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Immigration law in the United States is perpetually changing. This blog is meant to serve as a resource for current updates in law and policy that affect immigrants and immigrants' rights. This blog should not be construed as legal advice; it is the author's opinion on relevant news in the immigration context. If you have any questions about how the changing law and policy may affect you, please contact us to schedule a confidential consultation.

Friday
Jul252014

AILA: House Republican Plan Will Endanger Children Fleeing Violence and Persecution

A working group of lawmakers appointed by House Speaker John Boehner to address the national security and humanitarian crisis at the southern border, released a set of recommendations to the House GOP conference Wednesday to deal with the influx of children and families crossing the U.S.-Mexico border. The plan mandates deploying National Guard troops and requires the Obama administration to more quickly process and deport young children and families who have entered the country in recent months.

"This plan will harm vulnerable child victims of violence," said Leslie Holman, President of AILA. "This is exactly the wrong way to address this humanitarian situation that affects not just America but the Americas. It will result in children who are eligible for, and desperately need protection in the United States being sent back to the violence they escaped."

"The Boehner plan will compel children to go before an immigration judge within seven days. How can a child ask for asylum so quickly before she has received medical treatment and counseling, let alone the chance to get legal assistance to understand what asylum is? Children are typically not developmentally able to formulate such requests. Further, those who might be developmentally able may not be after having just undergone the trauma of an arduous and dangerous journey. "DHS has had a terrible track record of detaining families, got sued for it, and shut down a Texas facility. A plan that now calls for every family to be detained makes no sense. Even worse, the Boehner plan will send families back without meaningful screenings for asylum. Families are stepping off planes in Honduras, the murder capital of the world, and saying they weren't given a chance to describe how fearful they are of being sent back.

"Congress must take responsibility for its longtime underfunding of immigration courts that has resulted in years-long backlogs of cases. To now require courts to rush decisions would both compromise the accuracy and integrity of judicial decisions and likely hurt those we have a legal and moral duty to protect.

Holman concluded, "We understand from experts and lawyers screening children at facilities that 63 percent will qualify for protection in the United States. But we'll never know if this is the case if we don't provide them with a full, fair and independent proceeding. This is what is required under current law, and it is the best way to avoid sending kids back to their deaths. In this instance, to err is certainly not human."

Friday
Jul252014

Help, Not Detention Needed at the Border

By Crystal Williams

Our nation is suffering a crisis of conscience. We see photos of children lost and bewildered, seeking refuge in our country. They are lined up in rows, on the floor, covered by an aluminum blanket, waiting for processing. They have suffered unspeakable abuse, persecution, and agonizing journeys to make it here. Churches, families and local leaders have stepped forward with the spirit of welcome. Many of our nation’s leaders have done the same, giving voice to the plight of those who are gravely in need of aid. 

But our president has not offered leadership, or much compassion. Instead he has sent a mixed signal at best: America, he says, wants to protect vulnerable children but wants to deter them from coming by speeding up deportations. Since late June, he has stated clearly that he wants more authority to deport children quickly. 

Of course, he is receiving the usual criticism from those who complain about the borders not being secure. Those demands will never be met — especially since they are devoid of reality. The truth is the border is more secure than it has ever been, and this president and his predecessor are responsible for it. Moreover, addressing the needs of 60,000 vulnerable children is not a border security or law enforcement problem. When children are actively presenting themselves to law enforcement and are clearly seeking assistance, our nation must recognize that they are in great need.

 Our laws — including a 2008 bipartisan anti-trafficking law — require us to treat these children carefully. Instead of letting a Border Patrol agent determine whether a child could be eligible for asylum or other status, we have a process that strives to keep them in safe custody, then screens them for eligibility for legal protections, and finally brings them before an immigration judge for a reasoned and balanced decision. I find it incomprehensible and morally indefensible that the administration has signaled to Congress to change that law. True they have not specified exactly how they want to do it. But its signal sends the dangerous message that it wants to weaken protections for these children at their time of greatest need.

 The president is right that there needs to be more funding for immigration courts and judges. For years Congress has underfunded the courts while heaping funding on the Department of Homeland Security for enforcement. No one in Congress should be complaining that the courts are slow and backlogged. Now is the time to increase the number of judges available to hear cases. The processing of these children’s cases would be greatly improved simply by reducing the time they are stuck waiting for their cases to come before an immigration judge.  

 The government should also guarantee that these vulnerable children be represented by counsel, so they have a fair chance against the DHS attorney who will be arguing to throw them out of the country. Child victims of trafficking and persecution cannot be expected to tell their stories to law enforcement officers or to judges — let alone match up their trauma with legal theories — without an advocate to help them through the process. Moreover, legal representation and legal orientation programs have been shown to improve the efficiency for resolving cases. When someone is represented by counsel, judges are more confident that there has been a thorough screening of the person’s situation and as a result can proceed to a final decision.

