Tag Archives: White House

The Obama Administration’s Border Disaster

30 Jun

kids

Media reports over the weekend indicate that the Obama administration is reacting in the worst way possible to the influx of unaccompanied minors along the Southwest Border.  As the prospect of comprehensive immigration reform dies and leading House GOP members call for removal of Deferred Action for Childhood Arrivals (DACA) grantees, the administration, once again, seeks to placate the most anti-immigrant portions of the population.  Such a move is consistent with the administration’s long-held, and far too long stuck to, policy of ratcheting up enforcement to appeal to the nativists in the House GOP, hoping that this show of good faith would get them to support CIR.  Well, that strategy has not worked ever, yet the administration has chosen to stick with it, even though it means causing untold hardship to children fleeing horrific conditions in their home countries.

The Southwest border has once again become a focal point for the immigration debate.  Since October, over 52,000 unaccompanied minors have been apprehended by U.S. Customs and Border Protection.  Most of these children are from El Salvador, Honduras and Guatemala, where gang violence, extreme poverty and broken homes force kids to make the very dangerous journey to the U.S.  Many of these children have a parent in the U.S., who may or may not be here legally.  And many of these children may have learned that, if you make it to the U.S., you have a chance of staying.  But what is clear is that it is conditions in their home countries that are driving these kids out of their homes and across deserts and rivers.  The know-nothing chorus on FOX News has bleated that the arrival of so many children means that the border is not secure, that the administration has encouraged these children to come to the U.S., and that these children represent a danger to America.  Meanwhile, CBP is overwhelmed with these children.  However, rather than following the law which requires a careful and humane screening process, CBP has embarked on tactics to convince these children to turn back around.  A recent lawsuit against CBP by the ACLU asserts that children are being held in horrific conditions, pressured to go home, and subjected to casual violence.

So, after a month of hesitation and half-measures, the administration comes up with a plan to increase CBP’s authority to expedite the removal of these children.  U.S. law requires CBP to place a child encountered at the border with the Department of Health and Human Services (HHS).  That child will still be placed into removal proceedings, where a judge will determine whether the child has any legal right to remain in the U.S.  Children in HHS custody are often put into the custody of a relative.  Those without relatives are kept in HHS custody in, generally, better conditions than adults in DHS custody.  Many of these children qualify for Special Immigrant Juvenile visas, which are available to abused, abandoned or neglected children for whom a state court has found that the best interests of the child require her remaining in the U.S.  Others may qualify for asylum.  A recent study from the United Nations High Commission on Refugees (UNHCR) estimates that a significant portion of these children meet the legal definition of “refugee,” the starting point for a grant of asylum.  There are systems in place and organizations dedicated to securing these benefits for children.  For example, I serve on the Board of the Capital Area Immigrant Rights Coalition (CAIR Coalition), which provides legal services to unaccompanied minors in the custody of HHS.  Part of CAIR’s funding comes from U.S. government grants.  An increase in those grants would seem appropriate at this time.

The administration’s proposal is a disaster.  It reminds me of the old saying, “If all you have is a hammer, everything looks like a nail.”  In addition to being cruel and heartless, it displays an amazing lack of imagination.  The administration’s response is to make enforcement easier, give children less due process, and increase the authority of an agency, CBP, that has shown time and time again that it can not be trusted with the authority it currently has.  What the administration seeks to do is to treat children from El Salvador, Honduras and Guatemala as it treats Mexican children.  Here is what the law allows CBP to do with Mexican children:

(A) DETERMINATIONS- Any unaccompanied alien child who is a national or habitual resident of a country that is contiguous with the United States shall be treated in accordance with subparagraph (B), if the Secretary of Homeland Security determines, on a case-by-case basis, that–

(i) such child has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that such child is at risk of being trafficked upon return to the child’s country of nationality or of last habitual residence;

(ii) such child does not have a fear of returning to the child’s country of nationality or of last habitual residence owing to a credible fear of persecution; and

(iii) the child is able to make an independent decision to withdraw the child’s application for admission to the United States.

