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Obama Urged to Stop Deportations

Immigration advocates are appealing to President Obama to exercise his executive power and stop the deportation of thousands of undocumented immigrants in the country while Congress is at a standstill on immigration reform. At present, over 1,000 undocumented immigrants are being deported per day. Last year, more than 400,000 were deported.

President Obama changed his policy on deportation last year and deferred the deportation of thousands of young people who were illegally brought into the country as children. Over 455,000 undocumented young people have so far been granted deferred action.

This time, however, President Obama, in an interview, indicated that he cannot change his policy on enforcement nor expand the coverage of the deferment program. He also told progressive and labor leaders in a meeting that he cannot ease enforcement because his priority is to push for the passage of the immigration reform bill. According to an advocate, the goal is “getting the immigration reform passed, and that solves the problem – not starting a whole controversy as to whether he is easing up.”

Meantime, the President instructed the U.S. Immigration and Customs Enforcement (ICE) division to focus on the deportation of felons and multiple offenders. Advocates say that the ICE and the Department of Homeland Security continue to deport undocumented workers who are without any criminal record and are separated from their families. Last month, however, ICE issued a directive advising agents “to keep enforcement actions from unnecessarily impacting parents and primary caregivers.”

The President’s refusal to stop mass deportations has prompted immigration advocates to launch campaigns to demonstrate their frustration and disappointment. Seven undocumented workers affiliated with the National Day Laborer Organizing Network recently held a protest, handcuffing themselves at the gates of the White House and carrying signs with the words, “Mr. President Stop Deportations.”

Chris Newman, legal director of the same organization behind the protest expressed his concern saying, “There’s a clear contradiction in the president’s position right now. He’s saying either the House Republican’s will come around on the path to citizenship, or I’ll be forced to keep deporting people. And that’s an untenable position.” Advocates maintain that the president has the power to stop deportations and are determined to keep challenging him.

Meanwhile, advocates are also intensifying their campaigns to pressure Congress to pass the immigration reform bill. Thousands of people are expected to join a rally and a concert at the doorsteps of Congress on October 8.

The House Republicans’ refusal to bring the immigration reform bill to the floor has increased the frustration of the immigrant community. Although many are “losing heart” with the bill being sidelined for many reasons, immigration advocates will not stop pushing for the overhaul of nation’s immigration system. As Jaime Contreras of the Service Employees International Union pointed out, “It’s time for Republican leaders to start standing up to the extremists and let them know that inaction is not an option for us. We will not stop until we win this fight.”

Driver’s License for the Undocumented

A bill allowing undocumented immigrants to receive a driver’s license will soon become a law in California. Both houses of the California legislature recently passed the bill, AB 60, and it is now on its way to Governor Jerry Brown’s desk for his signature. The Governor indicated that he will sign the bill because it will “enable millions of people to get to work safely and legally.”

The Governor wanted to make sure that the bill complied with federal law and have the license clearly indicate that it is only for driving and not for work or for obtaining public benefits. The author of the bill, Assemblyman Luis Alejo, almost withdrew the bill because he preferred the words to be discreet and written on the back of the license. He later on accepted the amendments to make the distinction clear.

Once signed into law, California will be the eleventh state to provide driver’s license to the undocumented. For a number of years, Washington state, New Mexico and Utah have allowed undocumented immigrants to obtain driver’s license. Illinois passed a similar law January of this year. It was followed by Nevada, Maryland, Oregon, Vermont, Connecticut and Colorado.

Meanwhile, the debate as to whether the undocumented should be issued driver’s license continues. Some people look at this measure as a form of “quasi amnesty”. According to Mark Krikorian of the Center of Immigration Studies, “What it means is the government formally incorporating illegal aliens into the institutions of our society.”

Another concern is whether the bill undermines federal immigration laws. Under the bill, the Department of Motor Vehicles (DMV) will issue driver’s license to people who satisfy the requirements for a license but whose presence in the country is not authorized by federal law. Judicial Watch President Tom Fitton predicts that the U.S. Department of Justice will review it once it is signed into law.

