Due to the violent upheaval and deteriorating situation in the Syrian Arab Republic (Syria), U.S. Citizenship and Immigration Services (USCIS) announced today that eligible Syrian nationals (and persons without nationality who last habitually resided in Syria) in the United States may apply for Temporary Protected Status (TPS).
The TPS designation for Syria is effective today and will remain in effect through September 30, 2013. The designation means that eligible Syrian nationals will not be removed ("deported") from the United States, and may request employment authorization ("work permit"). The 180-day TPS registration period begins today and ends on September 25, 2012. Although the Federal Register notice erroneously states that TPS applications must be filed March 29, 2012 through September 30, 2013, USCIS will only accept applications filed through September 25, 2012. They have made mistakes in stating filing deadlines before, most recently for the El Salvador TPS that ended March 12, 2012 but was initially incorrectly stated to end March 9, 2012.
To be eligible for TPS, Syrians must meet all individual requirements for TPS, including demonstrating that they have continually resided and been continually physically present in the United States since March 29, 2012. All individuals who apply for TPS will undergo a thorough security check. The USCIS website states that "Individuals with criminal records or who pose a threat to national security are not eligible for TPS and their applications will be denied." That is a bit exaggerated. TPS applicants are ineligible if they have been convicted of 2 or more misdemeanors or 1 felony. So a conviction for 1 misdemeanor although it would constitute a criminal records does not bar eligibility for TPS.
Syria joins El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan as countries currently designated for TPS. The Department of State did not designate Japan for TPS even though it underwent that horrific earthquake/tsunami/nuclear meltdown.
Details and procedures for applying for TPS are provided in the Federal Register notice published today and are available at www.uscis.gov/tps.
Thursday, March 29, 2012
Friday, February 10, 2012
Mam Mayan asylum
An interesting decision from the US Court of Appeals for the Ninth Circuit recently. Goes to show that when you are an immigration attorney, dealing every day with so many different nations, and so many different cultures, ethnicities and religious sub groups within those nations, and especially when dealing with asylum claims, you have to also be a historian, anthropologist, therapist etc.
In the case of Mendoza-Pablo v Holder, decided on February 7, 2012, the US Court of Appeals for the Ninth Circuit granted a petition by a member of the Mam Mayan group, an indigenous ethnic group whose members live predominantly in Guatemala and who were largely persecuted during Guatemala's horrendous civil war. I actually have handled asylum applications from Guatemala but have never heard about Mam Mayans until today.
The facts of the case are very compelling but hardly, in my humble opinion, would qualify him under the strict legal standards for asylum. After all, Mendoza Pablo applied for asylum two decades after the events that could otherwise qualify him for asylum occurred and in the meantime he had lived in Mexico for the majority of his life, bringing into issue the question of firm resettlement.
In short, at some point in 1982, when Mendoza-Pablo’s mother was eight months pregnant with him, Guatemalan government soldiers burned their village to the ground, massacring many of the village’s inhabitants in the process. Though Mendoza-Pablo’s immediate family, along with some other villagers, escaped the attack by hiding in the mountains, his paternal grandparents and two aunts were killed when government soldiers locked them in their homes and burned them alive. Outside observers have estimated that “[i]n Todos Santos (the town) sixty to eighty people were killed in 1981-1982” and “[t]he army also burned an estimated 150 or more houses.
Very shortly thereafter, Mendoza-Pablo was born, several weeks premature. Food was scarce in the mountains and Mendoza-Pablo’s mother, unable to breast feed, sought to nourish him with tea made from wild herbs. He became severely maknurished as a result. When he was roughly three months old, Mendoza-Pablo’s family decided that, in light of the foregoing events, remaining in Guatemala posed a danger to their lives. Accordingly, the family traveled to Mexico, where, however, they did not have lawful status, as a result of which Mendoza-Pablo was unable to attend school and had difficulty obtaining employment. In addition,Mendoza-Pablo was often sick and frequently had nightmares.
