Archive | February, 2013

Remembering Michael Maggio

27 Feb

This post is published with the permission of the American Immigration Lawyers Association.  It appears in AILA’s January/ February 2013 issue of AILA Voice:  http://ailahub.aila.org/i/112027/47.

Michael_Maggio

I knew what I had to do.  The Judge had just chewed me out for losing my cool with a clerk in the court over scheduling a case.  I was wrong to have done it, but I was under a tight deadline. A child would age-out if this case was not scheduled and he would be separated from his parents and siblings.  I trudged down to Michael Maggio’s office and confessed what had happened.  I told him how I was sorry for damaging the reputation of the firm.  Michael patiently listened with his arched eyebrow and I waited for the hammer to fall.  He broke into a wide smile and said “Forget* them, you’re dealing with a kid’s life here!”  Michael knew of my frustration in getting the case on the docket and reminded me that our client, a kid, was depending upon me to get something done.  That was pure Michael- a kid is depending upon you.  You control the fate of that kid.  Does he attend the University of Maryland Engineering School or does he get returned to Ecuador where he had not lived in over a decade?  Michael was ready to give so much to make sure that that kid got his chance.

Michael was one of the generation of immigration lawyers who transformed immigration law from a seedy backwater to matters worthy of serious legal consideration.  He was one of those lawyers that everyone knows by just their first name- Denyse, Ira, Marc, Ted, Warren and Ron. Michael was a relentless advocate, but he did it with a sense of humanity and grace.  Michael understood people at every level and his ability to identify a wrong was legendary.  Michael rarely looked at books in his consultations.  He listened to the client and, if he decided that there had been injustice, Michael then figured out how to fix it.  Our job was to make Michael’s vision for a case come to life, to make the law what it should be.  Michael listened and led with his heart and we followed.

It has been five years since we lost Michael.  For about four of those years, I swore I saw him in Washington’s Dupont Circle at the farmer’s market, on his way to tennis with Jose, or on the street in Philadelphia, where I bumped into him randomly.  I saw him in the many restaurants where the entire staff owed their lives in America to Michael and Michael soaked in his friends, fine pasta and delicious wine.  Where Michael would address the busboys in his gringo Spanish.  Always trying to make a connection. Those visions do not happen too much anymore, but I hear him all the time in my head, “a kid is depending upon you.”  Listen and care, do more, work harder. And don’t forget to eat good food and drink good wine.

*He did not say “forget.”

 

BR Eats Tacos and Thinks About Immigration

26 Feb

el sol

I had the best tacos I have ever had this weekend in Harrisonburg, Virginia.  The whole Benach Ragland attorney gang headed out to the country to meet in the quiet of the mountains.  And, of course, in the middle of rural America, we found tacos.  Delicious tacos.

I used to work with a colleague who used to discuss the virtues of America’s unique immigrant history by pointing out the benefits to American cuisine.  “Have you ever tried to get good Mexican food in Rome?” he would bellow.  And it was true.  In many cities in the U.S., you could go a month and not eat the same cuisine twice.  Many of us, especially those of us who live in coastal American cities, believe that this is the sole domain of the urban dweller.  However, the modern American reality is that immigrants are everywhere in America and bringing their cuisine and their vitality with them, restoring fading American towns.

Harrisonburg is in the middle of Virginia’s Shenandoah Valley.  The valley is a rural swath of land wedged between the Blue Ridge Mountains to the East and the Appalachian mountains to the West known for its fertile soil and large agricultural output.  The Shenandoah Valley has been a quiet place since it was a center of attention during the U.S. Civil War, when multiple armies chased each other and clashed over its rolling farmland.  The destruction of Virginia farmland caused by the intense campaigning was one consideration that persuaded Robert E. Lee to invade the North in 1862 before he was check by the Army of the Potomac at Antietam Creek.  Since the last troops pulled out of the valley in 1865, it has returned to peace and quiet.

It is still heavily agricultural.  A large chicken processing plant is in Harrisonburg.  The plant has attracted thousands of undocumented workers who have had to do the gruesome work of turning birds into poultry.  These immigrants have done the dirty work of America’s need for cheap food for decades.  Their children, often American citizens, are now finding their own success in America in ways that don’t involve plucking chickens.  The sacrifice of the parents and their own stunted dreams bear fruit in the lives of the children.

