EXECUTIVE REFORMS TO IMMIGRATION: Top Six Changes

The President’s executive reforms to the U.S. immigration system make a number of very positive changes that have the potential to help millions of people.  Although we have written about various components of the reforms individually, we have summarized six major portions here in one place.

Benach Ragland will be offering several free community meetings throughout December and will be offering reduced fee consultations for people who may benefit from these reforms.  To get the latest information about where we will be, please “like” us on Facebook and follow us on Twitter: @benachragland.  To schedule a reduced fee consultation, please email: consult@benachragland.com or call 202-644-8600.

• Deferred Action for the Parents of U.S. Citizens and Permanent Residents

The centerpiece of the President’s immigration reforms announced yesterday is the expansion of deferred action to cover certain foreign national parents of United States citizens. Here are the details:

The U.S. Citizenship & Immigration Service will give deferred action and employment authorization to individuals who:

• As of November 20, 2014, have a son or daughter who is a United States citizen or lawful permanent resident.
• Entered the U.S. prior to January 1, 2010
• Are not in lawful status as of November 20, 2014
• Are not an enforcement priority
• Do not present other factors that weigh against a favorable exercise of discretion

People who fall within the DHS’ new enforcement priorities will be ineligible for deferred action.  With a new memo issued today, November 20, 2014, the DHS has revised the enforcement priorities for the agency.  The new enforcement priorities are divided into three levels of priority of decreasing priority.  Presumably, those not within the enforcement priorities memo are not enforcement priorities and should qualify for benefits and not be subject to efforts to seek removal. We have summarized the new enforcement priorities memo here.

Applicants will be required to provide fingerprints and undergo national security and criminal background checks.  The filing fee will be $465.  CIS has been directed to begin accepting applications no later than 180 days from the date of the announcement (May 19, 2015).  Work permits will be valid for three years and individuals granted deferred action can also seek advance parole to travel internationally.

• Expanded eligibility for Deferred Action for Childhood Arrivals (DACA)

Another significant development coming out of the Presidential reforms announced yesterday is the expansion of DACA beyond its original parameters established in 2012.  For descriptions of the original DACA requirements, please see here. 

The executive reforms announced yesterday make the following reforms to the DACA program:

• The date of entry for DACA eligibility has been changed from June 15, 2007 to January 1, 2010.  Individuals who entered the U.S. prior to their 16th birthday and prior to January 1, 2010 can qualify for DACA under the revised guidelines.

• The age cap has been eliminated.  Originally, DACA was limited to individuals under 31 years of age as of June 15, 2012.  The upper age limit has been eliminated and those who entered the U.S. before January 1, 2010 and were under the age of 16 will qualify regardless of their current age.

• DACA work authorization will now be valid for three years as opposed to two.

These reforms will be implemented within 90 days. The other DACA requirements regarding education and criminal issues remain unchanged.  The new parole provisions should also assist DACA grantees.

• The New Enforcement Priorities Memo

As part of the executive actions reforms announced by the administration yesterday, the administration has redefined the enforcement priorities for Immigration & Customs Enforcement.  Briefly, any law enforcement agency with limited resources can not realistically enforce the law against everyone who may have broken it.  Law enforcement agencies must pick and choose how to allocate their limited resources and where to expend their efforts.  The new enforcement priorities memo provides very clear guidance to ICE as to who their efforts ought to be focused upon.  Groups of people have been classified into three priorities for enforcement, in declining orders of priority.  Individuals not within this memo are, presumably, not priorities, and should be eligible for benefits and not subjected to enforcement actions like detention and removal.  The three classes of priority are as follows:

Priority 1 (Most serious)

• individuals suspected of terrorism, espionage or who are otherwise a threat to national security
• individuals apprehended at the border while trying to enter the country illegally
• individuals involved in gangs or gang activity
• individuals convicted of a felony unless the essential element of the offense is the individual’s immigration status
• individuals convicted of an aggravated felony

Priority 2 (Medium serious)

• individuals convicted of three or more misdemeanors, not including traffic offenses or offenses where an essential element is the individual’s immigration status
• individuals convicted of a “significant misdemeanor”, which is defined as: an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug trafficking or distribution, driving under the influence, or any offense not included above for which the individual was sentenced to 90 days or more in custody (unlike in most immigration situations, a suspended sentence does not count)
• those who have entered the U.S. unlawfully after January 1, 2014
• significant visa or visa waiver abusers

Priority 3 (Less serious)

• Individuals with a final order of removal entered after January 1, 2014, unless there are other factors that suggest that the individual should not be a priority for enforcement.

Once again, presumably, an individual not on any of these lists should not be considered a priority for removal and ICE is directed not to expend resources of seeking their detention and removal.  We will be watching ICE to see how the agents in the field respond to these revised priorities.

• Clarifications and increased use of Advance Parole

Another positive change to the immigration laws announced last night is the Secretary of Homeland Security’s instruction that DHS counsel should prepare a legal memorandum forthcoming that departures pursuant to advance parole will not trigger the three and ten year bars.  This memo is to ensure that all departures on advance parole are treated consistently across the country for unlawful presence purposes.

