Category Archives: Immigration

Wondering What These ICE “Check-Ins” Are That Are Getting People Deported?

To read the press of late, you might think that every undocumented immigrant in the country regularly checks into an office of Immigration and Customs Enforcement (ICE). The news aspect of this is that such check-ins are increasingly leading to the person’s deportation (removal) from the United States.

Anyone following the news reports has probably seen statements like these:

  • “In cities like New York and Baltimore, fear of ICE check-ins—which once felt customary for non-violent undocumented immigrants—are now causing waves of apprehension.” (The Chicagoist, April 18, 2017.)
  • “. . . numerous faith-based groups, immigration activists . . . and local politicians rallied in support of Ragbir during his “check-in” with ICE . . . What had been fairly routine in past years now seemed ominous. Ragbir, like dozens of others every day, did not know when he entered the Lower Manhattan building if he would see his family again.” (The Villager, March 27, 2017.)
  • “Immigrants—many of whom have lived and worked in the country for decades—have been arrested at home, at work, and at routine check-ins with ICE officials.” (Mother Jones, March 14, 2017.)

All these reports do a good job at conveying the fact that something that was once routine is now a frightening gamble and often a direct pathway to departure from friends, family, and job.

What they don’t convey as well is that the “routine” aspect applies only to a limited number of individuals; in some ways, the cream of the crop. Most of them are people who happened to have been caught up in the immigration system in the past and were specifically and individually deemed low priorities for deportation.

First, a bit of history. Immigration enforcement authorities in this country have rarely if ever received the amount of funding from Congress they’d like. So, they use “prosecutorial discretion” to pick and choose who to try to deport.

Past administrations focused on removing people who had criminal records or presented security risks. Lowest on the priority list were productive members of society who had lived here for a long time with no criminal records and who had family, community, church, employment, and other ties.

Deciding who is and who isn’t a high priority is not a casually made decision. In many cases, an undocumented immigrants who got arrested by ICE had to  supply extensive documentary evidence of their U.S. ties and good character before ICE would agree to stop pressing forward with their case.

If successful, the undocumented person didn’t obtain the same rights as, say, a green card holder. They were put into a sort of limbo status. Efforts to remove them were put on hold, on the condition that they continue to keep up their high standards of behavior and check in with ICE on an annual basis. The threat of removal is and was always there.

So, it’s only minority of undocumented immigrants in the U.S. who are required to check in with ICE. For Americans who advocate the deportation of every last immigrant in the U.S., the natural conclusion is, “Well, arresting them at their check-ins is at least a starting point.”

But immigration advocates point out the absurdity of Trump claiming that his administration would focus on deporting “bad hombres,” then turning around and deporting the people lowest on the enforcement priority list–the people who were already known to the authorities, and being tracked and monitored. For now, anyway. Because, as John Amaya, former deputy chief of staff at ICE under President Obama, told WNYC News, “I don’t think they want to be detaining individuals–bringing them in during the regular check-ins only to detain them and remove them–because then no one’s going to be reporting. . . It would be a huge burden, and I think that’s why we want to make sure people do report and trust law enforcement.”

Undocumented Parents in U.S. Face Reality of Possible Separation

One of the more popular new articles on Nolo’s website is called “Arrest by ICE: How Can I Arrange to Protect My Child in the Event of Deportation?

The reason is obvious: Statements and order by Trump Administration officials express hostility toward the entire U.S. undocumented population, and recent actions by officers of Immigration and Customs Enforcement (ICE) indicate that it has wasted no time in acting upon this new mandate.

By way of background, the Obama administration also deported large numbers of undocumented immigrants–so many that President Obama was dubbed “Deporter-in-Chief” by immigration advocates.

But it also sought to conserve ICE resources by setting clear priorities: Undocumented immigrants with close family and community ties were to be largely left alone, so that ICE’s limited energies could be directed toward people who had committed crimes or were deemed to be security risks.