Public safety, on the other hand, remains to be the principal argument why more states are enacting similar laws. The Economist reports that unlicensed drivers are almost five times more likely to be in a fatal crash and they are also less likely to stay in accident scenes. If the undocumented immigrant is granted driver’s license, he would not run from accidents for fear of deportation and will be more willing to cooperate with law enforcement.

Los Angeles Police Chief Charlie Beck said that the law would make the roads safer. Allowing the undocumented to apply for driver’s license would require him to undergo various tests which will determine if he is fit and capable of driving. Also, this would allow them to carry insurance and avoid hit-and-run accidents.

The law will also address the problem of undocumented immigrants who are stopped at routine checkpoints and whose cars are impounded because they don’t have valid licenses. Also, it will help decriminalize the daily activities of the undocumented such as driving his kids to school or driving to work to earn a living.

To ensure that the driver’s license issued is not used to avail of federal benefits, the license issued is distinct from that of U.S. citizens or residents. The license cannot be used for identification when boarding airplanes. It is merely issued for the privilege of driving. The license, however, cannot be used as a basis to discriminate against the holder.

It is hoped that with the passing of this bill in California, Congress will finally see the urgent need to address the problems of the undocumented in the country and pass the immigration reform bill.

Pointers for DREAMers as they Get Ready for Deferred Action

As the Department of Homeland Security is set begin implementation of the deferred action application process, undocumented individuals who came to the U.S. at a young age, commonly referred to as the DREAMers, should complete collecting documents to support their application. At the same time, however, they must be wary of immigration scams.

These DREAMers must document their history in the United States – their date of entry, physical presence, continuous residence, and educational history – in order to present as complete and strong a case as possible. Financial records, medical records, school records, employment records and military records may be used to prove one or several criteria.

Documents that may be useful include immigration records, I-94 cards, driver’s licenses, birth certificates of the applicant and any children born to him/her in the United States, marriage certificates, utility bills, tax returns, lease agreements and rent receipts, dated photographs, bank statements, cancelled checks, diplomas and transcripts.

Individuals who have a criminal history might be found ineligible and be subjected to deportation proceedings so if an applicant has a criminal conviction, he/she should obtain a certificate of disposition from the court and seek legal advice before applying for deferred action.

Prospective applicants should watch out for notarios and unscrupulous consultants who promise that they can already start the application upon payment of a fee. Until the details of the application process are made public, a request for payment of application or filing fees may be fraudulent. The new policy is not an amnesty and promises of a green card or path to U.S. citizenship are false.

Only qualified lawyers can give legal advice and not notarios or notary publics, so make sure that your lawyer is a member of the state bar association before using his/her services.

In the days leading up to the announcement of the application procedure, more and more stories of immigration fraud become exposed. For example, there have been reports that a scam artist had been calling immigrants and identifying himself as a USCIS officer. He/she would ask for certain data such as the I-94 number and the “A” number and, supposedly in order to rectify a discrepancy with their records, ask for money to be wired via Western Union.

To avoid being the victim of immigration fraud, everyone must be alert and proactive.
Many references are available online to help prevent immigration fraud, such as the U.S. Federal Trade Commission (FTC) which has a dedicated site at www.ftc.gov/immigration, and the American Immigration Lawyers Association-sponsored website www.stopnotariofraud.org. Those who believe that they were the victim of immigration fraud must report it to the FTC.

The new policy announced by President Obama last June is expected to spare some 800,000 individuals from deportation. Under the June 15, 2012 Memorandum, certain immigrants will be eligible for administrative relief in the form of deferred action for two years, subject to renewal, and eligibility for employment authorization.

Deferred action refers to the discretionary determination to defer removal action against an individual as an act of prosecutorial discretion. It does not grant legal immigration status. The memorandum stated that the federal government would create a process for the application in sixty days.

To be eligible for deferred action, the following criteria must be met: (1) applicant came to the United States under the age of 16; (2) continuous residence in the U.S. for at least 5 years prior to June 15, 2012; (3) currently in school, graduated from high school or obtained general education development(GED) certificate, or honorably discharged from the Armed Forces; (4) not convicted of a felony offense, significant misdemeanor offense, or multiple misdemeanor offenses, and not otherwise a threat to national security or public safety; and (5) age 30 or below.