When Mendoza Pablo was 20 years old, he made his way to the United States and applied for asylum.
Four problems here as I mentioned. Firm resettlement in Mexico, the fact that the events occurred more than twenty years before, third, and that country conditions have vastly changed in Guatemala i.e. no more civil war. fourth Pablo Mendoza did not submit any psychological evaluation or expert witness to prove his point that the initial events in Guatemala had such long term effects on his psyche as to constitute almosta type of second hand persecution throughout the remainder of his life, then exacerbated by further deprivations in Mexico due to his family's flight there.
So how did the Court manage to find for him? As the Court succintly put it: "This case requires us to determine whether Mendoza-Pablo’s early deprivations growing directly out of the unquestionable persecution of his mother and, more generally, his and his parents’s fear of further persecution growing directly out of the Guatemalan government’s across-the-board persecution of Mayans, constitutes persecution under the INA."
Incredibly, the Court just bypassed the matter of the the lack of psych report or expert witness, stating that "While the precise long-term effect of these circumstances on Mendoza-Pablo’s physical and mental development may
well be impossible to determine, it would fly in the face of common
experience not to recognize the likelihood that these deprivations would have some deleterious and long-lasting effects." Based on this "common experience" approach, the Court went on to conclude that where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA."
I think this case is important for several reasons. First for reaffirming that children and infants can be victims of persecution even though they may not have recollection of the events. Secondly, there are a lot of cases where the parents flee to the US with children in tow and they include them in their asylum application. For a lot of Guatemalans and Salvadorans in particular who fled their country because of the blood baths of their civil wars during the 80s, their applications remained pending in a sort of nightmare administrative limbo for several years, if not decades, because of a combination of an overworked INS that let cases linger in dark cobwebby worners of their offices, some class lawsuits and subsequnt settlements against the INS for not properly adjudicating the existing applications for relief for nationals of those countries, and other factors. The result being that I have had several recent cases where those children have now grown up to be over 21, and for one reason or another, are no longer protected under the Child Status Protection Act and they are now left with the option of filing an asylum application on their own without having any recollection of what made their parents flee in the first place. This case and other recent ones by the Ninth Circuit and other Circuits may pave the way for these children to succeed on their claim of asylum based on the persecution suffered by their parents decades before, if they can show lingering effects from that persecution that has affected their lives in such a way as to qualify as persecution.
Very interesting case that kind of went through unnoticed by the legal community but that I think we can all use to advocate on behalf of our clients whom previously we thought had no chance of succeeding on their own asylum applications. The link to the entire decision can be found here.
In the case of Mendoza-Pablo v Holder, decided on February 7, 2012, the US Court of Appeals for the Ninth Circuit granted a petition by a member of the Mam Mayan group, an indigenous ethnic group whose members live predominantly in Guatemala and who were largely persecuted during Guatemala's horrendous civil war. I actually have handled asylum applications from Guatemala but have never heard about Mam Mayans until today.
The facts of the case are very compelling but hardly, in my humble opinion, would qualify him under the strict legal standards for asylum. After all, Mendoza Pablo applied for asylum two decades after the events that could otherwise qualify him for asylum occurred and in the meantime he had lived in Mexico for the majority of his life, bringing into issue the question of firm resettlement.
In short, at some point in 1982, when Mendoza-Pablo’s mother was eight months pregnant with him, Guatemalan government soldiers burned their village to the ground, massacring many of the village’s inhabitants in the process. Though Mendoza-Pablo’s immediate family, along with some other villagers, escaped the attack by hiding in the mountains, his paternal grandparents and two aunts were killed when government soldiers locked them in their homes and burned them alive. Outside observers have estimated that “[i]n Todos Santos (the town) sixty to eighty people were killed in 1981-1982” and “[t]he army also burned an estimated 150 or more houses.
