Tag Archives: current-events

Immigration Briefing Publishes Dree Collopy’s Article on I-601A Provisional Waivers

13 Sep

Dree

In June 2013, Immigration Briefings, a West publication serving lawyers, published Dree Collopy’s article entitled “I-601A Provisional Unlawful  Presence: A Practitioner’s Guide for Preserving Family Unity.” (June2013_IB)  Intended to help attorneys navigate the new legal landscape of the I-601A provisional waiver, Dree’s article demonstrates Dree’s expertise in hardship waivers and skill in getting the most for her clients.  (PS- That’s Dree in the middle, getting an award!)

The article identifies the problems that the I-601A provisional waiver was meant to solve and the practical step lawyers should follow to ensure that they prepare a proper application.  Moreover, Dree provides a detailed discussion of the nature of “extreme hardship” and provides suggestions to show how applicants can meet their burden of establishing extreme hardship.

The complexities of the new I-601 provisional waiver process and the subjectivity of the extreme hardship standard are challenging issues for even the most seasoned practitioners.  Dree’s briefing gives lawyers the practical knowledge they need to serve their clients.

Congratulations on a great article Dree!

Arizona loses again, but its citizens win

17 Jun

Today, the Supreme Court ruled 7-2 in Arizona v. Inter Tribal Council of Arizona, Inc. that the state of Arizona cannot separately require an individual to prove he is a citizen in order to register to vote beyond the regulations set forth by the federal government.  This decision stated that Arizona’s additional “proof of citizenship” form was contrary to the National Voter Registration Act, the federal law establishing a specific form for Voter Registration.  The Court held that this form was sufficient evidence of citizenship without additional proof and on that basis struck down the Arizona law requiring a registering voter to prove he is a citizen.

AZ

Although this case was decided under the Elections Clause, where federal law always trumps state law, this is an important decision for those who have had to jump over additional unconstitutional hurdles, simply due to the biases of those who enact and implement Arizona’s laws.  No longer will citizens of Arizona be forced to jump through legal hoops that the Federal Government does not require.  We are hopeful that this reasoning will extend to other states and legislation that has placed additional burdens and barriers on individuals beyond what is required and permitted by the Federal Government.  Although Jeffrey Toobin did not think there were any major Supreme Court decisions today, Benach Ragland believes the enfranchisement of the voters of Arizona is major indeed.

The Supreme Court’s rejection of the theories offered by Arizona officials is another black mark against the litigation strategy the State of Arizona has embarked upon.  In the last year, this is Arizona’s second major defeat at the Supreme Court.  Less than a year ago, the Supreme Court knocked down Arizona’s SB 1070, the “show me your papers” law in Arizona v. United States.   Earlier this month, a federal judge in Phoenix ruled that Maricopa County Sheriff Joe Arpaio had systematically violated the civil rights of the Hispanic citizens of the United States.  While the Sheriff has expressed his intent to appeal, Arizona citizens are questioning the use of state funds to pay for ineffective and hubristic litigation.  How much money has been spent by Jan Brewer and Joe Arpaio to defend indefensible policies?  In  the era of the sequester and failing schools, can Arizona afford Jan Brewer’s and Joe Arpaio’s ego trips to court?

Arpaio

PS- I took this picture myself!  – ACB

An Open Letter to Rep. Spencer Bachus

21 Mar

Dear Congressman Bachus,

Thank you very much for speaking out about the overuse of detention by Immigration & Customs Enforcement (ICE) in civil proceedings to determine the removability of individuals in the U.S.  By stating and asking “it looks to me like there is an overuse of detention by this administration.  If these people are not safety risks . . . why are we detaining them?,” you have joined the growing chorus of Americans who wonder why the government, during a time of fiscal crisis, spends so much money locking people up during immigration proceedings when they present no danger to society.  You are welcome in our club and we are glad to have you.

