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The Obama Administration is pushing for a new policy to ensure that the majority of those removed from the country after an order of removal are those with criminal records and those who are a danger to the community. The Department of Homeland Security has been exercising its prosecutorial discretion to allow people to remain in the country and in the case of some non immigrants a chance to adjust within the U.S. While many people have understood Obama’s new policy to mean that the administration is ‘giving papers’, the policy is not that sweeping. What is true is that many people will be able to get a stay of removal and others will actually be given a chance to adjust within the U.S. if the proper channels are used. A stay of removal or the chance to reopen one’s case are not a right, nor will this be automatic. ICE or the person in removal has to seek a new determination. While DHS can on its own use prosecutorial discretion to reopen a case or grant a stay… people should not wait for an action from the Service as there are too many cases pending and it is best to be proactive about this matter. Also people should remember that the prosecutorial discretion is not a right and every one needs to make the proper arguments to be given the relief they are seeking. The Service is going to be dealing with these on a case by case basis. This means do not assume because your brother has gotten his case reopened yours will be too. The circumstances are different for each case and as I often tell people it comes down to the officer using the prosecutorial discretion. DHS can decide to detain someone, issue an order to appear before a Judge to start removal proceedings, issue an order to cancel such a notice to appear, arrest someone for immigration violations, release someone on detention on bond, under their own cognizance or under supervision, seek to expedite the removal of a non immigrant, settle or dismiss removal proceedings, stay a removal order, agree to have a non immigrant voluntarily depart, and actually remove someone…. DHS can also agree to join in a motion to reopen removal proceedings to grant a relief and benefit. This is a very important prosecutorial discretion and the subject of our discussion. For many illegal immigrants who are on removal and have families in the states, there is a chance with the new administration’s focus on criminals and others with more serious violations, to get some relief and actually get their papers in the U.S. rather than being removed. The prosecutorial discretion is a tool that has to be used by immigrants and their attorneys in order to regularize the situation of many. People who are married to a citizen and have an approved I-130, those who have approved I-140 and are admissible and were not able to have their cases reopened since on removal proceedings should pay particular attention to this new policy. Do ask your attorney to contact ICE Chief counsel’s office to see whether they will use their prosecutorial discretion to join in a motion to reopen and have your case adjudicated for relief. If you are married to a citizen or your child is a citizen and over 21 and can proceed to get you a I-130 do start the process and then contact ICE legal. Of course a reopening of one’s case is the best case scenario as it allows the person a chance to adjudicate his/her case and get a chance to be granted a relief and the chance to stay in the U.S. but some people do not have the kind of ties in the U.S. that would allow them relief. In such a case ICE can still decide to terminate the proceedings or grant a stay of removal. People who are not able to adjust but are minors or elderly, or been present in the U.S. since childhood, are pregnant, or victims of domestic violence, trafficking and serious crimes, or suffer from serious mental pr physical disability or have serious health conditions or even those who were found in removal proceedings but were at one time long time lawful permanent residents or veterans can push for such prosecutorial discretion. Please note that DHS will not entertain to use prosecutorial discretion for people who do pose risk to the national security, or are serious felons, repeat offenders, or people with a lengthy criminal records, or pose danger to the community or those who have consistently violated immigration laws, engaged in immigration fraud or with a record of illegal re-entry, according to the different memos the Service has sent out. If you are not sure whether you qualify for a prosecutorial discretion do contact an attorney because this is an important policy and one that people actually should take advantage of to get a chance to adjust their status in the country if possible or get a chance when the situation back in your home country is dangerous not to be removed to such a place.