Renting Apartment to Undocumented Immigrant not a Crime

When a landlord leases an apartment to an undocumented immigrant, does he commit the offense of harboring an illegal alien? This question was recently answered in the negative in a case perceived by some to be the latest effort at localizing immigration enforcement.

Bolmer v. Connolly Properties, decided by the Court of Appeals for the Third Circuit, started out as a landlord-tenant dispute. The plaintiff was a tenant at a New Jersey apartment complex which later on fell into disrepair. He complained about overcrowding, inadequate heat, bug and rodent problems, criminal activity, and the apartment management’s failure to make repairs and regularly clean the common areas.

He asserted that the management undertook a scheme of actively seeking out undocumented aliens as tenants because they were perceived to be less likely to complain about poor housing conditions or to report violations. It allegedly allowed the condition of the premises to deteriorate but without offering a reduction in the rent.

The plaintiff alleged that by renting apartments to tenants without checking their immigration status or by knowingly renting to undocumented immigrants, the apartment management was harboring undocumented immigrants which is a criminal offense. The plaintiff sued the landlord under the federal anti-racketeering law, the same law used to target organized crime rings.

According to the court, to constitute harboring the conduct must tend to substantially facilitate an alien’s remaining in the U.S. illegally. Harboring requires something more than just simply renting an apartment to an undocumented alien.

In previous court cases where harboring was found to be present, the defendants were employers who failed to make disclosures required by federal and state law, or were involved in the actual smuggling of aliens into the US, or attempted to warn them about law enforcement, or helped them obtain false documents. The court highlighted that the management did not do any of these things.

Harboring also involves some type of “obstruction” to prevent detection by the government of the alien’s presence. The plaintiff stated that the management shielded the tenants, who were mostly Hispanic, by segregating them into certain buildings.

The court disagreed, saying that the management did not evade any requirement to report the immigrants because landlords have no obligation to do a background check of their tenants. The court noted that by grouping the tenants into certain buildings, the management probably made them more conspicuous.

The court also rejected as without proof the argument that the management encouraged or induced the aliens to reside in the U.S. illegally. Moreover, the court said, the law does not require, and in some places even prohibits, apartment managers to screen potential tenants based on immigration status.

Acknowledging that immigration enforcement is a federal matter, the court added that criminalizing the acts complained might undermine the system of enforcement. It included a reminder that some individuals who lack immigration status may reside in the U.S. often with the express knowledge or permission of the federal government.

The court said that landlords and those in the business of providing accommodations could not have been given by Congress the difficult task of determining a person’s immigration status and be held criminally in case they make a mistake in doing so.

Tracking Overstaying Aliens

A biometric system that can track individuals who have overstayed their visas is expected to be presented to Congress very soon, according to news reports. The planned system will enable the Department of Homeland Security (DHS) to keep track of when immigrants leave the United States.

The DHS has been working to develop a system that can track immigrants coming into and exiting the United States, using technologies that recognize physical traits and behaviors. An exit system would help identify which individuals have not departed the United States and who have overstayed their visas.

While the enforcement priorities of the current administration are directed to criminal aliens and public safety threats, the government notes that 36 individuals who have been implicated in terrorism-related crimes since 2001 were visa overstays.

The arrest a few months ago of a suspected terrorist who allegedly plotted to bomb the U.S. Capitol building renewed the government’s interest in visa overstays. Amine El Khalifi, a Moroccan native, entered the U.S. on a visitor visa in 1999 and resided here since without a valid visa.

It is estimated that 40% of the country’s undocumented immigrant population entered the U.S. through a port of entry and overstayed their visas, such as tourist visas and student visas. Between 2009 and 2011, about 37,000 overstays were removed from the United States.