However, we do think it is important that you understand the role you played in building the gulag archipelago of immigration detention.  The explosion of immigration detention is a direct result of legislation you voted for, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  This law, more than any decision by the Obama administration, has resulted in the overuse of detention for individuals in removal proceedings.  While you are right to question the overuse of detention by the administration, please do not overlook Congress’, and your, responsibility in forcing the detention of tens of thousands of people, the vast majority of whom are not safety risks.  IIRIRA fueled the explosion of detention in several ways.  First, it expanded mandatory detention to cover lots of people convicted of minor offenses.   Mandatory detention has forced ICE (and INS before ICE) to detain people during the course of their removal proceedings.  These individuals had no right to individualized determinations of their risk to society or likelihood to appear for hearings.  By expanding the classes of people subject to mandatory detention, Congress created a base layer of detainees.  It is true that interpretations by this and previous administrations have increased the potential pool of mandatory detainees, but mandatory detention and its wide reach is a creation of Congress.  Second, IIRIRA labelled many minor offenses as “aggravated felonies,” requiring detention during removal proceedings.  For example, an individual convicted of shoplifting a pair of $100 sunglasses might be sentenced to one year imprisonment, with service of the sentence suspended.  In other words, the criminal court would determine that that individual should not serve jail time unless they do something bad during the year of the suspended sentence.  Under IIRIRA’s overinclusive language, such an offense would be an aggravated felony and subject that individual to mandatory detention.  And IIRIRA made it clear that it did not matter when the offense occurred.  It is hard to imagine that this hypothetical defendant is a safety risk, but the law gives ICE and the immigration courts no authority to release that individual.  Third, IIRIRA created 287(g) partnerships with state and local law enforcement to enforce immigration law.  The explosion of detention is also directly related to the numbers of people coming to ICE’s attention because a local police officer pulls an immigrant over for failing to use a turn signal.  IIRIRA is the impetus to Arizona-style laws, one of the worst of which was passed in your own Alabama, Congressman.  Fourth, by creating the ten year bar to return to the U.S., IIRIRA made it close to impossible for many immigrants to regularize their status.  Thus, individuals who would have been able to obtain residence under previous laws, remained in the U.S. in unlawful status.  When encountered by ICE, they have often been detained in the discretionary determinations of ICE.  It is true that here is an area where the administration’s overuse of detention is due to the refusal to exercise favorable discretion, but please note that many of these people would be legal residents if not for the 1996 Act.  In addition, please recognize the role that the fear of Congressional rebuke plays in ICE’s decisions.  Take a look at the outcry from your colleagues when ICE released 2200 detainees last month in anticipation of the sequester.  Moreover, Congressional intent has been a key building block of the judicial decisions that have legalized the massive detention edifice.  Decisions such as the Supreme Court’s Demore v. Kim, which upheld mandatory detention, and Matter of Rojas, where the Board of Immigration Appeals decided that mandatory detention applies to people released from custody years or decades ago, are underpinned by statements that Congress intended to impose an unyielding policy of detention in IIRIRA.

Finally, Congress has provided ICE with enormous sums of money to spend on detention.  As you know, nature abhors a vacuum.  As Congress states that it intends to tighten spending, the unnecessary detention of the thousands of people who present no real danger to society should be looked at skeptically.  ICE will spend the money Congress gives it on detention.  It is up to Congress to say “no.”

Congressman, thank you for taking a stand against the overuse of detention.  We are glad to have you as an ally and hope that you use your position in Congress to advocate for more sensible immigration policies.  Thanks again for speaking out and we hope that the words are matched with action.

Sincerely,

Benach Ragland LLP

 

Could Bar Rafaeli seek asylum for refusal to join the Israeli Defense Forces?

19 Mar

Bar Refaeli Host a 'Lexus' Party in Madrid

Yesterday, we had some fun noting that Israeli supermodel Bar Rafaeli had drawn the rhetorical fire of the Israeli Defense Forces (IDF) due to her failure to serve the two years of service in the IDF required of all Israeli citizensWe offered Ms. Rafaeli a free consultation so she could consider a claim to asylum on account of forced conscription into the Israeli Army.  As far as we know, she has not yet availed herself of our very generous offer.  So, we will share our thoughts here for her to review in the privacy of her home.