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I did not expect to ever have to sit here and talk about the need to have the judiciary wade through the recession without more budget cuts but yesterday after attending a lecture series regarding the widening gap in the access to justice I have to agree that more is needed. The Courts and legal services across the states of the Union are facing great cuts due to the recession. Most of us would ask why should we care enough about these issues to contact our local newspapers, senates and houses of representatives or give our own money? Well, we do not realize many things that go into making sure that most of us have our day in court. It is when there is not enough money to keep up with the working of the machine that we realize the importance of a well oiled machine to maintain our rights. The economy is not doing well and many of us have lost our jobs and not been able to get benefits, others have had to deal with issues of foreclosure while others have had to deal with not being able to get their social security or having to file for bankruptcy …. Many of us have joined the ranks of the newly impoverished and have had to ask help from many sources, one of which has been the civil legal service organizations such as Legal Aid. Many people need help with unemployment benefits, foreclosure, bankruptcy… Many men and women are helped by civil legal services. Yet, despite the growing pains people are facing, these organizations are forced to deny help to people who are in dire need. Instead of being able to deal with the increase in the numbers of newly impoverished, these organizations are turning people down. Legal Aid New York for instance has had to turn down eight out of every nine people seeking assistance. A reduction in funds for organizations helping people with their civil cases means that less people are going to get the help they need. The civil legal services organizations have faced deep cuts but more disturbing than the cuts have been the limitations and restrictions put upon them by many of the states. This is significant when we know that many of these organizations get as much as a third of their funds from the state. In Minnesota and other states, the legislatures have restricted the funds they give to these organizations. The legislature in Minnesota no longer allows such organizations to use state funds to help for matters which are purely federal. That seems logical until one gets to understand that things as important as disability especially for the elderly (social security), bankruptcy issues facing many of us, taxation, and immigration issues can no longer be dealt with by many of the legal aid organizations with those state funds. Many people were able to stay in this country after a harrowing experience in their home country because such organizations helped them with their asylum case. These organizations help a great deal of people. During the lecture, Cathy Haukedahl, the Head of Mid-Minnesota Legal Assistance talked about a woman who when she came to them was suffering from abuse. She needed a divorce, a safe place and to make sure that her kids were away from their father. They helped her to get a divorce, a safe place and the custody of her children. Without them she would not have been able to get the help she needed. Like the women they extended their help to thousand of people in need. Last year alone Minnesota Legal Assistance helped about 11,000 poor people with their cases. The cuts mean that they will be able to help less people this year. More people need help but there is less money to give the help. I think rather than cutting their budgets, these organizations need an increase in their budgets to deal with the crisis and the higher than normal unemployment rate. A across the board cut to all the state programs is not the answer. While a cut in the budget to make Minneapolis more beautiful is a concern is cannot compete with the need to an education or to have a roof over one’s head. In criminal matters whether it is for felony or misdemeanor matters, about 90 percent of indigent people are represented by public defenders. Deeper cuts to the public defender’s offices throughout the states would mean that even more poor people would be left to fend for themselves in matters that can sometimes be a matter of life or death. Many immigrants have seen themselves facing criminal charges over using false identifications etc… Because of the dire consequences some criminal convictions can have in the lives of so many of those immigrants, not having the right representation can mean leaving their families behind forever and being forced into deportation. Cuts in the court systems have meant more delays for people to have their cases processed. When we talk about matters of child custody or even felony matters this can have dire consequences. Think of a family member being innocent of whatever he is charged for and not being able to have his day in court for a year. Even if one is guilty of whatever one has done if the person has to wait for a year to have their day in court and their sentence ends up being less than a year they would have served more than what their crime called for which is not right either. A child who survives an abusive home and has to wait for a year to know where his permanent home is going to be continues to suffer throughout that ordeal. The overworked judicial system has also meant that more people are forced into taking pleas instead of having to go to court for their cases. We all suffer when the courts do not work the way they are supposed to work because it means that people are not able to present their cases whether they are silly or serious. Last year in Minnesota about 1.4 millions people had their cases processed through the court system. It is a lot of people coming through the court system. More cuts would mean that not as many people are going to be able to have their cases before the court and those who do have case would have to wait forever to have their cases heard. For serious matters such as divorce and felony matters this is not quite acceptable. It does not matter where you live. Matters happening in Minnesota and New York are happening across the states. Minnesota might in fact be faring better than most states. Take the time to contact your courts if you are not sure what to do to help them. They have samples of letters they can give you for your representative or the newspapers. You can also talk to other people about making sure that they do take the time to ask for the legislatures not to make more cuts into the judiciary and to make sure that they are not making more cuts in civil organizations helping the poor. Donate your time, donate your money. Do what you can to make sure that at the very least the budgets cuts do not eradicate the right of people to have their basic needs met.