What does this have to do with tacos??  Well, the children of one of these poultry factory workers have opened El Sol, a tiny little taqueria in Harrisonburg.  The menu is small.  They make tacos, quesadillas, and some fine Mexican stew.  But by keeping their menu small, they have adopted a leading principle of business- do one thing better than all others and you will be rewarded.  And, boy, do they.  El Sol’s tacos are the freshest and tastiest we have ever had.  Each of the tacos ($1.25 each!) is simple, as they are in Mexico.  A piping hot fresh corn tortilla filled with pork, steak or beans and cheese.  And, yes, they presumably have local chicken!  The fillings of shredded pork or chicharrones, fried pork skin, are delicious and topped with fresh cilantro and onions.  A Mexican coke washes it down nicely.  My partners also really enjoyed the carne asada, but I was too busy with the pork to notice.

The delightful Isabel Castillo works the front room, bringing hot plates of tacos to the Mexican families who pour in for a taste of home.  Her brother, Luis, does the cooking.  El Sol is a delightful, sunny café that brightens a street that would otherwise be a dreary monument to the better yesterday of Harrisonburg.

What’s at Stake in Moncrieffe

25 Feb

SCOTUS

Any day now, the Supreme Court is expected to issue an opinion in Moncrieffe v. Holder, an immigration case with important ramifications for noncitizens convicted of certain marijuana-related offenses. The case is one of three argued in early October that the Justices have yet to decide. With the Court scheduled to release opinions on Tuesday and Wednesday—and a better than average possibility that Moncrieffe will be among them—we thought we would review what’s at stake in the case.

The issue in Moncrieffe involves the fate of noncitizens who are convicted of crimes that—depending on the circumstances surrounding the offense—may or may not qualify as an “aggravated felony.” In Moncrieffe’s case, the crime in question was possession of marijuana with intent to distribute. While such offenses are generally considered to be aggravated felonies under the immigration laws, an exception exists for defendants who possessed a small amount of marijuana that they intended to distribute for no remuneration (i.e. compensation).

For his part, Moncrieffe was arrested with 1.3 grams of marijuana—enough for between two or three joints—none of which he intended to sell. Unlike federal law, however, the Georgia statute under which Moncrieffe pled guilty contained no exception for those intending to share rather than sell marijuana. So after the Department of Homeland Security placed Moncrieffe in removal proceedings, his criminal record alone did not reveal whether his conviction should be considered an aggravated felony for immigration purposes. Although the government bears the burden of proof in removal proceedings, an Immigration Judge—relying on a 2008 decision from the Board of Immigration Appeals—found that the ambiguous record of conviction was enough to make Moncrieffe’s conviction equivalent to felony drug trafficking under federal law.

Some may ask: if Moncrieffe did not intend to sell the marijuana, why didn’t he simply produce evidence demonstrating as much? The reason is that in determining whether a conviction constitutes an aggravated felony, immigration courts look at the elements of the crime, not the underlying facts of the case. Though it may seem artificial, this so-called “categorical approach” is what prevents removal proceedings from turning into mini-trials over offenses occurring years or decades before.

Moreover, noncitizens with alleged aggravated felony convictions are subject to mandatory detention during the course of removal proceedings, making it difficult if not impossible to gather evidence or interview witnesses regarding their underlying convictions. Indeed, during oral arguments in October, numerous Justices—and especially Justice Sonia Sotomayor—appeared hostile to the idea that convictions for possession of marijuana with intent to distribute should be considered aggravated felonies unless noncitizens could affirmatively prove to the contrary.

Even if the Supreme Court rules for Moncrieffe, noncitizens in his position will not necessarily escape deportation. Even if not considered an aggravated felony, Moncrieffe’s conviction would still render him deportable as a generic controlled substance offense. The key distinction is that noncitizens convicted of aggravated felonies are ineligible for most forms of relief, including cancellation of removal. Thus, if Moncrieffe wins at the Supreme Court, he would merely receive an opportunity to seek cancellation from an Immigration Judge, who at that point could take the circumstances of the offense into account.

As with all Supreme Court cases, it is impossible to predict what the Justices will decide or when they will issue their decision. But based on the other cases from early October that have yet to be decided, court watchers have predicted that Justice Sotomayor is authoring the majority opinion. If true, it would certainly be a welcome sign, given her aggressive grilling of the government during the oral argument and her overall track record on immigration cases.

