Yesterday, the Associated Press announced that it would stop using the phrase “illegal immigrant” to describe an individual present in the US illegally, or who entered the country without proper authorization. This is a great victory for the long history of organizing against the word “illegal” beginning with the transnational No Human Being Is Illegal campaign and more recently, the Drop the I-word campaign, in addition to the many undocumented immigrants across the country who have insisted on defining ourselves beyond the pejorative brush of “illegal” or “illegal immigrant.”
The AP dropping the I-word also has wide ramifications not just for the media, but also for the way we view and treat people. ”Illegal” or “illegal immigrant” is a dehumanizing pejorative imbued with violence and oppression. I have written at length about how “illegal immigration” and hence, “illegal immigrant” came to be part of our lexicon through the construction of true and false immigration. There is no coincidence that the legal history of deportations coincides with the use of more virulent language to separate desirable immigrants from undesirable immigrants, and castigate the latter as undeserving of any civic or political rights.
By painting certain people with the broad brush of illegality, the state apparatus makes it easier to deny rights to persons without papers, and conduct large-scale violent
Members of the South Central Farm attending the immigrant rights march for amnesty in downtown Los Angeles California on May Day, 2006. The banner, in Spanish, reads “No human being is illegal”. (Photo credit: Wikipedia)
actions against them, actions that now take the form of workplace raids, detention and deportations. Changing such language then, does help to make it more difficult to castigate people as undesirable and unwanted.
However, this is not just about political correctness. It is also about accuracy. Beyond the sheer dehumanization and violence, the use of the phrase” illegal immigrant” has always been plain lazy journalism. It presupposes that someone is in violation of immigration law without affording the person due process, which is quite contrary to our laws. In my widely-read New America Media article, It’s More Complicated Than Legal vs. Illegal, written last summer, I mention more accurate, legal and less dehumanizing ways to categorize people,:
Overstay: Someone who overstays her admission to the country. An overstay may or may not accrue unlawful presence, and may simply be out of status.
Entry Without Inspection (EWI): Someone who enters the country without inspection or proper admission. An EWI may still be eligible for admission without leaving the country.
Immigrant: A green-card holder whether through admission or adjustment of status.
Non-immigrant: Anyone who is in the U.S. temporarily with legal status but is not a green-card holder or U.S. citizen.
Asylee: Anyone granted asylum in the United States due to past persecution or well-founded fear of persecution in their home country.
These are merely suggestions. As always, I’d err on the side of people defining themselves. I also think it is quite possible to write a story about an immigrant or immigration reform without necessarily having to categorize the actions of people who may be here without proper authorization. Maybe now, news organizations beyond the Associated Press can focus on covering new stories and opinion pieces about the lives of actual people as opposed to painting us all with the brush of a lazy, inaccurate and dehumanizing pejorative.
There is something to be said about the continued raids, detention and deportation of undocumented immigrants, despite the change of language. While it is too soon to declare victory in terms of the treatment of irregular or unauthorized immigration, and the AP will continue using the phrase “illegal immigration” as a way to describe immigration outside the law, this is a step in the right direction.
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.
Earlier this month, Benach Ragland authored a brief on behalf of the American Immigration Lawyers Association in the case of Michael Sylvain v. Attorney General before the U.S. Court of Appeals for the Third Circuit. In Sylvain, the court must decide whether the Immigration & Nationality Act (INA) requires the detention of individuals convicted of certain offenses regardless of how long it has been since they were released from criminal custody. On behalf of AILA, Benach Ragland argued to the court that people released from custody prior to Immigration & Customs Enforcement’s (ICE) assumption of custody are entitled to a bond hearing where an immigration judge can make a determination as to whether they are flight risks or dangers to the community. ICE argues that the INA gives immigration judges no authority to consider the release such individuals and that they must be detained for the duration of their removal proceedings regardless of how long it has been since they were convicted of an offense.
