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Immigration Reform Follies!

19 Feb

The past few days have revealed tremendous silliness in the immigration reform debate.  It is a true pity given the serious stakes involved for everyone persecuted by the U.S.’ brutal immigration laws.

Just today, we saw prominent immigrant rights groups’ applauding the honesty of ICE bureaucrat representative, Chris Crane because he stated in some forum or another:

For this pearl, Mr. Crane has been lauded by all sorts of ostensibly pro-immigrant types as a whistleblower.  After all, here is an ICE agent stating that ICE only cares about hitting its numerical targets for removal.  ICE has recently come under some well-deserved heat for conducting data-mining and all sorts of definition-expanding permutations to ramp up the removal of criminals.  It would seem that Mr. Crane is stating that ICE is going after low hanging fruit and not the dangerous criminals, who we all can agree, at least in theory, deserve removal.  At last, someone within ICE points out that the emperor has no clothes.  Right?

Well, only if you pay no attention to everything else Chris Crane has ever said.  Based upon his testimony, Mr. Crane believes that ICE is not being allowed to do its job of keeping the community safe because the ICE political leadership has instructed ICE officers to focus their removal efforts on those convicted of crimes or repeated immigration law violators.  Apparently, Mr. Crane believes that community safety would be enhanced if ICE agents were permitted to make arrests when they are “on duty in a public place and witness a violation of immigration law.”  If only ICE agents were empowered to make arrests in such circumstances, public safety would be enhanced.  This makes us wonder: what does it look like when a student falls out of status due to failure to maintain appropriate credits, or what does it look like when a tourist visa expires, or what does it look like when an undocumented person clear your plate, does it look that much different than when a documented individual re-fills your water?  If ICE agents were empowered to make arrests because of these and other “immigration violations” they witness, the U.S. would look a lot more like those totalitarian regimes where the only law is the presence of a gun and handcuffs.  No thanks.  Yes, ICE is doing everything can to pump up their removal numbers, but if Mr. Crane and his allies had their way, that number would be way higher than 400,000 and community safety would not be enhanced.  Recall that Chris Crane is the plaintiff in a lawsuit, where he is represented by uber litigation-loser Kris Kobach, where he alleges that DACA is illegal because it means he can not arrest and remove every undocumented youth he comes across.  Nonetheless, members of the non-profit industrial complex for immigration reform have embraced Crane’s quote, displaying an alarming lack of awareness of what Crane is actually saying.

This followed this weekend’s adolescent drama that occurred when the President’s plan for immigration reform was leaked to USA Today.  Immediately Marco Rubio and other Republicans groused that the President never spoke to them and that there were significant divides between the President and the GOP in Congress.  John McCain insisted that the President, by talking about immigration reform was trying to derail it.  And Newt Gingrich (why do we still have to listen to this pompous blowhard?) went on TV and blurted out the partisan truth that the Congressional GOP would not pass anything that had Obama’s name on it and the President had to call Senators McCain, Graham, and Rubio (Senator Flake was unavailable) and tell them “don’t worry, baby, I love you and your plan.”

The President’s proposal is very intriguing.  We will discuss it in detail in the next couple of days, but it goes to territory where none of the other plans go: shrinking the definition of “aggravated felony,” allowing for immigration recognition of expungements and other ameliorative statutes, and restoring suspension of deportation.  For those of us who care about due process in the immigration courts and greater flexibility in removal statutes who thought that immigration reform would be all about E-Verify, border fences, legalization at the back of the line and a guest worker program, the introduction of due process concepts into the debate is welcome.  The very real humanitarian considerations represented in the President’s plan should not be overshadowed by high school cafeteria antics

 

The Whine of the ICE Bureaucrats

3 Feb

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It has been a tough week for the ICE bureaucrats who have sought to undermine the political leadership of this country to pursue their own restrictivist and nativist agenda.  Regular readers of this blog (my wife and my mother), will know that we have sought to document the efforts of bureaucrats within ICE to stymie intelligent immigration enforcement through insubordination, lawsuits, leaks, and more generic tactics like refusal to complete trainings and sick-outs.  But, like their pals Kris Kobach, Steve King, Jeff Sessions, and Joe Arpaio, time has passed them by and they continue their ignominious descent into laughable irrelevance.

