Tag Archives: politics

A New Fiscal Year and the Same Old Dysfunction

1 Oct

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The air is noticeably crisper, the baseball playoffs have begun, I have started to see decorative gourds, but the traffic got a whole lot lighter today.  It is October 1, 2013, the first day of the fiscal year 2014 (FY2014), and the federal government has shut down over the inability of Congress to pass a budget that does not seek to undo the Affordable Care Act.  With the radical takeover of the House of Representatives, government functions, including immigration, have ground to a halt.  If the House can not even keep the government running, how are we to expect that they can actually create positive change by passing meaningful immigration reform?

Here are things that are not going to happen because of the government shutdown:  our client, a lesbian from South Africa, will not get to present her case for protection to an immigration judge and she will remain in limbo for the forseeable future, worrying whether she must return to a country where “corrective rape” is a common occurrence for those deemed to be gay; our clients, DI and NM, husband and wife, will continue to be separated while they wait for the National Visa Center to resume processing DI’s case and deciding whether the birth and marriage documents from Iran are the right ones, and our client, DR will have her hearing rescheduled once again.

DR’s case presents an amazing saga of government bad luck and government dysfunction.  DR is supposed to go before the immigration judge on Monday, yet the case is likely not to go forward due to the shutdown.  Even if it did, the word is that the Congressionally-limited 4000 green cards available through cancellation of the removal for FY 2014 are already gone.  Chew on that for a minute.  The 4000 visas available for cancellation, meant to get the country through the entire year, were gone before the FY even started.  Thus, the Judge could not even grant the relief we were seeking.  Perhaps she could have reserved one of the FY 2015 visas and had us return in a year to finish the case.  This was supposed to all occur last year for DR.  However, last year, Super Storm Sandy closed the immigration court in New York for about two weeks.  DR missed her hearing and, by the time, she returned to court in December 2013, the cancellation visas were all gone.  Certainly, there would be new cancellation visas on October 7, a week after the FY begins, we all reasoned in December.  So, we scheduled for October 7.  Oops.  The irony of all this is that the government and the Judge all agree that she should be granted her residence.  Yet, it is Congress that has continued to stand in the way.  The 1996 Congress which passed the dreadful immigration law which limited cancellation grants to 4000 a year has caused endless bureaucratic delay and now with a shut down has made it impossible for the parties to work out a solution.  Meanwhile, DR keeps working and going to school, wondering when she will get the relief she deserves.

The Congressional inaction has also stalled immigration reform.  Millions of immigrants wait for the chance to regularize their status and integrate more deeply into American life.  The promise of reform has been tantalizingly close since June when the Senate passed its immigration bill.  Yet, the House has done nothing with that bill.  Rather than build, they seek to destroy.  In the meantime, millions of immigrants, their families and their employers get up and go to work and school.  They do their jobs while the House Republicans close the biggest employer in the DC area.  Yet, the deportation machine keeps running.  ICE has announced that enforcement and removal operations will continue during the shutdown.  The heavy priority on enforcement over benefits and relief has been noticed in the immigrant priority.  Certain immigrant groups have taken matters into their own hands, seeking entry into the United States across the Mexican border.  I have no idea what will be the long-term effect of that strategy, but I do know that it can not be any less effective than trying to lobby Speaker of the House John Boehner.

At least the traffic in downtown DC is better.

Meet Jim Mowrer, Running Against Steve King of Iowa

23 Aug

Mowrer with ACB and JDC

On Tuesday, August 20, approximately fifty people gathered at Benach Ragland’s offices in Washington, DC to meet and support a 27 year old candidate for Congress from the 4th District of IowaJim Mowrer, born on a farm in Boone Iowa, and a veteran of our war in Iraq, is challenging the incumbent Steve King for his seat in Congress.  Readers of this blog need no introduction to Steve King as he is a leader of the extreme anti-immigrant faction of American politics.  With little results to his name, King has emerged as a rallying point for the “deport ‘em all” crowd with his willingness to say things that are not only insulting but patently and verifiably false.

As this post is about Jim Mowrer and the talents that we hope he will take to Congress, we will not belabor King’s venality.  However, King has seemingly been driven mad by the prospect of immigration reform, and like a wounded beast, his attacks have grown more desperate and chaotic.  In the past month alone, King has managed to earn rebukes from the majority of his own party as well as his church.  Briefly, in the past six weeks, King has:

To list all the idiotic things that Steve King has done and said, as well as the many people who are growing tired of King’s obsession with immigration to the exclusion of the best interests of his constituents would be to devote too much space to this clown. Especially, when there is so much to say about Jim Mowrer.