Thoughts on the Supreme Court’s Opinion in Chaidez

22 Feb

Is Padilla retroactive? This hotly debated question was definitively answered on Wednesday, when the Supreme Court issued its decision in Chaidez v. United States. As we discussed in a previous post, Chaidez concerned whether the Court’s 2010 decision in Padilla v. Kentucky applies retroactively to cases already final on direct review. Padilla held that a criminal defendant is deprived of effective assistance of counsel, in violation of her Sixth Amendment rights, when her trial counsel fails to advise her that accepting a guilty plea may result in near-certain deportation. If Padilla applies retroactively, noncitizens with convictions that became final years or, in some cases, decades earlier could nevertheless benefit from its holding. The lower federal and state courts were intractably split on the retroactivity question, and review by the Supreme Court seemed inevitable.

In a 7-2 decision authored by Justice Kagan, the Court ruled in Chaidez that “under the principles set out in Teague v. Lane, 489 U.S. 288 (1989), Padilla does not have retroactive effect.” To the contrary, Padilla “announced a ‘new rule.’” Consequently, a criminal defendant whose conviction became final prior to March 31, 2010—the date Padilla was issued—cannot benefit from Padilla’s holding that criminal defense attorneys must inform their noncitizen clients of the deportation risks associated with accepting a guilty plea. More significantly, individuals in this position are unable to claim that their attorney’s failure to properly advise constitutes a violation their constitutional right to effective assistance of counsel, and thus grounds for post-conviction relief.

The Court’s assertion in Padilla that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel” had inspired hope among many noncitizens (and their lawyers) that efforts to modify or vacate past convictions—and thereby avoid deportation—were not only viable, but grounded in venerated constitutional principles. For a great many, Chaidez dashed those hopes. Justice Thomas authored a concurring opinion, standing firm in his belief that “Padilla was wrongly decided and [] the Sixth Amendment does not extend—either prospectively or retrospectively—to advice concerning the collateral consequences arising from a guilty plea.” Justice Sotomayor, joined by Justice Ginsburg, dissented. The dissent essentially agreed with Ms. Chaidez’s argument that “Padilla did nothing more than apply the existing rule of Strickland” and complained that the majority’s opinion rests on a distinction—between direct and collateral consequences of a conviction—that “the Court has never embraced and that Padilla found irrelevant to the issue it ultimately decided.”

The majority’s decision in Chaidez rested on its application of Teague, which explained that “a case announces a new rule when it breaks new ground or imposes a new obligation” on the government. Stated otherwise, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” The Court rejected Ms. Chaidez’s contention that Padilla was nothing more than the application of existing precedent—Strickland v. Washington—to a new set of facts, namely, the deportation consequences of a guilty plea. The Court acknowledged that “garden-variety applications of the test in Strickland … for assessing claims of ineffective assistance of counsel do not produce new rules.” And as the Court had previously declared, Strickland “provides sufficient guidance for resolving virtually all” claims of ineffective assistance, across “diverse contexts,” without the need for a new rule. Ms. Chaidez’s attorney had emphasized this point during argument, noting that in the nearly three decades since Strickland was decided, the Court had never (before) ruled that an application of Strickland’s two-prong test for ineffective assistance of counsel—deficient performance and prejudice—resulted in a new rule.

That changed with the issuance of Chaidez, however, because the Court concluded that “Padilla did something more.” Specifically, the majority explained, prior to assessing how the Strickland test applied to Mr. Padilla’s ineffective assistance claim, Padilla first asked whether the Strickland test applied at all to a claim concerning deportation consequences. It’s a relevant question, because a defense attorney’s advice about issues that are collateral rather than direct consequences of a guilty plea generally do not implicate the Sixth Amendment. For example, whereas imprisonment, fines, or probation are direct consequences of conviction, other effects such as civil commitment, civil forfeiture, sex offender registration, and loss of voting rights are generally viewed as collateral. And prior to Padilla, state and lower federal courts “almost unanimously concluded that the Sixth Amendment does not require attorneys to inform their clients of a conviction’s collateral consequences, including deportation.”

