Category Archives: Deportation and Removal

It’s a Fine Executive Order, But What Will the 2017 President Do?

Obama immigration speechMany immigrant groups have expressed disappointment that President Obama’s Executive Order of November 20, 2014 did not go further in easing the lives of immigrants within the United States.

Latino groups, for example, would have liked to see relief for farmworkers, LGBT groups would have liked to see relief for those without family relationships to draw on, and young beneficiaries of Deferred Action for Childhood Arrivals (DACA) would have liked to see their parents and other non-DACA-eligible family members receive derivative benefits, such as a work permit and similar protection from deportation.

But I’m impressed that the order went as far as it did, basically stopping just short of granting any new, permanent legal status to non-citizens of the United States. Doing so is traditionally seen as the role of Congress, though the exact line between the president’s and Congress’s power over immigration matters has never been clearly drawn. (For a full legal analysis, see “The President and Immigration Law,” by Adam Cox and Cristina Rodriquez.)

The expansion of the provisional waiver program, for example, is a huge fix to what was essentially a procedural inequity, allowing adult children of U.S. citizens as well as spouses and children of lawful permanent residents who were living in the U.S. unlawfully and not among those allowed to file paperwork here, but too scared to leave to collect the green cards they were otherwise eligible for, to file a waiver request and obtain assurance before their departure that they’d be allowed back into the United States. (Sorry, there’s just no way to make that brief and easy to grasp. Put another way, the provisional waiver allows them to apply for a waiver of their unlawful presence in the U.S. before, not after taking the risk of departing and then being barred from return. Is it any wonder the press and public seem a little unclear on the details?)

For more on this and other changes made by the Executive Order, see Nolo’s update, “President Obama Announces Executive Action on Immigration.”

The bottom line, however, is that an executive order can be easily undone by the next executive — and we don’t know who will succeed President Obama after the 2016 election. Immigrants are plenty aware of this fact. That’s why far fewer young people applied for DACA relief than were eligible or expected.

If it’s true that young people have a sense of invincibility, then one might argue that the new group of deferred-action-eligible people created by President Obama’s order — parents of U.S. citizens and permanent residents — might be even less willing to say, in effect, “Hey look, I’m here illegally, here are my name and address for your files!”.

They know, better than many of the opponents of the President’s order, that neither DACA nor the new Deferred Action for Parental Accountability (DAPA) program is in any way an amnesty. Neither program offers a path to a green card — DACA and DAPA provide only a work permit and a short-term promise that those approved won’t be deported. As stated to the National Journal by Marc Rosenblum, deputy director of the Migration Policy Institute’s U.S. Immigration Policy Program, “Those who have a stable job and aren’t looking for a new one might decide it’s safer to keep their names off the government’s books.”

The one thing that every group representing, or even interested in the fate of immigrants and refugees in the U.S. seems to agree on, is that Congress needs to get its act together and actually pass immigration reform. That will no doubt fall short of providing the relief that everyone hopes for too, but at least it will offer some certainty.

Diane Guerrero’s Story of Parents Being Deported Represents Experience of Thousands of Children

ICE arrestActress Diane Guerrero (“Orange Is the New Black,” “Jane the Virgin”) recently described her traumatic experience, at age 14, of coming home to find that her parents had been picked up by U.S. immigration authorities. They were detained and ultimately deported. (See “Op-Ed ‘Orange is the New Black’ actress: My parents were deported.”)

She literally came home to an empty house, receiving no communication, much less help, from U.S. authorities. Only by relying on help from friends was she able to keep her life together and ultimately achieve the success that she did. (Many others aren’t so lucky.)

If that sounds like a script worthy of a movie, realize that it happens every day — no exaggeration. As described in the Huffington Post‘s article by Elise Foley, “Deportation Separated Thousands Of U.S.-Born Children From Parents In 2013,” Immigration and Customs Enforcement [ICE] last year carried out more than 72,000 deportations of parents who said they had U.S.-born children.”

That’s despite the supposedly active policy of “prosecutorial discretion,” under which ICE agents are expected to follow specific guidelines in choosing who to spend precious government resources on prosecuting, giving lower priority to cases where the undocumented immigrant is law-abiding and has ties to the U.S. such as U.S. citizen children and other family members.

In fact, Diane may have been lucky to escape U.S. government workers’ notice. The all-too-common scenario when a parent is deported is for the child to be placed into the foster care system, lose contact with the parents, and ultimately have the parents’ legal rights and relationship to them terminated. (See, “Thousands of Kids Lost From Parents In U.S. Deportation System,” by Seth Freed Wessler, Colorlines, November 2 2011.)

So, on top of using U.S. government resources to break up families, this misused exercise of discretion is costing the foster care system untold amounts. It’s a problem that could be solved without waiting for immigration reform, with more rational behavior by ICE in following its own guidelines, and attention to maintaining family ties within the foster care system. Let’s hope Diane Guerrero’s story, by putting a face on this crisis, will spur efforts in this direction.

Need to Find Relative Arrested by Immigration? See Online Detainee Locator

usmexicoSometimes what’s going in in the headlines becomes all too personal. That’s what happened for me recently, when a friend called to say that her cleaning woman from El Salvador was in a panic, having received word that her sisters had been arrested by immigration authorities after crossing the border into Texas. They’re apparently part of the flood of young people fleeing countries beset by violence, attempting to cross the Mexican border into the United States.

The first question then becomes, “Where are they?”

Back when I was actively practicing immigration law, this question could take days of calling detention centers and desperately begging information out of disinterested guards and officials. But now there’s an “Online Detainee Locator” provided by Immigration and Customs Enforcement (ICE).

