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Matthew Kolken on Deportation And Removal


  1. Reactions to ICE's New Deportation Statistics

    by , 12-20-2013 at 10:00 AM (Matthew Kolken on Deportation And Removal)
    Yesterday, ICE released their annual deportation statistics. They are claiming that 98% of the agency's total removals consisted of convicted criminals, recent border crossers, "illegal" re-entrants, or those previously removed by ICE.

    From the press release:

    In FY2013, ICE conducted a total of 368,644 removals, 235,093 of whom were apprehended while, or shortly after, attempting to illegally enter the United States, and 133,551 of whom were apprehended in the interior of the United States. Nearly 60 percent of ICE’s total removals had been previously convicted of a criminal offense, and that number rises to 82 percent for individuals removed from the interior of the U.S. Other than convicted criminals, the agency’s enforcement priorities include: those apprehended while attempting to unlawfully enter the United States, illegal re-entrants – individuals who returned to the U.S. after being previously removed by ICE – and immigration fugitives.

    My friend and colleague Chuck Kuck had the following reaction to the numbers: "Obama only deported 350,000 people last year. Somehow this is something to celebrate?" Pretty much sums it up for me.

    But there is more to the story. Anyone paying attention knows that the administration has ramped up criminal prosecutions of immigrants charged with immigration law crimes. In fact, according to Syracuse University's TRAC Immigration, illegal reentry prosecutions have jumped 76% during the Obama administration, and the 100,000 prosecutions mark is at an all-time high. Another record setting performance for the Deporter-in-Chief. What this means is that the administration is turning an unprecedented number of individuals into convicted criminals when their only criminal infraction stems from an immigration law violation. This clearly has resulted in a padding of the criminal removal statistics.

    As for the claim that ICE is enforcing our nation’s laws in a smart and effective way, TRAC has already done the heavy lifting for us. They found that very few ICE detainers involve serious criminals. TRAC determined that "if traffic violations (including driving while intoxicated) and marijuana possession are put aside, fully two thirds of all detainers had no record of a conviction." Statistics show that through November 2013, only a small percentage of the deportation filings are based on alleged criminal activity.

    Here is a sample of some of the other reactions I've seen to the recent release:

    From the ACLU:

    Despite broad consensus that the nation needs immigration reform, the Obama administration is barreling towards the dubious honor of hitting a record 2 million deportations by early next year. Today’s numbers show that ICE continues to sweep tens of thousands of immigrants into a detention and deportation machine that lacks basic due process protections, including the dignity of an appearance before a judge. The Department of Homeland Security should sharpen its enforcement priorities and strengthen due process protections for immigrants in removal proceedings.

    Ali Noorani, Executive Director of the National Immigration Forum:

    ICE is still removing people with no criminal record who are just trying to build a life in America — including tens of thousands this past year. These numbers highlight the urgency for broad immigration reform from Congress that stresses accountability and moves our country forward. In 2014, leaders simply must follow through on a new immigration process that emphasizes security, freedom, opportunity and human dignity.

    America's Voice was not so diplomatic in their response, calling the Obama administration "sickening."

    There is a huge gap between what they say and what they do. DHS announced prosecutorial discretion policies in 2011 aimed at focusing deportation on the ‘worst of the worst,’ and yet these policies have never been fully implemented. They claim that most of those being deported are ‘convicted criminals’ – a scary label until you realize that their own definitions of ‘convicted criminals’ include traffic violations and minor nuisance offenses (see here and here). They claim that the only answer is legislation – which really is the best and most permanent solution – but refuse to simultaneously use their substantial administrative authority to rein in the out-of-control detention and deportation machinery. The time is now for the Administration to do its part to stop deporting people who are anything but ‘criminals’ and have deep roots and make huge contributions to the country they now call home.

    The National Day Laborer Organization had the following insight:

    "People on all sides will look at these numbers with a great deal of skepticism. It’s easy for the Administration to say that those deported fit their priorities when this White House has practically made sneezing a criminal act for immigrants. These numbers may represent political calculus for the beltway but for immigrant families, they represent our parents, siblings, and loved ones,” explains Pablo Alvarado, Executive Director. “The five years of criminalization the President has overseen blankets immigrant communities with suspicion and causes people to live in fear. Until the historic mistake of entwining local police with immigration enforcement is corrected, the country will face a crisis of safety in our communities, confidence in the President, and separation in our families."

    It is obvious to everyone other than those drinking from a Big Gulp sized cool-aide that the administration's recent release is little more than propaganda and public relations spin to address the negative publicity that is finally raining down on the President.

    Better late than never.

    Updated 12-20-2013 at 02:30 PM by MKolken

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  2. Pew Research Survey: Deportation Relief Seen As More Important Than Citizenship

    by , 12-19-2013 at 02:31 PM (Matthew Kolken on Deportation And Removal)
    Pew Research has released a survey that found that to Hispanic and Asian Americans deportation relief is seen as more important than a pathway to citizenship. This comes as no surprise to anyone that practices deportation defense.

    From the survey:

    By 55% to 35%, Hispanics say that they think being able to live and work in the United States legally without the threat of deportation is more important for unauthorized immigrants than a pathway to citizenship. Asian Americans hold a similar view, albeit by a smaller margin—49% to 44%.

    Together Hispanics and Asian Americans account for two-thirds of the 28 million immigrants who are in the U.S. legally, and Hispanics alone account for about three-quarters of the additional 11.7 million immigrants who, according to Pew Research Center estimates, are in the country illegally.