This purported “near unanimity” among the lower courts that deportation consequences are collateral, and thus do not implicate the Sixth Amendment, proved to be a hurdle Ms. Chaidez could not overcome. According to the majority, before Padilla, “[a]ll 10 federal appellate courts” and “almost 30 states” agreed with this position, whereas “only two state courts” had ruled that failing to advise a client about deportation risks or other collateral consequences violated her constitutional right to effective assistance. Consequently, the Court said, Padilla “answered a question about the Sixth Amendment’s reach that we had left open,” and the answer conflicted with the overwhelming consensus among the lower courts. The majority thus rejected Ms. Chaidez’s contention that Padilla merely applied—in fact, was dictated by—Strickland, because Padilla had first to answer the threshold question “whether Strickland applied at all.” And the Court resolved this threshold question “by breaching the previously chink-free wall between direct and collateral consequences.”

According to the majority, “[i]f that does not count as ‘break[ing] new ground’ or ‘impos[ing] a new obligation,’ we are hard pressed to know what would.” Because Padilla was not dictated by precedent, the Court held, under Teague the decision qualifies as a new rule. The majority rejected the arguments advanced by Ms. Chaidez—and championed by the dissent—that Padilla’s application of Strickland to deportation consequences was reasonable and unextraordinary, resulting as it did from the mere evolution of professional norms. To the contrary, the majority declared that “Padilla had to develop new law, establishing that the Sixth Amendment applied at all, before it could assess the performance of Padilla’s lawyer under Strickland.” Notably, the majority quickly added that although Padilla’s holding— “that the failure to advise about a non-criminal consequence could violate the Sixth Amendment”—may not have been “apparent to all reasonable jurists,” the decision stands unscathed: “we do not cast doubt on, or at all denigrate, Padilla.” This reaffirmation of Padilla, particularly in light of certain Justices’ persistent hostility to the decision, stands as a bright spot in an otherwise disappointing opinion.

What now? It seems safe to predict that Chaidez is not the end of the story on this issue. As the majority noted in a final footnote, two arguments advanced by Ms. Chaidez were not addressed in the Court’s opinion, because they were not adequately raised below. The first is that Teague does not apply to cases in which a noncitizen defendant is challenging a federal as opposed to a state conviction, and the second is that the “new rule” announced in Padilla applies to post-conviction ineffective assistance of counsel claims, because such claims cannot be brought on direct appeal but only through a later habeas or coram nobis action. For claimants who would otherwise be precluded from seeking post-conviction relief under Chaidez, such arguments are certainly worth pursuing.

In addition, it seems that Chaidez is not fatal to ineffective assistance claims based on affirmative misadvice as to deportation consequences, rather than mere failure to advise. Counsel for the government appeared to concede as much during argument in Chaidez. In response to questioning by Justice Sotomayor, Michael Dreeben from the Solicitor General’s office agreed that Padilla did not distinguish between misadvice and omissions to give advice—between errors of commission versus errors of omission—and that “misadvice claims [] existed before Padilla.” He explained that affirmative misadvice “violate[s] a more basic duty of counsel that was well established” before Padilla, namely the duty “not to get in the way” of a client’s constitutional right to decide whether to plead guilty. Thus, he allowed, “I would probably not disagree that misadvice was not new before Padilla” and it “has its own independent sources.” Accordingly, a noncitizen seeking to modify or vacate a pre-Padilla conviction based on affirmative misadvice as to likely deportation consequences need not resort Padilla, and thus would not be barred by Chaidez. Such a client could base her claim on a straightforward application of Strickland.

Benach Ragland Submits Brief in Mandatory Detention Case

21 Feb

Earlier this month, Benach Ragland authored a brief on behalf of the American Immigration Lawyers Association in the case of Michael Sylvain v. Attorney General before the U.S. Court of Appeals for the Third Circuit.  In Sylvain, the court must decide whether the Immigration & Nationality Act (INA) requires the detention of individuals convicted of certain offenses regardless of how long it has been since they were released from criminal custody. On behalf of AILA, Benach Ragland argued to the court that people released from custody prior to Immigration & Customs Enforcement’s (ICE) assumption of custody are entitled to a bond hearing where an immigration judge can make a determination as to whether they are flight risks or dangers to the community.  ICE argues that the INA gives immigration judges no authority to consider the release such individuals and that they must be detained for the duration of their removal proceedings regardless of how long it has been since they were convicted of an offense.

