Recently in U.S. Immigration Law Category

I sent the following email yesterday to Margaret Sullivan, the Public Editor of the New York Times.

Dear Ms. Sullivan,

I write with respect to your piece today addressing Jose Antonio Vargas's recent request to the AP and the New York Times to stop using the term "illegal immigrant."  Thank you for discussing this important issue.  I am an immigration attorney based in Philadelphia, Pennsylvania.  You cited Mr. Corbett, the associate managing editor for standards at The Times, as stating:

[I]n referring in general terms to the issue of people living in the United States without legal papers, we do think the phrases "illegal immigrants" and "illegal immigration" are accurate, factual and as neutral as we can manage under the circumstances. It is, in fact, illegal to enter, live or work in this country without valid documents.

I wanted to respond to this comment with a few points.  First, the terms "illegal immigrant" and "illegal alien" are not defined in the Immigration and Nationality Act and are generally disfavored by immigration judges and the members of the Board of Immigration Appeals, who make decisions about whether someone is to be removed from the U.S. or not.  According to applicable law, the terms are no more accurate than "undocumented" or "unauthorized."  "Alien" is the most accurate legal descriptor of a non-citizen.  I've attached and copied below a blog post I wrote for a few years ago that explains this in more detail, with citations to applicable law ( recently removed the blog posts from that time period from its site, so the post is no longer available online.)

Second, the term illegal immigrant is not accurate because it usually assumes a person's immigration status when that status has not yet been determined by a court of law.  It has been documented that the Department of Homeland Security routinely attempts to deport U.S. citizens, and sometimes succeeds.  
I'm writing now to provide my assessment of the government's Deferred Action for Childhood Arrivals process (DACA) as it unfolds.  Back in June, I wrote about my doubts about DACA based on the Obama administration's record of empty promises to the immigrant community.  While we still don't know for sure how this program is going to play out--no one has a work permit in their hand yet--developments since June 15 have been encouraging.  

Don't read this post if you are looking for detailed guidance on how to apply for DACA.  The most comprehensive guidance is on the (U.S. Citizenship and Immigration Services) website:
  • FAQ
  • Form I-821D, with related forms and instructions  
    (if the links are dead, do an internet search for "Form I-821D" or "deferred action for childhood arrivals USCIS").

If you have specific questions about the application process, read the FAQ or consult with an immigration attorney.  If you have ever been arrested or had any contact with the criminal justice or immigration systems (including being stopped at the border, even if you were a child), consult with an attorney.  The government will likely end up deporting some applicants who have criminal convictions that disqualify them for DACA.

On August 3, USCIS issued additional guidance about the process, which they clarified again over the past week in the FAQ.  Here are some highlights:

elise-and-dylan.pngResponding to ICE's release of data on prosecutorial discretion as of May 29, 2012, American Immigration Lawyers Association president Eleanor Pelta categorically stated ""The prosecutorial discretion initiative has failed."

Only 1.5% of cases in deportation proceedings under review have been closed so far (4,403 of 288,361). And "closed" is not entirely accurate, any case administratively closed"under the prosecutorial discretion review is technically still pending and can be reopened by ICE at any time for any reason. Of the cases administratively closed, Pelta said, "even those were granted only a temporary reprieve, keeping their lives completely in limbo. That's a very low rate-far less than the percentage that succeed in obtaining relief in court."

In deportation defense work, immigrant rights organizers can work most effectively to stop a deportation when they collaborate with a reliable immigration attorney. Viewed from another perspective, an attorney can often better serve his or her client with the help of organizers. However, complications can arise with this type of collaborative work.

In recent years, collaboration between organizers and attorneys has most commonly involved Education Not Deportation (END) campaigns to stop the deportation of undocumented youth. END cases were rare before the summer of 2009. Now the federal government routinely agrees not to deport undocumented youth who would qualify for the DREAM Act, were it to be enacted, and who reach a certain threshold of visibility and public support. (The government routinely deports tens of thousands of DREAM-eligible youth who remain invisible to the public--and even some who have strong public support.)

I have worked on several END cases since 2009 as an immigration attorney. In my experience, an END case has the best chance of success when an attorney works closely with organizers and the client's existing support network. Attorneys have access to and relationships with immigration officials that organizers and family members usually lack. Organizers have the trust of the community and are not afraid to directly challenge the government. Organizers, attorneys, and others worked together on the early END cases and created the existing END model. Organizers and attorneys are better able to stop deportations when they work together.

Unfortunately, this does not always happen. Communication between the attorney and organizers sometimes breaks down, to the detriment of the client. Attorneys sometimes have a limited view of what is possible in a given jurisdiction, failing to acknowledge successes in similar cases elsewhere. Attorneys can be too cautious, apprehensive of damaging delicate relationships with Immigration and Customs Enforcement (ICE) attorneys or deportation officers. Out of habit, attorneys can shut supporters and organizers out of the case, foregoing the collaborative model for a "what I say goes" approach. It's worth taking a closer look at how and why these problems arise, and what can be done to address them.

