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Immigration Policy Update for October 26, 2012

October 26, 2012 - Posted by Maurice Belanger

Congress continues its long recess while members are out in their districts, talking to voters and trying to parlay their lack of accomplishment into another term. (Their absence from Washington seems to be fueling an increase in their approval rating, so they are doing something right.)

Before we touch on some of the week’s developments, here’s a pitch to help us out and celebrate with us.

Help the Forum Celebrate 30 Years

This year marks the National Immigration Forum’s 30th year, and the celebration culminates with our Keepers of the American Dream awards event, which will take place on Wednesday, December 5th, at the Newseum’s Knight Conference Center in Washington, DC. This year’s honorees are Susan Collins, with the Office of Representative Luis Gutierrez, who will receive our “Champions of the American Dream” award; Hikmet Ersek, President and CEO of Western Union, who will receive our “Golden Door” award; Vartan Gregorian, President of the Carnegie Corporation of New York, who will receive the Keepers of the American Dream Award; Monica Lozano, publisher and CEO of impreMedia, who will receive the “Heroes of the American Dream” award; and Richard Trumka, President of the AFL-CIO, who will also receive a “Heroes of the American Dream” award.

You can find out more about the Keepers event on our Web site here. You can purchase tickets for the event or make a donation by going directly to this page. If you are in town, or plan to be in for that day, we hope to see you there!

Border Patrol Use of Lethal Force Under Scrutiny

The Associated Press reports that the DHS Office of Inspector General is conducting an investigation of the Border Patrol’s policies on use of lethal force. Neither the Border Patrol nor the Inspector General’s office would comment, but the investigation comes after a number of deaths on the border at the hands of the Border Patrol. According to the AP report, at least 18 people have been killed by Border Patrol since 2010. There have been conflicting stories about the circumstances of at least some of the killings, as with the killing of 36-year-old Guillermo Arévalo Pedroza in Nuevo Laredo, Mexico, in early September of this year and that of Anastasio Hernandez Rojas, whose death was the subject of a Public Broadcasting Service (PBS) program, Need to Know. The PBS broadcast sparked a letter from 16 members of Congress expressing concern about the killing and asking the Department to examine Border Patrol policies. According to the AP, the investigation may take up to a year to complete.

Inspector General Report Notes Improvements in 287(g) Implementation

On September 26, the DHS Office of Inspector General released a report following up on three previous reports in which the Inspector General made a total of 62 recommendations to address weakness in program implementation. In this report, the Inspector General felt that Immigration and Customs Enforcement (ICE) had made sufficient progress in addressing previous recommendations so that it considered 60 of 62 recommendations closed.

As we noted in the previous policy update, ICE has announced that all 287(g) agreements with local jurisdictions are being extended until the end of the year while ICE conducts a review of the programs to determine whether they should be maintained. The administration has said that it is interested in phasing out the 287(g) “task force” agreements, in which state and local officers investigate the immigration status of persons they encounter in the field. In the context of the nationwide deployment of Secure Communities, the administration has viewed the 287(g) program as less necessary. In its latest budget request, the administration proposed a $17 million cut to the program.

In his report, the Inspector General noted that 287(g) and Secure Communities are separate and distinct programs, and should not be confused in the administration’s budget justification documents.

Some local politicians, for example in Prince William County, Virginia, claim that their efforts to remove undocumented immigrants who commit crimes will be undermined should their 287(g) agreements be terminated. The actual impact will be negligible, however, as an immigration status determination would still be carried out when the person (assuming an actual crime has been committed) is brought to a jail facility and has his or her fingerprints checked in the Secure Communities program.

In-State Tuition for Undocumented Students on Maryland Ballot

In 2011, the Maryland legislature passed a law that would give undocumented student residents of Maryland who meet certain criteria in-state tuition for attendance at Maryland state universities and community colleges. Groups opposed to the law gathered signatures to place the measure on the ballot in 2012. Three weeks before the election, a poll by the Washington Post finds that 59% of likely voters say they will support the so-called Maryland Dream Act. (The number of likely voters who say they “strongly” favor the law is 41%.) Only 35% report they will vote against. If approved, the Maryland law would be the only one in the country to be approved by voters. According to the Washington Post, 13 states have enacted laws giving undocumented resident students in-state tuition, but none of those have been subjected to ballot box approval.