Last week, we saw politicians competing to put forward the most comprehensive immigration reform.  The President outlined a plan.  We saw Republicans and Democrats, who could not agree on anything for close to four years, all agree that immigration reform is needed and that a path to citizenship is an essential to that effort.  We learned that the even the House has a bipartisan working group planning to develop its own immigration legislation.  Simultaneously, a federal judge in Dallas, Texas dealt a near fatal blow to the ICE agents lawsuit, where they alleged potential injury if they refused to follow the DHS secretary’s directives regarding DACA.  While the Judge did not entirely dismiss the lawsuit, FOBR Ben Winograd at the Immigration Policy Center described the lawsuit as” hanging by a thread.”  Bad week to be on the losing side of history.

Increasing the hope that immigration reform will finally happen in 2013 is the largely unanimous support of reform by the country’s major labor organizations.  The AFL-CIO and the SEIU, the country’s two largest union organizations, are major supporters of immigration reform.  But just when you thought that the unions had finally come together with the business community, there is one union that wants you to know that they are not on board.  Guess who?  The American Federation of Government Employees National ICE Council issued a press release to declare that the AFL-CIO does not speak for the ICE union.  The union wrote: “Respectfully, we see a lot of problems with the recently proposed reforms and we plan to exercise our rights as American’s to participate in the democratic process and voice those concerns publicly in the upcoming months; we hope to do so without groups like the AFL-CIO demonizing us for expressing a different opinion.”

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With all due respect, the position of the ICE agents union is crystal clear.  They so believe in an anti-immigrant policy where their actions are not subjected to meaningful review that their views are meaningless in an effort to reform the immigration law in a way to break their power.  The ICE bureaucrats are afraid of being demonized for participating in the democratic process.  Well, welcome to the arena, folks.  You can’t continue to say outlandish and self-interested garbage and not be called out on it.  The bureaucrats have always had a weak grip on the basics of democracy.  While begging to be treated with kid gloves, the ICE bureaucrats union has staged a vote of no confidence in ICE’s political leadership, sued the Department to stop DACA, and has encouraged its members not to follow the direction of their management.  In the military and any other law enforcement agency, that is known as insubordination and can result in dismissal or, in the case of the military, the brig.  But ICE bureaucrats ask not to “be demonized.”

If the ICE bureaucrats do not want to be demonized, they should stop resisting efforts to create intelligent immigration policy and participate in implementing immigration law, both today’s and tomorrow’s in a more humane and useful way.

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.

The Immigration Industrial Complex

9 Jan

5a6cb_man-shocked-at-billThe Migration Policy Institute recently released a study documenting that the U.S. government spent $18 billion on immigration enforcement, dwarfing the $14 million spent on other federal law enforcement agencies. The FBI, the DEA and the ATF, combined, received $14 billion.  Immigration & Customs Enforcement’s budget, alone, is $6 billion.  Something is seriously out of whack here.

None of this is surprising to immigration attorneys.  ICE runs a gulag archipelago of detention centers across the country, holding immigrants who have overstayed visas, entered without inspection, seek asylum, and  committed minor offenses.  ICE has continued to push in the federal courts for expansive definitions of mandatory detention, even if it means detaining people for offenses committed decades ago.  In 2011, ICE detained over 429,000 people, more than any other single government entity.  More than the Bureau of Prisons, the States of California, Texas, Florida, and New York.  ICE operates in its own jails, rents out space at local jails and contracts with private companies like the GEO corporation to manage this enormous population.  In addition, ICE has contracts with BI Incorporated to monitor individuals with final orders of removal.  This often involves ankle bracelets with GPS, telephonic and in-person reporting.  BI officials also monitor an individual’s efforts to obtain passports and plane tickets to depart the U.S. under an removal order.  In other words, they do ICE’s job.  And, frankly, they are pretty good at it.  Over 400,000 removals in 2011 shows how good BI is.  If budget hawks are serious about making government run like a business, how about saving money by eliminating the middleman?

The large budgetary excess for immigration enforcement also provides an explanation for the massive ICE resistance to immigration reform.  After all, if undocumented youth are getting DACA rather than being detained and deported, bed spaced is being underutilized and removals may go down.  In our current economic environment, it won’t be long before some budget-cutting legislator begins to question the excess of the the immigration enforcement budget.  If ICE were to exercise discretion and not detain and deport everyone that they possibly could, can they fulfill their contracts with the private companies that have built jails throughout the country.  If ICE were to take a more reasonable approach to enforcement, would they need to send out 20 agents before dawn to arrest four plumbers working a contract at Dulles because they are working on fake green cards?

