U.S. Immigration Law: December 2009 Archives
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.