LA Council Committee Aproves ID for Undocumented

On October 16, the Los Angeles City Council Committee on Arts, Parks, Health and Aging unanimously approved a plan to solicit bids for a third-party vendor to handle a city ID card that will be issued to undocumented immigrants. The idea for the card originated with Mayor Antonio Villaraigosa out of a concern that undocumented immigrants were unable to open bank accounts and as a result were targeted by criminals looking for cash. If approved by the full Council, Los Angeles would join a handful of other cities that have introduced local identification cards for undocumented residents. Included among them are New Haven, Connecticut (which began issuing its identification cards in 2007), San Francisco and Oakland.

Conserving Judicial Resources

On October 16, the Second Circuit Court of Appeals handed down an unusual order that applies to all immigration cases before it. The Second Circuit Court is the federal appeals court for New York, Connecticut and Vermont, and it currently has more than 1,000 immigration cases in its docket. The court ordered that all immigration cases currently on the docket, and all future immigration cases filed with the court, will be suspended for a period of 90 days while the petitioner and the government decide whether the case should be remanded back to the Board of Immigration Appeals and whether the government will suspend its prosecution of the case in an exercise of prosecutorial discretion.

The court noted that in a case recently before it, Si v. Holder, the government ultimately decided to exercise prosecutorial discretion after the case had been twice before the appeals court. The judges stated that it was impossible for them to effectively allocate the court’s resources if, after devoting considerable resources to a case, the government ultimately decides not to remove the individual. The judges also noted that DHS has decided to use its prosecutorial discretion in order to effectively allocate its scarce resources and not pursue low priority cases. The court should be able to do the same.

Supreme Court to Hear Arguments in Another Deportation Case

The Supreme Court has agreed to hear arguments in its current term that presents another issue arising out of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Among other things, this law made legal permanent residents vulnerable for removal if they had committed even relatively minor crimes at any time, including before the law was enacted. Any crime with a sentence of one year or more was considered an “aggravated felony” for immigration purposes (even if the sentence was suspended), leading to the removal of the offender.

One common problem for immigrants facing criminal charges is that criminal defense lawyers are not always aware that a seemingly generous plea agreement with a reduced sentence might still get an immigrant removed from the country. In 2010, the Court held in the case of Padilla v. Kentucky that an immigrant could raise an ineffective assistance of counsel claim based on an attorney’s failure to inform the defendant in a criminal case of the immigration consequences of a plea agreement and criminal conviction.

The case that the Court will hear during this term, in Chaidez v. United States, will consider whether the Padilla case applies retroactively, so that persons who were convicted prior to the Padilla decision can still benefit from ineffective assistance of council claims.

Colorado Purges Voter Roll, While Maricopa Can’t Proof Voter Flyers

Colorado Secretary of State Scott Gessler (R) has been sifting through Colorado voter rolls to purge them of suspected non-citizens. According to this report on Fox News Latino, on October 23, he announced that 300 more names would be removed from the rolls, making a total of 441 individuals who may or may not be citizens.

Gessler has conducted this review by comparing motor vehicle department records with voter records. Individuals who were non-citizens when they applied for a driver’s license, and who subsequently registered to vote, are subject to additional scrutiny by making an inquiry with the federal SAVE program (Systematic Alien Verification for Entitlements), run by U.S. Citizenship and Immigration Services. The problem is that the SAVE program was originally set up to check non-citizen eligibility for benefits at the time of application. In this election cycle, some states have been using the SAVE program to check the status of individuals who, when they applied for a driver’s license in the past, were not citizens. While the subsequent check of the names of non-citizen driver’s license applicants should clear up the current citizenship status of most, the databases that are checked through the SAVE program are not always as up to date as they should be. It may be that at least some of the 441 persons in Colorado who will be purged from the rolls are indeed citizens, but their records have not been updated in government databases. The 441 persons found through Gessler’s efforts represent approximately .01 percent of registered voters in Colorado.