The large amount of money at stake for immigration enforcement makes it clear that the efforts of some ICE bureaucrats to derail common-sense immigration reform is a result not of a principled belief in our national security and public safety, but rather to protect their exalted place at the public trough.

As we spend months debating the economic future of this country and what immigration reform will look like, it is worth contrasting the unproductive use of $18 billion tax dollars that ICE has commanded on an enforcement roid rage with the agreed-upon economic stimulus that would be provided by an immigration reform package.

DACA, Provisional Waivers, and de Osorio?

4 Jan

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The publication of the rule allowing for processing of provisional waivers for unlawful presence in the United States was another act of administrative rule-making that the President has undertaken to make the immigration laws more humane.  Over the past year, the effort at prosecutorial discretion, the introduction of Deferred Action for Childhood Arrivals (DACA), and the provisional waiver have created a much improved immigration system that attempts to solve real immigration problems for families.

The President has been justly criticized for an enforcement-only approach to immigration.  It is clear that, early in the first term, the White House miscalculated in believing that if it demonstrated that it could enforce U.S. immigration law, it could persuade Republicans in Congress to support sensible immigration laws.  It did not work.  Despite record removals, many members of Congress labor under the fallacy that the President has refused to enforce immigration laws.  As the intransigence of Congressional Republicans made any meaningful immigration reform an impossibility, the administration has taken significant steps to make the immigration system better.

And make no mistake- these steps taken by the administration have made the immigration system better.  Critics can cite the low numbers of cases where prosecutorial discretion has been applied and the individual instances where prosecutorial discretion has been refused where it seems like the individual fit within the criteria.  The systems have not been perfect, but they are improved.  If one case was terminated as a result of memoranda issued in the past year, a benefit was received.  In the past, a request for the exercise of prosecutorial discretion was a last ditch and usually fruitless effort reserved for the saddest of cases.  It is now a routine part of representation and utilized successfully in cases where the law provides no options for relief.

In addition, I have seen the exercise of prosecutorial discretion bleed into areas other than the termination of cases.  I have seen the government agree to join motions to reopen to allow the spouses of citizens to adjust their status in the U.S.  This was a rarity before.  I won’t go so far as to say that they are regularly joined these days, but I have had more joined in the past year than in the previous five years.  DACA has been an amazing experience. Watching all of these kids get a chance to go to college or put their education to work has been an inspiration.  The country has benefited tremendously from the energy and vigor they have brought to our communities when the smallest of welcome was extended to them.

Finally, the provisional waiver will allow families to regularize their status without the risk of long term separation.  Thousands of families have refused to risk separation and have thus continued with one partner without status fearful of being stopped by the police and unable to find meaningful work.  The provisional waiver process should allow thousands of undocumented immigrants to get their residence properly.

The President has done this in the face of a hostile Congress colluding with an insubordinate agency.  ICE bureaucrats have been in open rebellion against liberalized immigration policies since the beginning of the President’s terms.  They have teamed with their Congressional supporters to accuse the administration of everything from allowing jihadis to roam free to making cynical ploys for Latino votes.  Luckily, these rear-guard actions have failed.  They are the death shrieks of a disappearing order, where once can say of Joe Arpaio, Russel Pearce, Kris Kobach, and Steve King, as Bob Dylan once did, “something is happening here, but you don’t know what it is.

While there are countless other administrative actions that the administration can take, another step that would further demonstrate the administration’s willingness to place family unity and sensible immigration policy over “the way things have always been,” would be for the administration to forgo Supreme Court review in de Osorio v. Mayorkas, the decision of the 9th Circuit Court of Appeals that allows the unmarried sons and daughters of permanent residents who aged out of eligibility under petitions for their parents to receive credit for the time they waited under their parents’ petitions.  In de Osorio, the 9th Circuit joined the 5th Circuit in Khalid v. Holder rejecting the Board of Immigration Appeals decision in Matter of Wang.  Both Courts of Appeals decided that the plain language of the  Child Status Protection Act allowed kids who aged-0ut of eligibility under petitions filed for their parents to recapture the time that they waited when their parents, now permanent residents, filed petitions for them.  In Matter of Wang, the Board decided that the kids could not recapture that time and would have to go to the end of the line.  This resulted in what one brief in de Osorio calculated would be a 115 year wait for an unmarried adult son or daughter of a Mexican citizen!  The de Osorio decision has the potential to help ensure family unity for thousands of families where parents and minor children have received residence, but one or two older children aged-out.

