Tag Archives: DHS

CIS Bureaucrats Union Joins ICE Bureaucrats Union in Opposing Immigration Reform

23 May

uscis

The day before the Senate Judiciary Committee advanced the most significant piece of immigration legislation since 1996, the “President of the National Citizenship and Immigration Services Council, the union representing 12,000 United States Citizenship & Immigration Services adjudications officers and staff” sent a letter to Members of the United States Senate in opposition to the immigration reform bill under review in the Senate.  Despite claiming to be the “backbone of our nation’s immigration system,” the Union leadership complains that they were not consulted over the proposed immigration reform.  Had they been consulted, the union continues, it would have exposed, they claim, the gross politicization and overbearing pressure to approve applications and petitions by individuals who present a danger to the public or a threat to national security.  The letter is so full of inaccuracies, half-truths, and overly dramatic claims that the best way to address it is to address each of their points in turn.

“USCIS adjudications officers are pressured to rubber-stamp applications instead of conducting diligent case review and investigation.  The culture at USCIS encourages all applications to be approved, discouraging proper investigation into red flags and discouraging the denial of any applications. USCIS has been trued into an “approval machine.””

No one who spends any time dealing with immigration would recognize this statement.  The agency has been criticized repeatedly for encouraging a “culture of no.”  This criticism is not limited to the “immigration advocates,” but by businesses throughout the U.S.  But let’s not mess with anecdotes.  Numbers and facts matter here.  A look at CIS’ own statistics for January 2013, shows that approvals went up by 7% and denials went down by 8% from January 2012 to January 2013 for applications other than citizenship.  Well, that does seem to bear out an increased approval rate over the course of a year, but, perhaps, not enough to call it an “approval machine,” especially with 2.3 million non-citizenship cases in the pipeline.  But that pattern does not hold up in the citizenship context.  Between January 2012 and January 2013, approvals of applications for citizenship went up by 13% and denials went up by 54%!  Wow, that is a big increase in denials of a serious application.  Granted, this is just one month worth of statistics, but that is one month more than the CIS union leadership offered.  And whether this trend is sustained over several months, it seems reasonable to state, that CIS has become an approval machine in the last year or so.  In addition, the National Foundation for American Policy issued a report last year that concluded that “USCIS adjudicators have demonstrated a capacity to keep skilled foreign workers out of the United States by significantly increasing denials, along with often time-consuming Requests for Evidence, despite no change in law or relevant regulations between 2008 and 2011.”  The statistics and experiences of foreign nationals, their families and lawyers who regularly deal with the USCIS, know that the agency is far from rubber-stamping and is closer to a delay, doubt and deny machine than an approval machine.

“USCIS has created an almost insurmountable bureaucracy which often prevents USCIS adjudications officers from contacting and coordinating with ICE agents and officers in cases that should have their involvement.  USCIS officers are pressured to approve visa applications for many individuals that ICE has determined should be placed into removal proceedings.”

The union will get no argument that USCIS is an “almost insurmountable bureaucracy,” but coordination with ICE officers does not seem to be a problem.  Every immigration lawyer knows that if they take someone with an order of removal into CIS, for benefits that the law entitles them to, that they can expect that ICE will be waiting with handcuffs.  In addition, we know of lots of occasions where a person has been arrested and placed into removal proceedings because of information revealed in their applications to USCIS.  Many lawful permanent residents who are subject to removal are identified by CIS and ICE because of applications they file with the CIS and not due to excellent detective work by Homeland Security Investigations (HSI).  Finally, the visa applications that the CIS officers “are pressured to approve” for removable individuals are usually family based petitions, which they may use to apply for adjustment of status before the immigration court in removal proceedings.  Under the law, a CIS officer has no cause to determine an individual’s removability on an immigrant petition as it is not germane to the petition.  All that a CIS adjudicator is supposed to determine in such instances is whether the family relationship between the petitioner and the beneficiary exists.  What the union seems to be complaining about is that they are being told to follow the law and not bring extraneous matters into their adjudications.