(B) RETURN- An immigration officer who finds an unaccompanied alien child described in subparagraph (A) at a land border or port of entry of the United States and determines that such child is inadmissible under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) may–

(i) permit such child to withdraw the child’s application for admission pursuant to section 235(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1225(a)(4)); and

(ii) return such child to the child’s country of nationality or country of last habitual residence.

Setting aside for a moment that this is grossly unfair to Mexican children, the administration should be pushing for more protection of all children and not less.  The administration is asking for $2 billion to help CBP detain and deport these kids.  This makes the CBP officer at the time of apprehension, the police, judge, jury and executioner.  The administration’s plan does not appear to be asking for additional resources to provide hearings before immigration judges, for interpreters and lawyers for children or to assist the non-governmental organizations that work with the children.  Rather the administration seeks funds to make it easier for CBP to remove kids who may qualify for relief and who may likely face danger in their home country.  Bob Goodlatte and Steve King could not have come up with a more cruel policy.

Another option that the White House apparently never considered is the fact that many of these unaccompanied minors have a parent in the U.S. with temporary protected status (TPS), a status which allows an individual from certain designated countries to remain and work in the U.S. but without any opportunity to bring family or seek residence.  Salvadorans who entered the U.S. before 2001 may have TPS and Guatemalans who entered before 1999 might as well.  Why not ask Congress to amend the TPS statute to allow for admission of children of TPS holders?  Why not ask Congress to covert some of these TPS beneficiaries into residents after over a decade of living here legally? Did anyone even consider these ideas?  Seems unlikely given that the administration’s response is to crack down (hammer meet nail) without any concession to due process or humanity.

Perhaps some of these children are the beneficiaries of petitions and are waiting for a visa.  Conditions in their home country deteriorated to the point that they decided to flee before the decade or so was up before a visa could be granted.  In the past Congress passed laws to grant temporary visas to people waiting in such queues.  But, alas, that was a different Congress and a bolder administration.

Finally, the USCIS Asylum Division has, historically, done a very good job dealing with asylum claims by children.  There are serious protocols that asylum officers must follow in dealing with juveniles and assessing their asylum claims in a generous light seems appropriate.  Yet, instead of providing the Asylum Division with the resources they need to address this humanitarian crisis, more and more funds are being thrown at CBP and expedited removal.  These children have navigated hundreds of miles and faced smugglers, deserts, trains, deserts, rivers and assorted criminals.  The least we can do is listen to their story as to why they did that.

Many have recognized for several months that the know-nothing caucus in the GOP has prevented the House from taking up immigration reform.  The hope, under such circumstances, is that the President would take decisive administrative action to ameliorate the human damage of our dreadful immigration laws.  The administration’s first effort to deal with immigration after CIR has been declared officially dead by the papers of consensus, the Washington Post and the New York Times, fails miserably and mocks the faith that many of us put in this President to do the right thing.

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.

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.

Immigration Reform 2013: The President’s Plan

1 Feb

What a week it has been.  There has been more positive discussion of immigration reform in the last week than in the past decade and while none of it is perfect, it is a huge improvement over Mitt Romney endorsing self-deportation and SB 1070.  Hard to believe that that was just six months ago.  In the past week, there has been two major comprehensive overhaul plans, word of a third, and the introduction of independent bills that would make discrete but needed improvements to the system.  We will lay out the basics on all these developments in the next few posts.  And we’ll start with the President, not just because he is President, but because it is the better plan.

The President’s Plan focuses on four major areas of reform: (1) continuing to strengthen border security; (2) cracking down on employers hiring undocumented workers; (3) earned citizenship; and (4) streamlining legal immigration.

Border Security

The President’s plan will continue the militarization of the border.  The President’s plan talks a lot about working with local communities and foregoing governments to combat transnational crime.  It goes without saying that by creating a legal and efficient immigration system, immigration reform will allow the Border Patrol to focus on the criminal gangs operating in the border region.  We have said it before and will say it again: the lack of a reasonable immigration policy is the biggest reason for illegal immigration.