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We have been concentrating on Arizona and Alabama so much that we have forgotten that many states have now joined them in tough immigration policies, and that some states even predate Arizona in tough immigration policies. States such as Rhode Island, Mississippi, Tennessee, Indiana, Oklahoma, Utah, Tennessee, Louisiana, West Virginia, Georgia, and Alabama all have tough laws dealing with immigration. Rhode Island did something back in 2008 and 2009 a bit different from the rest of the states because they used executive orders from the governor to promulgate their tough immigration policies. But the bottom line is the orders allow state police to check immigration status at traffic stops whenever there is reasonable suspicion to do so, and they report all illegal immigrants to ICE for deportation. Mississippi passed tough immigration laws back in 2008 making it a felony to work in the state illegally. After Arizona many states are passing laws to deal with what they see as an immigration issue. Tennessee in June of 2010 passed a law similar to the Arizona law that went into effect on January of 2011. House bill 670 requires state jails to report any person who could be in violation of immigration laws to U.S. Immigration and Customs Enforcement. Back in March of 2011, Oklahoma passed a bill that their Supreme Court upheld in June that bars smuggling and allows law enforcement agencies to seize property used to harbor or transport undocumented immigrants. It also allows state and local law enforcement officers to inquire about immigration status if said officers completed a federal training program. Utah back in May also passed tough immigration policies with HB 497 which requires state enforcement agencies to check the immigration status of anyone stopped for felonies or certain misdemeanors. The law also gives state agencies discretion to check citizenship status for traffic violations and other lesser offenses. The Utah legislature was unusual in the sense that they also passed a guest worker program and another program allowing students who have gone to high school in Utah to pay in state tuition. Also back in May, Indiana passed a law that was supposed to go into effect in July of 2011 which allowed the state enforcement agencies to arrest anyone ordered deported by an immigration court. Right now a federal court has stayed the decision. South Carolina passed a tough immigration policy in June a couple of month before the law in Alabama passed in August. South Carolina law bars illegal immigrants from attending public universities. HR 69 criminalizes an immigrant’s failure to carry a certificate of registration and requires law enforcement agents with reasonable suspicion to determine whether a person is lawfully in the U.S. The law makes it a crime to knowingly transport or harbor an illegal immigrant and sets up a unit within the state police to deal with immigration issues and serve as a liaison between local authorities and federal officials. Under the new law, employers will also be required to use the federal E-Verify system to check the citizenship status of employees and job applicants, and will face penalties for knowingly employing illegal immigrants. criminalizes presenting false identity and the creation of a special immigration enforcement unit within the state police. These are unique to South Carolina In July, Louisiana passed into law a bill requiring employers to use E-verify to check immigration status. The law provides for increased civil penalties and adds license revocation for those who do not comply with the new requirements. Also in July, Georgia passed into law a bill that allows the state enforcement agencies to check the immigration status of suspects without proper identification and to detain illegal immigrants as well as penalties for harboring or transporting illegals. Georgia makes it a felony to use false information or documentation for applying for a job, mandatory immigration status for state benefits as well as fines and possible dismissal for any employee failing to check such benefit, mandatory E-verify to employers with 10 employees or more. Some of the laws are at the local level such as the ones passed by the City of Hazleton, Pennsylvania making it illegal to hire or maintain employment of an illegal immigrant or the renting of housing to an illegal immigrant. The law about prohibiting landlords from renting housing to illegal immigrants are similar to those passed in Fremont, Nebraska and Farmers Branch, Texas. I believe that what has prompted all these laws have a great deal to do with the fact that the federal government is confused