In Sylvain, the government defends a decision by the Board of Immigration Appeals (BIA) in Matter of Rojas.  In Rojas, the BIA decided that the mandatory detention provisions of the INA require detention without possibility of release on bond regardless of when that person was released from criminal custody.  However, the INA mandatory detention provision states that certain individuals shall be taken into custody “when the alien is released.”  The BIA decided in Rojas that that language did not limit ICE to apply mandatory detention to individuals regardless of when they were released.  Under Rojas, an individual would be subject to detention without any sort of review by a judge even if they had been released from prison a decade earlier.  As immigration judges around the country cited Rojas and explained that their hands were tied, advocates went to U.S. District Courts around the country and sought habeas corpus review.  Almost uniformly, the federal courts told the immigration service that Rojas was wrong and that the detained individual was entitled to a bond hearing.  The immigrant was then released.   ICE rarely appealed these decisions to the courts of appeals.

However, they did so in Hosh v. Lucero.  In that case, a district court judge found that Rojas was wrongly decided and ordered an immigration judge to hold a bond hearing.  However, this time, the government, sensing a possibly friendly court in the Court of Appeals for the 4th Circuit, a court known for giving the government wide berth to operate, appealed the judge’s decision.  The government’s gamble paid off and the Court of Appeals for the Fourth Circuit reversed the district court judge and deferred to the BIA’s decision in Rojas, foreclosing habeas relief in the states of the 4th Circuit (Maryland, Virginia, North Carolina, South Carolina and West Virginia).  Although district courts in the Fourth Circuit must follow Hosh, district courts outside of the Fourth Circuit have not found Hosh terribly persuasive.

Now this issue is before the Third Circuit Court of Appeals, which encompasses New Jersey, Pennsylvania and Delaware, in Sylvain.  A decision rejecting Rojas would create a split between the Third and the Fourth Circuits, possibly leading the way to Supreme Court review.  Oral argument is coming next month and we will report from the argument and when a decision comes down.

A Sheep in Wolf’s Clothing: the Enforcement Provisions of the White House Immigration Bill

21 Feb

Sheep

Media coverage of the leaked White House immigration bill has mostly focused on its proposed path to citizenship for the nation’s undocumented immigrants. Little if any ink has been spilled on Title I of the bill, which, while labeled “Enforcement,” contains many provisions that will be pleasing to immigrants and their attorneys. The enforcement provisions in some respects are a sheep in wolf’s clothing, as they would lead to the initiation of fewer removal proceedings based on minor criminal convictions, eliminate many bars to relief for noncitizens facing removal, and give immigration judges authority to appoint counsel for unrepresented respondents at government expense.

Preemption

Under Section 117 of the bill, all state and local measures would be “preempted” by federal law to the extent they penalized individuals on account of their immigration status or required people to disclose their immigration status to receive goods or services. The provision would thus make explicit what the Supreme Court made implicit in Arizona v. United States: namely, that the federal government has exclusive responsibility for making and enforcing the immigration laws. If enacted, the provision might not prevent states from passing “show me your papers” laws. But it would prevent them from making noncitizens subject to prosecution in local court for violations of federal immigration laws, or requiring them to demonstrate the legality of their presence to do things like rent an apartment.

Arriving aliens with a credible fear of persecution

Under Section 121 of the bill, DHS would no longer be required to detain persons who arrive on our  shores and demonstrate during a preliminary interview that they have a credible fear of persecution. Instead, immigration officers would be authorized to grant bond pending a subsequent appearance before an immigration judge. While such noncitizens would not be entitled to employment authorization on the basis of their release, they would not have to suffer the indignity of being locked in detention for the duration of their legal proceedings.

Aggravated felonies

Section 122 of the bill would make a number of important changes to the provision of the INA concerning “aggravated felonies.” Under current law, convictions for many offenses—including theft—are considered aggravated felonies if the individual was sentenced to more than one year in prison. The White House bill would raise the threshold for certain offenses to five years, ensuring that only legitimately serious criminals could be charged as aggravated felons. The bill would also raise threshold for certain fraud crimes from $10,000 to $100,000 to be considered an aggravated felony. If the White House bill became law, Rosana Chaidez, who was on the losing side of yesterday’s Supreme Court decision, could not have been charged with an “aggravated felony” based on her minor role in the insurance fraud scheme in which she participated.

Unfortunately, the bill retains language added in 1996 making the list of aggravated felonies retroactive—which allows the government to charge noncitizens as aggravated felons for being convicted of offenses that were not considered aggravated felonies at the time they occurred. In practice, this means that if the final bill adds more offenses to the list of aggravated felonies, any lawfully present noncitizens previously convicted of such crimes would suddenly become deportable.