Munoz.jpgCecilia Muñoz used to be known as a fighter for immigrant rights. She worked on NCLR's policy team advocating for better laws in Congress. She was named a MacArthur Fellow in 2000 for her work on civil rights and immigration.

But then she took a job working for the most anti-immigrant president since Herbert Hoover. Each year he has been in office, President Obama has set a new record for deportations. He is on track to deport more people in one term than George W. Bush did in two. Maybe Muñoz didn't know what she was getting into in January 2009. After all, Candidate Obama sounded like an ally to immigrants back in 2008 when he was courting the Latino electorate:

the system isn't working when... communities are terrorized by ICE immigration raids, when nursing mothers are torn from their babies, when children come home from school to find their parents missing, when people are detained without access to legal counsel. When all that's happening, the system just isn't working.
I don't know about you, but I think it's time for a President who won't walk away from something as important as comprehensive reform when it becomes politically unpopular.
You could parse Candidate Obama's statements to make them consistent with President Obama's immigration policies, but not many would believe it.

And that is Muñoz's problem now: her job is to defend the indefensible. She is paid to bamboozle the pro-migrant electorate so her boss can get reelected.

"Economists are supposed to be good at reckoning costs and benefits. But more often than not, economists with no clue about how the legal system actually functions, simply assume that the transaction costs of the legal system are slight. They see a system that has been around for hundreds of years, and they assume it works the way their elementary school civics class taught them it works.

But the legal system doesn't work. Or more accurately, it doesn't work for anyone except those with the most resources. Not because the system is corrupt. I don't think our legal system (at the federal level, at least) is at all corrupt. I mean simply because the costs of our legal system are so astonishingly high that justice can practically never be done."

--Lawrence Lessig, Free Culture, Penguin 2004, pp. 304-05.

obama shaking hands.jpg

Some readers may wonder why I have spent so much time writing about Barack Obama and his action or inaction on immigration reform.

For example:

Obama Resumes Deportations to Ravaged Haiti
Obama and Fox News Latino Can't Have It Both Ways On Immigration
Pedro Gutierrez Asks President Obama to Defer His Deportation
Obama Praises DREAM Act While Deporting Dreamers
Obama: Deporting Immigrants So Republicans Don't Have To

And I'm not the only one:

Buyer Beware! Obama: The Deporter and Job Killer in Chief
"Obama is not the answer because he IS the problem"
Man the Deportations: Full Speed Ahead!
Halfway Through Term, Obama Still Hasn't Earned His Nobel Prize
Heroes and Zeroes of Immigrant Rights in 2010

... and many others.

But isn't the president a supporter of comprehensive immigration reform and the DREAM Act?

Didn't his Department of Justice sue Arizona to prevent implementation of the SB1070 racial profiling law?

Wouldn't it make more sense to spend time and energy pushing Republicans to compromise, to punish them politically for opposing comprehensive immigration reform and the DREAM Act? Hasn't the real struggle moved away from federal legislation to the state and local level?

I think these are questions worth discussing, but I still believe the best national focus for action to achieve immigrant rights objectives is President Obama.

Each national politician who voted against the DREAM Act should be held accountable for betraying migrant youth. And there is a lot of work--both on offense and on defense--to be done on the state and local level.

But the immigrant rights movement should not neglect federal politicians or the 2012 presidential campaign, which has already begun.

First, Obama can be moved politically. The GOP's incentives are more mixed, and on balance run against supporting fair immigration reform.

We welcome back guest poster Mark as he deconstructs some of the nativists' cherished arguments against the DREAM Act. Senate Majority Leader Harry Reid has filed for cloture on the DREAM Act and the Senate will vote on it tomorrow.

"Illegal is illegal, and the "the law is the law" are two of the more common phrases that the anti-immigrant crowd likes to spew as the say-all/end-all reasoning, when it comes to a conversation about reforming the broken immigration system. Just look at any online article concerning the issue of immigration, scroll to the bottom, read the comments page, and sure enough there it is! (most of the times in ALL CAPS with a gazillion exclamation points, just to add that extra emphasis in pretending their argument is practical). Of course the only problem is that it isn't much of an argument at all. At best, it's a blatant fallacy in reasoning. Anyone having taken a basic logic class should be able to understand that concept.

So even when it's dressed up a bit:

"If such actions were not illegal, then they would not be prohibited by the law."

...only equals out to:

"X is true. The evidence for that claim is that X is true."

It's an unsound argument at best, which is most certainly NOT rationally persuasive.
Of course irrationality seems to be the rage these days, as it seems rational thought is something that's hard to come by. I can just imagine what else these rationality-inept anti-immigrant comment posters must say or post elsewhere. "Ice cream is ice cream. Yes I said it: ICE CREAM is ICE CREAM, damn it!!!!!!!!!!! Therefore I'm right and I win the argument."

Seriously now, really...that's what their position is based on? Two i-words: illogicality and ignorance.