about its immigration policies but also has in its own way been quite harsh on its immigration policies. But at the end of the day, while no one will argue that the Alabama laws are tough, they might arguably be the toughest in the nation, people need to remember that federal laws have become tough for years now and that the state laws are really just a reflection of the federal laws. It is illegal under federal law to harbor an illegal immigrant and to hire an illegal immigrant. People also do need to remember for instance that the 287(g) program is a federal program that while not allowing any state Troopers to go on any job site or stop people and check to see if they are legal, does allow local law enforcement agencies to enforce federal immigration laws by allowing officers to detain immigrants who are arrested for non-immigration offenses and transferring them to U.S. Immigration and Customs Enforcement (ICE). This is the very law the governor is using in Rhode Island to promulgate his immigration policies. It is also Federal law which introduced E-Verify. While it is true that the federal government makes it voluntary for most businesses, states led by Arizona, have made it mandatory. No one can argue that it is a federal court, the U.S. Supreme Court, which earlier this year, upheld Arizona’s E-verify laws (Chamber of Commerce v. Whiting). Many of the laws that seem to pass muster are making the argument that they are not against federal laws but rather buttress those laws and the Supreme Court seems to be biting. It is also not clear whether there is going to be much debate about all these immigration issues at the Supreme Court level when the ubber conservative Court has already decided in a previous case in Muehler v. Mena that police really does not need probable cause or reasonable suspicion to ask a person about his immigration status. The Supreme Court by upholding the E-verify laws seems to have sent a message to states that it was okay to have tough immigration policies as long as they use their state powers. The Court has gone even further and is sending quite strong messages about the fact that it might ultimately uphold these tough immigration laws. Back in June the Court in Hazleton v. Lozano asks the Third Circuit Court of Appeals to re-determine whether the city of Hazleton in Pennsylvania can restrict illegal immigrants from working in the city or renting housing. The Third circuit had deemed the law illegal and the Court vacated that order and remanded the case for further consideration based on the Arizona decision. Thus, people really need to frame the issues carefully and be very cognizant of the fact that despite all the lawsuits brought by the federal government against these state actors, the federal government itself is the body that has failed to create a unified body of law to deal with immigration.
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The controversial House Republican Scott Beason, who exhorted his fellow Republicans to resort to violence back in February of this year by asking them to "empty the clip, and do what has to be done,” has introduced and sponsored the toughest immigration law in the country in Alabama, Alabama’s HB 56. The bill adds restrictions on education, housing and all other areas of an immigrant’s life by making federal verification the only way in court to determine if someone is here legally; requiring state officers to determine a person's immigration status including that of little children going to elementary, middle school and high school, penalizing undocumented aliens for seeking work; making it a crime to transport or harbor an illegal immigrant; penalizing people for violating federal registration laws; and allows officers to make warrantless arrests should a person commit an offense that makes him removable from the U.S; barring people from stopping along a road to hire temporary workers and day laborers, allowing discrimination lawsuits against companies that dismiss legal workers while hiring illegal immigrants, barring employers from taking tax deductions on wages paid to illegal workers, barring illegal immigrants from attending public colleges and universities; nullifying all contracts entered by an illegal immigrants. The law of course had to go through federal scrutiny and a Judge has ruled out some provisions but so far she has allowed the vast majority of the law. An appeal to the 11th Circuit the court of appeals having jurisdiction over the matter is pending but as stated in earlier blogs this case like the rest of the state immigration laws is going to have to de decided at the Supreme court level to avoid fifty different laws on immigration.