However, it did occur to us that many people are unaware of how conscription laws worldwide may impact eligibility for asylum.  Many individuals have obtained asylum in the U.S. due to their philosophical refusal to serve in their home country’s armed forces.  As a general rule, asylum law starts from the proposition that a nation has the right to conscript its citizens into the armed forces.  Conscription is the common practice in which a country forces its citizens to serve the armed forces.   Refusal to accept conscription into the armed forces is not ordinarily sufficient to establish that one is a refugee deserving of asylum.  However, asylum law recognizes two exceptions to this general rule.  First, conscription into the armed forces may constitute persecution if punishment for refusal to accept conscription is meted out exclusively to individuals based upon their race, religion, nationality, political opinion, or membership in a particular social group.  So, if only members of one religion in a religiously pluralistic society were punished for refusal to serve in the armed forces, that may constitute persecution.  The second exception is where service in the armed forces would require the individual to commit war crimes or crimes against humanity.  If the armed forces were routinely engaged in war crimes or crimes against humanity, the punishment of an individual’s refusal to serve may also constitute persecution worthy of protection under U.S. asylum law.

How do these factors effect the Bar Rafaeli case?  As an aside, we have no reason to believe that Ms. Rafaeli did not serve in the IDF for philosophical or political reasons.  We have no reason to believe that the Israeli government seeks to punish Ms. Rafaeli.  We just think that this is a fun intellectual exercise.  If Ms. Rafaeli were actually facing punishment for her refusal to join the IDF, could she obtain asylum in the U.S.?

As we said earlier, conscription, in and of itself, will not serve as a basis for a claim to asylum.  The first exception to this rule, if punishment for refusal to serve is forced only upon certain groups of individuals in a society, does not seem to apply as Israeli conscription is universal and there is no evidence that punishment for refusal to serve is forced only upon particular races, religions, nationalities, political groups, or members of particular social groups.  The second exception to the rule is if conscription into the IDF would force Ms. Rafaeli to engage in human rights abuses.  Certainly, there are many armed forces worldwide that commit war crimes and crimes against humanity.  Right now, the Syrian Army is engaged in war crimes and crimes against humanity on a daily basis.  Years ago, we won asylum for a Russian man who reserved to serve in the Russian Army due to the activities of the Russian Army in Chechnya.

Does the IDF fit this mold?  Can it be shown that the IDF engages in war crimes or crimes against humanity?  How does this work?  This exception implicates one of the epic immigration cases of all time: M.A. v. I.N.S., 899 F.2d 304 (4th Cir 1990).  This case was argued before the entire Fourth Circuit Court of Appeals in October 1989.  Arguing for the immigrant, a Salvadoran who refused to join the Salvadoran army during the peak of that country’s vicious civil war, was William van Wyke, a passionate defender of immigrant rights who went on to become an immigration judge.  Also involved was John Bolton, who went on to become a prominent figure in the George W. Bush administration.  Arthur Helton, one of the great human rights lawyers of all time and a victim of the attack on the UN compound in Iraq in 2003, also supported the immigrant.  M.A. was a Salvadoran man who refused to join his country’s military because of the Salvadoran military’s shameful record of gross human rights abuses.  He argued that if he did not resist conscription he would be forced to commit such atrocities or be killed for refusing to do so.  He submitted voluminous reports showing from Human Rights watch, Amnesty International and other highly credible human rights organizations to document the military’s role in these atrocities.  Yet, the Board of Immigration Appeals and the 4th Circuit rejected this evidence and demanded that there be international condemnation by other governments to establish the violations of the law of war or the commission of crimes against humanity.  Non-governmental organizations, even those with decades of expertise in human rights issues and researchers ion the ground, could not provide evidence that would satisfy this standard.  As the U.S., at the time, failed to condemn the Salvadoran military for these atrocities, M.A. lost.

