A New Leaf at DHS, or a Deal with the Devil?
Nina Bernstein wrote recently in the NY Times about a New Jersey pastor who became an advocate for Indonesian Christians facing deportation and worked out an unusual deal with the government under which many at risk of deportation turned themselves in, agreeing to appear at regular appointments with immigration officials.
The financial crisis that swept through East Asia in 1997 sparked anti-Chinese riots in Indonesia that prompted many ethnic Chinese to flee the country. After 9/11, immigrant men from predominantly Muslim countries, including Indonesia, were required to register with DHS in a sweeping program of racial and religious profiling (pdf) called NSEERS engineered by restrictionist Kris Kobach, then an aide to Attorney General John Ashcroft.
In the past few years, NSEERS began to impact the Indonesian congregation that shared the building with Pastor Seth Kaper-Dale's flock in Highland Park, New Jersey. Families were ripped apart and fathers of U.S. citizen children were deported back to Indonesia. After going to great lengths to prevent one of his own congregants from being deported, Pastor Kaper-Dale negotiated a supervised release for the man. Raids had the community living in fear. So Pastor Kaper-Dale decided to be proactive and urged more Indonesians in the community to come forward and cooperate with DHS.
Under an unusual compact between the pastor and Immigration and Customs Enforcement officials in Newark, four Indonesians have been released from detention in recent weeks, and 41 others living as fugitives from deportation have turned themselves in under church auspices. Instead of being jailed -- as hundreds of thousands of immigrants without criminal records have been in recent years -- they have been released on orders of supervision, eligible for work permits while their lawyers consider how their cases might be reopened.
Though agency officials say the arrangement is simply an example of the case-by-case discretion they often use, the outcome has astonished advocates and experts in immigration enforcement, and raised hopes that it signals some broader use of humanitarian release as the Obama administration vows to overhaul the immigration system.
Reading this story as an immigration attorney, I almost feel sick to my stomach. If Pastor Kaper-Dale has tapped into a kinder, gentler side of Barack Obama's DHS, it is one that has persistently eluded the majority of faith-based and nonprofit immigration attorneys in the U.S. These parishioners have traded their fear of home raids for fear that the next visit to DHS on an order of supervision could be their last, as those with previously-denied cases could at any moment be placed on a plane back home. Recently, a DHS official in Philadelphia frankly acknowledged that ICE prefers not to give advance warning of detention at a scheduled appointment under an order of supervision, since it only makes it harder to locate and deport the person. I have clients on orders of supervision with final orders of removal, and the anxiety that situation produces can be intense. Those parishioners with no previous interaction with the system and no clear path to relief who brought themselves to the attention of the government as part of this deal are making a leap of faith. I hope they each individually had the opportunity to hear from an immigration attorney about the potential downside to this arrangement, which is sudden, unannounced deportation:
for those who turn themselves in, the leap of faith carries big risks. For now, they can check in at a federal office every three months and, if granted a work permit, can secure a driver's license. But they are also vulnerable to immediate deportation. Just this fall, nine Indonesian Christians in Seattle who had been on supervised release for years were abruptly detained, and some were deported.
To DHS, this arrangement is a gift. DHS's job is not to ensure that immigrants in the system get a fair shake, it is to deport as many people as it can each year as efficiently as possible.
Pastor Kaper-Dale, Nina Bernstein, and some local immigration attorneys quoted in the article are optimistic that DHS will honor the spirit of the agreement and decide not to deport the men who have come forward. In fairness, having a story in the NY Times about the arrangement makes it more likely that DHS will uphold its end of the bargain.
But as a legal matter, one side here holds all the cards. Based on my own experience, I agree with Rex Chen, supervising attorney at Catholic Charities in Newark, who
remains more pessimistic, likening himself to a financial adviser who warns, "This mutual fund could collapse."
While the arrangement may buy the Indonesians a year or two, he said, unless grounds are found to reopen their cases, or Congress changes immigration law, they could find "they just moved up from not known, to on the list, to you're taking the steps up to the airplane."
It is telling that the turning point in Pastor Kaper-Dale's efforts to free his parishioner was a conversation with Dora Schriro, special detention adviser to Janet Napolitano. Dora Schriro left DHS shortly after joining the agency, followed soon after by another official tasked with reforming health care of immigrant detainees, Cree Zischke. The detention system is still an unholy mess, and any improvements under Obama and Napolitano have been marginal.
Time will tell whether the ending to this story is a happy or a bitter one. I hope that all those involved keep an eye on the deal to see how things turn out.
As a sidenote, I was disappointed to see the persistent myth of the "10 year green card" uncritically referenced in the story:
There are no guarantees, acknowledged Melinda Basaran, another participating lawyer and chairwoman of the New Jersey chapter of the American Immigration Lawyers Association. But many of the Indonesian wives, who did not have to register after 9/11, will soon have been here 10 years without drawing official attention, making them eligible to apply for green cards.
Here I'll quote my coworker, Kate Brown, who hears as I do too often from clients the myth that after 10 years in the U.S., you can apply for a green card. It's simply not true. (My edits in brackets.)
The paragraph implies that undocumented immigrants are able to apply for green cards affirmatively after living in the country for ten years. This is very misleading, and your readers deserve a more accurate portrayal of the difficulties this community now faces. This mythical "ten year" green card Ms. Basaran refers to is actually "cancellation of removal," a defensive claim that can only be initiated once an immigrant is placed into removal proceedings. Ten years of physical presence in the United States is only one requirement of eligibility. The immigrant must also have a U.S. citizen [or permanent resident] spouse or minor child [or parent]. In order to actually win "cancellation of removal" and receive the green card, the immigrant must convince a judge that this U.S. citizen relative will face ["exceptional and extremely] unusual hardship" if the immigrant is deported. Cancellation of removal is extremely difficult to obtain, and very few responsible attorneys would advise their clients to expose themselves to ICE in order to initiate deportation proceedings and apply for cancellation of removal.
I appreciate the extensive coverage the New York Times has dedicated to immigration issues, especially with regards to the detention system. You have done a great service in educating the public, and I look forward to reading many more thoughtful and carefully researched articles. Although the explanation above of "cancellation of removal" may be too technical to include in an article, I believe there is some way to summarize the concept and present it accurately. Failure to do so only feeds into the idea that "illegals" have it easy, and that all they have to do is lay low for ten years until the government hands them a green card.
Like Kate says, cancellation of removal for non-permanent residents is extremely difficult to obtain, and is rarely granted by immigration judges even when an applicant has the requisite family member. A denial of cancellation of removal is almost never overturned on appeal. Most undocumented immigrants currently have no viable path to lawful status under the extraordinarily restrictive regime built and enforced through bipartisan consensus.
Nina Bernstein responded to my coworker's request for a correction:
Thank you for writing. You are correct that we meant that the wives are eligible after ten years to ask for cancellation of removal -- in fact, some whose husbands were deported have done so already and have been successful. If they win cancellation of removal, they can apply immediately for a green card. I explained this two-step process to my editors, but they felt that given our space constraints, "eligible to apply for a green card" was sufficient.
I disagree with her editors and believe the nuance-free description is very misleading.
[Image: Suzanne DeChillo/The New York Times]