In Sylvain, the government defends a decision by the Board of Immigration Appeals (BIA) in Matter of Rojas. In Rojas, the BIA decided that the mandatory detention provisions of the INA require detention without possibility of release on bond regardless of when that person was released from criminal custody. However, the INA mandatory detention provision states that certain individuals shall be taken into custody “when the alien is released.” The BIA decided in Rojas that that language did not limit ICE to apply mandatory detention to individuals regardless of when they were released. Under Rojas, an individual would be subject to detention without any sort of review by a judge even if they had been released from prison a decade earlier. As immigration judges around the country cited Rojas and explained that their hands were tied, advocates went to U.S. District Courts around the country and sought habeas corpus review. Almost uniformly, the federal courts told the immigration service that Rojas was wrong and that the detained individual was entitled to a bond hearing. The immigrant was then released. ICE rarely appealed these decisions to the courts of appeals.
However, they did so in Hosh v. Lucero. In that case, a district court judge found that Rojas was wrongly decided and ordered an immigration judge to hold a bond hearing. However, this time, the government, sensing a possibly friendly court in the Court of Appeals for the 4th Circuit, a court known for giving the government wide berth to operate, appealed the judge’s decision. The government’s gamble paid off and the Court of Appeals for the Fourth Circuit reversed the district court judge and deferred to the BIA’s decision in Rojas, foreclosing habeas relief in the states of the 4th Circuit (Maryland, Virginia, North Carolina, South Carolina and West Virginia). Although district courts in the Fourth Circuit must follow Hosh, district courts outside of the Fourth Circuit have not found Hosh terribly persuasive.
Now this issue is before the Third Circuit Court of Appeals, which encompasses New Jersey, Pennsylvania and Delaware, in Sylvain. A decision rejecting Rojas would create a split between the Third and the Fourth Circuits, possibly leading the way to Supreme Court review. Oral argument is coming next month and we will report from the argument and when a decision comes down.
Universities have long been at the forefront on civil and human rights issues. Universities nurtured the civil rights movement, the women’s and gay liberation efforts. Universities divested from South Africa during apartheid and universities have led the charges against foreign sweatshops that made apparel sold in college bookstores. And it is no surprise that universities have been actively involved in the immigrant rights movement. Leading educators have stood up for the DREAM Act, have supported efforts to get individuals out of detention and deportation proceedings, and have led urgency to the need for a better system for employment-based immigration. So, why would FAU accept a donation and so prominently highlight a company who makes it profits off the maintenance of an immigration detention apparatus that is morally dubious if not downright repugnant?
The GEO Group operates 73,000 “beds,” but it is not the Best Western. “Beds” is corrections-speak for “places where detainees can try to sleep.” It has a ignominious track record. Before they were GEO, they were they were the Wackenhut Correctional Corporation. British journalist Greg Palast wrote of Wackenhut’s operation of private prisons in New Mexico, “New Mexico’s privately operated prisons are filled with America’s impoverished, violent outcasts — and those are the guards.” The Wackenhut name was so tarnished with scandal that the board changed the name in 2003. Yet, transforming the way that they did business was much more elusive. Some of GEO’s greatest hits include:
It is simply stunning that a university would agree to name a stadium after this behemoth. It is especially galling in South Florida, where brave immigrant activists Marco Saavedra and Viridiana Martinez infiltrated the Broward Transitional Center to document abuses and conditions. Would FAU name their stadium after the Bushmaster assault rifle? Or after Phillip Morris (rebranded as Altria)? No university in their right mind would ever be associated with such corporate pariahs. The goal for immigrants rights communities is to make the name of GEO as toxic as those names. The devastating impact that GEO has had on the immigrant community in South Florida simply makes it an unacceptable choice for naming rights at a stadium. Especially one in South Florida. FAU must know that GEO is as much a pariah as gun manufacturers and cigarette pushers. How many FAU students have been detained by GEO? How many FAU student’s parents and loved ones languished in GEO’s dungeons? How many kids never got a chance to attend a football game because GEO got them first?
The past few days have revealed tremendous silliness in the immigration reform debate. It is a true pity given the serious stakes involved for everyone persecuted by the U.S.’ brutal immigration laws.