 Finally, children and families should not, except in very rare circumstances, be formally detained; instead of ramping up detention facilities, our government should invest in recruiting foster families for kids without family to go to. The president has requested nearly $600 million for 6,350 detention beds. These would be used on families, including mothers still nursing children. In 2009, the DHS learned its lesson that detention of families is unwise after abuses and poor conditions were revealed in a Texas facility. Let’s not make that mistake again and instead use far less expensive yet effective alternatives to detention. 

 Our nation needs this president to lead us down the right path.  



Wednesday
Jul092014

USCRI'S Six Solutions for the Unaccompanied Minor Crisis at the Border

1. RESPECT FAMILIES

Allow parents or legal guardians from El Salvador or Honduras who reside legally in the U.S. under Temporary Protected Status (TPS) to apply for their minor children to reunite. Their minor children may be residing either in the U.S. or in their country of origin and their status would be linked to their parents. This will immediately reduce immigration court backlogs and apply to an estimated 30-40% of the children surrendering at the borders. 

2.  KEEP KIDS OUT OF THE COURT ROOM

Institute a Children’s Corps based on the Asylum Officer Corps model. Children Corps officers would be trained in child-sensitive interview techniques and Best Interest Determination standards. They would determine if a child is eligible for legal relief such asylum, Special Immigrant Juvenile Status (SIJS), Trafficking Victims Visa (T-Visa) or other forms of legal relief. This would move the adjudication process from an adversarial, judicial process to an administrative process for most children. Those who are not eligible for legal status would be placed in removal proceedings. It is estimated that 40% to 60% may be eligible for legal protection.

3. HELP CHILDREN AVOID THE DANGEROUS JOURNEY

In-Country Processing allows applicants to apply for refugee status in their home country. The children would have to meet the U.S. refugee definition, be otherwise admissible, and would be resettled in an orderly fashion. In-country processing has been used in the past for the resettlement of Soviet Jews, Vietnamese, and Cubans, so they could avoid life-threatening escapes. Other countries in North or South America may also be willing to accept children for resettlement.

4. ENGAGE THE U.N. REFUGEE AGENCY (UNHCR)

Unaccompanied children and adults can receive international protection from UNHCR after they have fled their home country. Through long established procedures, the UNHCR could then refer their cases for resettlement to a receiving country. The U.S. Department of State coordinates the program, the refugees are interviewed by a USCIS Officer and, if approved for entry, undergo extensive security and medical clearances prior to being moved to the U.S.

5. FORGIVE THE CHILDREN

Grant Children’s Protected Status (CPS) to all unaccompanied children who have already been brought into custody. As precedent, the Cubans and Haitians who arrived illegally during the Mariel Boatlift in 1980 were given Cuban/Haitian Entrant Status. Simultaneously with the announcement of CPS, the government could announce a cut-off-date for all future arrivals. After the cut-off date, new arrivals would be subject to expedited removal. Granting CPS will relieve the government of the burden and cost of adjudicating the cases of thousands of unaccompanied minors. This will increase capacity for the Department of Homeland Security to handle other immigration cases.

6. INTRODUCE HOPE

Create a Regulated Entry Procedure (REP) for 10,000 Unaccompanied Immigrant Children per year per country from Honduras, El Salvador, and Guatemala. As precedent, to end the Mariel Boatlift in 1980, a lottery was established which allows 20,000 Cubans to enter the US every year. The hope of “winning” has kept Cubans from hazarding the ocean for the last 34 years. The Central American Children would be permitted to enter the U.S. legally through a regulated system managed and processed by the U.S. Government.

Wednesday
Jul092014

DACA Renewals

Release Date: June 05, 2014

 

WASHINGTON—Secretary of Homeland Security Jeh Johnson announced the process for individuals to renew enrollment in the Deferred Action for Childhood Arrivals (DACA) program. U.S. Citizenship and Immigration Services (USCIS) has submitted to the Federal Register an updated form to allow individuals previously enrolled in DACA, to renew their deferral for a period of two years. At the direction of the Secretary, effective immediately, USCIS will begin accepting renewal requests. USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program.  As of April 2014, more than 560,000 individuals have received DACA.

“Despite the acrimony and partisanship that now exists in Washington, almost all of us agree that a child who crossed our border illegally with a parent, or in search of a parent or a better life, was not making an adult choice to break our laws, and should be treated differently than adult law-breakers,” said Secretary Johnson. “By the renewal of DACA, we act in accord with our values and the code of this great Nation. But, the larger task of comprehensive immigration reform still lies ahead.”

The first DACA approvals will begin to expire in September 2014. To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests before the expiration of their current period of DACA. USCIS encourages requestors to submit their renewal request approximately 120 days (four months) before their current period of deferred action expires.