Very shortly thereafter, Mendoza-Pablo was born, several weeks premature. Food was scarce in the mountains and Mendoza-Pablo’s mother, unable to breast feed, sought to nourish him with tea made from wild herbs. He became severely maknurished as a result. When he was roughly three months old, Mendoza-Pablo’s family decided that, in light of the foregoing events, remaining in Guatemala posed a danger to their lives. Accordingly, the family traveled to Mexico, where, however, they did not have lawful status, as a result of which Mendoza-Pablo was unable to attend school and had difficulty obtaining employment. In addition,Mendoza-Pablo was often sick and frequently had nightmares.
When Mendoza Pablo was 20 years old, he made his way to the United States and applied for asylum.
Four problems here as I mentioned. Firm resettlement in Mexico, the fact that the events occurred more than twenty years before, third, and that country conditions have vastly changed in Guatemala i.e. no more civil war. fourth Pablo Mendoza did not submit any psychological evaluation or expert witness to prove his point that the initial events in Guatemala had such long term effects on his psyche as to constitute almosta type of second hand persecution throughout the remainder of his life, then exacerbated by further deprivations in Mexico due to his family's flight there.
So how did the Court manage to find for him? As the Court succintly put it: "This case requires us to determine whether Mendoza-Pablo’s early deprivations growing directly out of the unquestionable persecution of his mother and, more generally, his and his parents’s fear of further persecution growing directly out of the Guatemalan government’s across-the-board persecution of Mayans, constitutes persecution under the INA."
Incredibly, the Court just bypassed the matter of the the lack of psych report or expert witness, stating that "While the precise long-term effect of these circumstances on Mendoza-Pablo’s physical and mental development may
well be impossible to determine, it would fly in the face of common
experience not to recognize the likelihood that these deprivations would have some deleterious and long-lasting effects." Based on this "common experience" approach, the Court went on to conclude that where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA."
I think this case is important for several reasons. First for reaffirming that children and infants can be victims of persecution even though they may not have recollection of the events. Secondly, there are a lot of cases where the parents flee to the US with children in tow and they include them in their asylum application. For a lot of Guatemalans and Salvadorans in particular who fled their country because of the blood baths of their civil wars during the 80s, their applications remained pending in a sort of nightmare administrative limbo for several years, if not decades, because of a combination of an overworked INS that let cases linger in dark cobwebby worners of their offices, some class lawsuits and subsequnt settlements against the INS for not properly adjudicating the existing applications for relief for nationals of those countries, and other factors. The result being that I have had several recent cases where those children have now grown up to be over 21, and for one reason or another, are no longer protected under the Child Status Protection Act and they are now left with the option of filing an asylum application on their own without having any recollection of what made their parents flee in the first place. This case and other recent ones by the Ninth Circuit and other Circuits may pave the way for these children to succeed on their claim of asylum based on the persecution suffered by their parents decades before, if they can show lingering effects from that persecution that has affected their lives in such a way as to qualify as persecution.
Very interesting case that kind of went through unnoticed by the legal community but that I think we can all use to advocate on behalf of our clients whom previously we thought had no chance of succeeding on their own asylum applications. The link to the entire decision can be found here.
Tuesday, December 6, 2011
US opens virtual embassy in Iran more than 30 years after hostage crisis
It isn't April 1st although when I first read the headline that the U.S. Department of State has opened an embassy in Iran (albeit one that is accessed solely through the Internet) I had major doubts whether this was a massive hoax.
More than three decades after the hostage crisis that brought the end of diplomatic relations between Iran and the US, and just a few days after news outlets reported that pro-hard liner crowds had stormed the British Embassy in Tehran, the web-based "embassy" went online today with versions in English and Farsi explaining why the administration has chosen this method of reaching out to the Iranian people. In a video message posted to the sites, Secretary of State Hillary Rodham Clinton said the lack of diplomatic relations had hindered dialogue between the U.S. and Iranian citizens.
Clinton said the online embassy was an effort to use new technology to bridge those gaps and promote greater understanding between the two countries.