So back to the question: Could Ms. Rafaeli prove that the IDF is engaged in violations of the law of war or the commission of crimes against humanity?  Certainly, there are many NGOs that would say that the IDF does.  But has there been governmental sanction of the IDF?  While the U.S. has condemned the building of settlements in the occupied territories, the U.S. has not condemned the IDF’s actions against civilians during military excursions in Gaza and Lebanon.  Moreover, the U.S. has used its power to stop the U.N. from condemning Israel.  We are not expressing an opinion on whether the IDF has committed crimes against humanity.  However, we do note that there is plenty of information that indicates that this is the case, while at the same time noting that the U.S. government has not accepted such criticism.  These facts seem strikingly similar to the situation in M.A. where the NGOs were vociferous in their condemnation fo El Salvador, but the governments were more restrained in their criticism.  The BIA and the 4th circuit deemed this insufficient to establish that an individual conscripted into the armed forces would face persecution and Ms. Rafaeli would likely fail to gain asylum as M.A. did.

The Leaked White House Immigration Bill: the Legalization Component

20 Feb

Drip

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

Lawful Prospective Immigrant (LPI) status

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

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

Adjustment to Lawful Permanent Resident (LPR) status

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

Administrative and judicial review of denied applications

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

Protections for Employers of Prospective LPIs

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

Comparison to “Gang of Eight” Framework

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

Hey FAU! Drop GEO!

20 Feb

geo-group-splash-13

Yesterday, after receiving a gift of $6 million, Florida Atlantic University announced that it was renaming its stadium “The Geo Group Stadium,” after the for-profit prison company, best known for operating detention facilities on behalf of Immigration & Customs Enforcement.  It is remarkable that any university would name a stadium after a prison company, but simply stunning that Florida Atlantic University, which sits in South Florida, a community that has been decimated by the overuse of civil immigration, would be so tone deaf as to think this was a good idea.  Although $6 million can certainly affect one’s “hearing,” FAU’s renaming of its stadium displays a failure of a university’s most cherished obligation, to empower students to make intelligent, ethical and moral decisions in a complex world.

FAU is a public school with over 30,000 students and boasts that 44% of its students are “minority or international students.”  Twenty-three percent of FAU students identify as “Asian” or Latino.”  And FAU sits in Southern Florida, where GEO operates a notorious link in the immigration gulag, the Broward Transitional Center, in FAU’s hometown of Boca Raton.

Universities have long been at the forefront on civil and human rights issues.  Universities nurtured the civil rights movement, the women’s and gay liberation efforts.  Universities divested from South Africa during apartheid and universities have led the charges against foreign sweatshops that made apparel sold in college bookstores.  And it is no surprise that universities have been actively involved in the immigrant rights movement.  Leading educators have stood up for the DREAM Act, have supported efforts to get individuals out of detention and deportation proceedings, and have led urgency to the need for a better system for employment-based immigration.  So, why would FAU accept a donation and so prominently highlight a company who makes it profits off the maintenance of an immigration detention apparatus that is morally dubious if not downright repugnant?

The GEO Group operates 73,000 “beds,” but it is not the Best Western.  “Beds” is corrections-speak for “places where detainees can try to sleep.”  It has a ignominious track record.  Before they were GEO, they were they were the Wackenhut Correctional Corporation.  British journalist Greg Palast wrote of Wackenhut’s operation of private prisons in New Mexico, “New Mexico’s privately operated prisons are filled with America’s impoverished, violent outcasts — and those are the guards.”  The Wackenhut name was so tarnished with scandal that the board changed the name in 2003.   Yet, transforming the way that they did business was much more elusive. Some of GEO’s greatest hits include:

In addition, the GEO groups lobbies for punitive immigration laws and resists efforts to introduce more discretion for judges to release detained individuals.  After all, the trough must be refilled.  It has a very cozy relationship with ICE.  Just last week, we learned that a former ICE bureaucrat David Venturella, who had some ambitious ideas about pumping up removal numbers, has left ICE for his payday at GEO.  The revolving door between government and for profit incarceration is quite lucrative for ICE bureaucrats, but there is no such door for detainees.

