Renee J. Tello Legal Blog

Thursday, August 5, 2010

Leaked USCIS Memo: No Back-door Amnesty Despite Republican Claims

Recently an internal United States and Citizenship Services (USCIS) draft memo was leaked to the public by Sen. Chuck Grassley (R-Iowa).  The draft memo written by USCIS officials was addressed to USCIS Director Alejandro N. Mayorkas and outlined administrative alternatives to Comprehensive Immigration Reform.

Upon learning of the memo, Republicans voiced their opposition to the memo insisting that the Obama administration was attempting to circumvent Congress and grant amnesty to all undocumented persons in the U.S.  Sen. Charles Grassley of Iowa, the top Republican on the Finance Committee, said in a statement:

“The document provides an additional basis for our concerns that the administration will go to great lengths to circumvent Congress and unilaterally execute a back-door amnesty plan,”

In response to the Republican outrage to the USCIS memo, USCIS spokesperson Christopher Bentley issued a statement saying:

“As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system…Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission.

To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population…”

Despite Republican claims to the contrary, the memo does not propose to grant amnesty to all undocumented persons.  Instead the memo proposes to:

  • Provide individuals with Temporary Protected Status (TPS) with a pathway to legal residency;
  • Expand the use of parole for humanitarian relief and public interest;
  • Decrease the stringent standards for extreme hardship;
  • Protected spouses and children of members of the military from being deported;
  • Possibly deferring the deportations of DREAM Act youth and long-time non-criminal residents of the United States; and
  • Several other measures aimed at helping skilled and educated nonimmigrants remain in the United States. 

These very specific measures would in reality only benefit very small subsets of the immigrant population.  In addition, the memo simply allows the USCIS to exercise its discretion as an administrative agency.  Moreover, USCIS, like other law enforcement agencies, is entitled to exercise prosecutorial discretion.  In fact, in a November 2000 memo, Immigration and Naturalization Service (INS) Commissioner Debra Meissner outlined INS’s authority to exercise prosecutorial discretion.  Therefore, USCIS and Immigration and Customs Enforcement (ICE) are well within their discretion to decide whom they will deport/prosecute.

The leaked USCIS memo brings us back to the core problem; that is we need Congress to pass Comprehensive Immigration Reform.  According to the bipartisan National Conference of State Legislators (NCSL), 45 states introduced 1,180 bills and resolutions relating to immigrants and refugees in the first quarter of 2010 alone.  In fact, as of March 31, the NCSL estimated that 34 state legislatures had passed 71 laws and adopted 87 resolutions, and 37 bills were pending signatures on governors' desks.  Both the USCIS memo and these States’ legislation demonstrate a deep seated concern over the lack of Comprehensive Immigration Reform.  However, Congress has not acted and none of the Republicans protesting this leaked USCIS memo are taking any concrete steps to get Comprehensive Immigration Reform passed.



Thursday, July 29, 2010

Arizona’s S.B. 1070 immigration law symptomatic of larger issue

On July 28, 2010, U.S. District Court Judge Susan Bolton ruled against Arizona’s S.B. 1070 immigration law, finding that several portions of the ill-conceived law were preempted by federal rule.  Immigrant advocates saw the decision for what it was- a victory for our constitution.  However, the core problem still remains that we have an immigration system that is broken and in need of serious reform.

The Arizona law is only a symptom of a much larger problem- that is our current immigration system is not doing what needs to be done to secure our borders and prevent the flow of unlawful immigration to the U.S.  Nor does our current system address the U.S. economy’s dependence on cheap unskilled labor or the estimated 11 million undocumented foreign nationals in the U.S.  Although, Americans may disagree on exactly what form comprehensive immigration reform should take, we cannot disagree that something must be done. Further, we can all agree that the United States does not have the resources to find and deport 11 million undocumented persons.  President Obama addressed this logistical nightmare saying:
“Now, if the majority of Americans are skeptical of a blanket amnesty, they are also skeptical that it is possible to round up and deport 11 million people.  They know it's not possible. Such an effort would be logistically impossible and wildly expensive. Moreover, it would tear at the very fabric of this nation -- because immigrants who are here illegally are now intricately woven into that fabric.”
There is no shortage of proposals for comprehensive immigration reform bills; however, there has been no movement towards the passage of comprehensive immigration reform since the last failed attempt in 2007.  As recently, as July 1st, 2010, President Obama gave a speech at the American University School of International Service where he stressed the need for comprehensive immigration reform.  However, he also addressed what I believe is the single issue preventing the passage of comprehensive immigration reform, politics.  President Obama commented on the politics of immigration saying:
“In sum, the system is broken. And everybody knows it. Unfortunately, reform has been held hostage to political posturing and special-interest wrangling -- and to the pervasive sentiment in Washington that tackling such a thorny and emotional issue is inherently bad politics.”
Arizona’s law was created to address a legitimate problem.  Unfortunately, the law didn’t actually address the issues it was intended to solve and it took the State into enforcement of laws that fall directly in the federal purview.  Nonetheless, the enactment of the Arizona law puts Congress on notice that there is a growing frustration in the States regarding their inaction on comprehensive immigration reform.  As such, unless Congress acts quickly we will continue to see the enactment of ill-conceived laws and be forced to waste DOJ resources fighting them in court.  We need to address the real issue by passing comprehensive immigration reform.