Individuals who have been unlawfully present in the U.S. for more than 180 days who then depart the U.S. are subject to a three year bar on returning.  Individuals with a year or more of unlawful presence face a ten year bar after departure.  In Matter of Arrabally and Yerabelly, 25 I.&N. Dec. 771 (BIA 2012), the Board of Immigration Appeals ruled that individuals who departed on an advance parole granted due to a pending application for adjustment of status have not made a “departure” for purposes of triggering the three or ten year bars.  while this was a welcome decision, there was confusion and disagreement whether this applied to all departures on advance parole or only to those who departed on advance parole issued to applicants for adjustment of status.  For example, DACA recipients can get advance parole and it was unclear whether their departure would subject them to a bar to return due to unlawful presence they may have accrued prior to DACA’s existence.

The new memo is to clarify that any departure from the U.S. under advance parole no matter why that parole was granted would not be considered a departure for purposes of triggering the three and ten year bars.  This means that people with advance parole, perhaps as a result of DACA, or through the new “DAP” program, for parents of U.S. citizens, will be able travel to visit family abroad without having to lose everything they have achieved in the U.S.

• Expansion of the Provisional Waiver

Another positive development is the proposed expansion of the provisional waiver program, which the President initiated in 2013.  The provisional waiver, as initially introduced allowed the spouses and children of U.S. citizens to seek a waiver of inadmissibility for the three and ten year bars due to unlawful presence to seek a waiver in the U.S. rather than after proceeding abroad to seek a visa at a U.S. consulate abroad.  This program has been successful and we have had several provisional waivers approved and been lucky to witness reunions made possible by the provisional waiver.

The provisional waiver was initially limited only to spouses and children of American citizens.  The new memo instructs CIS to “expand access to the provisional waiver to all statutorily eligible classes of relative for whom an immigrant visa is immediately available.”  This will clearly include the spouses and children of permanent residents, but could also potentially include a larger group of  individuals such as the adult sons and daughters of U.S. citizens.

Also, for tremendous significance, the Secretary of Homeland Security has directed the CIS to “clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met.  Most importantly, the Secretary has directed CIS to consider whether a legal presumption of extreme hardship may be determined to exist.  The creation of the presumption of hardship would reduce the burden on applicants seeking to show extreme hardship.  We particularly love this idea, because we suggested it here while pointing out the legal authority for such a move. 

• Parole in Place for family members of those seeking to enlist in the military

The package of reforms introduced by the President includes new policies on the U.S. of parole-in-place or deferred action for the family members of those seeking to enlist in the military.

Parole in place is a function of the Department’s discretionary authority to parole anyone into the U.S.  Parole in place is a mechanism to allow the Secretary of Homeland Security to parole an individual into the U.S., providing that individual with legal status and the ability to seek adjustment of status.  Recently, the government has used parole in place to allow the undocumented spouses, parents and children of Servicemembers, including Veterans, to adjust status.  We discussed this process here in August.

The new policy builds on this use of parole in place.  The Secretary of Homeland Security has instructed the CIS to work with the Department of Defense to “address the availability of parole in place and deferred action to the spouse, parent or child of a U.S. citizen or resident who seeks to enlist in the armed forces.

The “seeks to enlist” criteria is a major expansion of this authority and may provide residence to the close family members of those who want to join the military.

These reforms present many exciting opportunities for immigrants. In connection with other parts of the law, it may be possible to achieve more than a work permit.  We are excited about the possibilities for so many immigrants and look forward to the chance to serve you.

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Early Details of Executive Action

The President spoke to the nation tonight to reveal his long-awaited plan to reform immigration laws to the extent that his authority allows him.  Those who have watched and waited had a number of questions answered even before the President took the lectern.  The biggest announcement is that the President will extend deferred action eligibility to the parents of United States citizens or permanent residents who have been in the US. since January 1, 2010.  The biggest disappointment is that the President took no action to protect the parents of young people granted DACA. Applications for any benefit are not to be accepted until “early 2015.”

1. Deferred Action for Parents of Citizens and Residents who have been in U.S. since January 2010.  Applicants will have to demonstrate that they have been here since that date, that they have paid taxes, that they pass criminal and national security  checks.  They must show that they are not an enforcement priority, which has been newly defined in this action.
2. Expanded DACA eligibility.  Individuals who arrived in the U.S. prior to the age of 16 and prior to January 1, 2010, regardless of their current age, can seek DACA if they meet the educational and discretionary criteria.
3. Enforcement Priorities.  The Morton Memo on enforcement priorities is being rescinded and a new comprehensive inter-agency memo will identify enforcement priroties whose removal will be sought and expedited.  The groups prioritized are as follows: (1) serious threats- suspected terrorists, those convicted of felonies, gang members, and recent entrants (after 1/1/14); (2) individuals convicted of significant or multiple misdemeanors (similar to the current DACA standards); (3) individuals who have ignored removal orders and re-entered the country after 1/1/14.
4. Departure under advance parole will not generate unlawful presence inadmissibility.
5. The I-601A Provisional Waiver will be extended to the spouses of permanent residents.
6. The Extreme Hardship Standard will also be modified.
7. Pre-registration for those with approved but not current immigrant petitions to give those waiting for priority dates access to work permits and advance parole as if they had already applied for adjustment of status.
8. Guidance to the Citizenship and Immigration Service on L-1B Specialized Knowledge Professionals and National Interest Waivers for Entrepreneurs.
9. Increased periods of work authorization through optional practical training.

Unfortunately, the President has not gone so far as to provide for deferred action for the parents of those granted DACA.  In addition, the President has shown no sign of letting up on his persecution of women and children arriving at our Southern border.

More details and analysis to come.