Meanwhile, in Arizona, the Maricopa County Elections Department has been having a peculiar problem with proofreading voter information documents. The Department has been distributing election information in Spanish telling voters that Election Day is November 8. For English speakers, the identical material correctly lists November 6 as Election Day. This week, the election office was discovered to be distributing bookmarks in English and Spanish on the reverse, with everything but the date correctly translated. Last week it was discovered the Elections Department was distributing voter ID cards attached to documents also listing the correct date in English, but the wrong date in Spanish. It is not known how many in total of these documents were distributed, mainly over the counter.

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Immigration Policy Update for October 16, 2012

October 16, 2012 - Posted by Maurice Belanger

Congress will remain on recess until November 13, after the election. In this issue are a number of updates to issues we’ve been following.

Update: Immigration and the Fiscal Cliff

On October 9, Representative Norm Dicks (D-Wash.), the senior Democrat on the House Appropriations Committee, sent a letter to his colleagues in the House with estimates of some of the impacts to agencies should Congress fail to compromise on a plan to reduce the federal budget deficit by the time automatic cuts are triggered on January 3. In the Department of Homeland Security, Dicks estimates that a total of 24,500 jobs may be cut due to the 8.2% budget reduction the agency will experience. Cuts include a reduction of 3,400 Border Patrol agents, dropping the total number of Border Patrol agents from 21,370 to 17,970. This decrease would conflict with Congressional requirements to maintain 21,370 agents on duty. Another 3,400 Customs and Border Protection agents could be cut. Immigration and Customs Enforcement would see a reduction of 932 Special Agents and 802 Enforcement and Removal Operations positions. The letter reiterates the warning previously issued by the Office of Management and Budget when it attempted to estimate the amount of funding that would be lost agency by agency [and briefly reported here]: “No amount of planning can mitigate the effect of these cuts.”

Update on DACA Numbers

The Administration has made available updated statistics for the processing of requests for Deferred Action for Childhood Arrivals (DACA). As of October 10, there had been nearly 180,000 requests accepted for processing. The number of cases approved by that date was 4,591. We are still in the very early stages of the program, but as more potential beneficiaries complete their biometric services appointments, have their background checks completed, and have their paperwork reviewed, the number of case completions should jump up. Profiles of successful DACA applicants continue to make headlines.

Update: California TRUST Act Vetoed

As reported in this policy update, the California legislature passed a law, AB 1081 (the TRUST Act), which would have limited the ability of state and local governments to hold immigrants based on ICE immigration detainers. On September 30, California Governor Jerry Brown vetoed the bill. While the Governor missed an opportunity to rein in the Secure Communities program and have it focus on immigrants with violent criminal convictions, he did pledge to work with California legislators to correct what he believes are flaws in the bill he was asked to sign. In his veto statement, Governor Brown said that “Until we have immigration reform, federal agents shouldn’t try to coerce local law enforcement officers into detaining people who have been picked up for minor offenses….” However, the bill as written, he said, omits certain serious offenses and therefore prohibits officers from honoring detainers for these immigrants. Such flaws, the Governor said, “can be fixed.”

The Governor did sign other immigration-related legislation. SB 1064 prohibits a family member's immigration status from being considered when deciding where to place children whose parents have been detained or deported. AB 2015 would require an arresting officer to determine whether a person taken into custody is responsible for a minor child and, if so, to provide the person with the opportunity to make two additional phone calls to arrange for the care of the minor child. AB 2189 pertains to immigrant youth eligible for Deferred Action for Childhood Arrivals, allowing them to apply for drivers’ licenses.

Refugee Numbers Set for FY 2013

On October 10, the Executive Office of the President published a notice in the Federal Register setting refugee admission levels for the government’s fiscal year 2013. The total number of refugees proposed to be admitted will be 70,000, and the number will be allocated as follows: 12,000 from Africa; 17,000 from East Asia (most of these will be Burmese refugees being resettled from camps in Thailand and Malaysia); 2,000 from Central Asia (mainly religious minorities processed under the Lautenberg Amendment from countries of the former Soviet Union); 5,000 from Latin America and the Caribbean (mainly Cubans processed through an in-country resettlement program); 31,000 from the Near East and South Asia (from Iraq, Bhutan, Iran, Pakistan, and Afghanistan, among other countries). The admission ceiling for FY 2013 includes an unallocated reserve of 3,000.

