Well the calls and reports have started.  Friends, clients and people I have not heard from in years, have started coming out of the woodwork.  I even heard from someone that they heard a radio report that Pres. Obama passed a new law that will allow all illegal immigrants to stay in this country as long as they do not have a criminal record.  So what really happened, and what does it mean?

Let’s start with a few corrections of this statement.  1) Pres. Obama is unable to unilaterally pass a new law, only Congress is able to make laws.  Certainly the President is able to sign a new law into effect, or veto something that has passed Congress.  In this case, Pres. Obama, has decided to make use of an existing law, whereby the agency charged with enforcing immigration laws, can use Prosecutorial Discretion (will be discussed in more detail below).  2) I hate the phrase illegal immigrants.  It does not begin to potentially describe people and usually colors the conversation. The phrase that we use most often is Undocumented.  This covers people who have never done anything wrong, and generally allows for a more open and straightforward conversation.

So what is Prosecutorial Discretion?  It is a way for people engaged in enforcing rules to use discretion to prioritize the focus.  Some of the groups that have been identified as needing less immediate attention are those that are non-criminals, those that came to the US as minors, those with medical issues or disabilities, victims of crime, etc.  What this means is, if you are already in a proceeding that is attempting to remove you from the US, on the basis of not having status in the US, then you might be considered for discretion, whereby you are de-prioritized, so the system can focus on someone else.  To be clear, this was always something that could have been asked for, but the release of these memos and the new letter form Sec. Napolitano, attempt to create a new system whereby more people might get discretionary treatment, and also there may be a more systematic approach to granting discretion.

If this occurs, it will provide some relief to those in removal proceedings.  What is unclear even for those people (in proceedings) is what else does it provide?  It does not guarantee work authorization, it does not guarantee that the person will not be brought back into proceedings, it does not grant authorized status.

It also does not provide a form of relief to apply for if you are not in proceedings.  It is not clear how it might apply to someone who did not get discretion, and is no longer in proceedings because they received a negative result.  (This is also a reason why so many ‘dreamers’ try and get themselves into proceedings.)

Still, it is a step in a positive direction.  It does fill me with some hope that some ‘common sense’ will be re-instilled into the process.  It also means that there are more options to ask for whereas before there may not have been any.

If you can not tell, I am conflicted.  I want to believe this will make a difference, but until something really happens, I am not convinced it will.  There is no new law, no real change, and this is like a very small baby step toward the need for Immigration Reform.  Its just that absolutely nothing has happened for so long, that things that might be something seem like so much more.  Hopefully it will bring some good to some people.  While we are waiting to see what happens, we must not stop fighting for real Immigration Reform.

Post Date: August 22nd, 2011 Filed under: AzulaySeiden Attorney's Blog, Comprehensive Reform, Editorials, Immigrant Rights, Immigration Policy, Ira Azulay, New to the United States, Politics by Ira Azulay, CEO No Comments »

I am cautiously excited by the announcements today regarding how discretion may be applied to those without other forms of relief from immigration proceedings. Still, my trust is so low for the administration, that even something that looks good has to be taken with a big grain of salt.

I first got the news from Senator Durbin’s announcement.  The DHS letter and memo have since been circulated and I thought it appropriate to paste a copy here:

Dear Senator Durbin:

Thank you for your letter to President Obama regarding the Administration’s immigration enforcement policies and the Development, Relief, and Education for Alien Minors (DREAM) Act. The President has asked me to respond on his behalf.

Over the past two years, the Department of Homeland Security (DHS) has established clear and well-reasoned priorities that govern how DHS uses its immigration enforcement resources. These priorities focus our resources on enhancing border security and identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law violators and other individuals prioritized for removal. Initially set forth in a March 2010 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton, these priorities were recently reiterated and clarified in Director Morton’s June 17,2011 memorandum regarding the exercise of prosecutorial discretion by ICE personnel.

While additional work remains, we have made tremendous progress in our effort to focus DHS resources on these enforcement priorities. Our FY 2010 statistics are illustrative. In FY 2010, ICE removed 79,000 more aliens who had been convicted of a crime than it did in FY 2008. As a result, for the first time ever and due to the expansion of the Secure Communities program, over 50 percent of the aliens removed by ICE in a fiscal year were convicted criminals. Of those removed with no confirmed criminal conviction, more than two-thirds were either apprehended at the border or were repeat violators of our immigration laws. As enforcement directives continue to be implemented, we anticipate that these trends will increase in FY 2011.

The President has said on numerous occasions that it makes no sense to expend our enforcement resources on low-priority cases, such as individuals like those you reference in your letter, who were brought to this country as young children and know no other home. From a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities. Doing otherwise hinders our public safety mission-dogging immigration court dockets and diverting DHS enforcement resources away from individuals who pose a threat to public safety.

Accordingly, the June 17,2011 prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities. Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Finally, we will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety.

This case-by-case approach will enhance public safety. Immigration judges will be able to more swiftly adjudicate high priority cases, such as those involving convicted felons. This process will also allow additional federal enforcement resources to be focused on border security and the removal of public safety threats.

Although the process for implementing the June 17 memorandum will focus the Administration’s immigration enforcement efforts on high priority cases, it will not provide categorical relief for any group. Thus, this process will not alleviate the need for passage of the DREAM Act or for larger reforms to our immigration laws. President Obama has called the DREAM Act the right thing to do for the young people it would affect, and the right thing to do for the country. Last December, I joined the President and several members of his Cabinet in urging the Congress to pass this important legislation. Earlier this year I was fortunate to be able to testify in favor of the Act. I continue to urge the 112^th Congress to pass the DREAM Act as well as other necessary immigration reforms.

Thank you again for your letter. My office would be pleased to provide you with a briefing to discuss this process in greater detail. Identical responses have been sent to the Senators that co-signed your letter. Should you wish additional assistance, please do not hesitate to contact me at (202) 282-8203.

Yours very truly,

Janet Napolitano

Enclosure

Background: Implementing an Effective Immigration Enforcement Strategy

The Department of Homeland Security (DHS) is focused on smart and effective enforcement of U.S. immigration laws in a manner that best promotes public safety, border security, and the integrity of the immigration system. U.S. Immigration and Customs Enforcement (ICE) has made a number of improvements to better advance its efforts to focus ICE’s resources on the removal of individuals who fit within their highest priorities, such as those who pose a threat to public safety or who have flagrantly violated the nation’s immigration laws, and to do so in a way that respects civil rights and civil liberties.

___________________________________________________________________________________

• In June 2010, ICE Director John Morton issued a Memorandum entitled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” articulating ICE’s commitment to prioritizing the use of its enforcement personnel, detention space, and removal resources to ensure that the removals conducted by the agency promote national security, public safety, and border security—with the removal of aliens who pose a danger to national security or a risk to public safety constituting the highest enforcement priority.
• In August 2010, ICE issued a Memorandum entitled “Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions”—outlining a framework for ICE to request expedited adjudication of an application or petition (I-130) for an alien in removal proceedings that is pending before U.S. Citizenship and Immigration Services (USCIS) if the approval of such an application or petition would provide an immediate basis for relief for the alien.
• On June 17, 2011, ICE Director Morton issued a new memorandum that provides guidance for ICE law enforcement personnel and attorneys regarding their authority to exercise prosecutorial discretion when appropriate – authority designed to help ICE better focus on meeting the priorities of both the agency and the Secure Communities program to use limited resources to target criminals and those that put public safety at risk. This memorandum also directs the exercise of prosecutorial discretion where appropriate to ensure greater consistency in the treatment of individuals who do not fit within ICE’s enforcement priorities. Finally, it clarifies that the exercise of discretion is inappropriate in cases involving threats to public safety, national security and other agency priorities.
• On June 17, 2011, ICE announced key improvements to the Secure Communities program. Secure Communities has proven to be a critical tool for carrying out ICE’s enforcement priorities. To continue to improve the program, DHS and ICE are committed to addressing concerns that have been raised about its operation, including the following reforms:

 Advisory Task Force: ICE created a new advisory task force that will advise on ways to improve Secure Communities, including making recommendations on how to best focus on individuals who pose a true public safety or national security threat. This panel is composed of chiefs of police, sheriffs, ICE agents from the field, immigration advocates, and leading academics. The report of this advisory group will provide recommendations on how ICE can adjust the Secure Communities program to mitigate potential impacts on community policing practices and better effectuate ICE priorities. Currently, the Task Force is conducting field hearings to obtain feedback from communities across the country. DHS anticipates that their report will be issued in early September. For a full list of committee members, visit: http://www.dhs.gov/files/committees/task-force-on-secure-communities-membership.shtm

 Training for States: ICE and the DHS Office for Civil Rights and Civil Liberties (CRCL) developed new training programs for state and local law enforcement agencies to provide more information about how Secure Communities works and how it relates to civil rights and aliens’ rights in the criminal justice system. The first set of training materials can be accessed here.

 Protecting Victims & Witnesses of Crimes: At the direction of Secretary of Homeland Security Janet Napolitano, ICE, in consultation with CRCL, developed a new policy specifically to protect victims of domestic violence and other crimes and to ensure that these crimes continue to be reported and prosecuted. This policy directs all ICE officers and attorneys to exercise appropriate discretion to ensure that immediate victims of and witnesses to crimes are not penalized by removal. ICE is also working to develop additional tools that will help identify people who may be victims, witnesses, or members of a vulnerable class so officers can exercise appropriate discretion.

 Detainer Form: ICE revised the detainer form that it sends to local jurisdictions to request that an alien be held for ICE to interview, to emphasize the longstanding guidance that state and local authorities are not to detain an individual for more than 48 hours (excluding weekends and holidays). Once implemented (likely in September 2011) the form will also require local law enforcement to provide arrestees with a copy, which includes an explanation of how to make a complaint in six languages and a number to call if the arrestee believes his or her civil rights have been violated in a manner connected to immigration enforcement.

 Civil Rights Complaints: ICE and CRCL created a new complaint system whereby individuals or organizations who believe civil rights violations connected to Secure Communities have occurred can file a complaint. For example, CRCL will investigate complaints of racial or ethnic discrimination by policing jurisdictions for which Secure Communities has been activated, and DHS will take steps to ensure that bias or other abuses do not affect immigration enforcement.

 Data Collection and Monitoring: ICE and CRCL created an ongoing quarterly statistical review of the program to examine data for each jurisdiction where Secure Communities is activated to identify effectiveness and any indications of potentially improper use of the program. Statistical outliers in local jurisdictions will be subject to an in-depth analysis, and DHS and ICE will take appropriate steps to resolve any issues.