President to Announce Executive Actions on Immigration

Tomorrow night (Thursday, November 20, 2014) at 8PM, the President of the United States will address the nation to announce what steps his administration intends to take to reform U.S. immigration law and policy.  This announcement represents the culmination of the President’s evolution on his authority as the nation’s chief executive.  In June 2014, when it became clear that the House of Representatives would not take up the immigration reform bill passed by the Senate, the President made a statement that he would take administrative action to ameliorate the harsh effects of our immigration law.  He said that he would take such action by the end of the summer.  However, as summer ended, desperate Democratic Senators in tight re-election races persuaded the President to hold off on his administrative reforms in the hopes that they could retain their seats.  However, the President’s forbearance did not help them- they lost anyway- and the President immediately reaffirmed his intention to “go as far as he can go under the law,” according to his adviser Cecilia Muñoz.  After a week of speculation, the President confirmed today that he will release the details of his immigration reform plans tomorrow night with a televised address from the White House, followed up by a rally in Las Vegas.  Details will not be known until tomorrow, but here is what has been reported most commonly:

• The President plans to offer deferred action to the foreign national parents of U.S. citizen and permanent resident children who have been here for five years and have been law-abiding.
• Reports indicate that the administration will make changes to how employment based visas are counted to reduce backlogs for needed workers.
• The adminsitration will expand DACA to include young people who entered before 2010, as opposed to 2007, and eliminate the upper age limit for DACA.
• Reports indicate that the plan DOES NOT provide deferred action to the parents of DACA recipients who have no citizen or resident children.
• The program is reported to end Secure Communities, a disaster of a program.

These are the details that have been reported.  The plan may be different and we will now know until the formal announcements are made.  However, the provisions mentioned above, are the most commonly and consistently reported details.

What is deferred action?

Deferred action is a tool of law enforcement which allows an agency to define its priorities and focus its resources on its priorities.  It is a formal statement by the agency that a particular individual is not an enforcement priority and that the immigration agency will not utilize its limited resources to seek removal of that individual.

Is it residence?

No.  It is a temporary and revokable classification of convenience to the agency.  It does not provide an individual with residence or any promise of future residence.  It can be revoked at the discretion of the agency.  For example, a new administration could choose to eliminate the entire program.

Is this legal?

Almost certainly.  The Immigration & Nationality Act has provided the executive branch with wide latitude as to how it enforces the laws.  There are sizable gaps in the statutes passed by Congress that require the executive agencies to exercise their discretion about how they intend to enforce the immigration laws.   This discretion has been recognized by the Supreme Court in Arizona v. United States, where the Court wrote “A principal feature of the removal system is the broad discretion exercised by immigration officials.  . . .  Federal officials, as an initial matter must decide whether it makes sense to pursue removal at all.”  This broad discretion was also noted by the Supreme Court fifteen years ago in Reno v. America-Arab Anti-Discrimination Committee, where the Court wrote, “At each stage, the Executive has discretion to abandon the endeavor [referring to the removal process] and at the time the Illegal Immigration reform and Immigrant Responsibility Act of 1996 was enacted the INS had been engaging in a regular practice (which had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.”

How are Republicans going to react?

Reactions have ranged from pragmatic to hysterical.  There are voices, not to be underestimated, within the GOP that will declare that the President’s action is an impeachable offense.  Although Speaker of the House told the President that he would be “playing with fire” if he moved ahead with immigration, the Republicans seem genuinely conflicted about how to respond.  There are people within the GOP who believe that the Congress should pass its own legislation on immigration.  There are others who want to shut down the g0overnment or not confirm the President’s nominee for Attorney General to force the President to abandon his plan.

When will these changes take effect?

We don’t know.  They will not take effect overnight and there will be some lead time before the administration is prepared to take applications for deferred action from the up to 5 million people believed to be eligible.

What should I do while we are waiting?

First, don’t get arrested!  Second, gather essential documents, such as passports, matricula cards, birth certificates, marriage certificates, tax, school, medical and work records.  Third, consult with reputable lawyers to discuss issues like removal orders, criminal records or other potentially sensitive issues.

We will keep you informed with reliable and accurate information.

 

Is Executive Action on Immigration Imminent?

It is only fitting that major technological achievements like the successful placement of a lander on a comet be paired with news that the Obama administration is planning many reforms to our nation’s immigration policies.  After all, our space program and many of our most successful technological breakthroughs are directly related to an immigration policy that made it easier for the best and brightest to come and work here.  Yet, many worry today that our immigration system is so broken that it prevents the entry and lawful integration of hard workers struggling to improve their lives in the U.S.  The comet lander was a project of the European Space Agency and not NASA.

U.S. immigration policy today, instead, says no to the best and brightest, rejects those who are willing to perform jobs that others refuse to do, and breaks up families over minor violations.  In short, U.S. immigration policy not only does not help America grow, but is actually a hindrance.  Most people of fair judgment recognize this.  Last year, the Senate took a step to make some needed reforms to U.S. immigration law.  While the bill the Senate passed was far from perfect, it would have gone a long way to fixing many of the problems with the immigration system.  However, the House of Representatives refused to take up the bill and instead voted to deport DREAMers and sue the President.