That set of priorities, and the predictability that came with it, is essentially gone. Thus we hear news reports of, for example:

  • U.S. citizen children watching as their mother, who has lived in the U.S. for 21 years, is taken away in an ICE van.
  • Deportation of another mother of U.S. citizen children, in the face of Mexican government protests that she had no criminal record and the action thus violated U.S. norms for deportation.
  • Deportation of a young man who was under the protection of Deferred Action for Childhood Arrivals (DACA) and detention of another DACA-holding young man.
  • Arrest of a young undocumented woman who spoke out publicly about the raids that picked up her father and brother.

Some have wondered whether the media is highlighting the most dramatic cases and fomenting fear, The Washington Post ran the numbers, however, and found that arrests of noncriminal undocumented persons have doubled under Trump.

Undocumented parents of U.S. citizen children would do well to at least discuss what their emergency plan is and, as the Nolo article explains, “make specific arrangements to ensure their children will be cared for in the event of deportation.”

Immigrant Insecurity Leading to Loss of Home Sales Around U.S.

With Donald Trump’s executive orders on immigration having slammed the door on many legal entrants, not to mention the daily news stories about overzealous border officials interrogating upright U.S. citizens whose names they don’t like, it was only a matter of time before the real estate market felt the impact.

From Seattle to New York to the San Francisco Bay Area, reports are coming in about immigrants who are ceasing their home search or pulling out of actual purchase contracts.

These aren’t just immigrants from the countries blocked by Trump’s executive order, or ones who’ve been told they can’t live in the United States.

No, these are immigrants from around the world who are, as a Bay Area agent told the San Francisco Business Times, “nervous about spending that much money and maybe not staying here.”

An agent working on the Eastside in the Seattle area (where Microsoft and other tech companies are located) told the Seattle Times. “I understand the fear. I can’t tell someone, ‘Oh, don’t worry, you’ll get your visa renewed.’ Who knows? Things could change.”

(And just for the record, an immigration attorney could not, at this point, give the person any more solid reassurance. Trump has already used executive orders to fashion unprecedented sorts of change.)

Some agents say their clients worry that their country will be next on the list for an outright ban.

Will the U.S. real estate market feel the loss of these foreign buyers? Time will tell, but given that non-citizens typically invest around $100 billion per year in U.S. homes, according to Barron’s, this isn’t exactly small change.

And whether you’re a home seller or a home buyer from another country who’s worried about the long term, you might want to read about some of the legal issues involved in a canceled closing in Earnest Money: What Happens When Your Home Purchase Falls Through.

Mass Roundup of Undocumented Immigrants Comparable to Shooting Fish in a Barrel

Remember the old “shooting fish in a barrel” simile, connoting “ridiculously easy” according to the dictionary?

It apparently dates from the 1940s, presenting the idea that while free-swimming fish have a fair shot at survival, ones that you’ve captured in a barrel are, to mix metaphors, sitting ducks. None other than Mythbusters found that “you don’t even have to be a good shot to take out a barrel of fish with a single bullet.”

The phrase also carries a suggestion that, in a country that adulates sportsmanship and a fair fight, shooting fish in a barrel demonstrates neither.

Which brings me to current U.S. immigration enforcement actions.

Per the terms of Trump’s “Presidential Executive Order: Enhancing Public Safety in the Interior of the United States,” pretty much everyone has become a top priority for removal from the United States. (In the past, criminals were the top priority, but the order redefined “crime” to include everything from crossing the border without papers to using a false Social Security Number in order to work to having been deemed, in the jaded eyes of U.S. immigration officials, a risk to public safety.)

We’re already seeing raids in workplaces, homes, and churches; denial of individual benefits that were previously granted; and reports that the National Guard will be deployed to round up undocumented immigrants.

So here’s the thing: rounding up undocumented immigrants is pathetically easy. Any number of U.S. government agencies have information on where they live. In many cases they pay taxes using a substitute number called an “ITIN” (a dead giveaway that they don’t have a real Social Security Number), have been named by their family members on immigration petitions starting the green card process for them (which petitions require an address but don’t give them any short-term rights to be in the U.S.), have obtained special drivers’ licenses in the handful of states that allow these to undocumented persons, and have been granted either DACA status or prosecutorial discretion.

That last one, prosecutorial discretion, is especially important to understand in the current climate. It’s at the knife edge of the difference between President Obama’s immigration policy and that of Trump.