• On August 18, 2011, DHS unveiled a new interagency process to ensure that resources are focused on the Administration’s highest enforcement priorities. As part of this process, an interagency team of DHS and Department of Justice (DOJ) officers and attorneys, including representatives from throughout DHS and from the Executive Office for Immigration Review (EOIR) and the Office of Immigration Litigation at DOJ, will identify low-priority removal cases that should be considered for an exercise of discretion. This review will be conducted on a case-by-case basis and will consider cases that are at the various stages of enforcement proceedings, including charging, hearing, and after a final order of removal. The interagency working group will also issue guidance to prevent low priority cases from entering the system on a case-by-case basis. Resources that are saved as a result of this process will be used to accelerate the removal of high priority cases.

Post Date: August 18th, 2011 Filed under: AzulaySeiden Attorney's Blog, Comprehensive Reform, Immigrant Rights, Immigration Policy, Ira Azulay, Politics by Ira Azulay, CEO No Comments »

I am sitting at the Homeland Security Advisory Council Task Force on Secure Communities Meeting in Chicago. Its time to end this overbroad, ineffectual, unauthorized program. It is a shame that victims are afraid to call the police. People have been stopped for small traffic offenses and then even with relief, are forced to leave. Resources are misused.

I don’t understand how ICE and the administration can continue to support a program that makes no sense. We need to stand up and be heard.

Seeing undocumented youth stand up and walk out makes me proud. We need action and reform now!

Post Date: August 17th, 2011 Filed under: AzulaySeiden Attorney's Blog, Comprehensive Reform, Editorials, Immigrant Rights, Immigration Policy, Ira Azulay by Ira Azulay, CEO No Comments »

I am very excited to have just received the 2011 Sloan Award for Workplace Flexibility on behalf of AzulaySeiden. Ron Magers presented us and 21 other companies with awards based on a rigorous two-step process, that includes surveying the employees.

Congratulations to everyone at AzulaySeiden.

Post Date: August 10th, 2011 Filed under: AzulaySeiden Attorney's Blog, Ira Azulay by Ira Azulay, CEO No Comments »

Just got back from meeting with the White House Staff, members of the House and the Senate and their staff. The mood is extra confrontational. Some think immigration has a chance. Others think its way too polarizing. Some say only after the border is secure. Still others think they are actually doing a lot.

My take away is that we need to keep the pressure on. It still makes sense to both parties. It still makes moral, economic, logic and emotional sense.

I know I will be rebuilding coalitions to work towards immigration reform. Only by working together can we succeed. I will still be looking for a lot more from the administration and our elected officials.

The time is now.

Post Date: July 30th, 2011 Filed under: Editorials, Ira Azulay, Politics by Ira Azulay, CEO No Comments »

AzulaySeiden Law Group is an experienced leader in US immigration law, committed to providing quality solutions and reliable multi-lingual service for businesses and individuals, with offices in Phoenix, Chicago (and two other locations in Illinois), Milwaukee, Tampa, Manila, Philippines; and Belgrade, Serbia. Our firm handles any matter related to immigration law including visa petitions, green card services, consular assistance, naturalization proceedings, deportation proceedings, immigration representation in all US Courts, and appellate work. We also counsel clients in areas that may impact their immigration circumstances, such as commercial litigation, criminal law and family law. Our experience in this practice involving all of the many interrelated areas of immigration laws, practices and procedures has convinced us that immigration related legislation has historically been and should remain an area of exclusive federal jurisdiction, and that State laws in this area are not only costly and counterproductive, but unconstitutional as well.

Over the past five years, the volume of state-passed immigration related legislation has mushroomed, and last year, 46 states and the District of Columbia passed a total of 208 immigration related bills. The trend appears to be continuing this year, but there has been increased evidence of (primarily cost-based) reticence as well on the part of several states. The federal government has often and legitimately sought assistance from the states in the enforcement of federal immigration laws as a sort of “force multiplier”, but Arizona has gone far beyond the federal mandate, and has sought to make certain violations of federal law (as well as many acts that don’t violate federal law in any way) into violations of State of Arizona law, punishable by the State as criminal violations subjecting violators to incarceration in the States largely privatized for-profit prison system.

The State of Arizona is already experiencing the largest structural deficit of any state in the nation, yet the State Legislature and the Governor continue to dig the hole deeper with the introduction of SB 1611 and SB 1405, enlisting teachers, school administrators, “first responders”, doctors and hospitals in your nativist crusade against inevitable demographic windmills. While the State has raised $3.7 Million to defend SB 1070, the bills are not yet tabulated for the 9th Circuit appeals or for the expected appeal to the Supreme Court. The money raised to defend SB 1070 does not come close to covering the cost of lost tax revenues and business activity from lost convention business, businesses leaving the State and a decline in the State’s population (the first decline in 50 years). Todd Landfried at the Hinckley Institute of Politics recently forecasted Arizona’s loss this year due to SB1070: $490 million in tourism revenue, including $141 million in lost spending due to cancelled conferences,” as well as 3,000 tourism jobs. He also pointed out that some manufacturing jobs are moving operations to Texas.

State Senator, Russell Pearce, has stated, “ We’re going to enforce our laws without apology”, but that statement is premised on the acceptance of the wisdom (and Constitutional legality) of the State promulgating its own immigration legislation, and whether the Federal Government has, in fact, left an enforcement void that the states must fill. The parade of draconian nativist legislative proposals coming out of the Arizona legislature is premised, not on facts, but on fear mongering and on the dual fallacies that the Federal government is failing to secure the border with Mexico and that cities in Arizona along the border with Mexico are suffering out of control violence due to Federal Government’s inaction.

Dealing first with the second fallacy, the major border cities in America are among the safest in the country. It is certainly the case that Mexican border cities are incredibly violent. There were 3,000 homicides in 2010 just across the border from El Paso in Ciudad Juárez. During a 72 hour period between Thursday, February 17th and Saturday, February 19th, 53 persons were killed in CDJ; 4 of them law enforcement officers from 3 different agencies. Just this weekend, two ICE officers were killed, and Mexican authorities have arrested six members of the Zetas drug cartel in those murders. But that violence is not seeping across the border into the United States. According to FBI statistics, there were only five homicides in El Paso in 2010. A city of roughly 620,000, El Paso has about 150,000 more residents than Sacramento. Yet last year, there were 33 homicides in Sacramento. In fact, some of the strongest opponents of SB 1070 and its progeny are members of border area police and sheriff’s offices who firmly believe that these state laws make their jobs more difficult and lead to more unsolved crimes.

The second premise of Federal inaction and “failure to secure the border” is equally fallacious. DHS has cited numerous statistics showing that the influx of undocumented immigration from across the Southern border into Arizona has steadily declined for the past several years (now at its lowest point since 1972) as Federal Resources allocated for border security and control and for elimination of the “jobs magnet” have increased. President Obama wants to hire and train 1,000 new Border Patrol officers; a 5% increase over the current number of Border Patrol Officers (22,800). The 5% increase would be significant, but the number of Border Patrol Officers has already doubled since 2004, and that doubling was after the increased hiring in response to the attacks on the U.S. on 9/11/2001. The President’s emergency funding will also be used to hire 160 more ICE (Immigration and Customs Enforcement) officers, additional Border Patrol canine teams, and to acquire two additional Predator B “UAVs” (unmanned aerial vehicles or “drones”) to deploy along the Southwestern border (already protected by 4 of the 5 current border watching drones, with the fifth drone currently patrolling the US/Canadian border). The Border Patrol’s budget has grown from $1 billion in the 2000 fiscal year to a requested $3.58 billion for 2011, according to the Congressional Research Service. The combined budgets of two agencies – Customs and Border Protection and Immigration and Customs Enforcement – total about $17 billion after steady increases in funding in recent years. Some of the new funding would be used to assist the Government of Mexico with DNA and forensic analysis in a combined effort to combat violence linked to money laundering, cross-border human trafficking and drug trafficking and for border fence repairs and infrastructure. This would all be in addition to the 1,200 additional National Guard troops already requested to assist the Border Patrol and the existing physical fences and barriers and the “SBInet” border security network of computer-linked cameras, sensors, and other high technology gizmos. Some additional border security measures that have taken in recent years and are currently being implemented:

- The U.S. has erected about 510 miles of fences and vehicle barriers on the nearly 2,000-mile southern border since 2006, adding to about 137 existing miles of fences and barriers built in previous years.
- Americans returning from Mexico and Canada now must show passports to cross the border and enter the U.S., under rules that took effect last summer.
- President Obama’s administration has moved immigration investigators to the border and has begun inspecting southbound train cargo to help stem cash and weapons flowing to Mexican drug cartels.
- DHS is working with the Department of Justice (DOJ) to create a new system that will fully link the information systems of all state, local and tribal law enforcement entities operating along the Southwest border with those of DHS and DOJ. DHS is strengthening the analytic capability of fusion centers across the Southwest border to receive and share threat information, improving their ability to identify and mitigate emerging threats.

- DHS is establishing a suspicious activities reporting program for the Southwest border. This will help local officers recognize and track incidents related to criminal activity by drug traffickers and utilize this information for targeted law enforcement operations on both sides of the border.

- DHS and the Office of National Drug Control Policy (ONDCP) are partnering to develop and implement Project Roadrunner, an integrated license plate reader recognition (LPR) system. Project Roadrunner was conceived to target both north- and southbound drug trafficking and associated illegal activity along the Southwest border. Under this partnership, ONDCP will provide DHS with previously-purchased fixed and mobile cameras—expanding DHS’ existing capabilities. This effort is ongoing and will expand as legal and logistical issues are resolved.

- Immigration and Customs Enforcement (ICE) is expanding the Joint Criminal Alien Removal Task Forces by nine officers forming two additional teams. These task forces are comprised of ICE officers and local law enforcement agents who work together to identify and arrest convicted criminal aliens in our communities. ICE is deploying 40 officers to work with state and local jails that are within 100 miles of the Southwest border to ensure the identification of all removable convicted criminal aliens detained in those jails who, if released, would pose a danger to public safety.

- DHS has doubled the number of personnel assigned to Southwest Border Enforcement Security Task Forces; tripled the number of ICE intelligence analysts working along the U.S.-Mexico border; quadrupled deployments of Border Liaison Officers; and begun screening 100 percent of southbound rail shipments for illegal weapons, drugs and cash—for the first time ever.

