In a lawsuit filed by Kansas Secretary of State, Kris Kobach, on behalf of ICE Union head, Christopher Crane, challenging the DACA program, Judge Reed O’Connor (Northern District of Texas) has indicated that he is likely to find that the program violates federal law.
Beneficiaries and recent applicants for the deferred action program should rest assured that even if the lawsuit is successful, it should not invalidate or affect their ability to legally work and reside in the country.
First, the judge has not yet issued a preliminary injunction against DACA. In fact, the case presents complicated issues of whether the federal judge even has jurisdiction to hear the case as it appears to be an employment dispute. Judge O’Connor has therefore asked the parties–the Department of Justice and lawyers for the ICE Union–to brief whether the Collective Bargaining Agreement and the CSRA bars the federal district court from hearing the case.
Second, even if Judge O’ Connor grants a preliminary injunction, there are additional questions as to whether the injunction only affects applications filed in the Northern District of Texas. Regardless of the answer, the Department of Justice is likely to file an appeal to the Fifth Circuit, and seek a stay of the injunction, such that the operation of the deferred action program continues smoothly.
Third, upon appeal, the Fifth Circuit is likely to uphold deferred action. Prosecutorial discretion has a long history in U.S. immigration law and agency practice, so Judge O’ Connor is simply wrong in stating that immigration laws mandate the detention of non-citizens present in the U.S. without legal status. In fact, Judge O’ Connor erroneously finds that DHS has prosecutorial discretion in the latter stages through the cancelling of removal proceedings but not in the initial stages, which hardly makes any sense.
In the meantime, the DACA program continues to be available to eligible undocumented youth. Prosecutorial discretion is also unlikely to go away and a federal judge in Northern Texas does not have the ability to undo decades of U.S. immigration law.
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
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.
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.
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 December 23, 1849, Fyodor Dostoevsky, who went on to become Russia’s greatest novelist, and several other members of the so-called Petrachevsky Circle were taken out into the courtyard of the Semonyonov Prison in St. Petersburg. The tsarist government had sentenced them to death. Men were blindfolded and tied to posts. The firing squad was locked and loaded when a cart with a reprieve from the Tsar himself commuted the sentence to exile and hard labor. The execution, minutes away from proceeding, was stopped.
This morning, around 10:15, I received a phone call from Immigration & Customs enforcement (ICE) informing me that our request to stay the removal of our client, Sam from Zambia, had been granted and that ICE agents had removed him from a plane bound to depart the U.S. at 10:30. Like Dostoevsky, Sam was all set and ready to go. Seat beat buckled. Tray in upright and locked position and all luggage safely stowed. And while the stakes were much higher for Dostoyevsky, it is not hyperbole to wonder how Sam would survive in Zambia, an extraordinarily poor country where he has not lived in twenty years and has no family. However, ICE granted the stay at the last minute and Sam was removed from the airplane.
This is the second time I have been lucky enough to have the remarkable emotional experience of snatching victory from the jaws of defeat by having a person removed from an airplane bound to deliver them to an unknown fate in a country that has become foreign to them. Years ago, over the Christmas holidays, I, and FOBR Nadeen Aljijakli, worked day and night to stop the removal of our client to Haiti. They flew her out of Baltimore to Miami, where she was to board a plane to Port-au-Prince,a charter full of deportees. The Board of Immigration Appeals granted our stay while the plane was en route to Miami. She was taken onto the plane in Miami when the ICE agents got the word of the stay. They came onto the plane and pulled her off. As she struggled to get her bags, the entire plane, full of people living through the tragedy of their own deportation to Haiti, cheered for the one lady who avoided their fate. I wish I could have seen and heard that.
I knew that they were planning on removing Sam today. We had been on it for two days. He had a final removal order, but, as the victim of a serious crime, potentially qualified for a U visa, available to foreign nationals who have been the victim of a serious crime and were helpful in the investigation and/or prosecution of that offense. A prerequisite for seeking a U visa is obtaining a signed certification from the law enforcement agency that investigated or prosecuted the crime. Obtaining that certification is often a challenge as many agencies do not have established or easily ascertainable policies on signing off on certifications. They take weeks or months. However, due to the presence of some outstanding people in the Baltimore County Police Department, we got one turned around in an hour and sent it to ICE. That was about 4:30 yesterday and it appears that the decisionmakers on the stay had gone for the day.
Friday morning is pancake morning in the Benach household. By 7:30 AM, we had pancakes on the table and I was on the phone with ICE. I knew Sam was either at or on the way to the airport. At that point, the pancake breakfast turned into a war room. My oldest Paloma, was writing down phone numbers as I barked them out from the phone. Teddy, the youngest, kept me supplied with coffee. And Alex, sensed opportunity and ate everyone’s pancakes. Not only were the Benach children conscripted into helping Sam from Zambia, but I abused my colleagues in the immigration bar. I love being a part of this community of lawyers who care about their clients and will help you at the drop of a hat. So many people made this happen. When I needed to find someone in Baltimore County, Paula Xinis of the amazing Baltimore firm of Murphy, Falcon & Murphy got a partner there to make calls to people he knew on behalf of a young man he never met. This morning, when I needed phone numbers and emails, FOBRs Sandra Grossman, Jay Marks and Michelle Mendez of Catholic Charities rode to my rescue. Let me just say that this is not the first time that Sandra Grossman delivered for me in a huge way. Jay helped me keep a sense of humor with his infectious laugh. And, for Michelle, I will root for the Ravens this weekend in your honor. Now, that is no biggie as they are playing the Patriots, but I will be loud for the Ravens
Finally, the stay was filed yesterday only because BR’s own Liana Montecinos is charming and delightful and she convinced the ICE officials to take the application even after the official cashier had left for the day.