In light of the crisis in immigration, the President announced in June that he would make changes by the end of the summer in regulations and policies to ameliorate the harsh edges of immigration law.  He pushed this back until after the November election to help certain Democrats retain their Senate seats, which they lost anyway.  Ironically, the one democrat that he could have helped with executive action, Mark Udall of Colorado, also lost, partially due to a discouraged Latino electorate.  Immediately after the drubbing Democrats took, the President reiterated his commitment to executive action on immigration reform.  Then IT happened.  A breathless report appeared last night (November 12) on FOX News stating that the President was going to announce his immigration “amnesty” plan on November 21 and he would legalize millions of immigrants.  The White House quickly denied that any final decisions had been made and that, certainly, no timelines had been promised.  Yet, today, the New York Times reported that the President was weighing an option that could provide up to 5 million immigrants with some type of protection from removal.  The NYT article stated that a central part of the plan is to provide deferred action, like DACA, to the parents of U.S. citizens or to people who have been here for a long period of time.  In addition, according to the Times:

Mr. Obama’s actions will also expand opportunities for immigrants who have high-tech skills, shift extra security resources to the nation’s southern border, revamp a controversial immigration enforcement program called Secure Communities, and provide clearer guidance to the agencies that enforce immigration laws about who should be a low priority for deportation, especially those with strong family ties and no serious criminal history.

A new enforcement memorandum, which will direct the actions of Border Patrol agents and judges at the Department of Homeland Security, the Justice Department and other federal law enforcement and judicial agencies, will make clear that deportations should still proceed for convicted criminals, foreigners who pose national security risks and recent border crossers, officials said.

So far, these articles are the clearest indication that the President intends to do something about immigration.  And it appears that he is ready to do it soon.  It is important to note that nothing has been decided, no timetables have been set, and that the President is still free to choose to do nothing.  In addition, the Republican Speaker of the House John Boehner has stated that the House will fight him “tooth and nail” on administrative reform.

In the meantime, it does appear that some form of administrative reform is coming.  We still don’t know what it might look like.  We asked this in August and still do not know for sure.  Although we do have some ideas. People who may benefit, such as the parents of U.S. citizens, should make sure that they have certified birth certificates, marriage certificates, tax returns, dispositions of criminal charges, school records, church records, passports and other papers showing who they are, what they have done with their lives and why they deserve a chance to stay.  And, since it is Throwback Thursday, we offer you this post from just over two years ago about what immigrants should do while waiting for deferred action relief.  Many of the suggestions remain good advice.

Stay tuned.  We will give you accurate and current information as it happens.

Montgomery County Maryland Says No to ICE!

Great news right out of our own backyard.  Montgomery County, Maryland, the county that surrounds most of Northwest Washington DC and the most populous county in Maryland, announced today that its jails would no longer honor detainers issued by Immigration & Customs Enforcement except under very specific circumstances.  This decision places a vice grip on one of the region’s most reliable ICE enforcement pipelines and is further evidence that local municipalities are rejecting the damage done to communities by the heavy-handed enforcement activities of the current administration.  We answer some basic questions about what this change means.

What is a Detainer?

A detainer is a request filed by Immigration & Customs Enforcement with a jail or prison asking the jail or prison t0o continue to detain an individual beyond their release date so that ICE can assume custody over the individual.

Is this like an “ICE hold?”

Yes, an “ICE hold” is a common name for a detainer.

Are there any rules about detainers?

Yes, under U.S. immigration law, ICE may only request that a jurisdiction hold an individual up to 48 hours beyond their scheduled release date (not including holidays and weekends) for ICE to assume custody of a detainee.

Why does ICE issue detainers?

ICE issues a detainer when it learns that an individual being held in local law enforcement custody may be subject to removal from the United States.  The issuance of a detainer is how ICE expresses an interest in an individual.  It does not necessarily mean that an individual is subject to removal.  A detainer allows ICE to assume custody and determine whether to charge an individual with removal.

Is a jurisdiction obligated to honor ICE detainers?

No.  An increasing number of jurisdictions are rejecting ICE detainers as inconsistent with their own law enforcement prerogatives.  Over 250 jurisdictions including the State of California, New York City, Washington DC, Boston, Denver and San Francisco refuse to honor ICE detainers.

What happens if ICE does not assume custody over an individual after 48 hours?

The facility should release that individual.  The authority to detain an individual beyond their release date is limited to 48 hours.  Municipalities that detain individuals beyond that period are at risk of liability for unlawful detention.

Can an ICE hold prevent someone from being released on bail pre-trial?

Many local judges and prosecutors wrongly assume that a person subject to a detainer can not be released on bail pre-trial.  A detainer does not render someone ineligible for release on bond.  Many jurisdictions have assumed that because a detainer exists, bail may not be ordered.  Sometimes if a person gets bail from a judge, the family has a hard time making the payment because the clerk believes she can not take it due to the detainer.  Individuals eligible for bail should seek bail despite the existence of a detainer.  Once the bail has been made, ICE may assume custody.  However, since an individual will not have been convicted of a deportable offense at that time, ICE’s ability to detain may be limited.  Criminal attorneys seeking bail for clients subject to detainers should coordinate with immigration counsel to pursue the most advantageous strategy for the client.

Why did Montgomery County do this?

In April 2014, Maryland Governor Martin O’Malley determined that jurisdictions in Maryland may face liability for detaining individuals after their eligibility for release.  As counties absorbed the impact of this opinion and sought to protect themselves, counties began to rethink the wisdom of cooperating with detainers.  In August 2014, the City of Baltimore stopped honoring detainers followed by Price George’s County in October.  With Montgomery County, Maryland’s largest county, following suit, the momentum against detainers is unmistakable.