- The federal government has worked closely with state and local law enforcement along the border—leveraging the resources and capabilities of over 50 law enforcement agencies to crack down on transnational criminal organizations. DHS has increased the funds state and local law enforcement can use to combat border-related crime through Operation Stonegarden—a Department of Homeland Security funded grant program designed to enhance border security by developing multilateral enforcement efforts between the U.S. Border Patrol and state, local, and tribal law enforcement agencies. Based on risk, cross-border traffic and border-related threat intelligence, nearly 84 percent of 2009 Operation Stonegarden funds went to Southwest border states.

With more than 10 border guards for every mile of Southwestern border (this does not include National Guard troops), overall Border Patrol apprehensions of undocumented immigrants decreased from over 723,800 in fiscal year 2008 to over 556,000 in fiscal year 2009, a 23 percent reduction, indicating that fewer people are attempting to illegally cross the border. From 2004-2009, the number of Border Patrol apprehensions along the Southwest border has decreased by 53 percent. Seizures of contraband rose significantly across the board last year compared to the year before: illegal bulk cash seizures rose 14 percent; illegal weapons seizures rose 29 percent; and illegal drugs seizures rose 15 percent. In 2010, ICE removed more than 117,000 aliens convicted of crimes—a 37 percent increase as compared to last year. The Obama administration is setting deportation/removal records. 392,000 undocumented immigrants were deported in 2010, though only about half that number had any criminal record whatsoever, and most of those removed with criminal records were convicted of very minor offenses and traffic violations. In FY1994, 81,000 persons were held in detention facilities for immigration enforcement purposes. By the start of FY 2011, ICE was expecting the number of immigration detainees to rise to 430,000—more than five times the 1994 number. In fiscal year 2009, ICE conducted more than 1,400 I-9 audits of employers suspected of hiring illegal labor—triple the number of audits conducted in fiscal year 2008. The federal government is expanding its inquiry into 1,000 businesses suspected of employing people who are undocumented. This is the largest such audit of employers since a similar operation in 2009. Then, public safety and national security businesses were targeted. Since January of 2009, employers from 3,580 companies have had their employees’ I-9 forms examined against Social Security Administration, State Department and Homeland Security databases to verify worker eligibility. Those investigations led to $54 million in fines.

Border security might also be enhanced by expeditiously passing comprehensive immigration reform (“CIR”) legislation that would compel undocumented immigrants to come forward, submit to thorough background checks, comply with tax laws and other rules and requirements in exchange for admission into a program or process for legalizing their status. Passing CIR that would include provisions for additional visas for permanent and temporary employment as well as additional enforcement of employment eligibility enforcement actions against employers who willfully violate the law would provide for a more stable and legal workforce, safer working conditions, reduced undocumented immigration, and would enable the U.S. to make more efficient use of federal, state and local law enforcement assets. Some people are using fear tactics and unsupported assertions concerning the situation at the Southwest border as a phantom menace to shut down any forward movement on CIR.

After nearly ten years of significant and largely effective efforts to “secure the border first”, the hallelujah chorus continues its doleful reprise unabated. These folks will never be satisfied, and many of them acknowledge that their stated goal of a completely impermeable border is all but impossible to achieve. Susan Ginsburg, senior policy adviser for an international nonprofit known as Borderpol, which works to make international borders safer, said it is a mistake to require absolute “iron curtain” border control as a prerequisite for changing U.S. policies because the existing system created a broken border in the first place. Those clamoring to “secure the border first” know that an iron curtain border is a goal that will never be reached, and are using this demand and fear mongering to stave off any rational discussion of CIR. The border will never be secure enough to suit them. This is not a case of the restrictionist crowd “moving the goal posts” because there are no goal posts. By criminalizing and dehumanizing immigrants, equating immigrants with terrorists and drug smugglers, expanding the laundry list of deportable offenses to retroactively include relatively minor offenses, demanding some sort of punishment before legalization of status could even be contemplated, and demanding that the government “secure the borders” before any immigration benefits legislation may be discussed, makes it unlikely that any benefits legislation will ever be passed. The reality is that immigration is essential to future U.S. competitiveness and prosperity, and to achieve these objectives, honest politicians must look at more than more troops and higher walls on the border. We can’t deport our way to prosperity.

Post Date: February 25th, 2011 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

Section 287(g) of the Immigration and Nationality Act (INA) was made law in the United States in 1995 as a result of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Section 287(g) authorizes the Federal Government to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers. Under 287(g), ICE provides state and local law enforcement with the training and subsequent authorization to identify, process, and when appropriate, detain immigration offenders they encounter during their regular, daily law-enforcement activity.
In response to numerous complaints alleging racial profiling, harassment of low-level offenders, and improperly trained local law enforcement “partners”, the Office of the Inspector General (OIG) conducted a review of the 287(g) delegation of authority program during the period, February 2009 through July 2009, and published its findings in March 2010. In mid-July 2009, after the OIG review, but before their report was issued, ICE asked all of its partnering agencies to sign revised memorandums of agreement that improved oversight, management and communication of the program. ICE claims that they have entered into 72 agreements in 26 states, and have trained more than 1,100 local law enforcement officers (there are no MOAs shown for any Illinois law enforcement agencies).
In February of 2011, the Migration Policy Institute (“MPI”) released a new study on ICE’s 287(g) program , Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement . The study, which assesses the implementation, enforcement outcomes, costs, community impacts of the program generally, and provides an in-depth study in seven jurisdictions, found that 287(g) program is not living up to its promise. In fact, the study finds that ICE’s allows jurisdictions to “operate the 287(g) program in fundamentally different ways across the country.” Among the many issues analyzed in the report, MPI questioned whether local police are using the 287(g) program to prioritize serious criminals who pose a threat to the community or whether they are using the program to remove as many undocumented immigrants as possible. Not surprisingly, MPI found that nationally, the program is not targeted toward serious offenders. Only about half of the program activity involves people who have committed felonies or other serious crimes (Levels 1 and 2). The other half is people who committed misdemeanors or traffic offenses. At the local level, some jurisdictions’ programs are highly “targeted” toward serious offenders, but others are “universal”—designed to identify and deport as many undocumented immigrants as possible. Considering that minor traffic violations can result in arrest and deportation, these universal models result in fear, distrust of police, the avoidance of public spaces and changed driving patterns among immigrant communities.
Secure Communities
“Secure Communities” is a DHS program designed to identify immigrants in U.S. jails who are deportable under immigration law. Under Secure Communities, participating jails submit arrestees’ fingerprints not only to criminal databases, but to immigration databases as well; allowing ICE access to information on individuals held in jails. Unlike other ICE-local partnerships, Secure Communities gives ICE a technological, not physical, presence in prisons and jails. No Memoranda of Agreement (MOAs) with local law-enforcement agencies are required, and no local law-enforcement agents are deputized to enforce immigration laws through Secure Communities. As of February 8, 2011, Secure Communities is available in 1,030 jurisdictions in 38 states. ICE plans to have a Secure Communities presence in every state by the end of 2011, and plans to implement Secure Communities in each of the 3,100 state and local jails across the country by 2013.
When an individual is booked into a jail, his or her fingerprints are checked against the U.S. Visitor and Immigrant Status Indicator Technology Program (US-VISIT), and the Automated Biometric Identification System (IDENT), in addition to the other databases that are generally checked following an arrest. This fingerprint check allows state and local law enforcement and ICE automatically and immediately to search the databases for an individual’s criminal and immigration history. If there is a database “hit,” meaning that the arrested person is matched to a record indicating an immigration violation, ICE and the local law-enforcement authorities are automatically notified. ICE then evaluates each case to determine the individual’s immigration status and take appropriate enforcement action. In most cases, ICE will issue a detainer against the jailed individual. A detainer is a request from ICE to the arresting agency to notify ICE before it releases the noncitizen so that ICE has the opportunity to decide whether the individual should be transferred to federal custody rather than released. ICE reported that as of September 30, 2010, 4,204,862 fingerprint submissions resulted in 343,829 database matches. As a result of Secure Communities, ICE had removed 64,072 persons. ICE claims to base action on an individual hit on the following priority order:
• Level 1 offenders: aliens convicted of “aggravated felonies,” as defined in section 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as “felonies.”
• Level 2 offenders: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly referred to as “misdemeanors;” and
• Level 3 offenders: aliens convicted of crimes punishable by less than one year.
ICE has stated that Secure Communities is focused on dangerous “Level 1” criminals, but there is concern about whether or not such prioritization is taking place. In Fiscal Year 2010 (October 1, 2009 – September 30, 2010) there were more than 248,000 database hits, compared to 95,000 in FY2009. Fifteen percent of all database matches identified immigrants charged or convicted of a Level 1 offense, and 85% were charged or convicted of a Level 2 or 3 offense.
Launched in 2008, and hailed by the Obama administration as a way to weed out bad elements among the country’s estimated 11 million illegal immigrants (a figure of 11.2 million that has remained unchanged, according to a recent study, despite record numbers of removals this past year at a rate of more than 1,000 per day), the Secure Communities voluntary program has been adopted by local law enforcement agencies in 38 states so far and has led to the removal of more than 51,000 people. In Illinois, the program exists in at least 26 counties, including Lake, DuPage, Will, Kane and McHenry. The Chicago City Council has recently passed a resolution asking ICE to stop deporting people in “mixed status” families (families where some members have legal US resident or citizen status.)
A spokeswoman for U.S. Immigration and Customs Enforcement, which handles deportations, defended the program and said Thursday that more recent data indicates that about 44 percent of those handed over to the feds through the Secure Communities program lack a criminal record. More than three-quarters of the roughly 630 illegal immigrants in Illinois turned over to federal authorities under a program targeting hardened criminals had no prior criminal convictions.
According to the data in a recent report, the Secure Communities program has been in the business of rounding up a majority of non-criminal immigrants; a whopping 79 percent of those deported under Secure Communities have no criminal records “or had been picked up for low-level offenses, like traffic violations and juvenile mischief.” The report — based on data on the program obtained via the Freedom of Information Act — was released this month by the Benjamin N. Cardozo School of Law, the Center for Constitutional Rights, and the National Day Laborer Organizing Network.
Some of the other concerns voiced in connection with the Secure Communities program include:
Obstacles to community policing. Unlike the 287(g) program, Secure Communities does not require an MOA between ICE and the local jail, sheriff, or police department. Nonetheless, there are still concerns about local police being seen as immigration agents. If ICE maintains a presence—even a technological presence—in a local jail, the public will likely associate the local law-enforcement agency with immigration enforcement. There are realistic concerns that undocumented aliens will not report crimes, cooperate with law enforcement authorities, or even stick around after traffic accidents if they feel that they will be caught up in an anti-immigrant dragnet and their cooperation may result in a turnover to ICE.
Unnecessary or Prolonged Detention. The existence of a Secure Community detainer may limit an individual’s ability to access a lawyer, fight criminal charges, or get out of jail on bail.
Profiling and pretextual (“trumped-up”) arrests. While Secure Communities is a technological identification program through which all persons arrested are fingerprinted and checked against the various databases, there is a concern that police officers working in areas that have Secure Communities in their local jails may have an incentive, or at least the ability, to make arrests based on race or ethnicity, or to make pretextual arrests of persons they suspect to be in violation of immigration laws, in order to have them run through immigration databases once they are jailed. These programs facilitate and encourage racial profiling by local police, who know that a pretextual arrest will often lead to deportation and never be reviewed by any criminal court. Rather than making communities safer, the programs decrease overall public safety by discouraging victims and witnesses from reporting crimes. Despite their protestations, ICE has come to rely on racial profiling by local police to meet deportation numbers. Whether through (alleged) formal quotas or informal pressure, the policy priority to deport more people is clear from the actual results.
Lack of complaint mechanisms. Given the wide range of concerns about Secure Communities, it is essential that there be a complaint or redress procedure for individuals who believe they have been erroneously identified by DHS databases or who believe a DHS detainer has been issued in error. Currently there is no clear complaint procedure for persons who believe they have been victims of an error.
Lack of Oversight and Transparency. Various reports have found that ICE has an uneven track record in terms of supervising its local partnerships. As with other programs (such as Section 287 (g) ICE/Local Law Enforcement Agency Partnerships), there are concerns about the level of oversight and transparency associated with Secure Communities.
Lack of Data. Much more data about Secure Communities and the individuals it identifies is necessary. Without accurate data, it is difficult, if not impossible, to determine how Secure Communities is being implemented or how effective it is. The Obama Administration has selected this “enforcement-first” approach to curry favor with Republican Congressional leadership, while publicly promoting a more comprehensive solution (without really working for same) to maintain some support from moderates and independents, and counting on support from their “base” who have nowhere else to go.