In 2011, the DHS undertook a review of 1.6 million cases of visa overstays who came into the country since 2004. Using automated means, the DHS determined that 843,000 already left the United States or changed their immigration status. More than 2,000 cases were recommended for further review, possibly after being flagged as an enforcement priority. For the remaining 757,000, their overstay status was noted in the electronic files in case they become a priority for deportation someday.

The former Immigration and Naturalization Service operated a database that tracked border crossings before 2001, but law enforcement officials had no access to it. Another problem that compounded the overstay situation was the lack of a biometrics collection system prior to 2004. As a result, unless an undocumented immigrant committed a crime, immigration authorities usually found it difficult to locate him/her.

Under the proposed plan, law enforcement authorities would be able to pull up any immigrant’s records and biometric markers. The individual’s immigration status would be one of the things checked if he/she is arrested for any type of offense, whether serious or minor.

In other words, the system could be used to track undocumented immigrants who do not have criminal records and are not public safety threats.

There is therefore a danger that the planned biometric system could become unduly invasive. While the goal of thwarting terrorist attacks is undeniably reasonable, the acts of 36 terrorists are in no way representative of the rest of the undocumented population.

Not only does it have civil liberties implications, but an overreaching system could be an “overkill” and an unwise use of limited resources.

Nevertheless, if an individual is found to have overstayed, it does not mean that he/she would be automatically deported. The enforcement arm of the DHS, the Immigration and Customs Enforcement (ICE), will determine what action is appropriate. As previously discussed in this column, the agency has been directed to use prosecutorial discretion and the action it takes must be in line with the government’s enforcement priorities.

New Policy is Not Amnesty but Fewer Will Be Deported

The Obama administration announced last week a new immigration policy that will allow many undocumented immigrants facing deportation to remain in the United States.

In a letter addressed to a group of U.S. senators, including DREAM Act sponsor Sen. Richard J. Durbin (D-Illinois), Department of Homeland Security Secretary Janet S. Napolitano unveiled a policy that will identify low-priority removal cases that should be considered for prosecutorial discretion following previously-issued DHS guidelines on prosecutorial discretion.

Secretary Napolitano stated that an inter-agency working group would conduct a case-by-case review of all individuals currently in removal proceedings to ensure that DHS resources are focused on the government’s highest enforcement priorities.

This policy entails the review of about 300,000 pending court cases. DHS will determine whether each case is a “low priority” or “high priority” case. A case may be considered “low priority” if it meets the factors outlined in the Morton Memo dated June 17, 2011.

“High priority” cases involve aliens who pose risks to the national security or public safety, such as convicted felons. It has been said that almost 80% of deportations involved non-criminals and aliens involved in lower level offenses.

Under the new policy, “low priority” cases may be administratively closed. This means that although an alien is still legally under a removal proceeding, the case is not active and no action will be taken, including future hearings.

The Obama administration has also stated that individuals whose cases are administratively closed would be eligible to apply for a work permit or employment authorization document (EAD).

In an effort to help the public avoid immigration scams, the American Immigration Lawyers Association (AILA), of which this author is a member, has issued an advisory to warn the public that the new policy is not an amnesty program.

Many undocumented immigrants may be tempted to present themselves to authorities in the hope of obtaining work authorization and legal status under the policy. This is a mistake and should not be done without the advice of a qualified immigration lawyer.

Administrative closure is only a temporary suspension of a case, and an EAD only gives temporary permission to work. Neither the administrative closure nor EAD gives legal status.

The AILA warns that there is no safe way of turning oneself in to immigration authorities and that there are no guarantees that a particular case would be considered “low priority” as to be administratively closed. Only immigration authorities can make a finding that a case is “low priority”, and anyone who promises that a case would be found “low priority”, whether a friend, relative, paralegal, notario or even a lawyer, should not be believed.

There have been at least two reported cases of cancelled deportations on account of this brand new policy: a Florida man who came to the U.S. to escape violent gangs in Mexico, and a lesbian from Mexico who is in a same-sex marriage with a U.S. citizen. The fact remains, however, that there are still no details on how the policy will be implemented.

Only cases already pending in court are included in the review and there is still no guidance on whether aliens not yet placed under removal proceedings would benefit from this new policy at all.