Why did Martin O’Malley do this?

O’Malley is widely believed to be running for President as a Democrat in 2016.  O’Malley has clearly chosen to take a more aggressively pro-immigrant stand than other potential Presidential candidates.

Victory! BIA finds Domestic Violence Victims May Qualify for Asylum

In a major victory for immigrants, the Board of Immigration Appeals ruled yesterday that women who are unable to leave domestic violence caused by their husbands may qualify as a particular social group for asylum purposes.  This decision brings to an end a lengthy period of uncertainty regarding the viability of claims to asylum by women fleeing domestic violence.  The Board’s decision in Matter of A-R-C-G-, 26 I.&N. Dec. 388 (BIA 2014), establishing clear and controlling law to the nation’s immigration judge that victims of domestic violence can qualify for asylum.  While the law has been moving in this direction for quite some time, there was still a lack of Board precedent obligating immigration judges nationwide to follow it.  While progressive judges cobbled together legal authority from circuit court cases and unpublished decisions, recalcitrant judges used the lack of directing precedent to deny domestic violence claims.  The Board’s decisions removes any uncertainty that victims of domestic violence can obtain asylum in the U.S. due to the domestic violence they suffered in their home country.  The decision could not be more timely as the influx of women and children on the Southern border being detained in Artesia, New Mexico has shone a spotlight on the ability of victims of domestic violence to seek protection under U.S. asylum law.  The decision gives these applicants a potent new weapon and undermines the administration’s ability to remove them with barely a semblance of due process.

The decision is the result of nearly two decades of litigation on the topic of victims’ of domestic violence eligibility for asylum.  This issue has been pushed for all that time by Karen Musalo of the Center for Gender and Refugee Studies at the University of California at Hastings, who conceived the legal basis for the asylum claim and saw through a terrible BIA precedent called Matter of R-A-, which, in the BIA’s first analysis, denied asylum eligibility to victims of domestic violence.  R-A- eventually got settled with Rodi Alvarado being granted asylum but without a precedent decision.  That precedent decision came down yesterday.

In yesterday’s decision, the BIA squarely held that ” ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.”  The Board considered a case where a married woman suffered atrocious abuse at the hands of her husband, who tried to leave the relationship, and who was rebuffed by the police when she sought help.  The BIA considered the development of case law on particular social groups, the facts of the case, and the social context in which domestic violence occurs and determined that the social group of “married Guatemalan women who are unable to leave their relationship” can support a claim to asylum.

Of course, the individual facts and social context of the case are extremely important.  However, the decision gives strong support to the thousands of women fleeing domestic violence by coming to the U.S. and provides hope that there is an alternative to the violence and degradation they experienced in their home countries.

What Might Executive Action on Immigration Look Like?

As Facebook is crowded with pictures of kids going back to school, we must face the inevitable end of summer.  However, for immigrants, it is possible that the end of summer will bring long-awaited administrative relief from the Obama administration.  In June, President Obama went to the Rose Garden to state that, in the absence of legislation from Congress, he was going to use his executive power to address the harshness of U.S. immigration laws.  He stated that he instructed Secretary of Homeland Security Jeh Johnson to present recommendations for changes that the administration could make to existing interpretations of immigration law that would ameliorate the inhumane consequences of current immigration policy.  The Secretary was instructed to produce his recommendations and plan by the end of summer.  With the President returning from vacation soon and the traditional end of summer holiday of Labor Day approaching, expectations are sky high that the President will announce meaningful administrative actions in the coming weeks.  Washington is awash in rumors, speculation, leaks, and hopes as to what the nature of immigration relief might look like.  In this blog, we take a look at some of the common possibilities that keep popping up in reports.  We have written in the past about steps that the President could take to make U.S. immigration laws less harsh.  This post is about those measures that have been commonly reported in the media.

• Parole-in-place.  This would be the most ambitious use of presidential authority.
  • WHAT IT IS: The Immigration & Nationality Act gives the administration the ability to parole any immigrant into the U.S. if the administration determines that it would be in the national interest.  Ordinarily, parole is granted to allow someone to enter the U.S. from abroad.  However, parole-in-place is a mechanism to parole those already in the U.S. who have not been admitted, such as those who entered unlawfully.
  • WHAT IT WOULD DO:  By paroling those who entered illegally, parole-in-place would have the effect of making them eligible for adjustment of status to permanent residence based upon the petition of an immediate relative, such as a U.S. citizen spouse or a child over 21.
  • WHO IT WOULD HELP: Those who entered unlawfully and have close U.S. citizen family ties.  This could be more expansive than those who can benefit from the provisional waiver as the provisional waiver is not available to those who are inadmissible on criminal grounds or fraud grounds.  Conceivably, parole in place would allow immigrants to seek adjustment of status with the opportunity to apply for all of the waivers that are available to other adjustment applicants.
• Deferred Action.   Conventional wisdom is that the President will utilize the deferred action method used for young people in 2012 which would provide no stable or durable status, but would provide a reprieve from removal and the ability to obtain employment authorization.
  • • WHAT IT IS: in June 2012, the President created Deferred Action for Childhood Arrivals (DACA), which formalized a policy that the government was not interested in seeking the removal of young people who entered as children, stayed in school, and, generally, avoided trouble.  The President could expand the Deferred Action program to include other favored groups, such as the parents of U.S. citizen or the parents of DACA recipients.
    • WHAT IT WOULD DO: By granting deferred action, the administration would be formally recognizing that the individual is not a priority for removal and would not be sought for removal.  Deferred action comes with work permits, allowing individuals to live without fear of removal, to work legally, obtain social security numbers and driver’s licenses.
    • WHO IT WOULD HELP: This is hard to say.  The administration could create a class of individuals who would qualify for expanded deferred action.  There is general legal consensus that he may not grant deferred action to all undocumented individuals. Commonly discussed potential classes include the parents of U.S. citizens and the parents of DACA grantees.  Another broad class would be deferred action for those immigrants who would benefit under the immigration reform bill passed by the Senate in 2013.   It is likely that, like DACA, any deferred action grant would have eligibility requirements relating to length of time in the U.S, work history, an the lack of a criminal record.Deferred Action.  The President could simply expand Deferred Action beyond the DREAMers.  He could identify classes of individuals who the administration identifies as low priorities for removal from the U.S.

