National Immigration Forum

Practical Solutions for Immigrants and America

Blog & Updates

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.

Crossroads Campaign Solutions