Post Date: February 10th, 2011 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

ICE Enforcement Policies and Initiatives: Increased I-9 Audits and E-Verify Employment Authorization Checks
Targeting employers is part of an effort by the Obama Administration to thwart illegal immigration by reducing the demand for illegal jobs. Under Obama, cases against employers are up sharply: Immigration and Customs Enforcement quadrupled the number of employer audits after Obama took office, increasing the number of inspections and arrests against those who knowingly hire illegal immigrants. Businesses were fined $6.9 million in fiscal 2010, up 1,000% from $675,000 in 2008. In the fiscal year that ended Sept. 30, 2010, ICE conducted I-9 audits (“silent raids”) of more than 2,740 companies, mostly small to medium sized businesses, nearly twice as many as the previous year. ICE is now gearing up to go after much larger companies. In January 2011, USCIS issued a new M-274 “The Handbook for Employers”. This 69 page handbook is the most recent set of I-9 guidelines for employers, and it answers many of the more frequently asked questions about compliance with I-9 employment verification attestation and recordkeeping requirements, and the use/maintenance of electronic I-9 database and recordkeeping systems. Most ICE I-9 audits have been conducted at small and medium sized businesses, and ICE has found many of these businesses to be “ripe for picking”, in that I-9 completion and data maintenance has often been viewed by small businesses as just a routine completion of a one page form as a part of the hiring process, with no expectation of government oversight or sanction.
One small Subway restaurant in North Carolina has recently learned that ICE takes the I-9 requirements very seriously. The restaurant had neglected its I-9 responsibilities for several years, and when they were hit with a Notice of Inspection (“NOI”) from ICE in January of 2009, requesting I-9s and supporting documents for all current and former employees between 2006 and 2009. Like many “fast food” businesses, this restaurant had a high turnover of employees, 108 (mostly former) employees for the time period in question. The business was able to produce only 11 forms I-9, and all of the forms produced were incorrectly completed or dated. ICE initially calculated their assessment of fines at $111,078 for this small business, but an Administrative Law Judge reduced the fine to $27,000; still quite a hefty penalty for a sandwich shop. The penalty was enhanced by the fact that the company had simply failed to fulfill their I-9 responsibilities for most current and past employees, and this was determined as bad faith on the part of the employer. Mitigating factors leading to a reduction of the assessment included the fact that the business in question was a small business and did not have the resources, training, or dedicated (to I-9 administration) personnel to handle the I-9 responsibilities. In determining the size of the business, at least one OCAHO (Office of the Chief Administrative Hearing Officer) judge has considered: (1) the business revenue or income; (2) the amount of payroll; (3) the number of salaried employees; (4) the nature of ownership; (5) the length of time in business; and (6) the nature and scope of business facilities.
The Judge determined that the troubled economy and high employee turnover should also be considered as mitigating factors.
The Obama administration plans to intensify a crackdown on employers of illegal immigrants with the establishment of an I-9 form audit office designed to bolster verification of company hiring records. In an interview, John Morton, chief of U.S. Immigration and Customs Enforcement, a unit of the Department of Homeland Security, said the Employment Compliance Inspection Center (“ECIC”) would “address a need to conduct audits even of the largest employers with a very large number of employees.” Mr. Morton said that the center would provide administrative support for regional ICE offices conducting large audits, and would be staffed with specialists who will pore over the I-9 employer/employee employment authorization attestation & supporting document files collected from companies targeted for audits. Mr. Morton said ICE was also seeking to expand a program enabling businesses to work with the federal government to ensure they are employing people authorized to work in the U.S. Called IMAGE, or ICE Mutual Agreement between Government and Employers, the “voluntary” program includes training and assessments to help a company guard against hiring illegal employees (It’s a lot easier to encourage employers to “voluntarily” participate in the “IMAGE” Program when you are auditing their operations and threatening them with ruinous fines and penalties.) Over the past four years, only 115 companies have enlisted in the ICE “IMAGE” Program, and only two of those companies are Fortune 500 companies. Most of the “IMAGE” participants are companies that have been audited and threatened by ICE. Among the requirements for participation in the “IMAGE” program is allowing an ICE I-9 audit and participation in the E-Verify Program; why would a business want to stick its head in the lion’s mouth? Knowing that there are, according to most estimates, 6 or 7 million undocumented immigrants in the U.S. workforce, why would any company not already under pressure from ICE choose to let that agency go mucking about its payroll and I-9 records? Inviting ICE to look at all I-9 records and accept sanctions imposed by ICE would likely bring on a deluge of shareholder lawsuits charging company officials with a breach of fiduciary duty. ICE’s new ECIC debuted at the end of January in Crystal City, VA. It will start with an initial crew of “15 auditors who will support ICE’s worksite enforcement strategy by helping agency field offices around the country expedite Form I-9 audits of businesses selected for inspection by ICE.” Ramped-up deployment of the new ECIC will likely bring the turmoil of significant involuntary employee terminations and business interruptions to large U.S. companies that ICE has been unable to achieve through the “voluntary” enrollment of larger companies in their “IMAGE” program.
E-Verify is an Internet-based system, on line since 1997, that allows an employer, using information reported on an employee’s Form I-9, Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States. For most employers, the use of E-Verify is voluntary and limited to determining the employment eligibility of new hires only. There is no charge to employers to use E-Verify. The E-Verify system is operated by the Department of Homeland Security in partnership with the Social Security Administration. More than 238,000 employers are enrolled in the program, with over 16 million queries run through the system in fiscal year 2010. There have been over 3 million cases run through the system in fiscal year 2011 (as of December 11, 2010). E-Verify is mandatory for some employers, such as those employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause and employers in certain states. The Government Accountability Office (GAO) recently released a report, Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain . The report notes that USCIS has reduced Tentative Nonconfirmations (TNCs or mismatches) from 8 percent during the time period June 2004 through March 2007 to almost 2.6 percent in fiscal year 2009 by expanding the number of databases queried through E-Verify (e.g., checking information on naturalized citizens), and instituting quality control procedures to screen for data entry errors.

Despite the reduction of TNCs as a whole, it appears that erroneous TNCs (i.e., when it later turns out that employee was in fact work authorized) are still far to prevalent, particularly when dealing with persons from certain cultural groups, persons with several or hyphenated last names, or names that can be translated in several ways from a different alphabet. The impact of erroneous name-related TNCs cannot be ignored. According to USCIS, of 22,512 TNCs resulting from name mismatches in fiscal year 2009, approximately 76 percent, or 17,098, were for citizens, and approximately 24 percent, or 5,414, were for noncitizens. Using USCIS’s and SSA’s estimates that about 60 million queries would be generated annually under E-Verify if the program were made mandatory for new hires nationwide, about 164,000 citizens and noncitizens would receive a name-related TNC each year. That’s a lot of trips to the SSA Office! This is not even counting what would happen if E-Verify were made mandatory for all employees nationwide and not just new hires, as has been required by some State laws (currently being challenged) and proposed on a national level by the new House Judiciary Committee leadership. Employees faced with an erroneous exclusion aren’t informed which federal database returned the mismatch–and, as a result, may need to initiate Privacy Act queries at several Homeland Security Department components, should they wish to contest the result. The Department of Homeland Security (“DHS”) treats Privacy Act requests like it does Freedom of Information Act requests: The response time during fiscal 2009 was about 104 days for each request, the report says. Unfortunately, the I-9/E-Verify System does not afford an employee more than a few weeks to resolve a “TNC,” so many likely work-authorized individuals are terminated by their employers because they are unable to determine why the system issued the TNC and obtain the documents needed to rebut the tentative finding. Department privacy officials told GAO auditors they’re discussing with senior e-Verify officials ways to provide employees with better access to relevant information, including notifying them which types of records e-Verify consulted.
Using the error rates reported in a DHS-funded study, approximately 32,800 workers were erroneously fired in Fiscal Year 2009 due to E-Verify. This number would conservatively grow to 617,148 workers in a mandatory system, and independent employers have reported much higher error rates from their own experience. With a national unemployment rate hovering at 9.5 percent, this is a risk we cannot afford.

USCIS is also in the process of implementing a new “self-check” system that would allow prospective employees to review the information in the system related to their authorization to work in the U.S., and to enter data into the system to ensure that the information in the system relating to their eligibility to work is correct, complete, and accurate.