• Recapture of visa numbers.  This is among proposals favored by the business community.  It would not necessarily apply to individuals without status, but would help fix the extraordinary backlog in employment-based visas.  Some individuals do fall out of status waiting for their spot in the backlog to become available to them.
  • WHAT IT IS: The Immigration & Nationality Act makes a limited number of visas (green cards) available every year and divides them among various categories.  Sometimes, because of the way the visas are allocated, many of those visas go unused every year.  This contributes to horrendous backlogs that hurt employers’ ability to retain key personnel.
  • WHAT IT WOULD DO: By changing the way visas are counted and allocated, this change would shorten lines for visas in the employment-based categories, shortening the time it takes for a foreign employee to obtain residence.
  • WHO IT WOULD HELP: Employment-based immigrants, their families, and their employers.  Reduction in the amount of time necessary to sponsor an immigrant through work could help many people who could seek residence through employment and fall out of status while waiting in the backlog.

• Work authorization for H-4 Visa Holders.  This is another of the priorities for the business community.
  • WHAT IT IS: Individuals admitted in H-4 status are the spouses and children under 21 of H-1B visa holders, who may enter the U.S. to work for a U.S. employer in a professional capacity for up to six years.  Under current law, an individual admitted into the U.S. in H-4 status is not allowed to accept employment in the U.S.
  • WHAT IT WOULD DO: Administrative change could make H-4 visa holders eligible to apply for employment authorization.  Since the Immigration & nationality Act does not prohibit such employment authorization, regulatory change could create a category to allow H-4s to work.  There is precedent for this as changes to the law allowed L-2 visa holders, the spouse and children under 21 of L-1 intracompany transferees to obtain employment authorization.
  • WHO IT WOULD HELP: The spouses and children of H-1B visa holders and their families.  Businesses want this change because international candidates sometimes turn down offers to work in the U.S. because their spouse can not work.

Executive action seems all but assured.  The questions is not “if,” but “exactly what” and “when.”  The President has waited far too long to take this actions.  Millions have suffered in a cynical attempt to pacify the House GOP and enforcement-lust.  The President has returned from vacation and it is time for everyone to get back to the important work of addressing the colossal failure of U.S. immigration law and the even more contemptible failure of Congress to deal with it.

GUEST BLOG: Special Immigrant Juvenile Status: Maryland Closes Gap with Federal Law to Expand Courts’ Jurisdiction. By Michelle Mendez

This blog post was written by FOBR Michelle Mendez, Senior Managing Attorney at Immigrant Legal Service of Catholic Charities of the Archdiocese of Washington.

 

On April 8, 2014, Maryland Governor Martin O’Malley signed into law Chapter 96, which, through a small, technical fix that closes a gap between state and federal law, expands the jurisdiction of an equity court to include custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile Status (SIJS) factual findings. 2014Md. Laws, Chap. 96. The law expands the jurisdiction of the court by defining a child for the purposes of SIJS factual finding determinations in guardianship or custody proceedings as an unmarried individual who is not yet 21 years of age thus aligning the definition of child with the federal definition. The idea for this change in law arose from the experience of Catholic Charities Archdiocese of Washington Immigration Legal Services staff as they continued to encounter youth with harrowing life situations that rendered them SIJS eligible but who were already 18 years old. This law goes into effect October 1, 2014, but some judges have already begun accepting cases of those who have already reached the age of 18.

 

What is SIJS?

There are few groups more vulnerable than immigrant children who are SIJS-eligible. As we have seen with the recent surge of unaccompanied minors fleeing Central America, many have arrived in the United States fleeing a combination of violence, threats, natural disasters, human trafficking, child labor, and abuse, neglect, and abandonment from their families. Though SIJS-eligible, without competent counsel to guide them through the complexity of this family law and immigration law hybrid relief, these children face the constant threat of deportation and without legal status, access to student loans and work authorization, they face significant barriers to becoming stable, productive members of society. That is why it is imperative that we as attorneys know and understand SIJS.

A Special Immigrant Juvenile is an immigrant child who has been declared dependent on a juvenile court because a state court judge has determined that (1) his or her reunification with one or both parents is not viable due to abuse, neglect, or abandonment and (2) it is not in the best interest of the child to be returned to his or her home country. A juvenile court is defined as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles,” and can include a juvenile court, family court, probate court, county court at law, or child welfare court. SIJS is the only area of immigration law that incorporates the best interest of the child principle to take into account the special needs of abused, abandoned, or neglected immigrant children. When introducing SIJS back in 1990, Congress designated this task to state juvenile court judges because federal immigration authorities are not equipped to determine the best interests of children. State juvenile judges do not make immigration determinations and instead only determine if the facts required for SIJS are present in a case; U.S. Citizenship and Immigration Services (USCIS) has sole authority to grant SIJS status via the approval of Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant, subject to extensive background and biometrics checks.

