now, it should be perfectly clear to the ICE political leadership that they are dealing with a rogue agency of bureaucrats who are in open contempt of the policy decisions of their bosses.  Moreover, the ICE bureaucrats do not have the courage to quit their positions and make a political stand.  They sabotage from the inside.  This is known as contempt and insubordination and it can no longer be tolerated.  ICE Director John Morton should demand the resignations of the Phoenix Field Office Director and anyone else who participated in this tragicomedy.  And if he can not do this, the President is the one who should be demanding Morton’s resignation.