Iranian vsa applicants will still have to go to neighbouring Abu Dhabi and Ankara to apply for visas but the web based embassy will purportedly serve to answer their questions and avail them of forms. This is strange because forms and information are already available online at the US consulate webpages of those neighboring countries. And of course the Iranian government can block access to any website it deems anti-Islamic. So I am not sure of the purose of opening a web based embassy other than a symbolic, political one at this point.
The new U.S. virtual embassy website can be viewed in English iran.usembassy.gov and in Persian at persian.iran.usembassy.gov although I think so many people are crashing the site that you will have a hard time getting through. Good luck!
More than three decades after the hostage crisis that brought the end of diplomatic relations between Iran and the US, and just a few days after news outlets reported that pro-hard liner crowds had stormed the British Embassy in Tehran, the web-based "embassy" went online today with versions in English and Farsi explaining why the administration has chosen this method of reaching out to the Iranian people. In a video message posted to the sites, Secretary of State Hillary Rodham Clinton said the lack of diplomatic relations had hindered dialogue between the U.S. and Iranian citizens.
Clinton said the online embassy was an effort to use new technology to bridge those gaps and promote greater understanding between the two countries.
Iranian vsa applicants will still have to go to neighbouring Abu Dhabi and Ankara to apply for visas but the web based embassy will purportedly serve to answer their questions and avail them of forms. This is strange because forms and information are already available online at the US consulate webpages of those neighboring countries. And of course the Iranian government can block access to any website it deems anti-Islamic. So I am not sure of the purose of opening a web based embassy other than a symbolic, political one at this point.
The new U.S. virtual embassy website can be viewed in English iran.usembassy.gov and in Persian at persian.iran.usembassy.gov although I think so many people are crashing the site that you will have a hard time getting through. Good luck!
Monday, November 21, 2011
Work permits for Asylum Applicants
The Executive Office for Immigration Review has issued recently an extensive memorandum dealing with issues of employment authorization for immigrants who have applied for asylum in the United States but a decision has not yet been finalized in their cases.
The issue commonly known as "asylum clock" (i.e. calculating the number of days an asylum application has been pending, minus any delays caused by the applicant himself or herself) has had many scratching their heads every since the law changed from making employment authorizations automatic upon filing the application for asylum and instead required that certain number of days elapsed before the immigrant could apply for their work permit.
The problem that many have complained about is that even when the delay is caused through no fault of the applicant, or at the request of DHS (for example to take the time to conduct forensics, or background checks) many Immigration Judges do not enter the code that indicates the clock should continue running. Requests to restart the clock or to recalculate the clock often fall to the clerk of the Immigration Court, who are themselves so swamped by work and often just indicate they cannot do anything either becasue of the code entered on the file (even if the code was erroneously entered). Attempts to deal with this issue on record during a hearing could potentially lead to explosions by the overworked Immigrtaion Judge waiting to go through a pile of files and not in the mood to hear about sich "trivial" things as asylum clocks. The problem is that for applicants, the issue is far from trivial. When applications are sometimes pending months if not years, it is crucial that the applicant be able to secure lawful employment. After all not many asylum applicants are able to flee their country carrying suitcases stashed with cash!
The most recent memorandum is gargantuan in its content as it relates to the rules, exemptions, procedures, etc rekated to the asylum clock. Time will tell if use of the memo by attorneys will persuande the court to at least provide some consistency in the application of the asylum clock. The memo can be found here.
The issue commonly known as "asylum clock" (i.e. calculating the number of days an asylum application has been pending, minus any delays caused by the applicant himself or herself) has had many scratching their heads every since the law changed from making employment authorizations automatic upon filing the application for asylum and instead required that certain number of days elapsed before the immigrant could apply for their work permit.
The problem that many have complained about is that even when the delay is caused through no fault of the applicant, or at the request of DHS (for example to take the time to conduct forensics, or background checks) many Immigration Judges do not enter the code that indicates the clock should continue running. Requests to restart the clock or to recalculate the clock often fall to the clerk of the Immigration Court, who are themselves so swamped by work and often just indicate they cannot do anything either becasue of the code entered on the file (even if the code was erroneously entered). Attempts to deal with this issue on record during a hearing could potentially lead to explosions by the overworked Immigrtaion Judge waiting to go through a pile of files and not in the mood to hear about sich "trivial" things as asylum clocks. The problem is that for applicants, the issue is far from trivial. When applications are sometimes pending months if not years, it is crucial that the applicant be able to secure lawful employment. After all not many asylum applicants are able to flee their country carrying suitcases stashed with cash!