The number of admissions proposed for FY 2013 is 6,000 below the number set for FY 2012, though the actual number of refugees admitted in 2012 fell short of the proposed level. For details and rationale for admission levels and priority groups of concern for the U.S., see this report from the Departments of State, Homeland Security, and Health and Human Services.

Update: Haitian TPS

In our last policy update, we noted that the Department of Homeland Security had decided to extend Temporary Protected Status for certain Haitians as a result of the continued difficult conditions in Haiti, which is still recovering from a major earthquake in January 2010. On October 1, DHS published the official notice in the Federal Register, containing information on eligibility and the application process. In a related development, DHS published a notice (also on October 1) announcing it was suspending certain requirements governing employment for certain students from Haiti with F-1 visas.

Prosecutorial Discretion May Apply to Same Sex Partners

On October 5, Immigration and Customs Enforcement issued guidance clarifying one of the criteria for the exercise of prosecutorial discretion. In June 2011, the agency issued guidelines to carry out its priority focus on the removal of public safety and national security threats. Persons who are not a priority for removal, and who have “ties and contributions to the community, including family relationships,” may be offered administrative closure of their removal case. The October 5 memo makes clear that “family relationship” may include same-sex partners under certain circumstances. For more detail, you can read the memo here.

287(g) Agreements Extended while Under Review

According to the Houston Chronicle, Immigration and Customs Enforcement (ICE) recently sent a notice to the 62 law enforcement agencies participating in the 287(g) program informing them that their agreements will be extended through the end of the calendar year. The agency is currently reviewing these agreements, and says that the programs deemed “least productive” will be eliminated. Under the 287(g) program, state or local enforcement agencies enter into an agreement with ICE, receive training, and are delegated authority to enforce immigration law within their jurisdiction. The program has generated controversy as some enforcement agencies have used their authority granted by the program in a discriminatory manner. There are two types of 287(g) agreements, “task force” and “jail model” agreements. In July ICE Director John Morton told a Congressional committee that ICE would not renew task force agreements, out of concern that the program was not an efficient use of ICE resources.

Supreme Court Hears Immigration Deportation Case

On October 10, the Supreme Court heard the case of a Jamaican man who was a long-term permanent resident of the U.S. yet was deported after being convicted under Georgia law for possession of a small amount of marijuana. The case dealt with the intersection of state and federal criminal law and immigration law according to which a non-citizen can be classified as an “aggravated felon” even if the crime committed was minor. A summary of the arguments in this technical case appeared on SCOTUS Blog here.

On October 10, the Supreme Court agreed to hear arguments about an Arizona law that requires persons to prove they are American citizens before registering to vote. The 2004 Arizona law was blocked by the 9th Circuit Court of Appeals. The court ruled that federal law, allowing individuals to mail in voter registration cards and swear they are citizens under penalty of perjury, trumps Arizona law, which adds the additional requirement of proving citizenship.

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The Midwest Summit: Forging a New Consensus on Immigrants and America

October 09, 2012 - Posted by Communications Intern

Business, law enforcement and faith leaders in the Midwest are recognizing that immigrants are crucial to the region's economy and increasingly diverse communities — and on Oct. 12, they'll gather in Indianapolis to share their stories.

The first-ever Midwest Summit: Forging a New Consensus on Immigrants and America will bring leaders from ten states to Lucas Oil Stadium, home of the Indianapolis Colts. Grover Norquist, president of Americans for Tax Reform, will give a keynote speech, highlighting the emerging consensus across party lines on the need for immigration reform.

Panel discussions will focus on the importance of immigrants from business, economic and workforce development, faith and public safety perspectives. Participants will discuss the need to move past partisan gridlock and develop a common-sense federal immigration process based on our shared values.

In addition to Norquist, speakers include Indiana Attorney General Greg Zoeller, the state’s top legal officer, and Leith Anderson, president of the National Association of Evangelicals.

The Midwest Summit builds on two other successful regional summits: the Mountain West Summit in Salt Lake City in October 2011, and the Southeast Summit in Atlanta in June. Already in these regions, 350 business, faith and law-enforcement leaders have built new relationships, discussed state policies and urged pragmatic solutions at the federal level.

For more information on the Midwest Summit and to register, click here.

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