 

For us, it started with the fact that Mowrer simply is “not Steve King.”  That alone is cause for support.  However, on getting to know the man, it is quickly apparent that Mowrer is a special individual who can make a positive impact on Congress and our public debate.  Mowrer radiates Iowa earnestness and optimism despite a challenging life. Born on a farm in Boone, Iowa, Mowrer lost his father at the age of seven to a farming accident.  His mother had to leave the farm for the town and, for a while, the Mowrers relied upon the social safety net.  Mowrer is careful to credit his mother’s hard work, but is not blind to the role that Social Security survivor benefits provided to his family at their moment of tragedy.  Mowrer went to Iraq with the Iowa National Guard.  Mowrer points to his service in Iraq as when the immigration issue hit home for him.  Mowrer describes fighting alongside permanent residents and the profound impression that their patriotism had for him.  To Mowrer, they were Americans as much as anyone else; they were his brothers in arms.  Mowrer movingly describes putting on citizenship ceremonies in Iraq for his fellow soldiers and the pride that they and he felt during those moments.

Mowrer returned from Iraq and went back to Iowa.  He immediately noticed the extreme Steve King fatigue that residents of the 4th District were experiencing.  He also noted their embarrassment with the Congressman’s antics.  Mowrer knew that King did not represent the people that he grew up among in the 4th District and that those people were suffering while King embarked on his diatribe against immigrants instead of focusing on issues that matter to Iowa.  For example, there is still no Farm Bill, an essential part of Iowa’s economy.

At Benach Ragland on Tuesday, Mowrer promised to be a leader on immigration reform.  While it may be enough for him not to be Steve King, Mowrer said he would lead on immigration reform.  He supports comprehensive immigration reform, the path to citizenship and the Senate bill.  But, just as importantly, Mowrer has a deep respect for immigrants.  As he says, all his brothers in Iraq had “U.S.” on their uniforms and it did not matter where they were from, where they were born or whether they were residents or citizens.  When he needed back up, they were there.

Mowrer at BR

And we will be there all the way for Mowrer.  He has a chance to unseat King.  Defeating King would send a message to all those who follow him that the era of demonizing immigrants is over and the era of solutions and inclusion is here.  There is no room in the public debate for the hateful rhetorical bombs that King lobs.  His followers seldom seem to have the same enthusiastic disregard for the facts and the will of their constituents.  His defeat would send them running to the hills.  King was pushed to the limit in 2012 by a candidate who did not come from the district.  He does not have a war chest for this race and he has alienated his allies in the GOP.  But, most importantly, King is out of step with his constituents.  In a recent poll, the 4th District of Iowa overwhelmingly supported the principles in the Senate immigration bill, including the path to citizenship.

King’s deranged obsession seems to be catching up to him.

 

Mowrer’s campaign website is http://www.mowrerforiowa.com

Facebook: https://www.facebook.com/MowrerforIowa

Twitter: @JimMowrer

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.

From the Committee to the Senate Floor: The Immigration Bill Survives!

22 May

 

Yesterday, by a vote of 13-5, the United States Senate Judiciary Committee passed S. 744, the immigration reform bill.Flake  Three Republicans (Lindsey Graham (SC),Graham Jeff Flake (AZ) and Orrin Hatch (UT)) joined all ten Democrats to vote the legislation out of committee. Hatch

 

 

 

 

 

The five opponents were the five Republicans who had spent the several mark-ups attempting to torpedo the legislation with odious and unworkable amendments, most of which were defeated.  Yet, Senators Jeff Sessions (AL), Ted Cruz (TX), John Cornyn (TX), Mike Lee (UT), and Chuck Grassley (IA), have vowed to renew their efforts on the Senate floor, where the bill goes next.
Cruz Lee and Cornyn

The bill emerged after several mark-up sessions, largely intact. The bill still offers a provisional status and a path to citizenship, expedited residence and citizenship for undocumented youth, improvements in due process, increased use of E-Verify, tighter border controls, a new temporary worker visa, improved opportunities for employment-based immigration, enhanced H-1B provisions, and more liberal policy for asylum seekers.