Adam Serwer reports on immigration and he wrote: “[T]he fact is that enforcement can only do so much to deter illegal immigration, because those seeking a better life will brave ever more dangerous obstacles to get here. What’s needed is an immigration system that allows enough people in to work so that people think they have a decent enough chance to get here that risking their life to do so isn’t worth it.” The President’s plan seems to get this even as it talks about more Border Patrol resources.  We will not spend a lot of time discussing the technology and resources being thrown at the border.  The border is more secure than ever and the immigration enforcement agencies have a budget in excess of $18 billion, yet everyone wants to throw more money at it.  As immigration and immigrant rights and not the budget are our focus, we will leave these matters to the budget hawks.

Cracking down on employers hiring undocumented workers

The President came into office promising to end the Postville-style raids that rounded up hundreds of immigrants who were doing nothing more than working.  He has largely stuck to that promise and has devoted his employer verification efforts to identifying employers who are violating documentation requirements.  For example, a couple of years ago, there was a lot of news about ICE actions against Chipotle for hiring undocumented workers.  While the ICE action resulted in many immigrants losing their jobs, they were not put through an expedited criminal-deportation program as occurred in Postville.  We have heard of very few cases of individuals placed into removal proceedings for being on Chipotle’s payroll.

The President’s plan will include phased-in nationwide use of E-Verify.  E-Verify is the online verification system to let employers know if documents presented for employment authorization are bona fide.  It is already required by several states and required of employers with federal contracts.  E-Verify is coming nationwide and seems to be one of the prices paid for immigration reform.

Earned citizenship

It is the earned citizenship portion that we are most interested.  The President’s program will require undocumented individuals to come forward and register.  Applicants would have to undergo biometrics and a background check and “pay fees and fines” to receive temporary status.  This temporary status seems little more than a work permit and the security of knowing that you will not be removed.  DACA is a good indicator of what this might look like.  Then, once the line has been cleared, individuals would be able to seek residence.  It is unclear whether they will have a new means of seeking residence or whether they must use the extent process.  We have written before of the fallacy of the line and how tying meaningful change to “clearing” the line makes no sense.  “Going back to the end of the line” has become a political phrase, divorced from any meaning or reality and no one really believes that people will have to wait 25 years for the Filipino fourth preference to clear before people starting seeking residence.  Applicants for residence will be required to “pay their taxes, pass additional criminal background and national security check, register for Selective Service (for men between 18-26), pay additional fees and penalties and learn English and U.S. civics.”  It appears that the President’s program would create a new means to apply for residence rather than requiring immigrants to go through the current broken system.

The bill does exempt DREAMers and certain agricultural workers from the back of the line requirement.  The President’s plan seems to indicate that DREAMers would, well, get the DREAM Act, which would allow them to obtain residency through a new system. The President’s plan calls for strong administrative and judicial review procedures of legalization decisions.

Streamlining Legal Immigration

The President also addresses future flows.  The plan states that it will increase the numbers of family based visas and allow the State Department to “recapture” unused visas.  In addition, employment-based visas would be more plentiful in an effort to alleviate the backlog in the employment based categories.   This has the potential to be a tremendous improvement as the backlogs are caused by the simple economic principle that demand exceeds supply for immigrant visas.  The problem is exacerbated by the fact that unused visas are “lost” at the end of the year.  So, there are currently too few visas and the government is failing to distribute all of them.  The question is whether the President’s program would create sufficient visas and efficiencies to meaningfully address the backlog.

The President’s plan promises “to staple green cards to the advanced degree diplomas of STEM graduates” who are going to work in their field in the U.S.  STEM refers to graduates in science, technology, engineering and mathematics.  This is a terrific idea that has very widespread support.  It is widely acknowledged that the U.S. needs to do a better job of providing a fast track to residence for STEM graduates.  As conservative columnist David Brooks wrote in today’s New York Times: “Because immigration is so attractive, most nations are competing to win the global talent race. Over the past 10 years, 60 percent of nations have moved to increase or maintain their immigrant intakes, especially for high-skilled immigrants.  The United States is losing this competition. We think of ourselves as an immigrant nation, but the share of our population that is foreign-born is now roughly on par with Germany and France and far below the successful immigrant nations Canada and Australia. Furthermore, our immigrants are much less skilled than the ones Canada and Australia let in. As a result, the number of high-tech immigrant start-ups has stagnated, according to the Kauffman Foundation, which studies entrepreneurship.”