Sam’s fight is not won. So much of immigration is living to fight another day. But now, with the gift of time, we can do for Sam what he needs and give him a chance to stay.
Over the last few weeks we have answered dozens of questions about the provisional waiver. One group of questions keeps appearing- questions about how people in removal proceedings or with a removal order can qualify for the provisional waiver. Whereas, the initial rule announced by the Department of Homeland Security indicated that the provisional waiver would be unavailable to people in removal proceedings, the final rule is somewhat more forgiving. The final rule states that an individual in removal proceedings can not seek a provisional waiver with the Citizenship & Immigration Service (CIS) unless proceedings have been administratively closed or terminated.
As Julie Andrews sang, let’s start at the very beginning as it is a very good place to start. Removal proceedings are initiated when the DHS issues a charging document known as a Notice to Appear (NTA) and lodges it with the Immigration Court. Any of the three immigration agencies, Immigration & Customs Enforcement, Citizenship & Immigration Services and Customs & Border Protection has the authority to issue NTAs. Usually, the time between DHS issuing an NTA and filing it with the court is close to simultaneous. However, on occasion, the NTA is issued and not filed with the court for days, weeks, months or even years. An individual is not “in removal proceedings” until an NTA has been filed with the court. Until the NTA is filed with the court, DHS has exclusive authority to choose not to bring removal proceedings against an individual. In cases where an NTA has been issued and not filed with the court, that individual is not in removal proceedings and should remain eligible for the provisional waiver. Removal proceedings continue until the immigration judge grants relief and terminates the case or the person departs the U.S. either under an order of voluntary departure or an order of removal. In cases where there is a final order of removal, but the individual has not been removed yet, even though there are no more proceedings before the court, that individual is still “in proceedings” and would be ineligible for the provisional waiver.
Once a person is in removal proceedings, the provisional waiver rule is clear that those proceedings must be administratively closed or terminated before that individual can seek the provisional waiver. Termination of removal proceedings can happen in one of two ways. First, proceedings are terminated where the immigration judge grants relief, allowing an individual to remain in the U.S. in some sort of legal status. Second, and this is the rarer form of termination, ICE may elect to terminate proceedings because it has decided that seeking removal in a particular case is no longer in the interests of the government. Although the DHS has exclusive authority to issue and to decide whether to file a Notice to Appear in immigration court, once proceedings have been initiated, DHS becomes a party to litigation and only the immigration judge has the authority to terminate removal proceedings.
Administrative closure is a tool of convenience for immigration courts. Administrative closure allows the court to take a case off an active docket and place it into “hibernation.”
By administratively closing a case, the case remains pending before the immigration court, but it is taken off the active calendar. When a case is pending before the court, it is on an active calendar and at the end of each hearing another hearing must be calendared. When a case has been administratively closed, it is not on any calendar and no hearings are scheduled. The case remains before the court, but the court is not acting on the case. In order to get the case back on the active docket, one of the parties must file a “motion to recalendar” the case. Cases can be administratively closed for months or years at a time. Either party may request administrative closure and the immigration judge has authority to grant it. Until recently, the law required the concurrence of both the foreign national and the government to allow for administrative closure. However, last year, in Matter of Avetisyan, the Board of Immigration Appeals held that an immigration judge may grant administrative closure over the objection of one of the parties. In other words, DHS can not unilaterally deny the foreign national’s ability to obtain administrative closure.
People currently in removal proceedings who would otherwise qualify for the provisional waiver can seek both termination and administrative closure. We expect that ICE, who represents the government in removal proceedings, will be fairly accommodating to requests to terminate or administratively close cases where the foreign national can present a prima facie case for eligibility for the provisional waiver. In these cases, your lawyer ought to prepare a motion to terminate or administratively close demonstrating that you qualify for the provisional waiver and that the pending removal proceedings are the only impediment. These individuals should be able to demonstrate that they are the spouse, parent or children of a U.S. citizen and that their only violation of law relates to entering illegally. By presenting evidence to the government of qualification for the provisional waiver and readiness to file it, it seems that ICE would exercise its discretion to administratively close the case to allow the applicant to file the provisional waiver application. Upon approval, termination seems appropriate. If the case is not approved, it is reasonable to expect that ICE would seek to recalendar the case and proceed with removal proceedings. Should the government refuse to join a motion for administrative closure, the immigration judge has the authority under Matter of Avetisyan to close the case nonetheless upon the motion of the foreign national.
People with old orders of removal who have not yet departed the United States would need to reopen removal proceedings so that removal proceedings can be administratively closed or terminated. This is a heavy lift. If the removal order is more than 90 days old, a foreign national will, generally, need the government to agree to reopen for the purpose of closing. Makes sense, right? However, there may be circumstances where the hardship is so clear and extreme and the facts are so compelling that the government agrees to this. By asking the government to join a motion to reopen, an individual with a final order of removal, who may or may not be on the government’s radar screen for removal, makes herself vulnerable to enforcement of the removal order should the government prove unwilling to join in reopening. While there are limited circumstances in which an immigration judge can reopen on his own motion, those instances are rare and should not be, generally, relied upon.
Finally, people who have been deported or departed the U.S. under an order of voluntary departure or removal are ineligible for the provisional waiver and must seek the waiver through the traditional means at the consulate in their home country.
The provisional waiver has the potential to help thousands of people in removal proceedings. Many of them may be waiting for hearings on cancellation of removal which requires a much higher level of hardship than the provisional waiver’s standard of extreme hardship. It is not really conceivable that anyone can navigate this thicket without experienced counsel. Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.
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