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While some states such as Colorado, Nebraska and Minnesota have out and out rejected tough immigration policies about 30 states have considered new laws targeting illegal immigration this year. There have been 52 such bills introduced nationwide. About 23 of them in places like Florida resemble Arizona's Senate Bill 1070. So far, 14 of these bills have failed, including measures in Florida, Kentucky and West Virginia. And three have passed, including one in Georgia and two in Utah. The Georgia legislature even though it is considering a guest worker program, has passed some very tough immigration laws. The Georgia bill HB87 passed on April 20, 2011 is similar to SB 1070. The bill was signed into law in July of 2011 by Gov. Nathan Deal. Georgia claims to have about 480,000 illegal immigrants, about 20,000 more than Arizona. The Georgia law gives police the authority to check a suspect immigration status if the suspect is unable to produce a valid ID and if the officer has probable cause to believe the suspect has committed a criminal offense. If the person is verified as an illegal immigrant, police can detain that person or notify federal authorities. Among other things, the bill outlaws the use of fake IDs to secure employment. The bill allows imprisonment up to 15 years of those who use fake identification to get a job in Georgia and up to $250,000 in fines. The bill also outlaws the transporting or harboring of illegal immigrants while knowingly committing another crime. The People who knowingly transport or harbor illegal immigrants or encourages them to come to Georgia would face jail time for up to 12 months as first time First-time offenders and up to $1,000 in fines. The law also requires state officials to check the immigration status of people seeking state benefits and there is a penalty and a possible dismissal of atate officials not enforcing the provision. The most controversial point among business owners is the provision that all but the smallest companies have to use the federal E-Verify to check the immigration status of their employees. The biggest legal battle likely to come out of this might be the creation of the Immigration commission. The bill establishes a seven-member Immigration Enforcement Review Board to investigate complaints about local and state government officials not enforcing state immigration-related laws. Of course the law has already gone to federal court and a U.S. District Judge has blocked the enforcement of the provisions that makes is a felony to use false documents to obtain employment and the fine for such people. The court also blocked the provision allowing state enforcement agencies from arresting, or detaining people for immigration violations. Utah passed an immigration bill similar to Arizona but it sought to soften it by also introducing a guest worker program. The Utah bill HB 497 requires police to check the immigration status of anyone stopped for a class A misdemeanor or felony. The status check would be optional for anyone stopped for a lower misdemeanor or infraction. The law allows the police to detain people who are illegal immigrants. The HB 466 law also introduced a guest work program that would allow illegal immigrants to work in the sate but at the same time it would require them to undergo criminal background checks, pay taxes, take English classes and would force them to leave the state if they lose their jobs. HB 466 allows Utah businesses to hire workers through a city in Mexico called Nuevo Leon but allows such immigrants to enter the state only on a two-year work contract. Other states are also trying their hands at immigration laws and not necessarily in the wrong way. Maryland’s General Assembly passed a bill similar to the one in California that would grant in-state tuition to illegal immigrants. Many states seem to want to have their hand in the immigration debate because most feel with reason that the federal government is not doing much about the crisis. But, as the many federal lawsuits show it is not likely that the debate will abate until the Supreme Court does decide who indeed has the right between the federal government and the states to promulgate immigration laws. In the meantime, there were two important legal decisions regarding the immigration laws in Arizona and Utah. The Supreme Court in December heard arguments regarding an earlier 2007 Arizona requiring all employers to use E-Verify and dissolving businesses that repeatedly hired illegal immigrants. The federal government challenged the law on the grounds that it usurps federal authority. The Supreme Court upheld the Arizona mandatory requirement for E-verify and the penalties the state has promulgated against employers failing to use the E-verify system. On a different note, the U.S. 9th Circuit Court of Appeals upheld a federal judge’s order striking down parts of the controversial Arizona SB 1070. The 9th circuit preempted the following four provisions:
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There has been a raging debate about the Arizona law targeting non citizens. As we strive on informing the public on new developments regarding immigration laws, we will summarize some of the issues below.
Arizona Law SB1070 makes it criminal . To be present in Arizona illegally, to fail to register as an alien and to fail to carry papers to show immigration status as an alien- People who are guilty of such offences can be charged with class 1 misdemeanor for 1st offense (six months for class 1 misdemeanor) and class 2 felony if in possession of drugs or weapons (five years for class 2 felony), and Class 4 felony if it is a second offense, or if it is within 60 months of the person being deported or accepting voluntary departure (two and one-half years for class four felony). · To work or solicit work – People who are found guilty of such offense can be charged with class 1 misdemeano · To transport illegals- Those found guilty of such offense would face Mandatory impoundment and may be charged with class 1 misdemeanor but if transporting 10 or more aliens then they could be charged with class 6 felony and $1000 for each alien involved (one year for class 6 felony) · To harbor aliens, invite an alien to come and live in Arizona · To not verify employment eligibility through e-verify or keep record of verifications- Employers guilty of such offense may be charged with class 3 felony (three and one-half years for class three felony). The law does have other elements. It does: · Allow private citizens to bring suit to have law enforced and to have their cost and attorney fees reimbursed. Also person charged of violation would pay between $1000 to $5000 for each day the policy was violated after the filing of the suit.
a) determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state; b) verifying any claim of residence or domicile if that verification is required under state law or a judicial order issued pursuant to a civil or criminal proceeding in the state; c) confirming a detainee’s identity; and d) if the person is an alien, determining whether the person is in compliance with federal alien registration laws.