Apart from stating that the review will be done on a case-by-case basis and with a view to the totality of circumstances of each case, the DHS has not released guidelines on how the review process will be carried out or any indication on its timeframe for finishing the review of all 300,000 cases.

Furthermore, guidelines on the application procedure and eligibility standard for the EAD have not been issued. In other words, it does not necessarily mean that a “low priority” alien would be eligible for a work permit.

Lauded by immigration advocates, the new deportation policy is expected to benefit thousands of immigrants, including students who would have qualified for relief under the Dream Act had it been passed by Congress, as well as gay and lesbian couples where a spouse faces deportation because their marriage is denied federal recognition.

ICE Priorities for Apprehending and Deporting Aliens

The U.S. Immigration and Customs Enforcement (ICE) has released a memorandum identifying a set of priorities to be followed by its officers and directing them to follow these priorities in the apprehension, detention and deportation of undocumented immigrants.

First and highest priority goes to “aliens who pose a danger to national security or risk to public safety”. These aliens include those engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons or repeat offenders; aliens not younger than 16 years old who participated in organized criminal gangs; and aliens subject to criminal warrants.

Under the first priority, there is a catch-all category for aliens “who otherwise pose a serious risk to public safety” but the memo states that this provision should not be read broadly and will apply only when serious and articulable public safety issues exist.

The second priority pertains to recent illegal entrants such as those who committed violations at the border and ports of entry.

The third priority would be “aliens who are fugitives or otherwise obstruct immigration controls”. Included are those subject to a final order of removal and who abscond, fail to depart, or intentionally obstruct immigration controls.

The guidelines demonstrate the government’s policy to focus enforcement initiatives on the most serious offenders. According to the memo, the agency’s resources allow it to remove about 400,000 aliens only per year, which is less than 4% of the estimated U.S. illegal alien population. Accordingly, it should prioritize the use of its personnel and resources to ensure that the removals promote national security, public safety, and border security.

The memo instructs that, unless extraordinary circumstances exist or detention is mandated by law, detention resources must not be used on aliens with serious physical or mental illnesses, or those who are disabled, elderly, pregnant, nursing, or if they demonstrate that they are primary caretakers of children or an infirm person.

The memo also calls on ICE officials to exercise sound judgment and discretion when carrying out their enforcement functions and reminds them to give particular care when dealing aliens who are lawful permanent residents, juveniles, and immediate family members of U.S. citizens.

Aliens who are unlawfully present in the U.S. but who do not fall within the priorities may still be removed by ICE agents, although resources for removing them should not disrupt resources that should be spent on higher priority aliens.

Originally issued in June 2010, the memorandum, also referred to as the Morton Memo, was reissued recently with an additional provision stating that the guidelines and priorities do not create a private right. This means, for example, that you cannot raise the memo’s priorities as a matter of substantive or procedural right in immigration proceedings.

All in all, however, the Morton Memo still represents a welcome trend in immigration enforcement. By coming out with these guidelines, ICE has shown that it adopts a reasonable and common-sense approach and recognizes that not all aliens who are subject to apprehension, detention or removal, are equally dangerous. The guidelines also emphasize to ICE officials that they have “prosecutorial discretion” which they need to exercise in deciding against whom, when or how to pursue removal proceedings.

Deferred Action or Parole to Undocumented Aliens?

 

There will most probably be no comprehensive immigration reform this year. At a recent meeting of Democratic senators and immigration advocates, a consensus was reached that it would be difficult to pass a bill before the November election because of strong Republican opposition.

The Democrat’s strategy now is to try to push for the passage of legislations with bipartisan support such as the DREAM Act and the AgJOBS Act.

The DREAM Act (Development, Relief, and Education Act for Minors) would grant permanent resident status to undocumented students who have been residing here in the U.S. for several years while the AgJOBS Act (Agricultural Job Opportunity, Benefits and Security) would give temporary immigration status and eventually permanent resident status to undocumented farmworkers who have worked in the U.S.