The President also proposes a vibrant “start-up visa” to provide residence to foreign nationals who start businesses and create jobs in the U.S. and would expand the immigrant investor visa classification.  It would also create a new visa for employees of federal national security science and technology laboratories.

Other important parts

  • The President’s program recognizes that the immigration court system is underfunded and hopelessly backlogged.  The plan discusses additional funding for the immigration court system.  Additional funding for additional judges and support personnel could go a long way to easing procedural hurdles and pressures that often result in quick orders of removal.
  • The President’s program states “The proposal streamlines immigration law to better protect vulnerable immigrants, including those who are victims of crime and domestic violence.  It also better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.”
  • Finally, the President’s plan also makes clear that the same-sex partners and spouses of American citizens and permanent residents will be treated equally under immigration law.

Comments

We think, overall, that the President’s program is very good.  There are reasons that we are reluctant to pronounce it as “excellent.”  We would like to see a greater commitment to restoring due process to the immigration courts, restoring discretion to immigration judges, and an effort to re-balance the grotesque overreaction that has allowed so many permanent residents with minor and ancient crimes to be locked up and deported without any chance to explain to a judge that they should be allowed to remain.  We would like the plan to abandon the meaningless “back of the line” language.  We would prefer more full-throated defense of asylum and the need to keep families together.

However, there is much to like in the President’s program.  The inclusion of GLBT families into immigration reform is a big deal and we applaud it.  In addition, we like the increase in visa numbers, which might render the “back of the line” garbage moot.  And we like that the President has made a path to earned citizenship an essential part of his plan.  Too many of us have been afraid that we would get an enforcement heavy bill that does little to benefit immigrants.  We do not see a lot of new enforcement here and we see several benefits.

Next post, we will address the Senate’s “Gang of Eight” plan and the reasons we feel that the President’s program is better.

Opportunity Lost- Administration Seeks Supreme Court Review of De Osorio

26 Jan

On the same day that the immigration world was abuzz with news that the President would unveil his immigration reform plan next week, the administration filed a brief to preserve the unnecessary family separation caused by its cramped  understanding of the Child Status Protection Act reflected in the Board of Immigration Appeals decision in Matter of Wang.  The juxtaposition of the prospect of common sense immigration reform with the wholly unnecessary appeal of the U.S. Court of Appeals for the Ninth Circuit’s decision in Cuellar de Osorio v. Mayorkas provides significant doubt that the administration really understands the pain caused to American families by the immigration laws and the decisions that the administration takes on a daily basis that make those immigration laws worse than perhaps Congress even intended.  When the administration is more restrictive then Congress, that is a sorry state of affairs.

Enough editorializing.  We can write more about what a disastrous decision this was for the administration once emotions are less raw.  For now, we will focus on what happens.

The administration has filed a petition for a writ of certiorari to the Supreme Court to review the decision of the 9th Circuit.  A writ of certiorari is a statement from the Supreme Court that they will review a case.  “I will review” is the basic Latin translation of certiorari.  By petitioning for the writ, the government is asking the court to review a case.  Review at the Supreme Court is discretionary, meaning that the Supreme Court does not review all cases in which certiorari is sought.  In fact, the Supreme Court rejects the overwhelming majority of cert petitions filed each year.  The Supreme Court grants only about 2% of all petitions for certiorari. That might be comforting, but the odds are improved when the petitioner is the Department of Justice, as it is here.  In addition, other factors, such as the split between circuit courts to have reviewed the CSPA, and the national implications of the decision are factors that indicate that the government’s petition for a writ of certiorari in de Osorio are better than the 2% average.

The Supreme Court will vote on whether to hear the case.  Four justices must vote in the affirmative to hear the case. It is difficult to say when the Supreme Court will rule on whether to grant certiorari.  A good discussion of Supreme Court procedure can be found here. If the Supreme Court denies the petition for certiorari, the decision of the Ninth Circuit will stand.  If the Supreme Court grants the petition, it will receive briefs from the parties and all sorts of other interested people and organizations.  It will hold oral argument.  It is unlikely that the Supreme Court will hold oral argument before October as the Court recesses from June to October.  A decision would likely come about a year from now.