The de Osorio decision came down on September 26, 2012 and the next stop for review is the Supreme Court.  The government has sought two extensions to decide whether to appeal to the Supreme Court.  As of now, their petition for Supreme Court review, known as a petition for a writ of certiorari, is due on January 26.  If the government files a petition, the Supreme Court may or may not take the case.  However, the de Osorio case will likely not take effect until the Supreme Court decides whether to take the case.  If the Supreme Court takes the case, then we will have to wait until the Supreme Court decides the matter before we know anything further.  If the Supreme Court does not take the case, the de Osorio case will take effect and many people will become eligible for adjustment of status.

Of course, the government does not have to file a petition for a writ of certiorari.  They did not seek certiorari in Khalid.  Moreover, WHY??  Why appeal this?  What is the possible compelling interest for the government?  The de Osorio decision allows the sons and daughters of permanent residents who waited in line with their parents only to lose their eligibility due to lengthy delays in the immigration process to rejoin their families.  How does the government have an interest in avoiding that happy result.  Immigration law has always been anchored in the concept of family unity?  Prosecutorial discretion, the provisional waiver and, to a lesser extent, DACA, reflect principles of family unity.  By letting the de Osorio decision stand, the administration can once again signal its firm alliance with immigrant families.

As one former President said, on a petition for cert, Mr. President, “Just say no!

New Memo on Detainers- Will it be Followed?

28 Dec

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A persistent and fair criticism of the current administration is that while it has made grand pronouncements of focusing its enforcement efforts on violent criminals and threats to the national security, programs like 287(g) and Secure Communities have scooped far more benign immigrants in their overboard nets.  While the administration has put forward numerous memoranda and made extensive public statements about focusing limited resources on the dangerous and the recidivist immigration violators, the reality has been that, as a result of Secure Communities, immigrants without status and without serious criminal issues encountered by the police either due to a minor offense, while reporting a crime, or while the police look for another individual have been swept into the immigration dragnet, detained and deported.  According to ICE, the government deported over 400,000 people last year and most of them were not “the worst of the worst.”

This practice is due to the combination of two practices.  The first is Secure Communities.  This is the cooperative program between local law enforcement and ICE that checks arrestees (not convicts) against ICE databases.  As a result many individuals stopped for minor offenses, such as driving without a license, are arrested when ICE can not confirm their lawful status.  Ordinarily, individuals stopped under such circumstances are not arrested.  Once arrested, the second practice kicks in when ICE places a detainer on the individual.  A detainer is a request made by ICE to the local police department to hold an individual for 48 hours beyond when they are due to be released so that ICE may assume custody.  Because people arrested for minor offenses are held for brief periods of time in local jails, a detainer placed by ICE has the effect of keeping them detained by the local police department far longer than they would have been without the detainer.  This is one reason that many police departments have resisted and rejected participation in Secure Communities.  When ICE assumes custody, they initiate removal proceedings against the individual, not due to the arrest, but because of the lack of status.  If the individual can not demonstrate that she is likely to obtain some form of relief from removal, ICE will often detain without bond during removal proceedings.  Thus, through the operation of Secure Communities and detainers, many non-criminal immigrants without status have been identified, detained and deported.  This sad procession has undermined the administration’s claims to be focusing on the worst of the worst.

Into this unhappy scenario comes a new memo from ICE Director John Morton issuing new guidelines for the use of detainers.  The director has been a prolific memo writer.  He has issued guidance about ICE’s enforcement priorities and attempted to force a recalcitrant bureaucracy to use its limited resources more wisely.  He has written memos regarding the increased use of prosecutorial discretion to make intelligent decisions about when not to bring removal proceedings, when to terminate removal proceedings and when to exercise discretion not to remove a removable individual.  These memos and his approach to ICE’s responsibilities have resulted in the ICE bureaucracy’s open rebellion against him.  And the continued presence of “Obama, why are you deporting my mama” articles and signs among immigrant youth show that ICE agents continue to resist the administration’s stated approach to enforcement.  So, here comes another memo.  If followed, the memo should have a significant positive impact as it will reduce the number of low enforcement priority immigrants who come into contact with ICE and are, therefore, not placed into removal proceedings.