SIJS factual findings are issued in state courts in accordance with foster care, guardianship, delinquency, adoption, or sole custody proceedings, meaning that the request for SIJS factual findings must accompany one of these types of filings. Submitting only a motion for factual findings for SIJS will not vest the state court with jurisdiction. Dependency on a juvenile court does not require state intervention; a judge may commit a minor to the care of a private individual through a guardianship or sole custody determination, which was clarified by William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. A finding for SIJS purposes does not require formal termination of parental rights or a determination that reunification will never be possible, but Special Immigrant Juveniles are ineligible from ever sponsoring their parents for immigration status so the “chain migration” arguments do not apply to this relief.

What does Chapter 96 change?

Maryland law already permitted courts to issue SIJS factual findings. However, prior to Chapter 96, juvenile courts in Maryland could only exercise jurisdiction to consider individuals for SIJS up to age 18, which is the age of majority for guardianship and custody matters, even though federal immigration law permits anyone to apply for SIJS who is under age 21. This three-year gap significantly abrogated the federal law and caused undue hardship on the most vulnerable immigrant children. Chapter 96 closes this gap for this discrete class of Marylanders to carry out the will of the federal law on SIJS.

How Does Chapter 96 Benefit Maryland?

By expanding Maryland courts’ jurisdiction when determining whether immigrant youth qualify for SIJS, Maryland will have more stable families and community members. Through guardianship and sole custody proceedings, private individuals who want to take on the full legal and financial responsibilities of youth who have been abused, neglected, and abandoned can do so, providing an adult role model and easing reliance on state resources. At the tender age of 18, adult supervision makes a critical difference – studies show that involvement of surrogate parents is a key factor in educational achievement and avoiding risks such as alcohol and drug abuse, teen pregnancy, and violence. SIJS youth can gain protection against being forced to return to unstable, life-threatening environments as well as obtain legal status, making it easier to qualify for student loans and attend school, learn English, and work legally. These youth become productive members of society, benefiting Maryland’s economy and increasing tax revenue and consumption. Moreover, SIJS proceedings are fiscally neutral to the state: the Department of Legislative Services determined the changes made by Chapter 96 fit within existing judicial procedures and carry no additional fiscal effect.

With children from Honduras, El Salvador, and Guatemala seeking safety in United States and Maryland having received 2,205 of these children from January 1 to July 7, 2014, Maryland will be able to serve the families of these children better than any other state thanks to Chapter 96. Chapter 96 will allow SIJS-eligible children to pursue this relief consistent with the intent of the Congressional framework, and not needlessly close the courthouse door on them on their 18^th birthdays. This is crucial because the number of non-profit and private attorneys with SIJS competency do not meet the demand for representation for SIJS-eligible children so the wait lists are long and the cases slow-moving. Thanks to Chapter 96, the abused, abandoned, or neglected undocumented immigrant children who come to Maryland will have better chances and a longer opportunity of becoming documented, fully-contributing members of our society.

To learn more about SIJS, consider taking a case pro bono case from one of the following reputable non-profits with in-house SIJS expertise and a pro bono program offering mentorship and sample materials:

 

Catholic Charities of the Archdiocese of Washington

Immigration Legal Services

Pro Bono Coordinator Jim Feroli, James.Feroli@catholiccharitiesdc.org

 

Kids in Need of Defense (KIND)

Washington, DC Office

Christie Turner, cturner@supportkind.org

Baltimore Office

Liz Shields, lshields@supportkind.org

 

Catholic Charities of the Archdiocese of Baltimore

Esperanza Center

Managing Attorney Adonia Simpson, asimpson@catholiccharities-md.org

 

Capital Area Immigrant Rights (CAIR) Coalition

Legal Director Heidi Altman, haltman@caircoalition.org

*Detained cases only

 

To learn more about how this law came to fruition, visit: https://cliniclegal.org/resources/articles-clinic/maryland-law-expands-eligibility-special-immigrant-juvenile-status

FOBR Olsi Vrapi Tries to Represent a Child in Artesia, New Mexico

Olsi Vrapi is a Friend of Benach Ragland who practices in Albuquerque, New Mexico.  He recently found himself on the front line of the battle of how to handle the major influx of refugee children at the Southern Border.  In this chilling blogpost entitled “The Artesia Experience,” Olsi describes his experience visiting his client in the new facility in Artesia, New Mexico where the government is detaining Central American children and families.  His conclusion is brutally honest:

My impression of the Artesia makeshift detention center is that it is a due process travesty.  Is it really coincidence that a detention center was set up overnight in the middle of nowhere where the closest immigration lawyer or non-profit (which by the way can’t provide direct representation) is 3+ hours away?  In the few weeks it has been in operation, there have been no non-profits doing legal orientation programs, there are no non-profits that provide direct representation to those detained there and asylum interviews and hearings are happening so fast and are so short that even the most diligent detainees can’t get counsel fast enough to be advised before they are interviewed or are given any meaningful opportunity to tell their stories.  It appears the government is paying lip service to due process and just going through the statutory and regulatory requirements as fast as possible so they can give a semblance of compliance while the airplane to central America is warming its engines in nearby Roswell.  This is the same as a child being asked to clean his room, and he stuffs everything under the bed to “comply” with the command and ends up making it worse, except in our cases it’s not a matter of putting dirty laundry in the hamper, it’s women and children that can get killed if returned home.  As a father of three small children, I can’t help the kids’ analogies.