Definition of “conviction”

Section 123 of the bill would amend the definition of “conviction” in the INA in three important respects. First, noncitizens could not become removable on the basis of a criminal conviction until they had exhausted or waived their direct appeals. Second, it would prevent noncitizens from being deported on the basis of convictions that have since been dismissed, expunged, or vacated for any reason—effectively overruling the Board’s decision in Matter of Pickering. And third, it would only permit immigration courts to consider the period of a sentence for which actual imprisonment was imposed, rather than parts that were “suspended.” In combination, these provisions would go a long way toward preventing noncitizens from being deported on the basis of convictions for which they served no time in prison or were subsequently vacated or overturned on appeal.

Cancellation of removal

As we explained earlier this month, the immigration bill passed in 1996 gutted a common form of relief called “suspension of deportation,” which allowed undocumented immigrants to avoid removal by demonstrating that they possessed good moral character; that they were continuously present in the United States for at least seven years; and that their removal would impose extreme hardship to themselves or a spouse, parent, or child that was U.S. citizen or permanent resident. The 1996 Act made this type of relief much harder to obtain, increasing the residency requirement to ten years, raising the hardship standard to “exceptional and extremely unusual,” and requiring the hardship to befall a U.S. citizen or LPR immediate relative rather than the potential deportee himself.

Section 124 of the White House bill would partially restore the pre-1996 regime, allowing unauthorized immigrants to obtain what is now called “cancellation of removal” if their deportation would cause “extreme” hardship to either themselves or a U.S. citizen or LPR immediate relative. In fact, if this provision is enacted, some undocumented immigrants might actually prefer to apply for this form of relief in removal proceedings, which would immediately give them a green card, rather than wait for up to eight years as a “Lawful Prospective Immigrant” (LPI). Meanwhile, the White House bill would also modify the cancellation requirements for lawful permanent residents, making them ineligible on account of an aggravated felony conviction only if they were sentenced to more than five years in prison.

Immigration courts and removal proceedings

Although it unfortunately does not call for the creation of an Article I system to handle removal proceedings, the White House bill does propose a number of needed changes for the immigration courts. Under Section 156 of the bill, immigration judges would gain authority to levy fines against recalcitrant ICE attorneys, who are notorious for arriving to hearings underprepared (if not totally unprepared). Section 156 would also require the issuance of regulations to “enhance accountability” in removal proceedings. Though vague, the provision could pave the way for regulations establishing formal rules of evidence and other changes to make immigration courts operate more like criminal courts than traffic courts.

Meanwhile, Section 158 of the bill would—for the first time—permit immigration judges to appoint counsel for unrepresented respondents in removal proceedings at government expense. It’s not clear what standards immigration judges would use in deciding whether to appoint counsel, and the ultimate decision would remain in their sole and unreviewable discretion—meaning the failure to do so could not be challenged in federal court. But if enacted, the provision could help level the playing field in removal proceedings, where unrepresented respondents often don’t stand a chance.

Mental incompetency and removal proceedings

Finally, the White House bill would provide much needed clarity on the responsibilities of immigration judges to noncitizens with mental disabilities. Section 162 of the bill would authorize judges to order psychiatric and psychological evaluations that would have to be conducted by non-DHS personnel; would require them to appoint counsel for unrepresented noncitizens who are deemed incompetent; and would require them to terminate proceedings (without prejudice to the government) if hearings could not be conducted in a constitutionally fair manner. These measures, combined with the issuance of further regulations, would effectively make treatment of the mentally incompetent in immigration court more similar to the treatment they receive in criminal court.

*****

Although they would not entirely fix the problems created in 1996, the aforementioned provisions would make many needed repairs to an enforcement system that is far more harsh than most Americans realize. States would have little leeway to enact their own immigration laws; long-time green card holders would no longer face virtually automatic removal on account of minor criminal convictions resulting in no actual prison time; and removal proceedings might finally offer meaningful procedural protections for those facing deportation. Is the White House bill perfect? Of course not. But if enacted by Congress, it would be a giant leap in the right direction.

