The New York Times, CNN, Chicago Tribune and other news outlets are reporting an apparent “ramping up” of ICE enforcement actions. Federal officials confirmed more than 600 people across 11 states were detained in the past week. ICE announced that more than 200 people had been arrested in the midwest states that are overseen by the Chicago office. ICE Tweets daily to announce when criminal aliens are removed, such as a Dominican national wanted for murder, and a convicted felon deported to Mexico. Some of the Tweets by ICE over the past 3 days emphasize the Services broad powers: “ICE immigration enforcement actions target specific individuals according to the laws passed by Congress” and “ICE targets convicted criminals and others who are illegally present in the United States” and “ICE enforces our nations immigration laws in a professional manner.” ICE claims this week’s aggressive enforcement is “business as usual” and denies conduction sweeps and indiscriminate roundups. But the immigrant community remains fearful. ICE officials denied that they were carrying out Trump’s enforcement priorities at this time, insisting these operations are executed two or three times a year. Yesterday, Trump tweeted “The crackdown on illegal criminals is merely the keeping of my campaign promise. Gang members, drug dealers & others are being removed!” But this did little to calm the fear in immigrant communities. Immigration advocates are concerned that those arrested in the Midwest sweep will face criminal prosecutions by the U.S. Attorneys office for illegal entry and illegal re-entry after deportation, as they become enforcement priorities under the January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States. Any undocumented person who is questioned by ICE should consult an attorney, if possible, before signing anything.
A headline story in this week’s Sunday Chicago Tribune announced that up to 8 million people could be deported as a result of Trump’s Executive Order “Enhancing Public Safety in the Interior of the United States.” Although the Trump administration insists that their intent is to find and deport “bad people”, the Executive Order allows immigration agents and local and state police to detain nearly anyone they come in contact with who has crossed the border illegally. The consequences could be dire, for immigrants and their families, and for the United States. While the enforcement priorities under Obama targeted 1.4 million people for deportation, under the new enforcement policies, nearly everyone who is in the country without proper documentation is at risk. The Tribune (citing a Pew Research Center study) said as many as 5.5 million people in the country crossed the border without proper documentation. The remaining 6 million estimated undocumented people came to the U.S. on some type of legal visa, and overstayed the time they were permitted in he United States.
The new Enforcement Policy includes anyone convicted of a crime, and also anyone charged with a crime, or anyone who committed a crime but was not arrested or charged. This would include anyone who entered without a visa because illegal entry is a crime under 8 U.S.C. Sect 1325. The order directs Department of Homeland Security to hire an additional 10,000 ICE officers for its deportation force, more than doubling ICE staffing. Of course this expansion would require Congressional appropriations.
In additional to undocumented persons who were convicted of, arrested for, or committed but not arrested for crimes, the order targets those who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency, anyone having abused any program related to receipt of public benefits, any anyone who is subject to a final order of removal and failed to leave. Note there is no ranking of these deportation priorities, making them equal in importance.
Trump’s latest Executive Order on Immigration halted entry into the United States of all individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The chaotic implementation of the order caused the detention of Legal Permanent Residents of the United States, non-immigrant visa holders, immigrant visa holders, refugees and derivative asylees. The public outcry and protests over the “Muslim Ban” prompted several federal law suits, and by Saturday, a federal Judge in New York blocked part of the order, saying that travelers being held at airports across the United States should not be sent back to their home countries. Opposition and criticism of the order has pushed this issue into the headline stories of broadcast and print news for a week and distracted our attention from two other flawed EO’s issued on January 25, 3 days prior to the travel ban. The first is “Enhancing Public Safety in the Interior of the United States“, which drastically changes current immigration policies on border security, immigration enforcement priorities and admission of refugees.
Under the Obama policy, since 2014, the Department of Homeland Security prioritized placement in removal proceedings those with criminal felony convictions or aggravated felony convictions. Priority 2 consisted of aliens convicted of 3 or more misdemeanor offenses or significant misdemeanors, and Priority 3 are those who have been issued final orders of removal after January 1, 2014. Trump’s Executive order drastically changes those enforcement priorities. The Trump order, includes anyone convicted of a criminal offense, anyone charged with a criminal offense – even if it has not been resolved, anyone engaged in fraud or willful misrepresentation in connection with any official matter of application, anyone having abused any program related to receipt of public benefits and anyone subject to final orders of removal but have not left the United States.