Just today, we saw prominent immigrant rights groups’ applauding the honesty of ICE bureaucrat representative, Chris Crane because he stated in some forum or another:
For this pearl, Mr. Crane has been lauded by all sorts of ostensibly pro-immigrant types as a whistleblower. After all, here is an ICE agent stating that ICE only cares about hitting its numerical targets for removal. ICE has recently come under some well-deserved heat for conducting data-mining and all sorts of definition-expanding permutations to ramp up the removal of criminals. It would seem that Mr. Crane is stating that ICE is going after low hanging fruit and not the dangerous criminals, who we all can agree, at least in theory, deserve removal. At last, someone within ICE points out that the emperor has no clothes. Right?
Well, only if you pay no attention to everything else Chris Crane has ever said. Based upon his testimony, Mr. Crane believes that ICE is not being allowed to do its job of keeping the community safe because the ICE political leadership has instructed ICE officers to focus their removal efforts on those convicted of crimes or repeated immigration law violators. Apparently, Mr. Crane believes that community safety would be enhanced if ICE agents were permitted to make arrests when they are “on duty in a public place and witness a violation of immigration law.” If only ICE agents were empowered to make arrests in such circumstances, public safety would be enhanced. This makes us wonder: what does it look like when a student falls out of status due to failure to maintain appropriate credits, or what does it look like when a tourist visa expires, or what does it look like when an undocumented person clear your plate, does it look that much different than when a documented individual re-fills your water? If ICE agents were empowered to make arrests because of these and other “immigration violations” they witness, the U.S. would look a lot more like those totalitarian regimes where the only law is the presence of a gun and handcuffs. No thanks. Yes, ICE is doing everything can to pump up their removal numbers, but if Mr. Crane and his allies had their way, that number would be way higher than 400,000 and community safety would not be enhanced. Recall that Chris Crane is the plaintiff in a lawsuit, where he is represented by uber litigation-loser Kris Kobach, where he alleges that DACA is illegal because it means he can not arrest and remove every undocumented youth he comes across. Nonetheless, members of the non-profit industrial complex for immigration reform have embraced Crane’s quote, displaying an alarming lack of awareness of what Crane is actually saying.
The President’s proposal is very intriguing. We will discuss it in detail in the next couple of days, but it goes to territory where none of the other plans go: shrinking the definition of “aggravated felony,” allowing for immigration recognition of expungements and other ameliorative statutes, and restoring suspension of deportation. For those of us who care about due process in the immigration courts and greater flexibility in removal statutes who thought that immigration reform would be all about E-Verify, border fences, legalization at the back of the line and a guest worker program, the introduction of due process concepts into the debate is welcome. The very real humanitarian considerations represented in the President’s plan should not be overshadowed by high school cafeteria antics
Those following Tuesday’s hearing before the House Judiciary Committee could be forgiven for thinking the sole cause of our country’s immigration problems was the Immigration Reform and Control Act of 1986 (“IRCA”), the landmark bill that created a pathway to citizenship for roughly three million undocumented immigrants. Time and again, Republican committee members faulted the legislation for not only being too soft on enforcement, but creating a supposed magnet for future unauthorized immigration.
In truth, while the 1986 law was indeed flawed (more on that below), a far more disastrous piece of legislation was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Part of the GOP’s 1994 Contract with America and signed by President Clinton just weeks before his re-election, the measure sought to “get tough” on immigrants by eliminating common forms of relief from removal, permitting deportation without a hearing before a judge in many cases, and imposing draconian penalties on any noncitizen who was unlawfully present for more than six months.
Yet far from occasioning a reduction in the illegal immigration, the 1996 Act was followed by a rapid rise in the country’s undocumented population. Indeed, while precise numbers are impossible to calculate, a substantial percentage of today’s undocumented immigrants would possess legal status if not for IIRIRA. In weighing various proposals for immigration reform, federal lawmakers would thus be wise to avoid the mistakes of 1996 in addition to those of 1986.
Bars for “unlawful presence”
In hopes of deterring immigrants from illegally entering or remaining in the country, the 1996 Act created the so-called “unlawful presence” bars. Under these provisions, all noncitizens who were unlawfully present for more than six months became inadmissible for three years as soon they departed the United States. Similarly, noncitizens who were unlawfully present for more than a year became inadmissible for ten years upon leaving the country.