Post Date: February 4th, 2011 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

President Obama on immigration in the State of the Union Address on January 25, 2011:
“One last point about education. Today, there are hundreds of thousands of students excelling in our schools who are not American citizens. Some are the children of undocumented workers, who had nothing to do with the actions of their parents. They grew up as Americans and pledge allegiance to our flag, and yet live every day with the threat of deportation. Others come here from abroad to study in our colleges and universities. But as soon as they obtain advanced degrees, we send them back home to compete against us. It makes no sense.

Now, I strongly believe that we should take on, once and for all, the issue of illegal immigration. I am prepared to work with Republicans and Democrats to protect our borders, enforce our laws and address the millions of undocumented workers who are now living in the shadows. I know that debate will be difficult and take time. But tonight, let’s agree to make that effort. And let’s stop expelling talented, responsible young people who can staff our research labs, start new businesses, and further enrich this nation.”

On January 27th, the White House Blog offered further details of the President’s “plans”:

“The American people expect Democrats and Republicans to come together to tackle the major issues confronting our nation, and fixing our broken immigration system is critical to the economy, our global competiveness, and our national security.
The President’s Vision for Restoring Accountability & Responsibility to Our Immigration Laws
The President has outlined a vision for fixing the broken immigration system through common sense, comprehensive immigration reform grounded in the principles of responsibility and accountability:
• Continue to make border security the responsibility and priority of the Federal Government: Today, we are doing more to secure our borders than at any time in the past several decades. However, the Administration continues to refine and strengthen its strategy. Enforcement resources should be targeted, increased where appropriate, and focused on stopping potential terrorists and others who would do our nation harm.
• Secure our borders: This Administration has dedicated record levels of resources to border security, including enforcement personnel and technology. President Obama supports investing strategic resources to further secure our borders.
• Hold accountable businesses that break the law by exploiting undocumented laborers and undermining American workers: This Administration will build on its current efforts to crack down on employers that deliberately hire and exploit undocumented workers. At the same time, the President believes we must make it easier for the vast majority of employers who want to play by the rules to verify their workers are here legally. Employers who break the law by deliberately hiring and exploiting undocumented workers undermine the American workforce and must be held accountable. At the same time, we must
give employers who want to play by the rules a reliable way to verify that their employees are here legally and eligible to work.
• Demand responsibility from those living in the United States illegally: Immigrants who are here illegally must take responsibility for their actions. To get on the right side of the law, they must own up to their illegal actions by paying taxes and an additional penalty, and learn English. Those people living here illegally must also be held accountable for getting on the right side of the law. To do this, they will have to admit they broke the law, pay taxes and a penalty, and learn English before they can get in line to obtain legal status and eventual citizenship. Being a citizen of this country comes not only with rights, but also with fundamental responsibilities. We can create a pathway for legal status that is fair, and reflects reflective of our values.
• Strengthen economic competiveness by creating a legal immigration system that meets our diverse needs: We must create a legal immigration system that meets our diverse economic needs and honors our rich tradition as both a nation of entrepreneurial immigrants and a nation of laws. Our immigration laws should encourage and attract high-skilled individuals from all over the world. We must stop expelling talented and responsible young people, whether they were brought here by their parents as children, or come from other countries to pursue advanced degrees. We must also provide farmers a legal way to hire the workers they rely on, and respect families following the rules.
Building on Progress
The President takes his responsibility to enforce our immigration laws and secure the border seriously. Over the last two years, the Obama Administration has dedicated unprecedented resources to secure the border, taken important steps to make interior and worksite enforcement of our immigration laws smarter and more effective, and made improvements to the legal immigration system:
• Dedicating unprecedented resources to secure the border: Today, there are more “boots on the ground” along the Southwest Border than ever before. The Department of Homeland Security (DHS) has also deployed thousands of technology assets, including aircraft and Unmanned Aircraft Systems, and completed nearly all fencing. Last year, Congress answered the President’s call to bolster the Federal Government’s efforts through the Southwest Border Security Supplemental Bill. DHS is using these resources to build on their successful efforts to decrease the numbers of illegal aliens who cross the border and increase seizures of illegal currency, drugs, and guns that have led to thousands of criminal arrests and prosecutions.
• Making our interior and worksite enforcement efforts smarter and more strategic: The Administration has laid out new enforcement strategies targeted at removing immigrants convicted of serious crimes and unscrupulous employers who seek to exploit both immigrant and American workers. These new strategies have had real results including a 70 percent increase in deportations of criminal immigrants and, in FY 2010 more audits conducted and fines levied against employers who violated immigration laws than in any year by any previous Administration. DHS has also invested in implementing important reforms to the detention system, enhancing its security and efficiency while prioritizing the health and safety of detainees.
• Improving our Legal Immigration System: The Administration is improving processing times and clearing backlogs of pending immigration applications, including fully eliminating the FBI National Name Check Program’s backlog. DHS is also working to ensure that naturalization is accessible to all qualified legal immigrants. Since January 2009, DHS has worked with the Armed Forces to naturalize nearly 20,000 military personnel. DHS is also devoting critical funding to promote innovative citizenship preparation and integration programs in communities throughout the country.”
And the response from the newly appointed chairs of the House Judiciary Committee?
Republicans say they’ll use their new majority in the House to press for more aggressive enforcement without any path to legal status. Republican lawmakers called on the Obama administration to return to the era of workplace raids to arrest illegal employees, an approach that contrasts sharply with the president’s continued push to create a path to citizenship for “responsible young people” and deport only those illegal immigrants charged with serious crimes. Deportations under Obama have reached new heights for two years running, statistics show, but Republicans said they would use their new majority in the House to press for more aggressive enforcement without any path to legal status.
Though workplace raids are high-profile and often receive media attention, they also are criticized as an expensive and unnecessarily traumatic approach to attacking the problem. Some of the large-scale raids launched in 2007 and 2008 cost taxpayers upward of $10 million, said one former law enforcement official who spoke on the condition of anonymity because of the sensitivity of the debate. Broad sweeps fill limited jail and court docket space the Obama Administration wants to reserve for more hardened criminals, officials said. Each deportation costs the federal government about $12,500, Immigration and Customs Enforcement Deputy Director Kumar Kibble told lawmakers. Instead, targeting employers is part of an effort by the Obama Administration to thwart illegal immigration by reducing the demand for illegal jobs. Under Obama, cases against employers are up sharply: Immigration and Customs Enforcement quadrupled the number of employer audits after Obama took office, increasing the number of inspections and arrests against those who knowingly hire illegal immigrants. Businesses were fined $6.9 million in fiscal 2010, up from $675,000 in 2008.

Post Date: January 28th, 2011 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

The difference between what we were promised on “CIR” (Comprehensive Immigration Reform) by Candidate Obama in 2008 and what we actually received from the Administration of President Obama and a Congress with a Democratic Party majority in both Houses is a difference between night and day. What policies were implemented by the Obama Administration, and how did the implementation of those policies promote or impede political progress on CIR? What are the prospects for reform under a divided Congress in 2011? Over the past almost 35 years that I’ve been in this practice, I’ve seen Democrats and Republicans come together on several occasions to pass some very good as well as a lot of very bad immigration legislation. Why couldn’t they get together enough to pass a limited provision like the DREAMAct, even during an otherwise productive “lame-duck” session of Congress?
During the 2008 campaign, Candidate Obama promised secure borders, a crackdown on employers who hire undocumented workers, and CIR. In May of 2008, Candidate Obama said, “ I cannot guarantee that it is going to be in the first 100 days. But what I can guarantee is that we will have in the first year an immigration bill that I strongly support and that I’m promoting. And I want to move that forward as quickly as possible.” He pretty much delivered on the first two promises, but why wasn’t he able to deliver on CIR?
President Obama took seriously his role as Deporter-in-Chief, setting new removal records (nearly 400,000 removals in 2010) that far surpassed any numbers chalked up during the Bush Administration. He signed into law Public Law 111-230 “making emergency supplemental appropriations for border security for the fiscal year ending September 30, 2010, and for other purposes.” While eschewing large scale workplace raids (a hallmark of the previous Administration), the Obama Administration has expanded the use of I-9 audits (accompanied by tough administrative fines, penalties, and threats of criminal prosecution) of employers that lead to essentially the same results; family supporting wage earners losing their jobs.
The Obama Administration has gone along with the nativist “enforcement first” policies; clearly misunderstanding the true “enforcement only” agenda of its proponents. His efforts to appear reasonable and accommodating actually result in a self-defeating head-long rush into a policy trap set by his political opponents. President Obama has, perhaps unwittingly, appeared to accept the nativist framing or “narrative” of the political issues, making it more difficult to advance any policies that would eventually grant path to legal status for undocumented immigrants. The DREAMAct vote failed because all Republican Party Senators and 5 Democratic Party Senators voted against it, and one Democratic Senator attended a party instead.
For too many years, Democrats and some immigration advocates have been singing from the nativist “rule of law/criminalization” hymnal, hoping to attract more Republican votes by acting like Republicans. By criminalizing and dehumanizing immigrants, equating immigrants with terrorists and drug smugglers, expanding the laundry list of deportable offenses to retroactively include relatively minor offenses, demanding some sort of punishment before legalization of status could even be contemplated, and demanding that the government “secure the borders” before any immigration benefits legislation may be discussed, makes it unlikely that any benefits legislation will ever be passed. The current Democratic Party immigration reform strategy has been designed as an accommodating response to existing nativist public opinion that has been created and actively (and financially) supported by anti-immigration groups for more than 30 years. The Democrats in Congress must develop and advance a new and different narrative because the one they are using has been an abject failure, designed by for-profit political consultants for the benefit of their political interests, and not for the benefit of immigrant communities or the welfare of the United States. The narrative accepted by the Democrats in Congress ensures that Comprehensive Immigration Reform will never be enacted because voters will not allow “criminals” to reap a reward (unless they work on Wall Street), and the nativists will never acknowledge that the border has been secured to their satisfaction. By actively embracing a nativist narrative that speaks of immigration as a “problem” rather than a constructive element of the national identity of the United States, the Democrats in Congress have hamstrung their efforts to achieve Comprehensive Immigration Reform. The reality is that immigration is essential to future U.S. competitiveness and prosperity, and to achieve these objectives, honest politicians must look at more than more troops and higher walls on the border. We can’t deport our way to prosperity.
What are the Prospects for CIR in a Divided Congress in 2011?
There are a number of prominent Republicans who disagree with their party’s leadership on the political direction of the immigration debate. Unfortunately, those more reasonable voices have not been appointed by Republican leadership to positions of leadership on Congressional Committees dealing with immigration issues. Meet the new leaders of the House Committees and Sub-committees dealing with immigration issues:
• Rep. Lamar Smith (R-TX) is now the chair of the House Judiciary Committee, and he has declared that immigration will be a top priority for his Committee. Smith was the chair of the House Immigration Subcommittee in 1996 when Congress passed a series of laws that ramped up enforcement against both legal and undocumented immigrants—bills that collectively made the broken immigration system worse, not better. Despite following Smith’s enforcement-only strategy for nearly fifteen years, the number of undocumented immigrants in our country has continued to rise.
• Rep. Elton Gallegly (R-CA) is now the chair of the House Immigration Subcommittee, and he has launched a series of hearings on immigration enforcement at the beginning of the 112th Congress. Gallegly also has a long track record on immigration, and has focused much of his efforts on attacking children. For example, since the early 1990s Gallegly has sponsored legislation to deny U.S. citizenship to babies born in America based on who their parents are. In 1996, he famously pushed an amendment to deny undocumented children access to an education—the federal version of California’s Proposition 187.
• Rep. Steve King (R-IA) is now vice-chair of the House Immigration Subcommittee. He may have been passed over for the top spot because of his incendiary comments, such as his comparison of immigrants to livestock and suggestion that we install an electric fence at the border to keep them out. Still, Smith and Gallegly share King’s policy positions on immigration, and he will continue to play a key role in crafting their approach.
In one of his first acts of the year, Rep. Smith (R-TX) changed the name of the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law to the Subcommittee on Immigration Policy and Enforcement. The name change reflects the new priorities of the Committee—an enforcement-only approach with the goal of driving 11 million undocumented immigrants and their family members out of the country. Issues expected to receive attention in the 112th Congress include:
• Emphasis on Border and Interior Enforcement
• Mandatory Employment Verification
• Restrictions on State-Issued Identification Cards—the REAL ID Act
• State and Local Authority to Enforce Immigration Law
• Punitive Enforcement Approaches
• Limits on the Opportunity for a Fair Hearing and Due Process
• Attacks on the 14th Amendment against “anchor babies”
• Restrictions on Legal Immigration That Hurt Families
• Restrictions on Immigrants’ Access to Public Services and Benefits
• English-Only Proposals
While this appears to paint a very dismal picture for the prospects of CIR in 2011, there are a few countervailing voices of reason in the party who may be able to favorably influence the course of the political debate on immigration. Recently, a group of Republican leaders gathered at a Hispanic Leadership conference in Florida, co-chaired by former Florida Governor Jeb Bush and Former Bush Administration Commerce Secretary, Carlos Gutierrez. Bush told the gathering that, because of the growth of the Latino population nationwide (Hispanics are on track to make up 30% of the U.S. population by 2050), it would be “incredibly stupid” for the Republican Party to ignore or cede these votes. Former Representative Lincoln Diaz-Balart commented, “If we become perceived as an anti-immigrant party, America, being a country of immigrants, will never allow us to be the majority party.” It was not an encouraging sign that none of the invited Republican hopefuls for the 2012 presidential election, except for former Minnesota Governor, Tim Pawlenty, bothered to attend the conference.
In another promising development, on January 6, 2011, Representative Darrell Issa (R-CA), Chairman of the House Committee on Government Oversight and Reform, introduced H.R. 43, a bill which would “amend the Immigration and Nationality Act to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an advanced degree in the United States.” This bill would eliminate the annual green card lottery and give the 55,000 green cards each year to foreign-born graduates of U.S. universities with advanced degrees in the sciences or in medicine. The United States could certainly benefit from the skills and drive of such highly educated people, and proposals such as this may be able to garner bipartisan support.