DACA is a discretionary determination to defer removal action against an individual. Individuals in DACA will be able to remain in the United States and apply for employment authorization for a period of two years. Individuals who have not requested DACA previously, but meet the criteria established, may also request deferral for the first time. It is important to note that individuals who have not continuously resided in the United States since June 15, 2007, are ineligible for DACA.

Individuals may request DACA renewal if they continue to meet the initial criteria and these additional guidelines:

  • Did not depart the United States on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

The renewal process begins by filing the new version of Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” Form I-765 “Application for Employment Authorization,” and the I-765 Worksheet. There is a filing and biometrics (fingerprints and photo) fee associated with Form I-765 totaling $465. As with an initial request, USCIS will conduct a background check when processing DACA renewals.

Thursday
Mar272014

On immigration, the GOP’s window for action is closing fast

RE-POSTED FROM THE WASHINGTON POST

by Greg Sargent

Today House Dems introduced their discharge petition to force a vote on immigration reform. No Republicans signed it. A John Boehner adviser justified this by tweeting that the votes aren’t there in the House for Dem reform proposals. Okay, but House Republicans won’t vote on their own proposals, either.

Ultimately, though, all of this dithering distracts from the big picture, which is this: If House Republicans don’t act on reform in the next few months, it’s likely Republicans will head into the next presidential election without having done anything significant to fix their Latino problem.

It’s hard to see a scenario in which Republicans act on immigration reform beyond the summer. If summer comes and nothing has moved, pressure on Obama to utilize executive action to slow deportations will be overwhelming. He’ll likely do something. The right will go into overdrive, making legislative reform even harder.

Two immigration reform advocates who have spoken personally with the president in recent days tell me they came away convinced he knows he will have to resort to executive action by summer if Republicans do nothing.

“The president made it clear that three months from now, if there is no legislative action, he will do more using executive authority,” says Lorella Praelli, the director of advocacy and policy for United We Dream, who was in a recent meeting between advocates and President Obama. “That was the message that we got in different ways.”

“The president left the clear impression that if Republicans don’t act in three months, he will,” added Frank Sharry of America’s Voice, who was also at the meeting.

You might be skeptical of this, since these advocates want Obama to resort to executive action. And it seems plausible Obama communicated to advocates that by summer, it will be time to move to Plan B, without being that specific about what Plan B will be. This might be the White House trying to get advocates to stop pressing for executive action now because it takes pressure off Republicans.

But the fact is there is good reason to think Obama will likely act if Republicans don’t move by summer. The Department of Homeland Security is already reviewing possibilities. If nothing happens by July, and we head into August recess, it’s hard to imagine Republicans acting in September or October, when the midterms are in full swing. Is lame duck action possible? Perhaps, but there is simply no way advocates will tolerate waiting that long. It would mean waiting nine more months for possible action — and the two million deportations mark will have long since come and gone.

So the pressure for action will be ferocious. It’s possible Obama won’t act, but it’s very hard to imagine it. The legality of executive action is convoluted, but some legal experts believe he has more leeway than the White House has publicly acknowledged. It’s also unclear what action might look like — would deportation be deferred for just parents of the DREAMers? Relatives of U.S. citizens? Working folks who are assets to communities? – but some kind of action seems borderline inevitable.

And any Obama action will only embolden the “tyranny” screaming hard-liners in the House GOP caucus, making reform harder still in the lame duck session and even beyond into 2015. What’s more, the GOP presidential primary starts up next year, and Ted Cruz (who denounced even the House GOP principles on reform as “amnesty”) may demagogue the heck out of the issue to appeal to a far right chunk of primary voters, making it harder for more sensible GOP candidates (and Congressional Republicans alike) to embrace reform. On top of that, the current Senate bill will expire, so we’d need the Senate to act again, also a heavy lift.

Is it possible Republicans will be able to pass reform next year? Perhaps, but it will likely be significantly harder than it is now.

Some might respond that once Republicans control the Senate next year, they can simply pass reform in both chambers on their own terms. But foes of reform will point to the GOP victory as proof they don’t need reform to win. Anything Republicans pass will be extremely inadequate — a combination of enforcement and citizenship for just the DREAMers, say — and won’t solve the crisis afflicting a whole community. That won’t fix the GOP’s Latino problem. Plus, this is a pretty big gamble to begin with, since Republicans might not win back the Senate.

Bottom line: There is good reason to believe that if House Republicans don’t act in the next few months, nothing serious is going to happen until at least 2017. Republicans will be heading into another presidential election without having done anything significant — or perhaps anything at all – to prove their willingness to address a humanitarian crisis afflicting a segment of the electorate that votes in presidential elections and continues to grow in many of the key swing states.