The detainer memo instructs ICE to be more judicious in the issuance of detainers.  According to the director, ICE should issue detainers against individuals only where: (1) they have reason to believe that the individual is deportable from the U.S. and (2) one of the following factors is present:

  • the individual has a prior felony conviction or has been charged with a felony
  • the individual has three or more prior misdemeanor offenses
  • the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense which relates to: violence, threats, assault, sexual abuse or exploitation, DUI, leaving the scene of an accident, firearms offenses, controlled substance distribution offenses
  • the individual has been convicted of illegal reentry
  • the individual has illegally re-entered the country after removal
  • the individual has outstanding order of removal
  • the individual has been found to have knowingly committed immigration fraud
  • the individual otherwise poses a significant risk to national security, border security or public safety.

Under these guidelines, detainers should be issued much less frequently than they have been over the past few years.  Individuals stopped for driving without a license, arrested for simple marijuana possession, disorderly conduct, underage drinking, petit theft, or other minor offenses should not come to the attention of ICE.  By keeping the immigration detention facilities and the immigration courts free from these low priority individuals, ICE remains free to concentrate on those who present serious public safety and national security risks.  In addition, it has the potential to stop or slow the removal of parents, children, brothers and sisters who are good members of their community except for a momentary and unfortunate interaction with law enforcement.  Properly implemented, the new detainer policy has the potential to drastically reduce the removals of low priority immigrants that have sullied the pro immigrant credentials of this administration.

However, as before, there is a battle going on between the stated desires of the political leadership of ICE and the ICE bureaucracy.  The ICE bureaucracy has proven itself extraordinarily adept at undermining its political leadership and has been in open revolt against the administration for the better part of four years.  Like every other memo and political effort announced by this administration, the challenge will remain in whether they can force an unwilling bureaucracy to yield to the wishes of its civilian leadership.  Lincoln had to fire McClellan, Truman had to fire McArthur and Obama fired McChrystal.  We are not sure who in ICE needs to be fired, but, one way or another, this power struggle will need to be resolved.

Indifference

13 Dec

 

It is very true that the immigration laws need a wholesale revision.  Congress needs to make substantial changes, regulations need to be re-written, precedent decisions scrapped and new guidance forthcoming.  But another change is needed and this change may the hardest of all.  It is a change of attitude within the agencies.  We have written in this space on multiple occasions about the hostility that elements within ICE have for their political leadership and the “culture of no” within CIS has been well-documented.  However, less reported is the blase indifference that many civil servants within the agency take toward the people affected by the way they go about their jobs.

Here is where I am supposed to say that the majority of the people who work for the immigration agencies are hard-working, well-intentioned people laboring under tremendous workloads and inadequate resources.  I am supposed to say that those who are indifferent to the human lives in the case before them are far outnumbered by the valiant majority who struggle against the bureaucratic odds to make a difference.  Sorry, but I can not say that.  I have to say that indifference is the default and care and compassion and vigor are the exception.  Such virtues do exist within the immigration agencies, but they are rarely on display.  Initiative and “going the extra mile” are snuffed out like weeds in those Round-Up commercials.  The overwhelming majority simply have little concern for the people affected by the way they do their jobs.  Immigration reform will be incomplete unless it addresses this problem as the power of clerks and administrative staff to harm the interests of immigrants remains immense.

Let’s focus on the Executive Office for Immigration Review (EOIR), the Immigration Court system.  Here are just a couple of things that have happened to us in the past few months that show how bureaucrats affect people’s lives by the way they do their jobs:

  • Client was detained by ICE.  ICE said that he was subject to mandatory detention.  We wanted to argue to the Judge that he was not.  We filed a request for a bond hearing, which is a matter of right, on October 24.  The case was not scheduled until November 27, five weeks after we filed.  This meant that our client had to sit in jail for an additional five weeks after we asked for his release before a judge could consider his claim that he should not be detained.  Five weeks is a long time to sit in jail when the law says you do not have to sit in jail.  The decision on when to give him a hearing was made by the Immigration Judge’s legal assistant.  No doubt she was reacting to limits on how many cases a judge can hear on any given day, but the harm of the judge hearing one more case against an individual spending several weeks in jail ought to be considered.
  • Client was detained by ICE.  When ICE detains an individual that they are placing into removal proceedings, ICE must issue a Notice to Appear (NTA) charging the individual with removability.  ICE must file the NTA with the Immigration Court and the Court must schedule the hearing.  We requested bond.  Although the rules require the Court to schedule a bond hearing for any detained individual regardless of whether an NTA has been filed, the Court’s backlog in recording the filing of NTAs causes the staff to fail to schedule a bond hearing.  A hearing was finally scheduled 30 days after the client is taken into custody and the Judge orders release.
  • Client was scheduled for hearing on her application for cancellation of removal for 10/31/2012.  That hearing was set in December 2011.  Hurricane Sandy closed the Immigration Court that day and for several days afterwards.  Expecting that the court would reschedule the case once it reopened, we wished to inform the court that we did not need much time for a hearing.  In December 2011, the Court scheduled the case for three to four hours of time.  However, since then, we negotiated with ICE counsel and agreed that all issues in the case could be resolved in a hearing of an hour or less.  On November 15, 2012, we filed a motion letting the court know that we did not need much time, so that the Court could squeeze us in wherever it had time.  We made several calls to and left messages with the court’s clerical staff, none of which were returned.  We finally spoke with the legal assistant to the judge around December 1, who stated that she had not seen the motion and she would have to look for it, but that she was not going to stop what she was doing to do so.  If she found it and the Judge ruled on it, she would give us a courtesy call.  On December 4, 2012, we got the call- hearing on December 11!  However, on December 5, the rumors started flying- the cap on grants of cancellation of removal had been met and no cancellation grants could be made until October 1, 2013.  As these were just rumors, we went ahead with the hearing, traveling to another city to be there on December 11.  At the hearing the Judge informed us that, since there were no cancellation numbers, she could not and would not hold a hearing and we could come back in October 2013.  So many small acts of initiative could have made a difference here: (1) the clerk could have addressed the motion in a timely manner and we could have gotten on the calendar before  numbers ran out; (2) when numbers ran out, the court could have called and rescheduled knowing that we would have to travel to attend the hearing at substantial cost to the client.
  • They never call back.  Never.

These are problems that are not going to be addressed by legislation.  They require a wholesale change in attitude and a lesson in courtesy. This is not simply a problem of
“poor customer service.” I hate the idea of customer service in a government agency. I think they owe us MORE than a business owes its customers. We are citizens, we are a polity and they are our government. They derive their authority from us. A business derives its income from us, which it can choose to accept or not. Citizen vis-a-vis government is entitled to more respect and deference than a Slurpee-buying sap at a Seven-Eleven.  Homer_and_Apu

These problems require an understanding that immigration detention is a serious deprivation of liberty that must be limited in duration and for the most serious matters.  A culture must grow within the Immigration Court that anything that unnecessarily prolongs detention is to be avoided and that resources will be provided to ensure that immigrants have access to prompt hearings.  Employees of the court system must be trained to recognize that they should do all they can to ensure that detained individuals have access to process.  A person is charged with murder is put in front of a magistrate judge within 24 hours who sets bail (or not).  A person charged with overstaying a visa is often detained for weeks before he gets review of his detention.  How does that system make sense?

This post was mostly cathartic.  Future posts will explore some of the legal underpinnings of the immigration detention regime.  For example, a U.S. Supreme Court decision many years ago said that removal proceedings are civil and not criminal and many criminal procedural protections are, therefore, unavailable in removal proceedings.  Given the militarization of the border and the use of detention during removal proceedings, we wonder how much of that flawed doctrine still can stand.

Oh No, he didn’t! Romney endorses anti-immigrant wingnut Steve King.

10 Sep

 

On Friday, Republican Presidential nominee Mitt Romney endorsed Steve King (R-IA) for another term in Congress.  King, who once compared selecting immigrants to dog breeding, represents the worst of nativist sentiment and  Romney’s solicitation of the know-nothing wing of his party makes a mockery of any analysis that indicates that demographics demand that Romney move off his “self-deportation” stance in the primary toward the more humane and comprehensive approach to immigration reform.