So, there remain two more opportunities to end this struggle.  The first chance is whether the Supreme Court grants cert.  The second is when, if it grants cert, it decides on the case.

There remains substantial hope.  The lawyers handling this are some of the best in the business.  Many other interested parties will weigh in.  Benach Ragland will continue to be a part of this litigation and continue to advocate for sane immigration laws.  Also, cert is rarely granted.  The government still has an uphill road to follow.  This is a setback and not a defeat.

Time to Decide in de Osorio

24 Jan

The Obama administration has until tomorrow January 25, 2013 to file a petition for a writ of certiorari with the U.S. Supreme Court to seek review of the U.S. Court of Appeals for the 9th Circuit decision in Cuellar de Osorio v. Mayorkas, which provided a humane and reasonable interpretation of the Child Status Protection Act.  If the government does not seek review in the Supreme Court, the decision of the 9th Circuit becomes law nationwide and thousands of people will be eligible to apply for adjustment of status using their old priority dates.

If the government does seek review, the case will remain on hold.  However, a petition for a writ of certiorari does not mean that the Supreme Court will take the case.  The Supreme Court does not take every case that comes before it and must agree to hear the case.  If the Supreme Court declines to hear the case, then the 9th Circuit decision becomes law.  If the Supreme Court takes the case, we will need to wait for a ruling from the Court before knowing the fate of the de Osorio class of potential applicants.

We have explained in multiple posts the reasons why the government should let the de Osorio decision stand and how this single act could improve the immigration system for thousands of American families.  In the week of the President’s inauguration with its soaring hopes and promises, the President has an immediate opportunity to translate those words into policy and law.  Let’s hope he takes it.

DACA, Provisional Waivers, and de Osorio?

4 Jan

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

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

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

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

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

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

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

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

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

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

Immigration On Deck!

3 Jan

As most of us in Washington returned to work on January 2, 2013, we noticed that many of our fellow Washingtonians were bleary-eyed and slow-moving.  Unfortunately, their lethargy stemmed not from all night and day new year’s electro-funk raves, but from hours of C-SPAN, watching the country go over the fiscal cliff, then climb back up the cliff, and then just hang out somewhere in the middle.  Washingtonians barely had time to recover before the next big news hit- CIS will begin accepting provisional waiver in March and here are the rules!  AND- OBAMA’S IMMIGRATION REFORM PUSH TO BEGIN THIS MONTH! (said the Huffington Post)  Whiplash!

So, the emerging consensus in Washington now is that immigration reform, oddly enough, is the next matter on the nation’s legislative agenda and has the potential to bring the country together after the divisive election and fiscal cliff fights.  As someone who has spent over a decade fighting the immigration wars, the idea that immigrati0n reform may be a bonding force in the country’s polity is unthinkable.  But really, why is that?  Immigration is the one thing that nearly all of us have in common- we all came from somewhere else.  All of us came here or had ancestors who came here not to be part of some or some nationalistic entity, but for a chance to be part of “a nation conceived in liberty, dedicated to the proposition that all men are created equal.” (Yes, that is Lincoln and, yes, it is the Gettysburg Address).  If anything should bring us together, it is our common heritage as humans attracted to the promise of America.  Anyway, that is how it should be, even if it is not.

We think that the bruising fight over the fiscal cliff has pointed a way forward that can be helpful on immigration.  You may recall that the Senate easily passed the fiscal cliff bill 89-8, but the House of Representatives passed it in a much closer 257-167.  Although that is a comfortable 45 votes, the bill attracted the support of 85 Republicans while failing to get the other 151 Republicans.  Thus, the bill needed 172 votes from the minority Democrats to pass.  The combination of these 85 Republicans and the overwhelming majority of the Democratic caucus has established a new center that can break the grip of the anti-immigrant portion of the Republican party which has held up immigration reform for too long.  The willingness of the Speaker of the House to pass a major piece of legislation over the objection of the majority of his party shows that the Tea Party faction has slipped into irrelevancy.  As the 151 Republicans who voted against the fiscal cliff legislation are many of the same members who would never support any reasonable immigration bill, going around them is essential.