These directives are counter productive and destructive. Trump’s order will dramatically escalate the use of immigration detention and expand the use of expedited removal without a hearing. The Trump Enforcement Priorities draw no distinctions between potentially dangerous criminals and felons and those committing minor infractions. The EO also prioritizes those charged with any crime – even before there is a conviction or resolution to the case. Undocumented individuals need to be mindful of these enforcement priorities. If you have criminal convictions or criminal charges, you need to see an experienced immigration attorney. In most cases you may be entitled to a hearing before and immigration judge.
Senators Dick Durban (Dem.- Illinois) and Lindsey Graham (Rep.- South Carolina) have introduced legislation titled “The Bridge Act” to allow people who have received work authorization through Deferred Action for Childhood Arrivals (DACA) an extension of their status for a three-year period. DACA is a program initiated by President Obama in 2012 creating work authorization for certain undocumented persons who came to the United States as children. DACA was created by Executive Action and President -Elect Trump has promised to repeal all of President Obama’s Executive Action programs on the day he takes office, eliminating DACA and leaving DACA recipients in a vicarious position. DACA provided more than 730,000 undocumented aliens with temporary work authorization and deferred action from deportation and was renewable every two years. The Bridge Act would make it possible for DACA recipients and others that qualify under DACA eligibility “provisional protected presence” and work authorization for three years. The Bridge Act also imposes restrictions on the sharing of information from DACA applicants with USCIS Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CPB). The bill has bi-partisan support in the senate, however we don’t know yet whether it will pass both houses and become law.
The Bridge Act will have the same criteria as the DACA program. Like the DACA program, The Bridge Act does not grant legal status or a path to a green card. It merely provisionally protects qualified applicants from deportation and allows them temporary work status. Since the new administration’s immigration policies are uncertain, be sure to consult a qualified immigration lawyer before you file a DACA application.
Documented and Undocumented immigrants are understandably worried about what will happen in January when President-Elect Trump takes the Oath of Office. Although his campaign began with a pledge to build a wall and immediately deport 11 million undocumented immigrants and their families, Trump seems to continue to walk back that promise. In recent interviews Trump limited his threat of immediate deportation to those immigrants with criminal history. As I discussed in a previous blog posts, that sounds sounds very much like Obama’s Enforcement Priorities for the Apprehension and Removal of Undocumented Immigrants. It remains to be seen whether Trump can expedite removals without due process and a hearing before an immigration judge, protections that found in the current law. Although most convictions for crimes trigger removability or inadmissibility, defenses are available to remain in the United States, and in some cases receive or maintain legal permanent residence status. Some of these defenses come in the form of waivers. There are many different types of waivers in the immigration law, but generally a 212(h) waiver can waive some criminal grounds of inadmissibility. At 212h waiver can waive an admission for conviction for crimes of moral turpitude, engaging in prostitution, and conviction of two or more offenses of any kind with an aggregate sentence imposed of a least five years. It cannot waive drug offenses for anything other than possession of under 30 grams of marijuana. Also – it may not available to certain Legal Permanent Residents who have not held Legal Permanent Residence Status for 7 years prior to being put into removal proceedings. In most 212h cases, the waivers require a finding of extreme hardship to a lawful permanent resident or United States Citizen spouse, child or parent. The law is very complicated in the area and one would be wise to seek counsel from an experienced attorney if you are placed in removal proceedings for a criminal conviction. More about waivers – including provisional waivers for unlawful presence bars next week.
The Immigration Court system in the United States is notorious for its backlog of cases. This story gets attention every not and again from the national press. A little under a year ago, in order to help the chronic backlog facing the Immigration Courts, Congress provided funding for 55 new immigration judges. To put this is perspective, an immigrant rights group estimates that over 200 new immigration judges would be necessary to even make a dent in the chronic backlog of cases before the court. Fortunately, it appears there are plans to boost the number of immigration judges even more, but still short of the number necessary to reduce the persistent backlog of cases.