The most recent memorandum is gargantuan in its content as it relates to the rules, exemptions, procedures, etc rekated to the asylum clock. Time will tell if use of the memo by attorneys will persuande the court to at least provide some consistency in the application of the asylum clock. The memo can be found here.
Wednesday, November 9, 2011
US Citizens in Canada renounce US Citizenship
An interesting article in the Globe and Mail, Canada's leading national newspaper, talks about US Citizens there renouncing their citizenship in the wake of an announcement that the IRS will crack down on US Citizens who have not filed their taxes simply because they do not live and work in the US anymore.
Unlike many countries, the United States requires its citizens to file annual tax returns with its Internal Revenue Service regardless of where they live and work. Many of the roughly one million Canadian-American citizens long ago stopped filing, assuming they owed no tax. Many are worried now they’ll be hit with punishing penalties as a result of recent U.S. efforts to prevent its citizens from hiding assets in offshore tax havens.
I have been hearing on the local Los Angeles based persian language radio KIRN 670AM about an amnesty period given by IRS for people who have not reported their offshore accounts and income to come clean with the payment of a penalty fee. This would of course be a very relevant issue for many Iranian-American citizens who hold dual residence and businesses in the US and in their home country. But the article in the Globe and Mail suggests that the US expats there, have taken the radical measure of renouncing their citizenship en masse. Well, maybe "en masse" is an exaggeration. However, the numbers do show a growing trend. According to the Globe, last year, 1,534 Americans renounced their U.S. citizenship – more than twice as many as in 2009 and a sevenfold increase from 2008. In Canada, which is home to more U.S. expats than anywhere else in the world, there are typically fewer than 100 renunciations a year.
And the process is not easy or free either. Aside from a $450 fee, there are back taxes to be filed for at least 5 years, which could mean thousands of dollars depending on your income, and an additional exit tax if your income is within certain brackets. And let's not forget the emotional stress. “I’ve been through a divorce and this is quite similar to a divorce,” explains one of the US Citizens in Canada. “It’s a long, drawn-out process and there’s a lot of emotion that comes with doing what I’ve done. It’s not a fun thing to do, but it’s been forced upon me.”
The Globe article can be found here.
Unlike many countries, the United States requires its citizens to file annual tax returns with its Internal Revenue Service regardless of where they live and work. Many of the roughly one million Canadian-American citizens long ago stopped filing, assuming they owed no tax. Many are worried now they’ll be hit with punishing penalties as a result of recent U.S. efforts to prevent its citizens from hiding assets in offshore tax havens.
I have been hearing on the local Los Angeles based persian language radio KIRN 670AM about an amnesty period given by IRS for people who have not reported their offshore accounts and income to come clean with the payment of a penalty fee. This would of course be a very relevant issue for many Iranian-American citizens who hold dual residence and businesses in the US and in their home country. But the article in the Globe and Mail suggests that the US expats there, have taken the radical measure of renouncing their citizenship en masse. Well, maybe "en masse" is an exaggeration. However, the numbers do show a growing trend. According to the Globe, last year, 1,534 Americans renounced their U.S. citizenship – more than twice as many as in 2009 and a sevenfold increase from 2008. In Canada, which is home to more U.S. expats than anywhere else in the world, there are typically fewer than 100 renunciations a year.
And the process is not easy or free either. Aside from a $450 fee, there are back taxes to be filed for at least 5 years, which could mean thousands of dollars depending on your income, and an additional exit tax if your income is within certain brackets. And let's not forget the emotional stress. “I’ve been through a divorce and this is quite similar to a divorce,” explains one of the US Citizens in Canada. “It’s a long, drawn-out process and there’s a lot of emotion that comes with doing what I’ve done. It’s not a fun thing to do, but it’s been forced upon me.”
