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Immigration Policy Update for April 11, 2012

April 11, 2012 - Posted by Maurice Belanger

Proposed Rule to Change Family Unity Waiver Process Published

On April 2, U.S. Citizenship and Immigration Services published a Proposed Rule in the Federal Register seeking public comment on changes it is proposing for the process of applying for a waiver of inadmissibility based on unlawful presence.

Currently, a person is barred from re-entry into the U.S. for three years if the individual had accumulated between six and 12 months of unlawful presence in the U.S. If the total unlawful presence reached a year or more, the person must remain outside the U.S. for a minimum of 10 years. A waiver for the bar to re-entry is available if the person can show he or she is eligible for an immigrant visa and that his or her U.S. citizen or Legal Permanent Resident spouse or parent will suffer extreme hardship due to the lengthy separation. However, if the individual is not eligible to adjust status inside the U.S., he or she must depart the U.S. in order to obtain the immigrant visa from a U.S. State Department Consular office in his or her home country. At that point, the three- or ten-year bar to re-entry is triggered, and the person must apply for the waiver and wait outside the U.S.

What USCIS is proposing to do is to process those waiver applications before the individual has left the U.S. If approved the waiver is approved, the individual can complete the process of obtaining an immigrant visa from the U.S. Consular office in his or her home country without the long wait for adjudication of the waiver.

In the Federal Register notice, USCIS gives several reasons for proposing to change the process. The lengthy wait—over a year in some locations—itself creates the kind of lengthy family separation the waiver application seeks to avoid. The maintenance of staff outside the U.S. is expensive, and the shuffling of files back and forth between the Department of State and USCIS is inefficient.

While the spouses of Legal Permanent Residents are also eligible for this family unity waiver, USCIS is proposing to change the application process only for U.S. citizen relatives. USCIS cites the priority given by Congress to the immigration of the family members of U.S. citizens.

The new process will also be available only to those who would be subject to the unlawful presence bars to re-entry. (USCIS says that 80% of applications for waivers to inadmissibility filed abroad are filed by individuals who are subject to the three- and 10-year bards to re-entry.)

There is a 60-day public comment period; and comments should be submitted on or before June 1, 2012. The new process will not go into effect until all comments are considered and a final rule is published in the coming months.

There will be more detail about issues of concern with the proposed rule in a future update.

For more information: Here are some materials related to this proposed rule:

Hearing on ICE Detention Mischaracterizes Administration Policy

On March 28, the House Judiciary Committee Subcommittee on Immigration held a hearing titled, “Holiday on ICE: The U.S. Department of Homeland Security's New Immigration Detention Standards.” The topic of the hearing was the new standards for immigration detention that were released by Immigration and Customs Enforcement (ICE) in February of this year.

Opening statements by members of the Subcommittee (as well as the Chair and Ranking Member of the full Committee) presented starkly different pictures of immigration detention and the need for reform. We also learned that Judiciary Committee Chair Lamar Smith (R-TX) would have made a lousy travel agent.

In his opening statement, Subcommittee Committee Chair Elton Gallegly (R-CA) suggested the new detention standards were too accommodating to immigrant detainees, and he complained that, in devising the new standards, ICE did not address the impact on the American taxpayer.

For her part, Subcommittee Ranking Member Zoe Lofgren (D-CA) read stories of women who were raped by prison guards while in immigration detention, noting that, in part, reform of the standards were necessary to prevent these kinds of crimes against detainees.

While Ms. Lofgren noted that Rep. Gallegly expressed to her his regret about the title of the hearing, Rep. Lamar Smith felt no such remorse. In his statement, he said that “the administration’s new detention manual reads more like a hospitality guideline for illegal immigrants,” and that, under the new guidelines “detention looks more like recess.”

The views expressed by Mr. Smith touched off a well-deserved round of op-ed ridicule. Annie Sovcik, of Human Rights First, wrote in The Hill, suggesting that if Smith really thinks imprisonment in an ICE detention facility is a holiday, he should try booking his next vacation into one of the several detention facilities she has visited in the course of her work. Edwidge Danticat wrote in the New York Times about her uncle who, after fleeing Haiti and asking for political asylum, was thrown in prison without his blood pressure medication, where he died in ICE custody.

For his part, Smith asserted that the new detention standards should not come at the expense of the American taxpayer. If Smith were truly concerned about the American taxpayer, however, he would be opposed to the profligate waste that results from locking up immigration violators in prisons built for criminals. Approximately half of the immigrants held in detention by ICE have committed no criminal offense, and jailing them costs ICE $166 per day each. Mr. Smith has played a key role in blocking reform of the immigration laws that would give these otherwise law-abiding individuals a chance to stay on the tax rolls. Mr. Smith has also introduced legislation that would allow for the indefinite detention (at taxpayer expense) of certain immigrants, and he has supported funding even more detention capacity for ICE.

The Forum’s Statement for the Record of that hearing can be found here, and a press release from the Forum about the hearing is here. A video recording and statements from the hearing can be found here.

Prosecutorial Discretion Court Review to Expand to Seven Additional Courts

On April 3, the Executive Office for Immigration Review (EOIR) issued a release saying that DHS’s case-by-case prosecutorial review of immigration cases will take place in seven immigration courts in the coming four months. Cases will be reviewed in the immigration courts of Detroit, New Orleans, Orlando, and Seattle from April 23 until May 4; in New York from May 7 until May 18; in San Francisco from June 4 until June 15; and in Los Angeles from July 9 until July 20. Case reviews in these courts follow reviews that have already taken place in Denver and Baltimore. The aim of these reviews is to clear the courts of cases that are low priority for prosecution by administratively closing them, and allowing the courts to focus on immigration cases that are higher on the priority list of Immigration and Customs Enforcement (ICE).