Needless to say that with such extensive law there are many issues to deal with. · The federal government has stated that it will keep track of the law as it is implemented but this would only add a bigger burden on a government that is already stretched to the limit. · This seriously reeks of racial profiling. The law at first read "A law enforcement official or agency . . . may not solely consider race, color or national origin . . . " in establishing reasonable suspicion that someone is in the country illegally which meant that race and national origins are definitely a factor. The lawmakers changed the wording to remove “solely” but this would not prevent the racial profiling. · People will be scared of going to the police for anything even if they are victims of violence · The law would be copied by others. Texas, New Mexico and California have talked for years about laws which are very similar to this. Conservative lawmakers in Oklahoma buoyed by the passage of SB 1070, say they will introduce a similar bill in their state. · This seems to be the most dangerous foray towards states taking over federal responsibility, what would be next? · So problematic that Arizona amended the law already. Afraid that officers will be hiding behind the language of the law as it says “For any lawful contact made by a law enforcement official or agency of this state ... where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.” The lawmakers changed the wording "Lawful Contact" to "stop, detain or arrest". · Also clear that Arizona is not going to stop there. Arizona is banning schools from hiring people with accent which are too thick and banning classes promoting solidarity among a given group of people by refusing to fund those schools. The policy bans courses that "are designed primarily for students of a particular ethnic group or advocate ethnic solidarity instead of the treatment of pupils as individuals. · The Arizona immigration law is starting a disturbing trend and one that seems to be condoned by the public. A Gallup poll conducted shortly after the passing of the law found that ¾ of Americans were aware of the law and with that 51 percent of those were proponent of the law and 39 percent against it. The Arizona law makes it clear that there is a pressing need for Immigration reforms to avoid making this country a horrendous place for non citizens.
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GET INVOLVED
In May of last year, the Department of Homeland Security made their biggest raid ever and arrested close to 400 workers at the nation’s biggest Kosher meatpacking plant in Iowa, in Postville. Many of the people who were arrested and detained were not only accused of living illegally in this country but were criminally charged with aggravated identity theft and using counterfeit I.D. to work. Those charged were accused of felonies under 18 U.S.C. § 1028A and many faced two to five years of imprisonment as a result.
People are increasingly facing Federal criminal charges for trying to work with fake social security numbers or green cards and are serving up to two years in prison before being deported to their native countries. The Postville scene might be more commonplace if people do not take the time to get involved in the immigration reform debate and make sure that people are not criminalized for their hard work but rather given a fair chance to work and support their families. Now that the elections are over, people need to address the passing of new immigration laws. Whether the policies are going to punish and criminalize hard working people depends largely on how active people are into making sure that the right changes are passed into law.
With the economy in dire straits, and the controversy with the health care bill, the immigration reform bills have taken a back seat but some form of immigration bill is going to be passed and we all owe it to ourselves to make sure that the laws protect every one. The bills which have been discussed so far range from laws such as 18 USC § 1028A criminalizing people living illegally in this country to Z visas which would only permit people to attain citizenship after more than thirteen arduous years, to laws severally restraining the immigration of close relatives of naturalized citizens. Frankly the bills discussed do not go far enough into making real reforms.
Every one whether they are citizens or not quite legal in this need to get involved as the bills which are going to become laws are going to affect every one of us. Take the time to get involved. Convince three people to contact their Congress person and have those three people convince three more people to make contact. Sherrod Brown, one of the two senators from Ohio decided to change her vote to fight the immigration reforms during the last votes because he received overwhelming numbers of calls from people who opposed the bills. Making contact can make a difference. To revive the discussion towards a fairer immigration reform, please call your Senators or House of Representative to let them know that you support a progressive immigration reform and that you want amendments done. Only those who take the time to raise their voice will be heard. Also, make sure to spread the word about the need to support and amend the prior bills.
Below we have included a petition that people can use as template to start a petition in their area. Thank you.
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