It is simply stunning that a university would agree to name a stadium after this behemoth.  It is especially galling in South Florida, where brave immigrant activists Marco Saavedra and Viridiana Martinez infiltrated the Broward Transitional Center to document abuses and conditions.  Would FAU name their stadium after the Bushmaster assault rifle? Or after Phillip Morris (rebranded as Altria)?  No university in their right mind would ever be associated with such corporate pariahs.  The goal for immigrants rights communities is to make the name of GEO as toxic as those names.  The devastating impact that GEO has had on the immigrant community in South Florida simply makes it an unacceptable choice for naming rights at a stadium.  Especially one in South Florida.  FAU must know that GEO is as much a pariah as gun manufacturers and cigarette pushers.  How many FAU students have been detained by GEO?  How many FAU student’s parents and loved ones languished in GEO’s dungeons?  How many kids never got a chance to attend a football game because GEO got them first?

Dream Activist has started a petition.  Please sign.  Please share on all your networks.  While FAU may be intoxicated with GEO’s money, they need to be reminded that their community or “customers” reject GEO’s profiteering on detention misery.

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

 

Should I Seek a Provisional Waiver or Just Wait for Immigration Reform?

13 Feb

bird-in-handThe optimism and hope that have been generated by all of the hype around immigration reform has been intense.  Every day, a new prominent political figure comes out in favor of immigration reform.  Look, Sean HannityCondoleeza Rice!  Was that closet really big enough for Fox News Chairman Roger Ailes? Eric Cantor and John Boehner now support the DREAM Act after voting against it in 2010!  It is enough not only to induce whiplash, but it is creating a frenzy of anticipation that often manifests itself in odd ways in the privacy of a consultation with an immigration lawyer. Specifically, many people are now asking, should I just wait for immigration reform?

For the past couple of years, the last resort of the hopeless case was the possibility of immigration reform.  The whiff of a chance of a possibility of potential reform was the only bit of hope that we could muster for some folks who came into our offices.  After we explained that the law did not provide them with any practical options, we were able to console the client with the hope that someday the political system will come to their rescue. As the day becomes more and more visible, the number of people considering doing nothing and hoping for the best appears to have increased.

Frankly, that has always been a pretty decent option for many people.  People who entered the U.S. illegally and had few significant family ties generally had little opportunity to fix their immigration situation.  Sure, we could do some long shot application with little chance of success that would cost a lot of money.  But we often advised people not to spend their money on quixotic ventures and to sit back and see whether the law will develop in a way that could benefit them.  Wait and see was really the best advice.

Now, we seem to be on the verge of the “see” portion of wait and see.  Immigration reform seems imminent and the incentive to wait and see has increased.  But, even though the promise of immigration reform seems within our grasp, real changes that will help untold numbers of people have taken effect now. It is unwise to avoid these measures in the hope that immigration reform will save the day.

The biggest example of this is the I-601A provisional waiver.  The government has changed the process of seeking waivers of inadmissibility for those spouses of U.S. citizens who are only inadmissible due to unlawful presence.  By allowing the couple to seek a waiver of inadmissibility in the U.S. before making an uncertain trip to the U.S. embassy in their home country, the administration has removed a formidable obstacle to legalization of thousands of immigrants married to Americans who are unwilling to take the risk of being separated from their families for up to a decade. This procedural change has the potential to allow thousands of people to legalize their status.

Yet, just as these very important and welcome changes take effect, people are pulling back.  Why should I try to seek a waiver when Obama is going to legalize everyone anyway?  The answer is the old cliche about the bird in hand.  The provisional waiver is the bird in hand and, as much as we believe it is going to happen, and as much as we want it to happen, immigration reform is not a done deal and can collapse.  It has happened before.  There are forces assembled to fight immigration reform tooth and nail.  They will find a ready audience in much of the Republican caucus in the House, always fertile ground for anti-immigrant sentiment.  Even if Congress passes immigration reform, there is no guarantee it will include a path to citizenship.  The Senate plan offers applicants a temporary status that will last until a border commission says that the border is secure, an automated entry and exit system is imposed, and the entire backlog is cleared.  Senator Dick Durbin, one of the most pro-immigrant Senators, said that that temporary status could last as long as ten years!  At the end of those ten years, applicants can seek residence!  To paraphrase the Beatles, the path to citizenship is the long and winding road.  If it even happens!