To make matters worse, Congress is using the crisis as an attempt to roll back well-established asylum protections.  Yesterday, Dree Collopy wrote about the horrendous legislation being proposed by Congressman Bob Goodlatte (R-VA) that would undermine critical protections for refugees and asylum-seekers.  As bad as the current system is, Congress can make it worse.  The Capital Area Immigrants Rights Coalition has a good summary of the legislation and provides a quick link to contact Congress.

Thanks to Olsi for representing families in Artesia and sharing their story with the world.

We will keep you informed about pro bono opportunities and donation opportunities as this crisis continues to unfold.

 

America’s Leaders Are Failing the Children

Our country is facing one of its greatest moral challenges in years: how will we treat the migrant children fleeing violence in Central America and seeking refuge within our borders? I know how I want us to treat them. Fairly, humanely, and within the parameters of the anti-trafficking law passed by bipartisan consensus in 2008 and signed by then-President George W. Bush.

Under the TVPRA of 2008, a child apprehended by Customs and Border Protection (CBP) undergoes initial processing and screening to see if he or she is an unaccompanied child (UAC) from a non-contiguous country, such as El Salvador, Honduras, or Guatemala. CBP must notify Immigration and Customs Enforcement and the Office of Refugee Resettlement (ORR) and transfer the child within 72 hours of apprehension to ORR custody. ORR places the child in the least restrictive setting available that is in the best interest of the child, and then completes a screening to determine whether: (1) the child has been a victim of trafficking; (2) there is credible evidence that the child is at risk if returned; and (3) the child has a possible claim to asylum. The child is not automatically permitted to stay in the United States. Rather, he or she is placed in removal proceedings before an immigration judge pursuant to section 240 of the Immigration and Nationality Act. While proceedings are pending, the child is released to the custody of a family member or to an ORR shelter or foster home. If the child is not eligible for any relief, he or she is ordered removed from the United States and is repatriated.

But this process, which allows for proper screening for trafficking and persecution, as well as fair and full consideration of their legal claims available under U.S. law, and which takes the best interest of the child into consideration, is not what others are advocating. Instead, we have an administration that is prejudging these children’s eligibility for relief and proposing streamlined procedures that would prejudice real claims for protection. Instead, we have Congress focusing its efforts on undermining the legal protections already in existence under U.S. law for these children and curtailing due process. Recently, the Texas-duo of Senator Cornyn (R-TX) and Representative Cuellar (D-TX) have introduced their HUMANE Act, and even more troubling, Representatives Goodlatte (R-VA) and Chaffetz (R-UT) have introduced the Asylum Reform and Border Protection Act, a bill that shows zero understanding of how difficult it is under our current laws to seek and be granted asylum in the United States.

The Asylum Reform and Border Protection Act would eviscerate our already stringent asylum process, strip away the protections that do exist under current law to offer these children a fair chance at due process, and shut out bona fide refugees, returning them to situations of persecution and torture in violation of our domestic and international legal obligations. This legislation would place these children’s fate in the hands of CBP officers, a law enforcement branch with a terrible track record of unaccountability and no transparency, abuse with impunity of those apprehended, and coercion of bona fide refugees to accept removal with no process in lieu of protection. This legislation would subject these children to streamlined procedures, resulting in the removal of children after cursory screenings that have already proven entirely inadequate in identifying genuine refugee claims and the return of these children to dangerous and deadly situations.

Specifically:

• All children caught at the border would be subject to expedited removal, a process allowing removal without a hearing before an immigration judge if a child has no credible fear of persecution or torture, and which triggers an automatic five-year bar on legal reentry.
• The screening standard of review for children’s asylum claims would be raised, requiring a child to convince an asylum officer that his or her claim was “more probable than not” in order to even appear before a judge.
• Under the proposed new definition of “unaccompanied,” all children would be detained until their asylum applications were adjudicated.
• The arbitrary one-year deadline requiring adults to file their asylum applications within one year of their entry to the United States would be extended to children.
• Children apprehended at the border could be immediately removed without any asylum screening to a “safe third party country,” such as Mexico, without any agreement from that third party country, as required under current law.

Presenting these changes as “fair” and “humane” is simply offensive. These changes are anything but fair, anything but humane. Using children who have suffered horrific violence and abuse in their home countries, survived a dangerous journey of over 1,000 miles, and arrived in search of protection as political pawns to push partisan agendas is heartless and un-American. We need real leadership, not leaders who decide that treating migrant children from Central America humanely is too difficult, and not leaders who prefer politicking and political posturing to problem solving and standing up for our country’s values.

Our leaders should be working together to secure and implement the coordination and resources necessary to address this major regional humanitarian crisis and ensure due process for children who have braved a harrowing journey to seek safety and protection from violence, persecution, torture, and trafficking. I encourage all AILA members, stakeholders, and constituents to call their Senators and Representatives and implore them not to support the HUMANE Act or the Asylum Reform and Border Protection Act. If this legislation is passed, our country would be turning its back on these children and on our nation’s values.

[This blog post was originally written by Dree Collopy for the AILA Leadership Blog.]