Grassley.jpgLate last week, Senator Chuck Grassley (R-IA) released a draft internal immigration policy memo (pdf) that one or more anonymous anti-immigrant Department of Homeland Security employees had leaked to his office. Shortly before the leak of the draft memo from USCIS, the federal immigration agency which is part of DHS, Senator Grassley, along with seven other Republican Senators, had sent a letter to President Obama warning him against taking the kinds of actions outlined in the draft memo that would ameliorate some of the current unreasonably harsh immigration policies that separate families and punish children.

The policy changes would have:

  • Given DHS greater latitude to defer the deportation of undocumented youth brought here as children by their parents.
  • Eased interpretation of the current strict standard for showing that deportation of a parent, child, or spouse has caused "extreme hardship" to the remaining U.S. citizen family member. Currently, forced long-term (10 years or more) separation from one's spouse or child cannot be used as a factor in deciding whether "extreme hardship" exists.
  • Finalized the rules dealing with children who come to the U.S. alone, and for victims of human trafficking, domestic violence, and other criminal activities.
  • Permitted USCIS to exercise discretion to target criminals for deportation proceedings in line with ICE's stated enforcement priorities.

To me and others, these seem like common sense measures that should have been adopted long ago. To the anti-immigrant groups behind this manufactured scandal, the draft policy memo is the greatest outrage the world has ever known.

Senator Grassley is working closely with the nativist group NumbersUSA, a member of eugenicist John Tanton's network of anti-immigrant organizations, in an effort to use the leak of this draft policy memo to destroy any chance of immigration reform that remains this legislative session. The leak came just as Senator Lindsey Graham (R-SC) proposed a constitutional amendment to revoke birthright citizenship, which could lead to the deportation of citizen children of undocumented parents.

The leak of the draft memo, which was written in April, followed a letter in June from the same group of GOP Senators warning President Obama not to enact administrative reforms in lieu of comprehensive immigration reform. The release of the June letter shows that Grassley and NumbersUSA had the draft memo then and were holding on to it until its release would have maximum political impact.

The timing of the release, coming in the same week that Senate Majority Leader Harry Reid (D-NV) and Speaker of the House Nancy Pelosi (D-CA) met to discuss moving the DREAM Act forward separate from comprehensive immigration reform [Update: Reid's office is now denying that he discussed the DREAM Act with Pelosi at their meeting last week], the same week that communities around the country mobilized in opposition to SB1070, was no coincidence in my view. The leak was timed to derail the momentum the DREAM Act had gotten over months and years of organizing efforts by DREAMers, including a civil disobedience action in D.C. on July 20 where 21 undocumented youth risked deportation by being arrested in the Senate office buildings and an ongoing hunger strike now in its 12th day in California. The leak was designed to increase pressure on Obama to maintain existing federal SB1070-style programs like 287g that promote collaboration between local law enforcement and ICE and lead to racial profiling of brown-skinned people.

If this is the best attack the nativists can muster, if this is their "secret weapon" against the DREAM Act or any other legislative action on immigration, then I think the pro-migrant community is in good shape.

UrielTwenty-one undocumented youth were arrested in Washington, D.C., on Tuesday after staging sit-ins in the Hart Senate Office Building atrium and the offices of Senators McCain and Reid. This followed on the heels of a similar action in Senator McCain's Tucson office in May in which three undocumented leaders were arrested and turned over to ICE in what was the first civil disobedience action carried out by undocumented activists that I am aware of.

The students had come from all across the country to Washington, D.C., to participate in a three-day series of rallies and legislative visits to promote the DREAM Act. The DREAM Act would provide a path to legal status for undocumented youth brought here as children who complete two years of college or military service. Currently, these youth face deportation and long-term separation from their families and friends.

The students began their sit-in shortly after an annual symbolic graduation ceremony, held at a nearby church, attended by hundreds of DREAM Act-eligible students in caps and gowns. Groups of DREAMers and supporters had driven from Arizona, California, Georgia, Illinois, and many other states to attend the days of action.

Shortly before 3:00 p.m., the 21 activists fanned out to the offices of Senators Feinstein (D-CA), Reid (D-NV), McCain (R-AZ), Menendez (D-NJ), and Schumer (D-NY), where they began peaceful sit-ins. After a short while, they left the offices and congregated in the atrium of the Hart Senate Building, except that the students in Senators Reid and McCain's offices stayed put.

Twelve DREAMers in the Hart Building atrium began a peaceful sit-in and were arrested by Capitol Police shortly afterwards. They were then taken to a local processing facility. Four DREAMers in Senator McCain's office and five in Senator Reid's were arrested between 7:30 and 8:00 p.m. after the Senate office buildings closed. Seventeen of the DREAMers were released Tuesday night or early Wednesday morning, while four were held overnight and released after appearing at their arraignments.

The activists in yesterday's action risk deportation if ICE gets involved as they go through the criminal process. Their arrests triggered an immediate and intense emotional response from the groups they had traveled with to D.C., which included siblings, parents, teachers, and friends, many of whom did not know the 21 would be arrested.

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