The provisional waiver is law.  It is really happening and people can use it to fix their status and obtain residence.  No temporary status.  No watching committees and reading the tea leaves of pundits and politicians.  It is in the Code of Federal Regulations and there is a form.  Nothing in immigration is real until there is a form and the provisional waiver has a form- the I-601A.

The provisional waiver is not perfect.  It needs to be available more widely.  But it has the advantage of being law.  A bird in hand.  Over years in immigration law, we have learned that one must take the opportunities presented to you.  The government fails to bring conviction records to a hearing, move to terminate removal proceedings.  The government fails to oppose a motion to reopen, file a notification of non-opposition.  Seek an extension of work authorization even though the residence interview is in two weeks.  Immigration law is so stacked against the immigrant that we must take those opportunities presented to us when they are presented.  They may not come again.

The Whine of the ICE Bureaucrats

3 Feb

agents-overview

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.

Does President Obama want to drop the one year asylum rule?

1 Feb

 

There is a single line in the President’s immigration proposal that has escaped a lot of attention.  As the idiotic “back of the line” concept and the path to citizenship dominate the headlines, the language of the proposal indicates that the administration would like to eliminate one of the most onerous obstacles to asylum for thousands of applicants- the notorious one year rule.  If this became law, the President will preside over a vast improvement in U.S. refugee and asylum law through a procedural change that will make thousands of people eligible for asylum.

At the very end of the President’s proposal, the administration writes that the proposal “better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.”  To us, this can only be referring to the one-year rule for applying for asylum.  The one year rule requires an individual to apply for asylum within one year of the date of admission in order to qualify for asylum.  While there are regulatory exceptions to the one year rule, these are stringently applied and many people who have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, political opinion or membership in a particular social group have been unable to receive the protection of asylum.

The one year rule has been disastrous for many people who have fled harm.  It is applied regardless as to whether the applicant knew of the rule and generally fails to take account of all but the most serious forms of post traumatic stress disorder.  In addition, it discourages many people from seeking asylum when they do not believe that they can meet one of the exceptions to the one year rule.  It has also made a mess of the immigration courts.  Here is how it works in practice.  An individual in the U.S. for over a year applies for asylum with the U.S. Citizenship & Immigration Service.  The asylum office can not grant the application unless the applicant can establish that he qualifies for one of the exceptions.  If the asylum office denies the application for asylum, they place the applicant into removal proceedings.  (Of course, the asylum office calls this the much nicer, yet misleading “being referred to the immigration judge”)  An immigration judge then may review the application for asylum.  If the judge decides that a person is ineligible due to the one year rule, the judge must consider whether it is more likely than not that the applicant will be persecuted or tortured.  Under such circumstances, a judge can enter an order of removal but withhold removal to the country of persecution or torture.  So, the government is allowed to deport such an individual, just not to that individual’s home country.  Realistically, there is no other country where the individual may be deported to, so the individual is allowed to remain in the U.S. with work authorization, often being required to report to ICE, but never being able to travel or get a green card.  So, individuals who fail to apply for asylum within one year of the date of entry are provided with the same form of humanitarian protection as people convicted of “particularly serious crimes” or who have participated in the persecution of others.  Clearly, these are not equivalent infractions, yet the result in the same.

The profusion of asylum cases that can only become withholding or torture cases due to the rigid interpretation of the one year rule has contributed to the immense backlogs in immigration courts.  Since the asylum office must refer every single one year rule case to the court, many cases that should be resolved at the asylum office now wind up in court.  And why?  Because they did not apply at the first instance possible?  The one year rule reflects an erroneous belief that a person who truly fears persecution will apply immediately upon arrival and that failure to do so is an indicator of fraud.  The one year rule reflects Congress’ lack of faith in the asylum officer and immigration judges who try thousands of cases every year.  An asylum officer or immigration judge is almost always able to tell between someone opportunistically and cynically seeking asylum improperly as opposed to a legitimate asylum seeker, regardless of when they filed.

Immigration reform that gets rid of the one year rule and lets the asylum officer and immigration judges do their job would be a tremendous improvement in asylum law and we hope that this little-noticed provision makes it into any final bill.