There are rumors of another option. The current administration may be contemplating to grant either deferred action or parole to millions of undocumented aliens with no criminal record. Such action which does not need congressional approval would defer their deportation and allow them to stay in the U.S. and work.

The rumors about such an executive act have been widespread that 8 Republican senators wrote a letter to President Obama last June 21 asking him to confirm or deny it. The senators were Chuck Grassley, Orrin Hatch, Jim Bunning, Saxby Chambliss, Jim Inhofe, Johnny Isakson, Thad Cochran and David Vitter. Incidentally, these senators voted against the immigration reform bill that passed the Senate in 2007.

Their letter alleged that President Obama is pushing to develop a “plan to unilaterally extend either deferred action or parole to millions of illegal aliens in the U.S.” and that this plan will cover those “who willfully overstayed their visas or filed for benefits knowing that they will not be eligible for a status for years to come.”

They asked the President to abandon such a plan because “such deferred action and parole are discretionary actions reserved only for individual cases that present unusual, emergent or humanitarian circumstances.” They further said that it would circumvent the constitutional authority of the Congress to legislate immigration policy.

Deferred action and parole by the executive branch have been granted in the past. I recall that in 1977, the then Immigration and Naturalization Service (INS) granted deferred departure to hundreds of out of status nurses, mostly from the Philippines, who faced the threat of deportation for failing their licensure exams or for changing their employer without authority.

Those nurses, including those who were already under deportation proceedings, were given deferred departure status in 6-month increments up to a total of 3 years. And when they passed their licensure exams they were restored to lawful status.

The deferred status was the result of an agreement between the INS and the National Alliance for Fair Licensure of Foreign Nurse Graduates which I represented.

Drop in Undocumented Population May Be Good for Immigration Reform

As of January 2009, there were 10,750,000 undocumented aliens in the U.S., down from 11.6 million a year earlier, according to the Office of Immigration Statistics of the Department of Homeland Security.

The drop which continues a trend that started two years ago could make the debate on comprehensive immigration reform less contentious.

The top ten source countries in the report were Mexico – 6,650,000; El Salvador – 530,000; Guatemala – 480,000; Honduras – 320,000; Philippines – 270,000; India – 200,000; Korea – 200,000; Ecuador – 170,000; Brazil – 150,000; and China – 120,000.

The above countries accounted for 85% of the entire undocumented population.

The figures were derived by subtracting the number of legally resident population (20,470,000) from the total foreign-born population living in the U.S. (31,220,000) on January 1, 2009. The data on the legally resident population came from the Department of Homeland Security while the source of the estimated foreign-born population was the American Community survey of the U.S. Census Bureau.

Most of the unauthorized population entered the U.S. without inspection or were admitted temporarily and overstayed. Those that applied for adjustment of status under Section 245(i) of the Immigration and Nationality Act were counted as unauthorized until they become lawful permanent residents.

Section 245 (i) allows an undocumented alien in the U.S. to apply for adjustment of status provided he/she is the beneficiary of a family or employment-based petition that was filed on or before April 30, 2001 and was physically present in the U.S. on December 21, 2000.

The undocumented aliens that were included in the count entered the U.S. beginning in the 1980s. The estimated entries were as follows: 19% or 2.05 million in the 1980s, 44% or 4.75 million in the 1990s; 28% or 3.08 million in 2000 to 2004; and 8% or 910,000 between 2005 to 2008.

1980 was the starting point for the estimates because the report assumed that foreign-born residents who had entered prior to 1982 were eligible to adjust status under the amnesty provision of the Immigration Reform and Control Act of 1986. Also, the Registry provision of the Act allows persons who have been in the U.S. since January 1, 1972 to apply for a green card.

The decrease in the unauthorized population is attributed to the economic downturn and increased law enforcement. Immigration enforcement was stepped up in the middle of 2007 when the Bush administration conducted more high profile raids and gave the power to enforce immigration laws to some state and local police departments.

Some immigrant advocates believe that the population drop will make the passage of the comprehensive immigration reform bill easier. They contend that with a smaller undocumented population, the proposed legalization program will be more manageable. It would also reduce the pressure on enforcement.

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