Post Date: January 28th, 2011 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

You should never post anything about yourself online (Facebook, MySpace, etc) that you would not want your mother (or a USCIS Adjudications Officer) to see. The Electronic Frontier Foundation recently received some documents as a result of its Freedom of Information Act {“FOIA”) lawsuit on government surveillance of social networks. Among the documents received in response to their FOIA request were documents from the Department of Homeland Security (“DHS”) and USCIS pertaining to monitoring and collecting information from the internet. USCIS Service “is specifically instructing its agents to attempt to ‘friend’ green card petitioners and beneficiaries and citizenship applicants on social networks in the hope that these users will (perhaps inadvertently) allow agents to monitor their activities for evidence of suspected fraud, including evidence that their relationships might not live up to the USCIS’ standard of a legitimate marriage.”

The documents released raise some alarming questions about the nature and extent of government surveillance and internet monitoring activities, and how these activities may conflict with constitutional protections of privacy from government abuse. The DHS initially refused to respond to the FOIA request, but began releasing documents once The Electronic Frontier Foundation filed their court action. This initial release of documents is expected to be followed by many more documents that will provide a better understanding of how rules advancing privacy safeguards for the internet have failed to keep up with advances in technology, and how the government is exploiting this gap. Quoting from the USCIS memo (which details suggested sites for monitoring, the process for joining various sites, and suggestions for how to effectively use social media sites to uncover fraud):

“The Internet has made it increasingly easier for people to get connected with each other whether that is with long-distance family, friends, or to find new loves and friendships. Social networking sites such as MySpace, Facebook, Classmates, Hi-5, and other similar sites are designed to allow people to share their creativity, pictures, and information with others. Sometimes people do this to find romance, sometimes they do it to find friends with similar interests, and sometimes they do it to keep in touch with family. Narcissistic tendencies in many people fuels a need to have a large group of “friends” link to their pages and many of these people accept cyber-friends that they don’t even know. This provides an excellent vantage point for FDNS (USCIS Office of Fraud Detection and National Security) to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities. Generally, people on these sites speak honestly in their network because all of their friends and family are interacting with them via lM’s (Instant Messages), Blogs (Weblog journals), etc. This social networking gives FDNS an opportunity to reveal fraud by browsing these sites to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive CIS about their relationship. Once a user posts online, they create a public record and timeline of their activities. In essence* using MySpace and other like sites is akin to doing an unannounced cyber “site-visit” on a petitioners and beneficiaries.”

According to Jim Dempsey, vice president for public policy at the Center for Democracy and Technology, the problem is that the offline rules about government investigations do not match up with the social norms of the Internet. If a government agent is able to “friend” you and gain access to your on-line social network, they can use any information that you reveal against you, even if they used pretence or lies to obtain your permission. You make on-line “friends” at your peril, and those friends are not bound by the same time constraints and physical barriers that apply to face-to-face encounters. A government agent may not need to show up at the home of a petitioner and beneficiary in a “marriage case” to perform a “bed check” at midnight, or questions friends, neighbors or co-workers about a claimed valid marriage if they are able to go on-line and secure the damaging evidence they are seeking by viewing information on a person’s Facebook page and chatting on-line with their friends. Casual drug use, previous arrests, sexual orientation, dating habits, dangerous liaisons, personal habits, and other behavior that would never be admitted or shared during a USCIS green card interview, may be available to USCIS adjudicators with a few clicks of a mouse.

I had a woman visit my office recently. She had concerns that her marriage based green card application had been pending for more than a year after her interview, and she was unable to find out any reason for the delay from her many inquiries to USCIS. She was told repeatedly that her case was “still under review” and that her eligibility for a green card was “still being determined.” While in my office, I asked her about her on-line social networking activities, and she showed me her Facebook page. Her Facebook “profile”, which had been recently updated, showed her as single. Other postings on her page discussed recent dating activities and “hook-ups” with friends. The reason for the delay in approving her green card application was no longer a mystery.

The collection of information on individuals by private and public agencies continues to grow. The rules limiting the gathering and use of this information have not kept pace with the collection. Once data is collected, it is rarely, if ever discarded, and the build-up of massive quantities of information makes it easier for the government to build databases and engage in profiling. Even without securing “friend” status, the government has often secured the cooperation of electronic service providers and telecommunications companies for access to private accounts for electronic surveillance purposes. With “friends” like this, who needs enemies?

Post Date: November 8th, 2010 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

If you were taken into custody by ICE, who would pick up your kids from school? Who would feed your dog? Who would contact your family? Who would secure your preferred legal counsel? Who would maintain or sell your home? How could your spouse or other family members gain access to your bank accounts to gather assets for bail or hiring legal counsel? The Department of Homeland Security under the Obama Administration is focusing on removal of aliens with significant criminal convictions and with curtailing unauthorized employment. The new face of immigration enforcement is a legal notification that typically gives businesses three days to present their I-9 forms. When violations are found, an employer has 10 business days to clear up mistakes or potentially face fines, putting the onus on employers to rid themselves of unauthorized employees, and altering the behavior and hiring practices of employers. Many suspect employees simply don’t show up for work again after they’re asked about an I-9 discrepancy. While the departing employee may not immediately leave the United States, they may do so if they cannot find new employment, and others may not make the risky and arduous journey if jobs are not available. Workers are sometimes permitted to remain in the U.S. temporarily to be used by the government as material witnesses against their employer.
While the Obama Administration is using increased and widespread employer I-9 audits, E-Verify databases, and the threat of civil and criminal penalties assessed against businesses and business managers to curtail unauthorized employment (using “silent raids” rather than the frequent SWAT Team workplace raids utilized under the previous administration), there are many other ways that persons may find themselves on the wrong side of the bars, in detention and awaiting a removal hearing. Some communities have actively partnered with ICE to assist in immigration enforcement, while the Department of Homeland Security has instituted a program known as “Secure Communities” that will run an immigration records check on anyone taken into custody and fingerprinted by any U.S. law enforcement agency for any reason, even a traffic violation or minor misdemeanor. As a result, the Obama Administration is on track to remove (deport) nearly 400,000 individuals this year; far surpassing removal statistics in previous years. Despite the costs involved in court challenges, many states (as well as individual municipalities) are following the path or the State of Arizona in passing restrictive immigration legislation that govern the administration of driving privileges, issuance of business licenses, provision of government and social services, and employment. The noose is clearly tightening.
In this climate of economic uncertainty, increased immigration enforcement, expanding detention facility resources, and crowded immigration court dockets, many “at-risk” undocumented individuals are turning to legal counsel to draft detailed legal action plans to spell out what they want to happen to their families and possessions in the event that they are detained or removed from the United States. The enforceability of a well drafted legal action plan would not generally be affected by the immigration status of the detainee. For those with no children and limited assets, a simple notarized letter of direction placed with a trusted friend may be sufficient. Others may need more detailed plans, trusts, powers of attorney and letters of direction to carry out their intentions and to preserve and protect their interests. If you are “at-risk”, the AZULAYSEIDEN LAW GROUP is able and ready to assist you in this regard.