The Globe article can be found here.
Tuesday, November 8, 2011
New policy on deportation
On November 7, 2011, the U.S. Citizenship and Immigration Services issued a new policy memo regarding the priority that they will follow to place certain immigrants in removal ("deportation") proceedings .
Although all three branches of the U.S. Department of Homeland Security established under President Bush to replace the U.S. Immigration & Naturalization Service ("INS"), the U.S Citizenship and Immigration Services ("USCIS"), the U.S.Immigration and Customs Enforcement ("ICE") and the U.S. Customs and Border Protection ("CBP") have the authority to issue Notices to Appear in Removal Proceedings ("NTA"), the official document that is used to formally place an immigrant in deportation/removal proceedings, the USCIS traditionally has had less of a role in enforcement of removal, and is known as the agency that grants benefits instead of taking them away.
For example, if you want to obtain your Green Card ("adjutsment of status"), naturalization as a US Citizen, petition for your spouse or parents, and a host of other services, USCIS is the agency that takes care of these types of applications and petitions. But it is true that if any officer notices any issue that may lead them to refer an immigrant for removal proceedings, such as the fact that the immigrant has a criminal history, or has entered the U.S. without any lawful status, they can do so.
In the wake of the earlier policy memo issued under the Obama administration that sought to give some guidance on how to prosecute certain immigrants versus others once they already are in removal proceedings, for example allowing ICE attorneys to agree to jointly terminate removal proceedings in the case of certain immigrant who can demonstrate a host of criteria, this policy memo provides guidance to USCIS officers on how to issue the NTA in the first place. probably, the goal of this new memo is to try to avoid putting immigants in removal proceedings only to have their cases terminated later on in line, and as such, trying to eliminate unnecessary expenses in money and time by restricting the number of NTA that are issued in the first place, basically cutting off the flow at the source. It is noteworthy to repeat, as I mentioned in an earlier blog, that under the Obama administration, a record number of deportations have been completed, about 400,000, which is unprecedented in the history of this country.
The policy memo of November 7 states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and reentry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are termed "non egregious public safety" cases, that is cases that do not fall under the above-noted criteria. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.
I read the memo a couple of times and I am still a bit confused. I am not sure that USCIS officers will be any less confused. It seems to me that it will take even longer for a case to be adjudicated and create even more work on an already overloaded USCIS and ICE. I could imagine officers referring files back and forth to each branch, USCIS, ICE, CBP, each claiming the other had the responsibility of making a decision on the NTA, that it is not their jurisdiction, or not their discretion or whatever, with files piling on top of files until there is no end in sight. A bureaucratic nightmare. The end result will be that in any case it will take much much longer for any NTA to be issued, causing people's legal status to remain in uncertainty that much longer.
The November 7 memo can be found here.
Although all three branches of the U.S. Department of Homeland Security established under President Bush to replace the U.S. Immigration & Naturalization Service ("INS"), the U.S Citizenship and Immigration Services ("USCIS"), the U.S.Immigration and Customs Enforcement ("ICE") and the U.S. Customs and Border Protection ("CBP") have the authority to issue Notices to Appear in Removal Proceedings ("NTA"), the official document that is used to formally place an immigrant in deportation/removal proceedings, the USCIS traditionally has had less of a role in enforcement of removal, and is known as the agency that grants benefits instead of taking them away.
For example, if you want to obtain your Green Card ("adjutsment of status"), naturalization as a US Citizen, petition for your spouse or parents, and a host of other services, USCIS is the agency that takes care of these types of applications and petitions. But it is true that if any officer notices any issue that may lead them to refer an immigrant for removal proceedings, such as the fact that the immigrant has a criminal history, or has entered the U.S. without any lawful status, they can do so.