The Leaked White House Immigration Bill: the Legalization Component

20 Feb

Drip

It took only three years longer than promised—and a leak that may or may not have been intentional—but the White House has finally produced a legislative proposal to fix the immigration system. Dubbed the Comprehensive Immigration Reform Act of 2013, the bill would create a pathway to citizenship for most of the 11 million removable noncitizens in the country, mandate the eventual use of E-Verify for most employers, and dull many of the draconian provisions enacted in the 1996 immigration bill. With the leaked portions of the bill totaling more than 200 pages, there’s a lot to chew on. Today, we’ll look at the part of the White House bill relating to legalizing the undocumented, and tomorrow we’ll review the enforcement-related sections.

Lawful Prospective Immigrant (LPI) status

As has by now been widely reported, the bill would allow qualified applicants to first obtain “Lawful Prospective Immigrant” status and later adjust to lawful permanent resident (a “green card” or LPR) status, a prerequisite for foreign nationals wanting to become U.S. citizens. To qualify for LPI status, noncitizens would have to be physically present in the United States on the day the bill was introduced and not have been convicted of a number of specified criminal offenses. Noncitizens could apply for LPI status if they were in removal proceedings, were under an outstanding order of removal, or had illegally re-entered the country after a prior removal. Applicants for LPI status could generally not be detained or removed, and would not be considered “unlawfully present,” while their applications were pending.

Qualified immigrants would initially be granted LPI status for a period of four years, during which time they would be authorized to work and travel abroad for up to six months, subject to renewal. Noncitizens with LPI status could also petition for their spouses and children to receive the same status, even if they are living overseas. Interestingly, the White House bill does not specifically state that LPI status could be accorded based on same-sex marriages. However, it incorporates the standing definition of “spouse” in Section 101(a)(35) of the INA, which is written in gender-neutral terms. As the bill is written, it is thus unclear (perhaps intentionally so) what, if any, protection same-sex couples would receive.

Adjustment to Lawful Permanent Resident (LPR) status

To qualify for adjustment, LPIs would have to satisfy any outstanding federal tax liability, be actively studying English and U.S. history, and not have left the country for more than six months while in LPI status. Applicants aged 21 or older when the bill was introduced would have to pay a $500 penalty to adjust status in addition to any processing fees. The government could not grant any adjustment applications until either eight years after the date of the law’s enactment, or 30 days after all immigrant visas became available for family- and employment-based petitions filed before the date of enactment, whichever came first (but no sooner than six years after LPI status was first granted). The only exception would be for noncitizens who were under 16 when they initially entered the country, were enrolled or had obtained a high school or college degree when they applied for LPI status, and had completed two years of college or the military when they applied for LPR status. (Or in other words, those who would qualify under the DREAM Act.)

Administrative and judicial review of denied applications

For noncitizens whose applications for LPI or LPR status were denied, the bill would require the creation of an administrative body housed within the Department of Homeland Security to hear appeals. Notices of appeal would have to be filed within 60 days of the denial, and stays of removal would generally be granted while appeals are pending. If their administrative appeals were denied, prospective LPIs and LPRs could file a challenge with a federal district court, which, in turn, could uphold or reverse DHS’ decision or remand the case back to executive officials for consideration of additional evidence. Importantly, federal judges would also have authority to issue stays of removal, and immigrants would not be considered “unlawfully present” while their appeals—administrative or judicial—were pending.

Protections for Employers of Prospective LPIs

Finally, the White House bill contains a number of protections for employers of workers seeking to legalize their status. For example, employers who learn of employees with pending LPI applications would not violate the law by continuing to employ them while their applications are pending. The bill would also prevent genuine employment records submitted in support of an application for LPI or LPR status from being used against the employer in a civil investigation or criminal prosecution. These provisions may well have been added due to the DACA program, which lead to concerns among some employers of liability or retaliation if their workers used employment records to demonstrate the extent of their presence in the country.

Comparison to “Gang of Eight” Framework

While the bipartisan group of Senators known as the “Gang of Eight” has yet to propose actual legislation, it’s almost certain that the path to citizenship in the White House bill is more realistic and immigrant-friendly. Unlike the Senate framework, for instance, the White House would not make the issuance of green cards contingent on satisfying an unknown set of security “triggers.” Based on statements from Marco Rubio, the Senate plan might also require the undocumented to rely on a third party (such as a qualified employer or family member) to sponsor them for a green card, which could potentially leave millions without a true path to citizenship. While we will wait to see an actual bill before expressing final judgment on the Senate plan, the White House has set a high bar.