Friday, July 23, 2010

Arizona law begs the question, is racial profiling ever acceptable?

Recently U.S. District Court Judge Susan Bolton began hearing arguments in cases brought by the Department of Justice (DOJ) and other civil rights groups challenging the new Arizona immigration law.  At issue in the DOJ suit is whether the Arizona State law infringes upon the federal power to control immigration regulations?  However, another equally important issue is that the Arizona law essentially sanctions racial profiling.  So the question becomes is racial profiling ever acceptable?

To give some background, on April 23rd, 2010, Arizona Governor Brewer signed into effect a law that criminalized being present in Arizona without proper immigration paperwork.  Further, the new law authorizes Arizona State police officers to stop and check persons, who they reasonably suspect to be undocumented aliens, and ask for immigration paperwork.  Moreover, the law also bars individuals from hiring or soliciting day laborers from the street. The law is set to take effect on July 29, 2010 unless an injunction is issued by the district court to stop it. 
The Arizona law specifically provides that police officers are not permitted to use racial profiling.  However, from a common sense perspective, it’s unclear how Arizona police officers would be able to identify undocumented persons without using ethnicity or race as a main factor in their determination.  As such, this law would invariably lead to racial profiling of U.S. citizens and non-citizens.  In fact, this is the very argument made by the American Civil Liberties Union (ACLU) and other civil rights groups in their law suits filed to stop the Arizona law.  In an ACLU press release issued on July 22, 2010, Omar Jadwat, staff attorney with the ACLU Immigrants' Rights Project commented on the discriminatory effects of the Arizona law saying:
"Any law that requires law enforcement to ask people they stop and suspect of being undocumented for their ‘papers' violates the U.S. Constitution and the American values of fairness and equality. This law is a clear invitation for racial profiling, and we're confident that the court will understand the importance of preventing it from ever taking effect."
Arizona Governor Brewer points to increased violence and the general the need for more enforcement to stop the flow of illegal immigration into Arizona as a basis for its new immigration law.  We all agree that there is a problem with immigration enforcement and our current immigration system; however, Arizona’s new law does not address these problems.  The Arizona law only creates new problems.
The United States is a country that was built by immigrants and it has a living constitution that we strive to enforce.  In times of crises we should seek to employ solutions that enhance and abide by our federal constitution rather than trample upon the principles it promulgates.  Under our constitution there should be equal treatment for all.  Therefore, racial profiling has no place in our society and should never be accepted.  I hope that Judge Susan Bolton’s ruling reflects that sentiment.

Wednesday, July 21, 2010

Should undocumented students disclose their identity and status to fight for immigration reform?

This week numerous students marched to Washington, DC in support of the Development, Relief and Education for Alien Minors Act (DREAM Act) disclosing their names and undocumented status in the United States. This DREAM Act would reward ambitious immigrant youth who want to pursue higher education or military service with a path to permanent residence.  The question is, should these young people expose themselves to the risk of deportation for the cause?

To answer this question I looked back on American history and analyzed what methods were previously utilized by advocates for a particular cause.  I was immediately drawn to the Civil Rights Movement, as many of the actions taken by immigration activists today are similar to those taken by civil rights activists past and present.  Similar to the civil rights activists these students are demonstrating courage in the face of fear and high risks.  Activists have utilized tried and true methods, like protest rallies and sit-ins, however, disclosure of undocumented immigration status is a new tactic being used by supporters of the DREAM Act.
The risk that these students face by disclosing their immigration status is incredibly high to say the least.  By being present in the U.S. without valid documentation these students can be detained and deported to their country of birth.  Moreover, under current immigration regulations, persons present in the United States unlawfully for more than one (1) year, are subject to a 10 year bar upon their departure.  Therefore, these student protesters face a real threat of being deported to a “home country” that most of them know nothing of, since they have spent the majority of their lives in the U.S.  The U.S. Immigration and Customs Enforcement (ICE) office has publicly stated on numerous occasions that they focus on deporting persons with criminal backgrounds and that they do not necessarily deport all persons reported to them.  However, there is no guarantee from ICE that these students will not be placed in deportation proceedings.  In fact, three student protesters in Arizona were arrested in May and are currently in deportation proceedings.  Although some protesters in Washington, DC have been arrested for disorderly conduct, no deportation proceedings have been instituted against those protesters to date.
The strategy to put a personal face to the stories of these ambitious young immigrants is a brilliant, albeit risky, way to humanize the cause and draw media attention to an important issue.  That being said I don’t know that I would want my minor niece or nephew to take this kind of risk if they were in situations similar to these student protesters. It remains to be seen whether these students’ bravery will inspire Congress to enact the DREAM Act.

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