Post Date: November 8th, 2010 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

The U.S.  Third Circuit Court of Appeals has just issued a 188 page decision, affirming a 2007 Federal District Court decision barring the enforcement of the City of Hazleton’s (Pennsylvania) restrictive immigration laws, which sought to deny business permits to companies who hire undocumented immigrants, fine landlords who rent to the undocumented and require prospective tenants to register with City Hall.  The Third Circuit Court decision stated, “It is … not our job to sit in judgment of whether state and local frustration about federal immigration policy is warranted. We are, however, required to intervene when states and localities directly undermine the federal objectives embodied in statutes enacted by Congress.”  This decision embraces the reasoning and language employed recently by another Federal District Court in Arizona, holding much of Arizona’s SB-1070 law unconstitutional.  I hope the states are paying close attention, and will understand that their rank political posturing has steep costs, even if they may reap short-term political benefits.  Some states do seem to be getting the message that enforcement alone is not a realistic solution.

A recent study by the Pew Hispanic Center indicates that the annual inflow of undocumented immigrants to the United States has dropped by two thirds in the past ten years, attributable primarily to a lousy economy and stepped up border and interior enforcement.  Border enforcement has become more effective, and has reached the point of diminishing returns.  CBP (Customs and Border Protection) Chief, Alan Bersin recently stated that, while the US/Mexican border at Arizona still needs additional strengthening (due, primarily to its topography and the many federal and tribal lands along that border), the overall state of US/Mexico border security is better than it has ever been, and completely sealing the border is unrealistic.  It seems like we now have come upon an ideal time for our federal legislators to buck-up and find the cojones to tackle this issue of immigration reform in its entirety.  They must come to realize that their lack of courage and inaction is angering more voters than they would anger by addressing the issue in an intelligent and comprehensive manner.  Comprehensive immigration reform must contain at least six components:

• security and enforcement;
• economic development in Mexico;
• a temporary worker program;
• permanent changes to the legal immigration system;
• a new focus on the U.S.-Mexico border that allows people to move freely for the economic well-being of both countries;
• and legal status for those illegal immigrants who’ve been in the United States for many years.

Post Date: September 9th, 2010 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

Nextgov.com reports:

“The Homeland Security Department plans to establish a database of immigration data that will identify fraud in applications for benefits, and provide information to intelligence and law enforcement agencies.

DHS will create a mirror copy of multiple databases the Citizenship and Immigration Services uses to award federal benefits to immigrants and nonimmigrants and develop a single user interface employees use to access the stored information, according to a notice the department published in the Federal Register on Wednesday, September 8^th.

The Citizenship and Immigration Data Repository System of Records (“CIDR”), which will include real-time updates and a search engine, will allow officials to vet applications for fraud and national security concerns, detect misuse of immigration information by agency employees for personal gain, and respond to classified requests for information that could assist intelligence and law enforcement investigations. CIDR will sit on the department’s classified network, and the upgrades discussed in this article will be operational by October 8, 2010.

When CIS responds to requests for information from intelligence and law enforcement agencies, the searches are classified, even if the data sets maintained in the databases are not. DHS determined that creating mirror copies of its unclassified data sets on the classified network would be the best solution, enabling employees to conduct classified searches and maintain audit trails of search activities and results, according to the notice.

Homeland Security also filed a proposed rule-making notice on Wednesday to exempt portions of the system of records from one or more provisions of the 1974 Privacy Act, which prohibits the disclosure of an individual’s personally identifiable information without his or her written consent. The law exempts the disclosure of this information for law enforcement purposes.”

This will allow other law enforcement agencies to access the system for investigative purposes without the DHS having to notify the subject of the investigation that the information was being shared with other law enforcement agencies.  Such notification would disclose the existence of an investigation, and would such a disclosure could jeopardize the investigation.

From a law enforcement perspective, this is great news, and will enable law enforcement agencies to reduce the number of DHS databases they must search in the course of their investigations.  This will also enable USCIS and ICE to more readily and easily identify fraud in applications/petitions for benefits, and to share that information with other agencies.  This should also be welcomed by the general public because “gaming” the system by some applicants makes the system react by imposing heightened scrutiny and suspicions of all applications, and making the system harder to use by honest applicants.

Post Date: September 9th, 2010 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

In an interesting blog post, Darrell M. West, Vice President and Director of Government Studies at the Brookings Institute, writes:

“The United States is shockingly irrational in the way it handles immigration. Unlike other nations that strategically use immigration to pursue national goals, we lurch from concerns about border security to illegal immigrants to drugs and crime without considering our long-term political and economic priorities. One of the chief sources of irrationality is the myths that have arisen about immigrants and immigration policy.”

It will be exceedingly difficult to engage in a rational political debate of immigration policy so long as these myths survive.  Everyone is entitled to their own opinions, but we cannot engage in rational discourse if everyone claims entitlement to create their own facts.

Post Date: September 2nd, 2010 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

An undated USCIS memo surfaced (“leaked”) recently from the offices of U.S. Senator Charles Grassley (R – Iowa), drafted by USCIS Chief Counsel and a few other policy managers and operations managers at USCIS, addressed to Alejandro Mayorkas, USCIS Director.  The stated purpose of the memo was to offer “administrative relief options to promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization. It includes recommendations regarding implementation timeframes and required resources.” 

 Who requested the preparation of this memo and how this memo made its way to Senator Grassley’s office is unclear (apparently some government leaks are politically acceptable), but its release has stirred an angry hornet’s nest of immigration restrictionists, and a few Congressmen and Senators who have openly warned President Obama that he should not even think about trying to perform an administrative end run around Congress to implement any forms of humanitarian relief (creatively labeled a “shamnesty” by some restrictionist Senators.)

This is the administrative summary of the “leaked” USCIS memo:

“In the absence of Comprehensive Immigration Reform, USCIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations, exercising discretion with regard to parole-in-place, deferred action and the issuance of Notices to Appear (NTA), and adopting significant process improvements. To promote family unity, USCIS could reinterpret two 1990 General Counsel Opinions regarding the ability of Temporary Protected Status (TPS) applicants who entered the United States (U. S.) without inspection to adjust or change status.  This would enable thousands of individuals in TPS status to become lawful permanent residents. Similarly, where non· TPS applicants have been deemed inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“the Act”) for having entered without inspection, USCIS could grant “parole-in-place” (PIP) in the exercise of discretion to create II basis for adjustment in the U.S.  To foster economic growth, USCIS could work more aggressively with the Department of Commerce (DOC) to complement important economic initiatives such as Invest in America.  By establishing a working group within the DOC, USCIS should consider creative ways to make the EB-5 (Employment Creation) program more accessible to foreign investors and to administer it.  For workers in the U.S. whose occupations require frequent travel, or who are seeking permanent residence, USCIS could also build on a regulation issued by the former INS that, among other things, relieved H and L nonimmigrants with pending adjustment (green card) applications from having to secure advance parole before departing the U.S.  Expanding this “dual intent” concept to cover other long-term nonimmigrants, including F, O, TN, P, and E visa holders would enable these workers to maintain status and travel overseas without advance parole while their (green card) applications were pending.  They would also be allowed to maintain their nonimmigrant status if the USCIS denies their adjustment (green card) applications.  The agency could also consider extending employment authorization to the dependent spouses of certain skilled workers.  For example, USCIS could allow employment authorization for H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence and have extended their nonimmigrant status under the provisions of AC-21 (a law passed by Congress a few years ago that permits certain H and L nonimmigrants to continue extending their nonimmigrant status until their green card applications are approved).  Finally, the agency should afford workers admitted to the U.S. in nonimmigrant status a reasonable period of time to conclude their affairs and depart after expiration of their authorized period of employment, performance, training, or vocational activity.  The current 10-day “grace period” is insufficient depending on employment category and overall time spent working in the U.S.   Where no relief appears available based on an applicant’s employment and/or family circumstances, but removal is not in the public interest, USCIS could grant deferred action.  This would permit individuals for whom relief may become available in the future to live and work in the U.S. without fear of removal.  A corollary to this exercise of agency discretion is for USCIS to issue Notices to Appear (NTAs, which commence removal proceedings) strategically, rather than across the board.  If relief is potentially available in removal, USCIS should consider issuing an NTA.  On the other hand, where no relief exists in removal for an applicant without any significant negative immigration or criminal history, USCIS could avoid using its limited resources to issue an NTA.  Finally, for applicants who have requested relief from USCIS, whether in-country or abroad, and whose applications require a waiver of inadmissibility, USCIS could issue guidance or a regulation lessening the “extreme hardship” standard (of proof required in order to grant the waiver.)  This would encourage many more spouses, sons and daughters of U.S. citizens and lawful permanent residents to seek relief without fear of removal.  It would also increase the likelihood that such relief would be granted.”

Those are some pretty nice humanitarian proposals from USCIS, and the shrieking howls from the enforcement only restrictionist crowd are not surprising.  Those USCIS proposals would also have the effect of generating significant increases in the number of applications/petitions filed and filing fees generated for USCIS.  Recently, there have been additional reports of administrative actions taken by the Obama Administration that indicate that the Administration is implementing enforcement resource allocation plans announced by the Department of Homeland Security (“DHS”) more than a year ago.  The implementation of these plans has been met outrage by the restrictionist “secure the borders first (only)” crowd, deeming these actions a “backdoor amnesty” without Congressional approval.   The DHS plans sought to maximize enforcement resources by using audits and civil fines to go after employers who were hiring undocumented workers (attacking the “demand” for labor more than the “supply”) while focusing aggressive removal efforts on those who have been convicted of serious criminal offenses.  It should come as no surprise that these plans are finally being implemented.   While Congress has not moved forward to pass the “Dream Act” to benefit certain foreign students who were brought into the United States unlawfully many years ago, the Obama Administration has been willing to look at individual cases of foreign students and defer removal proceedings in many cases.  While workplace enforcement still takes place, chaotic swat team raids of industrial enterprises have been largely replaced with systematic audits of employer records and civil and criminal penalties against employers.  When the Obama Administration took office, they inherited a huge number of backlogged removal/deportation cases from the factory raids and enforcement programs of the previous administration.  Working through these backlogs has generated much higher alien removal statistics under the Obama Administration than under the previous administration (nearly 300,000 removals last year, a 5% increase over the previous year).  Enforcement actions are continuing and the backlog of removal proceedings in the nation’s immigration courts continues to grow.  Many of the removal proceedings being handled by our law offices are being scheduled for hearings in 2013 and beyond.  To reduce these immigration court backlogs and more efficiently allocate enforcement resources and detention space, the DHS has hired additional immigration judges and ICE attorneys, added and expanded immigration court facilities and technologies, and added detention facilities, both private and public.  The DHS has also begun to review pending removal/deportation cases, and the DHS is actually dismissing many removal proceedings brought against undocumented immigrants who have long established ties to the U.S., have not been convicted of serious criminal offenses, and have other humanitarian equities.  The “just deport em’ all” crowd is none too pleased with that program either.