Yet rather than dissuade noncitizens from remaining illegally in the country, the law had largely the opposite effect. Caught in a cruel Catch-22, many undocumented immigrants who were legally eligible for permanent residence chose not to pick up a visa in their home countries for fear of triggering the bars. While Congress allowed such noncitizens to obtain waivers in cases of “extreme hardship,” applicants were—until the recent creation of a provisional waiver by the Obama administration—required to apply for such waivers from abroad, leaving them stranded for ten years if their applications were denied.
Reinstatement of removal
In hopes of deterring previously deported immigrants from illegally re-entering the country, the 1996 Act created a new process known as “reinstatement” of removal. The provision gave immigration authorities the ability to remove any immigrant who illegally re-entered the country without a hearing before an immigration judge—regardless of whether the individual had subsequently become eligible for a green card, asylum, or any other form of immigration relief. (The reinstatement process also explains how Maria Arreola, the mother of DREAMer Erika Andiola, was en route to Mexico less than 24 hours after being arrested by ICE.)
By any measure, the reinstatement provision has dissuaded few deported immigrants from illegally re-entering the country. According to the Department of Homeland Security, the number of reinstated removal orders has increased almost every year over the past decade, and accounted for a record 130,000 or the nearly 400,000 removals that occurred in fiscal 2011. The reinstatement provision has also prevented countless immigrants from obtaining forms of immigration relief for which they subsequently became eligible, including permanent residence based on a marriage to a U.S. citizen. Thus, rather than deter deported immigrants from illegally re-entering the country, the principal effect of the reinstatement provision has simply been to drive such noncitizens further underground.
Elimination of suspension of deportation
A further (but not final) flaw of the 1996 Act was the elimination of a common form of relief from removal known as “suspension of deportation.” Prior to IIRIRA, undocumented immigrants placed in deportation proceedings could avoid removal by demonstrating that they possessed good moral character; that they were continuously present in the United States for at least seven years; and that their removal would could extreme hardship to themselves or a spouse, parent, or child that was U.S. citizen or permanent resident.
In 1996, Congress eliminated this provision from the INA and replaced it a form of relief called “cancellation of removal.” Under this new provision, undocumented immigrants could only qualify for relief by showing, among other things, that they were continuously present for the previous ten years, and that their removal would cause the much higher standard of “exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident spouse, parent, or child—but not to themselves.
As with the other punitive provisions mentioned above, the elimination of suspension dissuaded few if any noncitizens from entering the country illegally. To the contrary, abolishing the provision has likely encouraged many undocumented immigrants who would have previously qualified for relief to stay in the shadows. Indeed, it’s entirely possible that if suspension of deportation still existed, ICE would have had no need to conduct a nationwide review of more than 300,000 pending removal proceedings for cases meriting favorable exercises of prosecutorial discretion.
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Of course, none of this is to say the 1986 Act shares no responsibility for our current immigration problems. It does. However, the key drawback of the 1986 bill was not that it was too “soft” on immigration enforcement, but that it failed to allocate a sufficient number of visas to meet the rising demand for immigrant workers. Indeed, even if the current Congress provides a pathway to citizenship for all 11 million undocumented immigrants, nothing will be solved without modernizing the immigration system to accommodate current and future demand.
Taken together, the lessons of the immigration laws passed in 1986 and 1996 are clear. Without a system that accommodates market demand for immigrant workers, many noncitizens will feel no choice but to enter the country illegally. And without a practical way to obtain green cards for which they are legally eligible, undocumented immigrants are more likely to be trapped inside the country (or driven further into the shadows) as a result of punitive immigration laws than dissuaded from illegally entering or remaining in the first place.
There is a single line in the President’s immigration proposal that has escaped a lot of attention. As the idiotic “back of the line” concept and the path to citizenship dominate the headlines, the language of the proposal indicates that the administration would like to eliminate one of the most onerous obstacles to asylum for thousands of applicants- the notorious one year rule. If this became law, the President will preside over a vast improvement in U.S. refugee and asylum law through a procedural change that will make thousands of people eligible for asylum.