“USCIS officers who identify illegal aliens that , in accordance with the law, should be placed into immigration removal proceedings before a federal judge, are prevented from exercising their authority and responsibility to issue Notices to Appear.  In the rare case that an officer attempts to issue an NTA, it must first be approved by a secretive panel created under DHS Secretary Janet Napolitano, which often denies the officer’s request.  Illegal aliens are then permitted to remain in the United States as USCIS officers are not able to take action or contact ICE agents for assistance.”

It appears that the union is unhappy that some of its members do not have authority to place an individual into removal proceedings.  The ability to initiate removal proceedings is an awesome exercise of the state’s law enforcement authority.  Not all officers are given that power and that is the way it should be.  Many CIS-issued NTAs are often defective and waste the resources of the immigration court and the ICE trial attorneys, to say nothing of the immigrant.  It is reasonable for the CIS, whose mission is only secondarily law enforcement, to restrict that authority to the more senior personnel.

“The attitude of the USCIS management is not that the agency serves the American public or the laws of the United States or public safety and national security, but that the agency serves illegal aliens and the attorneys that represent them.  While we believe in treating all people with respect, we are concerned that this agency tasked with such a vital security mission is too greatly influenced by special interest groups- to the point that it no longer properly performs its mission.”

If we and our clients are being served, allow us to register some complaints.  To enter a CIS office, we have to remove our coats and belts.  However, before we even get in, we must line up outside regardless of how hot, wet or frigid it may be.  Once we have reassembled our attire, we are directed to another line to demonstrate that we have a legitimate purpose to be in the building.  After the individual sitting in the “triage” chair allows us to proceed to the interview room, we turn in the appointment notice and have a seat.  Waits of over an hour are not uncommon until an officer appears in the door and shouts out a name.  We enter the interview with the client and have been told on more than one occasion that we, the attorneys, are to sit behind the client and not to sit by the client’s side.  Sometimes, a supervisor’s intervention is required just to settle seating arrangements.  The officer will not have reviewed the file, may not have all the files that they are supposed to have, or not initiated certain background checks.  In light of those facts, despite the client’s qualification for the benefit or satisfactory resolution of any outstanding issues, that client may not be approved until the remaining steps, all internal to USCIS, are undertaken.  This hardly seems like the service we would expect if CIS viewed their job as serving us and our clients.  In fact, the union’s statement makes it fairly clear that the only constituency they have is the welfare and grandiose expectations of the bureaucrats.  It is also worth reminding the union that CIS is a fee-based agency, where the fees that immigrants pay, which have gone up significantly over the last five years, pay the salaries of CIS officials.  And CIS is a monopoly.  Although the CIS now calls our clients “customers,” CIS is a monopoly as clients have nowhere else to turn to obtain U.S. residence.  Again, the CIS union exists solely to protect the interests of the CIS employees.

“Currently USCIS reports a 99.5% approval rating for all illegal alien applications for legal status filed under the Obama Administration’s new deferred action for childhood arrivals (DACA) policies.  DHS and USCIS leadership have intentionally established an application process for DACA applicants that bypasses traditional in-person interviews with trained USCIS adjudications officers.  These practices were put in place to stop proper screening and enforcement, and guarantees that applications will be rubber-stamped for approval, a practice that virtually guarantees widespread fraud and places public safety at risk.”

This is a highly misleading statistic.  As of April 1, 2013, CIS had received 488,782 DACA applications.  Of those, about 55% have been decided, for a total of 269,738 decisions on DACA Applications.  It is true that of those 269,738, the vast majority, 268,361, have been approved and only 1,377 have been denied.  The approval rate of the decided applications is 99.5%  But the reality is that it is faster to approve a case than to deny it.  Where CIS intends to deny a case, it issues a request for evidence or a notice of intent to deny.  That takes time.  Cases in which there has been an RFE or NOID are much more likely to be denied as the evidence initially submitted did not demonstrate eligibility.  A significant portion of those unadjudicated will result in denials due to lack of eligibility.  The CIS union leadership knows this and is being completely disingenuous.  Moreover, if the CIS is indeed processing the applications without sufficient review, why do they take so long?  We are tempted to think that it is because the CIS officials handling them are not handling them as efficiently as possible.