In the wake of the earlier policy memo issued under the Obama administration that sought to give some guidance on how to prosecute certain immigrants versus others once they already are in removal proceedings, for example allowing ICE attorneys to agree to jointly terminate removal proceedings in the case of certain immigrant who can demonstrate a host of criteria, this policy memo provides guidance to USCIS officers on how to issue the NTA in the first place. probably, the goal of this new memo is to try to avoid putting immigants in removal proceedings only to have their cases terminated later on in line, and as such, trying to eliminate unnecessary expenses in money and time by restricting the number of NTA that are issued in the first place, basically cutting off the flow at the source. It is noteworthy to repeat, as I mentioned in an earlier blog, that under the Obama administration, a record number of deportations have been completed, about 400,000, which is unprecedented in the history of this country.
The policy memo of November 7 states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and reentry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are termed "non egregious public safety" cases, that is cases that do not fall under the above-noted criteria. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.
I read the memo a couple of times and I am still a bit confused. I am not sure that USCIS officers will be any less confused. It seems to me that it will take even longer for a case to be adjudicated and create even more work on an already overloaded USCIS and ICE. I could imagine officers referring files back and forth to each branch, USCIS, ICE, CBP, each claiming the other had the responsibility of making a decision on the NTA, that it is not their jurisdiction, or not their discretion or whatever, with files piling on top of files until there is no end in sight. A bureaucratic nightmare. The end result will be that in any case it will take much much longer for any NTA to be issued, causing people's legal status to remain in uncertainty that much longer.
The November 7 memo can be found here.
Tuesday, October 18, 2011
Record number of deportations
For the past couple of days, there have been a flurry of news reports as well as emails on the local Immigration Attorney listserve about the record number of aliens who have been removed ("deported") from the United States under the Obama administration, almost 400,000. This is a record high under any administration. Interesting because the perception is that Democrats are looser on immigration than Republicans. The Administration has pointed out that the bulk of these removed aliens were criminal offenders who were convicted of everything from homicide to DUI, but it seems that the majority was convicted of drug related offenses, which could theoretically have been simple possession of over 30 g of marijuana. It would be interesting although probably not feasible to have the government break down its statistics even further for example, stating how many of the removed aliens were here without any lawful immigration status. Many people do not realize that having a "Green Card" does not avoid you from being placed in removal proceedings if you have committed certain criminal offenses. So, of this number of removed aliens, it would havebeen interesting to know how many of them were here in some sort of lawful immigration status, whether it was lawful permanent resident status ("Green Card"), student status, visitor status, or any type of employment based visa. Another helpful statistic would have been to find out how many of these removed aliens had committed crimes considered to be aggravated felonies under Immigration and Nationality Act Section 101(a)(43) for example going back to the example of drug related offenses. This is so vague. How many were actual drug traffickers? What kind of controlled substances were involved? You have to remember even though the State of California does not criminalize the medical use of marijuana under Health and Safety Code Section 11362.5, if you are for example convicted of the offense of cultivating, harvesting or processing Marijuana under Health and Safety Code Section 11358, you would likely be removed from the United States since it is considered a particularly serious drug trafficking crime under Ninth Circuit precedent.
Critics from both sides, from pro immigrant advocacy groups to Republicans have decried these results as either too heavy handed or not enough. Homeland Security Secretary Janet Napolitano said it best when she said:
"Our policies have been simultaneously described as engaging in a mean-spirited effort to blindly deport record numbers of illegal immigrants from the country and alternatively as comprehensive amnesty that ignores our responsibility to enforce the immigration laws; two opposites can't simultaneously be true," she said.
Critics from both sides, from pro immigrant advocacy groups to Republicans have decried these results as either too heavy handed or not enough. Homeland Security Secretary Janet Napolitano said it best when she said:
"Our policies have been simultaneously described as engaging in a mean-spirited effort to blindly deport record numbers of illegal immigrants from the country and alternatively as comprehensive amnesty that ignores our responsibility to enforce the immigration laws; two opposites can't simultaneously be true," she said.
Subscribe to:
Posts (Atom)