At the very end of the President’s proposal, the administration writes that the proposal “better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.” To us, this can only be referring to the one-year rule for applying for asylum. The one year rule requires an individual to apply for asylum within one year of the date of admission in order to qualify for asylum. While there are regulatory exceptions to the one year rule, these are stringently applied and many people who have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, political opinion or membership in a particular social group have been unable to receive the protection of asylum.
The one year rule has been disastrous for many people who have fled harm. It is applied regardless as to whether the applicant knew of the rule and generally fails to take account of all but the most serious forms of post traumatic stress disorder. In addition, it discourages many people from seeking asylum when they do not believe that they can meet one of the exceptions to the one year rule. It has also made a mess of the immigration courts. Here is how it works in practice. An individual in the U.S. for over a year applies for asylum with the U.S. Citizenship & Immigration Service. The asylum office can not grant the application unless the applicant can establish that he qualifies for one of the exceptions. If the asylum office denies the application for asylum, they place the applicant into removal proceedings. (Of course, the asylum office calls this the much nicer, yet misleading “being referred to the immigration judge”) An immigration judge then may review the application for asylum. If the judge decides that a person is ineligible due to the one year rule, the judge must consider whether it is more likely than not that the applicant will be persecuted or tortured. Under such circumstances, a judge can enter an order of removal but withhold removal to the country of persecution or torture. So, the government is allowed to deport such an individual, just not to that individual’s home country. Realistically, there is no other country where the individual may be deported to, so the individual is allowed to remain in the U.S. with work authorization, often being required to report to ICE, but never being able to travel or get a green card. So, individuals who fail to apply for asylum within one year of the date of entry are provided with the same form of humanitarian protection as people convicted of “particularly serious crimes” or who have participated in the persecution of others. Clearly, these are not equivalent infractions, yet the result in the same.
The profusion of asylum cases that can only become withholding or torture cases due to the rigid interpretation of the one year rule has contributed to the immense backlogs in immigration courts. Since the asylum office must refer every single one year rule case to the court, many cases that should be resolved at the asylum office now wind up in court. And why? Because they did not apply at the first instance possible? The one year rule reflects an erroneous belief that a person who truly fears persecution will apply immediately upon arrival and that failure to do so is an indicator of fraud. The one year rule reflects Congress’ lack of faith in the asylum officer and immigration judges who try thousands of cases every year. An asylum officer or immigration judge is almost always able to tell between someone opportunistically and cynically seeking asylum improperly as opposed to a legitimate asylum seeker, regardless of when they filed.
Immigration reform that gets rid of the one year rule and lets the asylum officer and immigration judges do their job would be a tremendous improvement in asylum law and we hope that this little-noticed provision makes it into any final bill.
What 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.
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.
It is very true that the immigration laws need a wholesale revision. Congress needs to make substantial changes, regulations need to be re-written, precedent decisions scrapped and new guidance forthcoming. But another change is needed and this change may the hardest of all. It is a change of attitude within the agencies. We have written in this space on multiple occasions about the hostility that elements within ICE have for their political leadership and the “culture of no” within CIS has been well-documented. However, less reported is the blase indifference that many civil servants within the agency take toward the people affected by the way they go about their jobs.
Here is where I am supposed to say that the majority of the people who work for the immigration agencies are hard-working, well-intentioned people laboring under tremendous workloads and inadequate resources. I am supposed to say that those who are indifferent to the human lives in the case before them are far outnumbered by the valiant majority who struggle against the bureaucratic odds to make a difference. Sorry, but I can not say that. I have to say that indifference is the default and care and compassion and vigor are the exception. Such virtues do exist within the immigration agencies, but they are rarely on display. Initiative and “going the extra mile” are snuffed out like weeds in those Round-Up commercials. The overwhelming majority simply have little concern for the people affected by the way they do their jobs. Immigration reform will be incomplete unless it addresses this problem as the power of clerks and administrative staff to harm the interests of immigrants remains immense.