But despite these new judges, the backlog persists. According to the Hill, over 500,000 cases currently sit waiting to be heard by an immigration judge across the United States, the largest backlog in our nation’s history. In Illinois alone, there are over 20,000 cases waiting to be heard by an immigration judge. The average number of days cases have been pending in the United States is 672 days. Human Rights First also notes that the average number of days between when an immigrant files a case before the court and that case is actually heard is over 1,000 and just under 3 years. While these cases sit, the lives of the immigrants impacted by the case remain in immigration limbo.
According to a recent article from the Chicago Reporter, several groups are calling on Mayor Rahm Emanuel to enact reforms in the way Chicago Police are allowed to interact with the undocumented population in Chicago. Right now it is estimated that nearly 7% of the Chicago population is undocumented. That equates to over 180,000 individuals that these reforms would protect.
Under current city ordinances and executive orders, it is against city policy for city employees to deny benefits based on the immigration status of an individual. Additionally, city employees are prohibited from inquiring about the immigration status of an individual. Mayor Emanuel also limited how Chicago Police can cooperate with federal immigration officials in order to deport individuals detained by Chicago Police. But Reform groups say those protections aren’t enough and would like to strengthen those prohibitions. According to the Chicago Reporter, under a proposal suggested by a collection of immigration reform groups, several more projections would be enacted, such as:
- “Eliminate exemptions that allow police to work with federal authorities when dealing with undocumented immigrants who are either wanted on a criminal warrant, convicted felons, charged with a felony, or identified gang members,
Domestic abuse and violence charges and convictions can have very serious consequences when it comes to immigration proceedings. Pleading guilty or being found guilty of a domestic abuse or violence crime automatically makes any non-U.S. citizen deportable.
Furthermore, a domestic violence conviction can make you ineligible for an adjustment of status in the United States because domestic violence type crimes have been found by U.S. courts to be a “crime involving moral turpitude.”
My experience in immigration law has allowed me to work on cases and remove clients from mandatory detention. A recent case I worked on, I was able to remove my client from mandatory detention because the crime they were originally charged with was a domestic violence type crime, but the actual crime they plead guilty to was simply an ordinance violation. Had this gone unnoticed, the client would still be in detention facing deportation.
The Customs and Border Protection (CBP) agency has introduced a rule that would add a social media section to I-94W and Electronic System for Travel Authorization (ESTA) applications. According to a report from the British Broadcast Channel, the CBP plans to add a section to both applications asking applicants for social media platforms they use and for an account identifier, such as a user name.
According to CBP, the social media section would be optional and would be used for vetting purposes and contact information by the agency. A similar proposal was offered in 2014 but later abandoned for Visa applications. The Department of Homeland Security (DHS) has gone back and forth about vetting immigrant social media posts, particularly after the Department was criticized after the San Bernardino shooting.
The New York Times reports that a pilot social media screening program is already being utilized for fiancé visas and actually just ended its run this past June. Three other pilot programs are also being tested but details about those were not made available. While proponents point to additional information about potential immigrants as an advantage of screening social media, But opponents point to privacy concerns over having immigrants handover their social media information to the federal government.
Last week, the United State Supreme Court issued its ruling in the case regarding President Obama’s executive actions on immigration. In United States v. Texas, the Supreme Court was split 4 to 4. Because the Supreme Court was unable to come up with a majority, the ruling of the 5th Circuit Court of Appeals is affirmed. The decision, which affects millions of individuals without status in the United States, was just nine words long: “The judgment is affirmed by an equally divided court.” As you may recall, the 5th Circuit struck down President Obama’s executive actions on immigration last year. That ruling is effectively still in place because the Supreme Court 4-4 split affirms that judgment.
This decision is a major setback for President Obama as he had hoped to have the new DAPA and expanded DACA in place prior to leaving office in January 2017. Because the 5th Circuit decision struck down the president’s executive actions, President Obama will not be able to implement his much anticipated reforms. After the decision, many politicians and activists criticized the Supreme Court as well as Congress for failing to pass comprehensive immigration reform.
Responding to the decision, President Obama said “I think it is heartbreaking for the millions of immigrants who made their lives here, who’ve raised families here, who hope for the opportunity to work, pay taxes, serve in our military, and fully contribute to this country we all love in an open way.” While the Supreme Court split effectively ends the legal battle regarding the president’s executive actions, attention will now shift to the presidential election as the two major candidates will have to outline their immigration policies for the country as the campaign wages on.