Would it work?

At first, no. (Probably not too surprising — data entry may not be the first thing on the to-do list after an immigrant is arrested.) But within about 15 hours, voila — we entered a name and birth date and received the name of the detention facility where one sister was being held, as well as a phone number for reaching that facility. The U.S.-based sister was able to call the facility and get more information about the status of her sister’s case.

Whether the online system is always this workable, I can’t say. It’s easy to imagine situations where the name might be misspelled, or a birth date taken down inaccurately, leading to a complete info void.

And an even more difficult aspect of the system is that it’s mostly in English. Yes, you can choose other languages from a dropdown menu when you first perform the search, but as far as I could tell, this doesn’t lead to any different screens when it’s time for the results.

Still, it was immensely satisfying to see the name pop up and know that, as alarming as the news of the arrest was, the sister hadn’t just disappeared into the system. Now, if Congress would only come up with an intelligent and humane way to deal with this influx.

Want to Know Who’s Actually Getting DACA Approval?

Graduation-5502U.S. Citizenship and Immigration Services (USCIS) just published its first-ever report summarizing the “Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals (DACA).”

The report supplies demographic information about people who requested DACA between August 2012 to September 2013 and were approved by January 2014, in these categories:

  •  age range
  • gender
  • country of birth
  • marital status
  • state of residence

Citizens of Mexico are, to no one’s surprise, the largest pool of applicants by far, followed by El Salvador, Honduras, and Guatemala. But plenty of other countries’ citizens applied, as well. Even the bottom four countries on the list Poland,  Nicaragua, Nigeria, and Guyana, had over 1,000 applicants each.

As for age, the majority are 19 and under, followed closely by the 20 to 24 age group. This isn’t too surprising either, given the age-related requirements for DACA (see Nolo’s article on, “Who Qualifies for Deferred Action as an Immigrant Student or Graduate (DACA).”) There was no clear winner between number of male and female applicants and DACA recipients.

And you get no points for guessing which state most applicants applied from: California, of course! Texas a close second.

 

Bizarre New Enforcement Practice — Arresting Departing Nationals of Mexico

ICE arrestI nearly drove my car off the road yesterday listening to NPR’s report on “The Curious Practice Of Bringing Immigrants Back — To Deport Them.” This is truly something new in the world of immigration enforcement.

U.S. Customs and Border Protection officers are not only questioning people coming into the U.S., but addressing questions in Spanish to those driving or riding buses out of the U.S. into Mexico.

Their main goal is apparently to check for evidence of drug trafficking, such as transporting large sums of illegally obtained money. But apparently CBP officials have decided that, while they’re at it, they might as well arrest a few folks who were living in the U.S. without documents — even ones who’d committed no crimes and were minutes away from returning to Mexico anyway!

No one interviewed for the report, regardless of political affiliation, thought this was anything more than a waste of money and time. It’s especially bizarre at a time when — due to the government’s limited resources — the administration has specifically instructed immigration officials to follow a policy of “prosecutorial discretion,” focusing on deporting only those people who present the greatest risk to U.S. society.

And there’s been plenty of political talk of promoting “self-deportation,” too, which it appears some of the departing Mexicans were in the very process of doing.

Hard to say whether this new arrest pattern is misguided, mean-spirited, or simply motivated by some local CBP officers’ wish to get their arrest numbers up and then call it a day.

Do the Signers of the “Deport Justin Bieber” Petition Really Want the White House to Have Such Power?

whitehouseAs widely reported, the petition to the White House to deport pop-singer Justin Bieber, which garnered over 273,00 signatures, recently received an official response. The Administration said, in relevant part, that:

The We the People terms of participation state that, “to avoid the appearance of improper influence, the White House may decline to address certain procurement, law enforcement, adjudicatory, or similar matters properly within the jurisdiction of federal departments or agencies, federal courts, or state and local government in its response to a petition.

According to the Washington Post article on the topic by Helena Andrews, the bottom line here is that “the buck has officially been passed.”

No, the buck has not been passed. The buck was never with the White House in the first place. There is simply nothing in U.S. immigration law that allows the White House (or any other law enforcement authority for that matter), to deport a non-citizen simply because that person “is . . . a terrible influence on our nations [sic.] youth” and the “people” of the U.S. “would like to remove [him] from our society.”

Before the U.S. deports someone, that person has to have done something that matches one of the grounds of deportability set out in the Immigration and Nationality Act. Just a little something called the “rule of law” in our democracy.

And the White House itself wouldn’t be the one to initiate the removal proceedings — that’s the job of the Department of Homeland Security. DHS is, to be sure, an Executive Branch agency — but again, the White House’s basic policy is to not go meddling in the  jurisdiction of such departments merely because a tiny portion of the U.S. population put their names on a petition.

That’s not to say that Bieber’s recent antics and run-ins with the police and U.S. border officials haven’t skated dangerously close to making him deportable. (For more on that, see my earlier blogs,  “Justin Bieber: “Stuck in the Moment” of a Pending Removal Proceeding,” “Oh, and Justin Bieber’s Alleged Assault on a Limo Driver Probably Won’t Get Him Deported, Either,” and “The Justin Bieber Immigration Chronicles, Continued.”)

But if non-Beliebers feel that Justin should be deported for those actions, then putting pressure on Congress to make the immigration laws even harsher than they already are would be the appropriate route. The idea that a petition to the White House could result in someone’s deportation, however, without reference to the legal grounds for it, is just plain scary.