There has been tremendous speculation that Mitt Romney would “tack to the center” on immigration after the primaries.  During the Republican primaries, Romney staked out extreme anti-immigrant positions that made Rick Perry and Newt Gingrich almost seem sane.  In Florida, Romney embraced the “self-deportation” myth, that is, if life is made sufficiently miserable for immigrants they will leave of their own accord.  That approach is being tried in Alabama and Arizona and the result has been to detract from any meager economic recovery these states may have enjoyed.  But, as Romney consolidated his hold on the nomination, he distanced himself from anti-immigrant lawyer Kris Kobach and started hanging out with Marco Rubio, who made noises about how the Republican Party needed to take a different approach on immigration than “all deportation all the time.”  Rubio even started talking about a Republican version of the DREAM Act, but Romney would not comment on it.  When the President announced Deferred Action for Childhood Arrivals (DACA), Rubio dropped the DREAM Act and Romney dropped Rubio.

It now seems that Romney’s flirtation with the immigration mainstream is over and he is going back to the Brewer-Arpaio-Kobach-King axis.  His embrace of Steve King stating that he “wants this man as his partner in Washington DC” says all you need to know about Romney.  As the Spanish saying goes, “Dime con quien andes, y te dire quien eres.”  Tell me who you walk with and I will tell you who you are.  As the Proverbs say “the companion of fools will suffer harm.”

And, make no mistake, King is a fool.  Build the border fence?  Yes, says King.  Over turn the 14th Amendment’s birthright citizenship?  Yes!  English-only?  Yes!  King’s votes have earned him a 100% rating from the know-nothing Federation of Americans for Immigration Reform (FAIR).  But it is his mouth  that has really demonstrated his idiocy.  In addition, to his comparison of immigrants to breeding dogs, King has been good for the following nuggets:

There’s plenty more where that came from.  King is in the tightest race of his career as he is challenged by Christie Vilsack.  Immigrant’s List is a pro-immigrant PAC that works to raise funds against anti-immigrant incumbents and to elect individuals friendly to immigrant rights and has made King a top target for defeat.

Romney’s decision to spend his time with a politician who is on the losing side of history says a lot about where his campaign is these days.  He has chosen to appeal to the most extreme parts of the GOP base.  And while this may buy him some votes in 2012, it is not a good long term strategy.  Romney has set a target of 37% of the Hispanic electorate.  He has a long way to go.  Most polls show him hovering below 30%.    In addition, key states in this election such as Virginia, Florida, North Carolina, Nevada and Colorado have increasing numbers of Hispanic voters.  In addition, demographic trends show that more and more states are going to be competitive due to the increase in Hispanic voters.  The big prize in the Latino-inzation of the electorate is Texas.  While Texas is solidly GOP in this election, future elections are far from clear.  So Romney can pal around with dinosaurs like King and hope to nudge his numbers up in the Tea Party crowd, he is, long-term, helping to dig the grave of the modern GOP.

The Bureaucrats’ Revolt, Part III

24 Aug

We have paid a lot of attention to the complaint of some of the bureaucrats within ICE against their political leadership.  We have reported on the ICE Agents Union’s vote of “no confidence” in Director John Morton and the bizarre lawsuit filed by James T. Hayes against Janet Napolitano.  But yesterday, ten agents of  Immigration & Customs Enforcement filed a lawsuit against the administration charging that the President’s deferred action policy is illegal and enforcing it requires them to violate their oath of office.  This is, by far, the most ambitious effort by these unelected bureaucrats to undermine the political will of the people.

The agents assert that the new policy prohibits agents from doing their job, which they see as arresting and processing for removal proceedings every removable individual that they encounter.  They claim that they face disciplinary action if they arrest individuals who have been identified as “low priorities” by ICE leadership.  Finally, the agents claim that the public safety is at risk when they are not permitted to arrest certain removable individuals.  The agents filed in the Northern District of Texas, presumably because they thought it would be a friendly forum for their claims.