Last month, we wrote about the incoming Chairman of the House Subcommittee on Immigration, Trey Gowdy, and we noted that the anti-immigrant lobby was panicking that the new Chairman, a confirmed anti-immigrant extremist, would not get much of an opportunity to sculpt immigration legislation and that the Speaker would go around him.  If the results of the battle over the fiscal cliff have shown us anything is that there is a clear route around the Tea Party to get things done in Washington.

Mr. President, Let de Osorio Stand!

19 Dec

As ideas for immigration reform take shape, there is one thing that the administration could do without lifting a finger that would help thousands of immigrants.  This benefit would actually require the government to refrain from doing something.  If the government decides not to appeal the decision of the U.S. Court of Appeals  for the 9th Circuit in Cuellar de Osorio v. Mayorkas, the Court’s decision would stand and thousands of young immigrants would be able to apply to adjust their status after waiting years for that opportunity.

As we discussed before, in September 2012, the U.S. Court of Appeals for the 9th Circuit held that the Board of Immigration Appeals had misinterpreted the Child Status Protection Act (CSPA) in a way that excluded thousands of young immigrants from eligibility for immediate residence.  The issue arose in cases where a child was included as a derivative of an immigrant petition filed on behalf of their parent.  Due to backlogs, that child often aged-out of eligibility by turning 21 before the parent received her green card.  In that case, many parents, subsequent to receiving their residence, filed I-130 immigrant petitions on behalf of their children.  However, those children were sent to the back of the line of the unmarried sons and daughters of permanent residents, despite having already waited for years with their parents.  The CSPA attempted to remedy this by allowing these derivative children to recapture their old priority dates when their parents or an employer later sponsored them.  In Matter of Wang, the Board unnecessarily limited the class of derivative beneficiaries who could recapture their priority dates, basically undermining the congressional fix in the CSPA.  Now the 9th Circuit has joined the 5th Circuit in rejecting Matter of Wang and the government must decide how it will react to these rulings.

So far, their reaction is not encouraging.  The government filed and the 9th Circuit granted an unopposed motion to stay the mandate, which holds up the effectiveness of the de Osorio ruling.  The mandate has been stayed until December 26, 2012.  At the same time, the government filed a request to extend its time to file a Petition for a Writ of Certiorari to the Supreme Court, which is a request that the Supreme Court hear the case.  Their petition to the Supreme Court would also be due on December 26, 2012.  However, yesterday, the government filed another request to stay the mandate until January 25, 2013 to give the government more time to consider whether to file a cert. petition to the Supreme Court.  We expect that the court will grant this motion as well.  So, by January 25, 2013, we will know whether the case is over or whether it will go on.

The administration does not need to seek review.  It is hard to see what the compelling government interest is in demanding that these aged-out beneficiaries continue to wait.  An analysis of the backlogs revealed that certain Mexican nationals might need to wait over 100 years for a visa under the Matter of Wang interpretation.  By deciding to let the de Osorio decision stand, the government will demonstrate that it is firmly on the side of keeping families together, rational  immigration policy and that it is abandoning its practice of fighting to win for winning’s sake, regardless of the social costs.  As the administration begins the process of reviewing our immigration laws, it must look closely at the litigation positions it takes and ask whether those positions are consistent with humane and compassionate immigration policy.  Appealing de Osorio is not and the administration should leave the decision alone.

Many of the same factors that drive support for DREAMers can equally be said about those who would benefit from de Osorio.  de Osorio beneficiaries applied for residence, but due to processing delays and backlogs, did nothing more than grow up.  They did what they were supposed to do.  Their families have now received residence and they have been left behind.  Despite Congressional intent to help these beneficiaries, an interpretation by the BIA left them out in the cold.   The Obama administration now has a chance to fix this and give effect to the original intent of Congress to help these immigrants and to help keep families together.

The government has just over a month to decide whether to appeal de Osorio to the Supreme Court.  What it chooses to do will say a lot about the truth behind the rhetoric.