The bill was improved by the passage of the following amendments:

  • Coons 2- limits ICE’s authority to perform nighttime removals.
  • Coons 5- provides immigrants with statutory right to see their “A-file” in removal proceedings
  • Hirono 21- allows undocumented youth to obtain federal financial aid
  • Blumenthal 2- prohibits solitary confinement of individuals in ICE detention
  • Blumenthal 8- restricts ICE enforcement at schools and hospitals.
  • Blumenthal 12- provides for expedited naturalization for undocumented youth in military

The bill was made worse by the following amendments:

  • Grassley 44- made conviction of a third DUI an aggravated felony.
  • Graham 1- allows DHS to terminate asylum of an individual who returns to country of nationality

The Committee fought off several “poison pill” amendments designed to gut the entire process or to make the immigration system more inhumane than it is today:

    • Cruz 3- would have barred anyone who was ever out of status from obtaining citizenship
    • Grassley 1- would have retained the one year filing deadline for asylum
    • Cornyn 3- would have made people convicted of minor offenses ineligible for provisional status
    • Grassley 18- would have required applicants for provisional status to disclose all previous social security numbers

GS

  • Sessions 1- would have imposed a $5000 minimum bond for release from custody
  • Grassley 67- would have subjected businesses hiring H or L workers to increased audits and bureaucratic oversight
  • Lee 15- would have required affirmative intent in employment discrimination based upon national origin
  • Grassley 34- would have imposed 20 year sentence for document fraud convictions
  • Grassley 45- would have expanded criminal penalties for illegal entry and re-entry

The strength of the bill was enhanced by the support of Republican Senator Orrin Hatch of Utah.  Senator Hatch has long been a champion of the H-1B program.  The Committee adopted Senator Hatch’s amendments to increase the availability of H-1B visas and earned the Senator’s support in the Committee.  Senator Hatch has not committed to his vote on the floor, but his support in committee, made the bill more strongly bipartisan and showed that the “Gang of 8” can pull reasonable Republicans into the bipartisan consensus that our immigration system requires serious overhaul.  This compromise required some serious accommodation by both Democrats and Republicans on the Committee and it is a welcome sign for our democracy that this issue did not cause the wholesale breakdown that we have come to expect.  This suggests that immigration reform has become a categorical imperative for both parties.

Unfortunately, the bill that came out of committee is as defined by what it does not include by what it does include.  Under pressure from the White House, Senator Leahy pulled his amendment to ensure that LGBT individuals and couples are treated equally and fairly under the immigration bill.  Republicans, including members of the Gang of 8, had balked at LGBT inclusion and, as a result, the Committee gave into homophobia.  We are extremely disappointed that LGBT families were thrown aside in the passage of this bill.  We remain hopeful that the Supreme Court will make this a non-issue soon enough.

The bill will now head to the senate floor, where there will be more debates and amendments.  Immigration reform will likely dominate the Senate for the month of June.  In some good news, Senator Mitch McConnell of Kentucky, the Republican leader, has said that he has no plans to block consideration of the bill.  While any single Senator can filibuster a bill, that Senator needs the support of 40 of his/her colleagues to sustain the filibuster and it is hard to imagine that succeeding without the support of the Senate leadership.

We hope for a strong show of support from the United States Senate.  A bill that gathers 65+ votes will storm out of the Senate and place a lot of pressure on the House to support common sense immigration reform.

Things are about to get really interesting

10 Apr

time is now

As Washington, DC has seemed to jump from winter to summer, the politics of immigration reform are heating up.  For the rest of this week, the Capital will be inundated with activists, lawyers, politicians and celebrities all advocating for immigration reform.  Among all this activity, the Senate “Gang of Eight” is prepared to release their proposed bill.  Rumored to be nearly 1500 pages, the Gang of Eight will provide the meat on the bone that all of us have been waiting to chew on.  Benach Ragland will provide you with the latest and most comprehensive information regarding the politics, the proposal, and discussions as to how the proposals will affect the lives of immigrants.

Today, April 10, 2013 at 3:30 PM on the West Lawn of the Capitol, tens of thousands of immigrants and their friends will hold a rally for commonsense immigration reform that includes a path to citizenship.  Over the past few days, buses of immigrant supporters have departed from cities all across the United States to attend the rally.  Along with the rally, immigrants are lobbying Congress, meeting with the media, and demonstrating the urgent need for immigration reform.

Tomorrow, on April 11, the American Immigration Lawyers Association (AILA) National Day of Action for Immigration Reform is being held.  Immigration lawyers and their clients will meet with their representatives to share their stories of the  hardships of the U.S. immigration laws.

If you can not make any of these events, we urge you to make your voice heard by contacting your representatives. 

Finally, we learned today that the Gang of Eight will release their bill as early as Thursday, April 11 and the House is not far behind.  As deportations continue, people organize, and the CIS runs out of H visas in a week, the urgency of immigration reform could not be more obvious.

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.