The Obama policy (set forth in a November 2014 memo) addressed the reality that deporting everyone in the U.S. would not only overload the system, but separate families (particularly ones that include U.S. citizen spouses or children). People who were low on the priority list could not only ask that their removal proceedings be suspended, but receive a sort of quasi-status under which they regularly reported to immigration officials and might be granted a work permit.

Now, however, that regular check-in has become the ultimate fish-in-a-barrel way to deport someone. The case of Guadalupe “Lupita” García de Rayos seems to be the first in which someone showed up for the regular meeting and was deported. Other recipients of prosecutorial discretion are already in fear, such as Jeanette Vizguerra, an immigrant mother of four who has reportedly taken refuge in a Denver church.

So what’s next? The Trump executive order hasn’t answered the question of how a system that was truly overloaded already (with years-long backlogs in U.S. immigration court, the next stop for many persons affected by this order) is going to deal with this new influx of arrested or detained persons.

What Does Judge Robarts’ TRO Regarding Trump’s “Muslim Ban” Executive Order Actually Do?

A federal judge’s February 3 ruling in Seattle, Washington, responding to an emergency motion brought by Washington State, issued a Temporary Restraining Order invalidating key parts of President Trump’s executive order entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals.”

The judge’s order applies nationwide and is still in effect as of February 15, due to followup action by the federal Ninth Circuit Court of Appeals. How much of Trump’s order is actually undone by this, and how long the effect will last, is worth a closer look.

First, let’s understand the nature of a TRO. As its name implies, it’s temporary. It just puts a hold on things, maintaining the status quo (pre-executive order), until further court hearings can be held. So it’s not a final decision, and could later be reversed.

Nevertheless, a TRO points in the direction of how a court might treat the subject at hand, due to the list of items that must be proven before the court issues it. These include:

  • That the plaintiff is eventually likely to succeed on the merits (the main substance) of the case.
  • That the plaintiff is likely to suffer irreparable harm if the TRO is not granted.
  • That the balance of equities tips in favor of the plaintiff, and
  • That the TRO is in the public interest.

These raise the question of who is the “plaintiff” in this case. Technically speaking, it’s the states of Washington and Minnesota. Because a state is essentially a caretaker of its residents, it can take legal action to protect their interests. In this case, the two states alleged that the executive order adversely affected their residents in matters of employment, education, business, family relations, and freedom to travel.

But they didn’t stop there. The two states also alleged that they themselves were harmed by the damage Trump’s order inflicted on the operations and missions of their public universities and other institutions of higher learning, as well as the states’ operations, tax basis, and public funds.

The Washington court agreed, and issued the TRO “until such time as the court can hear and decide the states’ request for a preliminary injunction.”

Now, as to which parts of the order were affected. It covered sections 3(c), and 5(a), (b), (c), and (e). That means that:

  • The 90-day ban on people entering the U.S. on immigrant or nonimmigrant visas from certain countries (all Muslim-majority) contained in Section 3(c) is now blocked.
  • The 120-day suspension of the refugee admissions program contained in Section 5(a) is now blocked.
  • The prioritizing of refugee claims based on religious persecution where the religion is a minority in the refugee applicant’s country of nationality contained in Section 5(b) (most likely to favor Christians in the countries where refugees are now coming from) is now blocked.
  • The indefinite ban on Syrian refugees contained in Section 5(c) is now blocked.
  • The order that refugees may still be admitted on a case-by-case basis but only if their entry is in the U.S. interest, in particular where the person is a religious minority in the country of nationality facing religious persecution, the person would enable the U.S. to conform its conduct to a preexisting international agreements, or the person is already in transit and denying admission would cause undue hardship, all contained Section 5(e), is now blocked.

Some sections of Trump’s executive order will remain in force. For example, refugee admissions are still limited to 50,000 total in fiscal year 2017.  (It’s within the president’s power to set such a limit.)

And a section requiring all visa applicants to attend an interview (instead of benefiting from a waiver) remains in force as well.

Nevertheless, the substantive and discriminatory parts of the order have largely been gutted–for now.