Let’s focus on the Executive Office for Immigration Review (EOIR), the Immigration Court system. Here are just a couple of things that have happened to us in the past few months that show how bureaucrats affect people’s lives by the way they do their jobs:
Client was detained by ICE. ICE said that he was subject to mandatory detention. We wanted to argue to the Judge that he was not. We filed a request for a bond hearing, which is a matter of right, on October 24. The case was not scheduled until November 27, five weeks after we filed. This meant that our client had to sit in jail for an additional five weeks after we asked for his release before a judge could consider his claim that he should not be detained. Five weeks is a long time to sit in jail when the law says you do not have to sit in jail. The decision on when to give him a hearing was made by the Immigration Judge’s legal assistant. No doubt she was reacting to limits on how many cases a judge can hear on any given day, but the harm of the judge hearing one more case against an individual spending several weeks in jail ought to be considered.
Client was detained by ICE. When ICE detains an individual that they are placing into removal proceedings, ICE must issue a Notice to Appear (NTA) charging the individual with removability. ICE must file the NTA with the Immigration Court and the Court must schedule the hearing. We requested bond. Although the rules require the Court to schedule a bond hearing for any detained individual regardless of whether an NTA has been filed, the Court’s backlog in recording the filing of NTAs causes the staff to fail to schedule a bond hearing. A hearing was finally scheduled 30 days after the client is taken into custody and the Judge orders release.
Client was scheduled for hearing on her application for cancellation of removal for 10/31/2012. That hearing was set in December 2011. Hurricane Sandy closed the Immigration Court that day and for several days afterwards. Expecting that the court would reschedule the case once it reopened, we wished to inform the court that we did not need much time for a hearing. In December 2011, the Court scheduled the case for three to four hours of time. However, since then, we negotiated with ICE counsel and agreed that all issues in the case could be resolved in a hearing of an hour or less. On November 15, 2012, we filed a motion letting the court know that we did not need much time, so that the Court could squeeze us in wherever it had time. We made several calls to and left messages with the court’s clerical staff, none of which were returned. We finally spoke with the legal assistant to the judge around December 1, who stated that she had not seen the motion and she would have to look for it, but that she was not going to stop what she was doing to do so. If she found it and the Judge ruled on it, she would give us a courtesy call. On December 4, 2012, we got the call- hearing on December 11! However, on December 5, the rumors started flying- the cap on grants of cancellation of removal had been met and no cancellation grants could be made until October 1, 2013. As these were just rumors, we went ahead with the hearing, traveling to another city to be there on December 11. At the hearing the Judge informed us that, since there were no cancellation numbers, she could not and would not hold a hearing and we could come back in October 2013. So many small acts of initiative could have made a difference here: (1) the clerk could have addressed the motion in a timely manner and we could have gotten on the calendar before numbers ran out; (2) when numbers ran out, the court could have called and rescheduled knowing that we would have to travel to attend the hearing at substantial cost to the client.
They never call back. Never.
These are problems that are not going to be addressed by legislation. They require a wholesale change in attitude and a lesson in courtesy. This is not simply a problem of
“poor customer service.” I hate the idea of customer service in a government agency. I think they owe us MORE than a business owes its customers. We are citizens, we are a polity and they are our government. They derive their authority from us. A business derives its income from us, which it can choose to accept or not. Citizen vis-a-vis government is entitled to more respect and deference than a Slurpee-buying sap at a Seven-Eleven.
These problems require an understanding that immigration detention is a serious deprivation of liberty that must be limited in duration and for the most serious matters. A culture must grow within the Immigration Court that anything that unnecessarily prolongs detention is to be avoided and that resources will be provided to ensure that immigrants have access to prompt hearings. Employees of the court system must be trained to recognize that they should do all they can to ensure that detained individuals have access to process. A person is charged with murder is put in front of a magistrate judge within 24 hours who sets bail (or not). A person charged with overstaying a visa is often detained for weeks before he gets review of his detention. How does that system make sense?
This post was mostly cathartic. Future posts will explore some of the legal underpinnings of the immigration detention regime. For example, a U.S. Supreme Court decision many years ago said that removal proceedings are civil and not criminal and many criminal procedural protections are, therefore, unavailable in removal proceedings. Given the militarization of the border and the use of detention during removal proceedings, we wonder how much of that flawed doctrine still can stand.