Post Date: September 2nd, 2010 Filed under: Comprehensive Reform, Editorials, Immigration Policy, Immigration Raids, Politics, Robert Gard by Robert Gard, Attorney at Law No Comments »

Several media outlets are carrying an account of the discovery of 72 bullet riddled bodies found in a large room of a ranch in northeast Mexico, about 100 miles south of Brownsville, Texas.  Law enforcement officials are indicating that these were persons from Central and South America, on their way to surreptitiously enter the United States, and that they became victims of bandits or smugglers who tried to rob them of their money and valuables. Much of the violence and death in the border region is the result of actions taken by or in the United States.  By walling off the easier border crossing points, those wishing to enter the U.S. without inspection must cross over much more dangerous terrain.  According to Border Patrol statistics, at least 1,954 people died trying to cross illegally into the U.S. from Mexico between 1998 and 2004, with the numbers increasing each year since the mid-90s.  The most frequent causes of death have been exposure (heat stroke, dehydration and hypothermia), but some are shot by Border Patrol or National Guard troops, or by the acts related to criminal activities of smugglers or vigilante groups.  In June of this year, a U.S. Border Patrol Officer chased a stone throwing teenager back into Mexico and shot across the border into Mexico, killing the youth.  The death toll from undocumented border crossing may reach record levels this year.

 Despite all of the fences, walls, soldiers, border guards, cameras, sensors, and vigilante militiamen, people keep risking life and limb to get to the United States.  What sort of terrible, unspeakable desperation must be driving them?   Why can’t we, as the great and decent United States,  act to stem this carnage?  Has our polarized political discourse become such a contact sport that we have lost our humanity and compassion and are no longer able to rationally analyze issues, look at the “big picture”, and work together to arrive at anything more useful than sound bite solutions and pithy one-liners denigrating “anchor babies”  for the evening news?  If you were to read the “comments” section after any immigration related article appearing in the mainstream on-line press, you might be shocked at the spittle flecked misspelled fact-free bile posted under anonymous screen names.  Many of these comments are clear attempts to dehumanize undocumented border crossers, and seek to shut down rational discourse.  I’m not an “open borders” advocate, and I appreciate that we are a nation of laws, but we are also a nation of immigrants, and our shores are enshrined by the Statue of Liberty, and not by barbed wire and land mines.  We must come to a realization that our current system of administering immigration is dysfunctional and is contributing to increasing death toll at and near the border, as well as tragic consequences for the families left behind.  Comprehensive immigration reform must be moved to the front burner of this Administration.

Post Date: September 2nd, 2010 Filed under: Comprehensive Reform, Discrimination, Editorials, Immigration Policy, Politics, Robert Gard by Robert Gard, Attorney at Law No Comments »

Mid-term elections, as will take place in the United States this coming November, often bring out the crazies and the wedge issues. The election scheduled for this November is already gloriously upholding this colorful and curious tradition; particularly with respect to immigration issues, often referred to as the “third rail” of American politics. One would think that motherhood and apple pie would be safe from political attack in this country, but you would only be half right in that assumption. While there is widespread agreement that much of our system of immigration laws, regulations, and practices is fully dysfunctional and does not really serve this nation’s interests, there is little agreement (and a lot of posturing) on what can or should be done to remediate the dysfunctionality. The last major revisions of the immigration laws were passed in 1996, and discussions commenced almost immediately thereafter concerning corrections to and revisions of the 1996 immigration laws. In 2000 and during most of 2001, Congress and the previous Administration were making significant and bipartisan progress toward comprehensive immigration reform, and the U.S., under President George W. Bush, and Mexico, under President Vicente Fox, were tantalizingly close to agreement on secure and workable administration of the U.S./Mexico border. Immediately after the attacks on 9/11, all of that bipartisan and international cooperation and progress came to a screeching halt, and demagogues emerged to equate immigration with terrorism.

From that point forward, Congress has become increasingly polarized and politically unable to achieve bipartisan consensus on comprehensive immigration reform. The divisions are stark between the camps of those who believe that comprehensive immigration reform is required to, among other benefits, bring the necessary order and fairness that would enhance the security of the borders, and those who believe that comprehensive immigration reform cannot be discussed until the borders are secure. In an effort to appease the “secure the borders first” crowd, many in Congress who strongly support comprehensive immigration reform have been willing to sign on to many restrictionist and enforcement oriented legislative proposals put forward by those Congressmen who are in the “secure the borders first” coalition. As a result, virtually all of the immigration related legislation enacted since late 2001 have been restrictionist enforcement only provisions. With the election of Barack Obama in 2008, once again we were promised an end to political divisiveness and the introduction of bipartisan legislation for comprehensive immigration reform before the end of 2009. That has not happened. Political divisiveness with respect to immigration issues has become more pronounced, and advocates of comprehensive immigration reform have become somewhat disillusioned and dismayed that actions taken by the Obama Administration on immigration matters often appear directly contradictory to the promises for “change” that have been made by this president.

After nearly ten years of significant and largely effective efforts to “secure the border first”, the hallelujah chorus continues its doleful reprise unabated. Last year, nearly 400,000 persons were removed from the U.S. pursuant to removal orders, setting another record for removals for the seventh year in a row. The budget for the Border Patrol has gone from $1 billion in fiscal year 2000 to a requested $3.58 billion for fiscal year 2011. Another border security bill was signed into law last week to add 5% more Border Patrol Officers to an army (22,800) that has more than doubled since 2004. More unmanned “drone” aircraft, more low-tech and high-tech fences, more cameras, more underground sensors, more tracking dogs, and another 1,200 National Guard troops will soon be heading to the Southern border. These “secure the borders first” folks will never be satisfied, and many of them acknowledge that their stated goal of a completely impermeable border is all but impossible to achieve. Susan Ginsburg, senior policy adviser for an international nonprofit known as Borderpol, which works to make international borders safer, said it is a mistake to require absolute “iron curtain” border control as a prerequisite for changing U.S. policies because the existing system created a broken border in the first place. Those clamoring to “secure the border first” know that an iron curtain border is a goal that will never be reached, and are using this demand and fear mongering to stave off any rational discussion of comprehensive immigration reform. The border will never be secure enough to suit them. This is not a case of the restrictionist crowd “moving the goal posts” because there are no well-defined goal posts.
The latest “wedge issue” raised by those in Congress who have no intention of allowing passage of comprehensive immigration reform, is a proposal to amend the 14th Amendment to the U.S. Constitution. The 14th Amendment has been held to grant U.S. citizenship to persons born in the United States and subject to its laws (generally, children born to foreign diplomats temporarily assigned to the U.S. are not included). Perhaps this issue is being raised as a sort of “stalking horse” message to those advocating comprehensive immigration reform, that the price to be paid for any comprehensive immigration reform formal debate will be exceedingly steep. The rancorous debate is not entirely surprising, given that we are in the midst of an election season, but the sheer wackiness and abundance of wedge issues has certainly surpassed most expectations .

Post Date: August 25th, 2010 Filed under: Immigration Policy by Robert Gard, Attorney at Law No Comments »

Yesterday in a landmark decision, that most think will survive later challenges, Prop 8, a voter initiative in California that had removed same-sex marriages from the state, was struck down as unconstitutional.  Amongst the points the decision made, was the inability of people to vote on issues that are rights.  Since all have a right to marry in California, the majority can not vote on whether to restrict the rights of the minority.

This decision comes on the heals of another federal court decision saying that DOMA (the Defense of Marriage Act) is also unconstitutional.  It attempted to limit federal benefits and the recognition of marriage to those between a man and a woman.

These cases read together give a lot of hope to those of us who believe that immigration benefits should also extend to same sex couples.  It is time to have people file, and end up challenging Immigration’s position in Federal Court.  If you or anyone you know is in such a circumstance and interested in challenging immigration and their arbitrary definition of who can be married and receive status in the US, please contact me.  We would love the opportunity to support you in your quest to attain status and destroy the ridiculous and arbitrary Immigration limitation.

I am proud to see that our court system continues to defend our rights, even as restrictive persons try and take them away.

Post Date: August 5th, 2010 Filed under: AzulaySeiden Attorney's Blog, Immigrant Rights, Ira Azulay, Politics by Ira Azulay, CEO No Comments »

Yesterday arguments were made in two separate cases as to why the Arizona law (SB1070) should not be allowed to go into effect on July 29, 2010.  The judge did not make a ruling, and no one knows for sure when a ruling will be issued, but if the comments she made are any indicator two things seem likely.  First, she will not enjoin or invalidate the entire law, but only with the portions she has issue .  Second, she definitely thinks there are areas that are problematic.

I appreciate the need to listen, analyze and review, but as a concerned person who thinks this issue is pretty black and white, its beyond me that there is not already some action taken.  Immigration is an area reserved to the federal government, so states can not make patchwork laws in this area.  Period.  I am still hopeful that is what we hear any time now.

This issue is also before the Supreme Court tied to an earlier Arizona attempt in the area of business regulation.  That one survived event eh usually liberal 9th Circuit Court of Appeals.  A decision tearing down that law I would expect would make this one a real non-starter.

I was fortunate to be part of a meeting yesterday where the issue of cooperation with ICE by law enforcement was the issue.  It is refreshing to know that people in law enforcement also want reform and are willing to try and challenge ICE and their attempts to take fairness out of the system.  Sadly, we also learned that there are a lot of different interpretations of what state and local agencies think federal law even requires them to do.  I bring this up because its a good reminder that we need the federal government to act.  The patchwork and variety of interpretations, even when I agree is very taxing on the system.  Reform brings not only the end to state’s trying to make their own immigration laws, but if done right, ergo comprehensively (CIR), it also brings fairness and consistency back to the system.

I am tired of waiting to get it right.  We should all try and do more.  On July 29th, the day the law is supposed to go into effect, look for demonstrations around the country.  In Chicago, there will be one at City Hall, to make it clear that we do not think Illinois is Arizona.

Post Date: July 23rd, 2010 Filed under: AzulaySeiden Attorney's Blog, Comprehensive Reform, Editorials, Immigrant Rights, Ira Azulay, Politics by Ira Azulay, CEO No Comments »