Their lawsuit is not likely to succeed.  The Supreme Court and the federal courts have emphasized over and over again that the decision to initiate and terminate removal proceedings lies squarely within the discretionary authority of the agency.  While one might think that these court decisions come from people challenging the agency’s initiation of removal proceedings, they have also been issued where people have sued the agency because they wanted the agency to initiate removal proceedings.  Over and over again, courts have stated that ICE has unreviewable discretion to begin or not begin removal proceedings.  The agents seems to think that these decisions give them as individual agents the authority to begin or not begin removal proceedings.  Wrong.  It gives the agency the authority  to make these decisions and these agents have supervisors and managers who are charged with enforcing the law as interpreted and defined by the agency.  The political leadership gets to make that call because, they, unlike the ICE agents, are the designees of the elected President.  For ICE agents to refuse to follow the legitimate directives of the political leadership is insubordination that would be intolerable in any other situation.

In addition, President Obama, Secretary Napolitano, and Director Morton did not invent deferred action.  Deferred action has been in place for over four decades.  In addition, although the bureaucrats claim that deferred action has always been an individualized determination and not used for large classes of individuals, that is not true.  The agency has granted deferred action to victims of domestic violence and certain widows of American citizens.  The size of the class of people eligible for deferred action does not render the deferred action designation inappropriate.

The lawsuit is clearly political.  It is a rearguard action by agents, and their political enablers, like anti-immigrant lawyer Kris Kobach and the restrictionist group Numbers USA.  These agents and their political handlers disagree with the policy and are airing their political differences as a legal issue.  The good news is that they are fighting a losing battle.  Their lawsuit will not survive and, politically, support for the deferred action program is growing.  An election is coming up and the voters will have an opportunity to decide whether the President should be re-elected.  The deferred action program will be included in the voter’s calculus.  Then, the right people, the American voters, will have a chance to pass on the program.  In the meantime, these bureaucrats have two choices: do their job or quit it.

 

So an ICE Agent Sues the Secretary of Homeland Security. . .

10 Aug

The Special Agent in Charge of Immigration & Customs Enforcement (ICE), Mr. James T. Hayes, Jr. has filed a lawsuit in federal court against Department of Homeland Security Secretary Janet Napolitano claiming that the Secretary has engaged in a pattern and practice of sex discrimination against heterosexual men by creating a hostile work environment for them within DHS.  Now, we believe that everyone deserves a fair and harassment free workplace, but our skepticism of the sincerity of this complaint makes us think, “Puh-leeze.”  Bureaucrats within ICE have been undermining and sabotaging their political leadership since President Obama was elected and it is hard to see how this is not just the opening of another front in that war.

Just last month, ICE agents appeared with Senator Jeff Sessions and other Republican critics of the President’s program to provide deferred action to certain potential DREAM Act beneficiaries to denounce the plan.  Now ICE agents are free to have their opinions, but they are also obligated to follow the law and the President’s program is a lawful exercise of his executive authority.  They may not like it, but they have to follow it.  Rather, the ICE agent’s union retreats into a revanchist clique afraid of change.  As we have reported many times before, the ICE agents union has made no secret of the fact that they oppose the President’s approach to immigration enforcement.  These bureaucrats have voted “no confidence” in ICE Director John Morton, as if they were in the British Parliament and not employees who have a responsibility to follow the direction of their leaders.  In fact, their status as government employees makes it far more important that they follow the directives of the political leadership.  Like them or not, Secretary Napolitano and Director Morton are the designees of the President, who was elected by the American people.  When they refuse to follow the leadership of the political appointees, ICE bureaucrats are telling the American people that they, the unelected, know best as to the proper policy for the U.S.  It is profoundly undemocratic.

Of course, it is heartening to see conservatives embrace laws that protect against sexual harassment.  This is a marked improvement since 2009 when all but five Republican Senators voted against the Lily Ledbetter Fair Pay Act.  However, it is hard to imagine that the ICE bureaucrats have taken a new tack on civil rights.  A 2011 report by the American Civil Liberties Union demonstrates that ICE has shown galling indifference to sexual abuse in immigration detention.  In addition, bureaucratic griping has an outlet in a numerous wingnut websites.  In June 2012, wingnut Debbie Schlussel reported about how bureaucrats within ICE seethed at trainings intended to protect civil rights for members of the LGBT community.

It is very difficult to resist the conclusion that this lawsuit is an attempt to further tarnish the agency as it embarks upon a plan to enact intelligent immigration enforcement through deferred action to would-be DREAMers.  It is designed to inflame the passions of the easily perturbed and to label the President and his appointees as enemies of the values of decent Americans.   This is politics and, as always, it is played with a hardball.