“While illegal aliens applying for legal status under DACA policies are required to pay fees, DHS and USCIS are now exercising their discretion to waive those fees.  Undoubtedly, these practices will be replicated for millions of illegal aliens if S. 744 becomes law.”  “US taxpayers are currently tasked with absorbing the cost of over $200 million worth of fee waivers bestowed on applicants for naturalization during the last fiscal year.  This is in addition to the strain put on our social security system that has been depleted by an onslaught of refugees receiving SSI benefits as soon as their feet touch U.S. soil.”

Wow.  CIS collects, on average about $2.6 billion in fees paid by immigrants, their employers and their families.  CIS receives about $100 million in appropriations from Congress.  One thing is very clear is that, if anyone is on the hook for the $200 million that the CIS chose not to collect, it is the other immigrants who bill that cost at a rate of 26 to 1.  Also, as regards Social Security, something well outside the expertise of the CIS union leadership, most credible studies show that immigrants provide a crucial source of income for the social security system.

“Large swaths of the Immigration & Nationality Act (INA) are not effectively enforced for legal immigrants and visaholders, including laws for public charges as well as many other provisions, as USCIS lacks the resources to adequately screen and scrutinize legal immigrants and non-immigrants seeking status adjustment.  There is also insufficient screening sand monitoring of student visas.”

It is hard to tell exactly what the union is talking about.  OK, let’s talk about public charge.  Every immigrant to the U.S. must demonstrate that they have the resources or have access to the financial resources so as not to become a public charge in the U.S.  All applications for residence must be accompanied by evidence demonstrating that.  That evidence is routinely submitted months in advance of adjudication.  It is all in CIS’ files for review.  we hope it is being reviewed.  The family based affidavit of support is about ten pages long- it is a lot of work to prepare one.  We hope that CIS takes the time to review something we have worked so hard on.  If CIS is not reviewing public charge information, it is a gross dereliction of duty on the part of individual officers and not indicative of any larger political purpose.

“A new USCIS computer system to screen application known as ‘transformation’ has proven to be a disaster as the agency has spent upwards of $2 billion for a system that would eventually allow an alien- now referred to as a “customer” under current USCIS policy- to upload their own information via the internet for adjudication purposes.  To date, only one form can be accepted into the program that has been in the making for close to ten years.”

Yep, “transformation” was a boondoggle.  Hopefully, heads will roll about such an egregious waste of money.  We can be sure, however, that the union will be there to defend those employees and keep them on the immigrant’s payroll.

 

It is very disappointing to see the USCIS union parrot the talking points of the rogue ICE union, the restrictions, and the retrograde Senators on the Judiciary committee.  However, it is perfectly consistent with CIS’ warped view of reality.  What this letter shows is that the union, like their ICE brethren, is willing to resort to half-truths, distortions and outright lies to protect the one constituency that they really care about- the bureaucrats they serve.

 

 

 

The union states that the CIS agents are pressured to “rubber stamp” approvals and that the CIS leadership views “aliens and the attorneys which represent them” as their true constituency.  The union also cites a statistic that 99.5% of DACA applications have been approved as evidence of the lax standard of review and the failure of CIS to ensure the integrity of the process.

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

 

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.

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.”

Screen-shot-2012-01-08-at-8.22.32-AM

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.

What is the Deal with the Immigration “Line?”

28 Jan

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

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

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

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

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

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

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

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

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

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

What do Dostoyevsky and Sam from Zambia have in common?

18 Jan

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

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

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

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

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

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

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

The Provisional Waiver and Removal Proceedings

17 Jan

 

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

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

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

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

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

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

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

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

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

 

The Immigration Industrial Complex

9 Jan

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

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

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

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

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