According to information released to Congress by ICE on March 9, as of March 5, ICE had reviewed approximately 165,000 of the 300,000 deportation cases of detained and non-detained individuals. By that date, 1,583 cases had been administratively closed, and an additional 10,847 cases had been identified as provisionally eligible for the exercise of prosecutorial discretion, pending background checks. (Some individuals decide to pursue their cases, and decline offers to close their case.)

Supreme Court Rules Retroactive Application of IIRIRA Cannot Be Used to Deny Reentry for Certain Immigrants

On March 28, the Supreme Court ruled that a legal permanent resident could not be denied reentry into the U.S. based on retroactive application of rules set by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Panagis Vartelas is an immigrant from Greece who has been a U.S. permanent resident since 1989. In 1994, he pled guilty to conspiring to make a counterfeit security, and served four months in prison. In 2003, returning from a trip to Greece to visit his mother, the government denied him reentry, and placed him in removal proceedings. The government claimed that Mr. Vartelas was removable based on his conviction two years prior to passage of IIRIRA. The Supreme Court disagreed.

At the time of his conviction, immigrants in Mr. Vartelas’ situation could travel abroad without jeopardizing their permanent resident status. The Court ruled that Mr. Vartelas could not be deprived of his right to travel abroad based on his conviction prior to passage of IIRIRA. For more information on this case and its implications for permanent residents in similar circumstances, see this Practice Advisory from the American Immigration Council.

Justice Department Cuts off Negotiations with Maricopa County Sheriff

The Justice Department has cut off negotiations towards settlement in a case against the Maricopa County (Arizona) Sheriff’s Office involving several violations of federal law. The Sheriff’s Office decided it would not accept the independent monitor the Justice Department insisted on to see that the Office ceases its violations of the law. In a press release, Sheriff Joe Arpaio defied the Justice Department’s demand, saying that the Administration was trying to “strong arm me into submission only for its political gain.”

It now appears likely that the lawsuit previously filed by the Department of Justice against the Sheriff’s Office will resume. In a related development, former Maricopa County Attorney Andrew Thomas was disbarred by the State Bar of Arizona, after a three-judge panel ruled that Thomas abused his powers by targeting his political enemies. When he was County Attorney, Thomas worked closely with Sheriff Joe Arpaio.

Syrians Get Temporary Protected Status

During the past several months, the government of Syria has been violently reacting to a rebellion in that country. On March 29, the Department of Homeland Security published a Federal Register notice designating Syria for Temporary Protected Status (TPS), due to the ongoing violence in that country. Nationals from Syria who have been continuously physically present in the United States since March 29, 2012, may apply for TPS and work authorization.

For information about application procedure and eligibility details, see the TPS page on the Web site of U.S. Citizenship and Immigration Services.

DHS Inspector General Releases Reports on Secure Communities

On April 6, the Department of Homeland Security Office of Inspector General (OIG) released two reports on Secure Communities. The first report focused on ICE communication regarding participation in Secure Communities. The OIG did not find evidence that ICE intentionally mislead communities about participation in Secure Communities, only that ICE communications were unclear and inconsistent. The OIG made three recommendations meant to ensure that communication in the future about participation in Secure Communities is clear.

In the second report, the OIG found that the program was effective in identifying criminal aliens; that in most cases ICE officers took enforcement actions according to agency enforcement policy; and that local law enforcement jurisdictions incurred little cost in implementing the program.

In a press release, Representative Zoe Lofgren (D-CA), who asked for the investigation, expressed disappointment in the reports, noting that while the OIG found that Secure Communities was “effective in finding and removing immigrants with criminal convictions. That wasn't the question. Does the program also ensnare victims and others with no criminal history? Is it susceptible to racial profiling? Does it ultimately undermine community policing efforts—leaving us all less safe?”

The Forum’s release about these reports (which you can find here) echoed some of these criticisms.

IACHR Holds Hearing on Human Rights Abuses on the Border

On March 27, the Inter-American Commission on Human Rights (IACHR) held a hearing on the "Human Rights Situation of Detained and Deported Migrants along the Southern Border of the United States." Seven organizations, including the National Immigration Forum, petitioned the Commission to hold this hearing about abuses and human rights violations against migrants on the Southwest border. As noted in the Forum’s press release about the hearing, the testimony before the Commission followed six years of documentation work by No More Deaths, a humanitarian and advocacy organization based on the Arizona-Mexico border. The organization conducted 15,000 interviews over six years with deportees who experienced abusive conditions in custody.

Another issue raised at the hearing was the lack of internal oversight mechanisms at DHS to punish and correct abusive behavior.

You can find a recording of that hearing on this page of the Web site of the Inter-American Commission on Human Rights

DHS Now Tracking Deportation of Parents of U.S. Citizen Children

Included in the Fiscal Year 2011 appropriations bill that Congress passed in April of last year was direction to the Department of Homeland Security to begin keeping statistics on the number of parents of U.S. citizen children it is deporting, and whether the children remain in the U.S. after deportation of the parents. On March 26, Immigration and Customs Enforcement (ICE) submitted a report to Congress with some of the statistics Congress requested.

In the period between January 1 and June 30, 2011, ICE reported that it had removed 46,486 persons who claimed to have at least one U.S. citizen child. ICE databases have not yet been revised to track what happens to the U.S. citizen child when the parents are deported.

You can find that report here.

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