    Here's the problem. There are powerful forces that are demanding a pathway to citizenship as a central component of immigration reform legislation, which we all know will result is reform's failure, and is one of the main reasons why the Senate Bill was dead on arrival. You have to question the motivations of the people taking an all or nothing approach. To me it is more likely that they want to see reform fail so they can continue to use immigration as a wedge issue in 2014 and 2016. They are playing politics by trying to "win" the immigration reform debate, rather than fighting for actual reform that stops deportations, and provides legality that brings millions of people out of the shadows. So long as immigration reform legislation doesn't preclude citizenship through normal channels it is worthy of consideration.

    The client I represented today in Federal Court is a father of two United States citizen children, and he is married to a Green Card holder. He and his family could really care less if reform includes an automatic pathway to citizenship. He just doesn't want to have his family destroyed by deportation. This study reveals that he is in the majority.

    Here is the bottom line: If you want immigration reform in 2014 you better be willing to accept a solution that does not have a baked in pathway to citizenship. It really is that simple.

    Updated 12-19-2013 at 04:16 PM by MKolken

  3. AILA Welcomes Confirmation of New Homeland Security Chief

    by , 12-18-2013 at 09:45 AM (Matthew Kolken on Deportation And Removal)
    The following press release was posted on AILA InfoNet, on December 17, 2013 (Doc. No. 12120666).

    Tuesday, December 17, 2013

    George Tzamaras or Belle Woods
    202-507-7649 - 202-507-7675 -
    WASHINGTON, DC - The American Immigration Lawyers Association (AILA) applauds the United States Senate for confirming a new Secretary for the Department of Homeland Security (DHS), Jeh Johnson.

    "Secretary Johnson takes the reins of DHS at a crucial time in the department's history -a time when no issue is more important than modernizing our immigration laws. Our nation is on the cusp of immigration reform, and we look forward to working with the Secretary to find a way to meet our national security needs while affirming the fundamental values and rights on which our country was founded," said AILA President Doug Stump.

    Mr. Stump remarked, "Over the past few years, AILA has seen DHS move forward in a positive way on some immigration issues, such as the announcement last year of Deferred Action for Childhood Arrivals (DACA) and the quick implementation of that policy. AILA and its members welcomed that change and worked hard to ensure that eligible applicants were made aware of the opportunity that DACA affords. However, in other areas DHS has pursued objectionable policies, such as its aggressive push for unprecedented removal numbers that have torn families and communities apart."

    Mr. Johnson brings to the office of Secretary extensive experience as a trial lawyer and has answered the call to serve the United States on several occasions, most recently as General Counsel for the Department of Defense (DoD).

    "Transitioning to DHS from DoD will probably require some time for adjustment, but we hope one of his first acts as Secretary will be to carefully reexamine DHS's current enforcement practices, and truly prioritize enforcement for serious criminal offenders who pose threats to our communities. That would make far more sense than going after people who pose no such threats, have lived here for years, contribute to the economy, and just want a chance to raise their families in peace," concluded Mr. Stump.

    The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

    Updated 12-18-2013 at 10:24 AM by MKolken

  4. When Innocence is Not Enough, by Helen Parsonage

    by , 12-13-2013 at 10:25 AM (Matthew Kolken on Deportation And Removal)
    The following was written by immigration lawyer Helen Parsonage:

    On September 4, 2012, the Innocence Blog reported on the exoneration of Noe Moreno in North Carolina. The closing sentence of the post read, “Moreno, an undocumented immigrant, was sent back to prison after Friday’s hearing while officials at the U.S. Immigration and Customs Enforcement [ICE] decide when or if he will be released or deported.”

    Exoneration isn’t always the end of the story

    We are all familiar with the images of exonerated prisoners embracing family members and lawyers on the steps of the courthouse, with newspaper stories about what they plan to do or eat on their first night of freedom. For a few, that is not how it plays out. For the undocumented, an encounter with the criminal justice system can lead to ICE involvement and potential deportation, even when they are innocent. The fact that individuals like Noe are the victims of miscarriages of justice seems to carry little weight with the juggernaut that is ICE.

    After the judge vacated Noe Moreno’s convictions, he was taken immediately back into custody by the bailiffs, with no opportunity to hug his mother or other family members. The reason? Immigration and Customs Enforcement had placed a 48 hour detainer on Noe back when he was first imprisoned, and it was still in effect.

    When contacted about the possibility of lifting the detainer or at least bonding Noe out of immigration custody, local ICE agents refused and announced they were going to take Noe into custody with no bond. He would need to schedule a bond hearing in immigration court. One was requested and held on September 6, exactly one week later. The government attorney, part of ICE, asked that no bond be set, on the grounds that Noe ‘had a habit of getting in cars after drinking’ even if he was the passenger in the incident that led to his wrongful conviction Noe has two old DWIs from many years ago, but has made tremendous progress in rehabilitation and sobriety, as the Immigration Judge later recognized. In a particularly callous revelation of the government’s position, ICE counsel dismissed the hardship to Noe’s mother, who is very sick with end stage kidney failure, should he be deported by stating that ‘she managed without him for seven years, so she can mange without him in the future’.

    The judge agreed to set a bond and Noe was finally able to rejoin his family.

    On November 13, 2013, Noe had his hearing on his case in Charlotte Immigration Court. The judge urged ICE to reconsider its decision to pursue deportation against Noe, but they have refused to do so, determined to remove him. The seven years of wrongful imprisonment appear to be of no concern to them.

    Because of quotas on the number of people like Noe to whom an immigration judge can grant a reprieve from deportation, we will not get a written decision on his case until next October. In the meantime, Noe and his family must live with the uncertainty of what will happen next.

    Close to 6000 people have signed an online petition asking ICE to let Noe stay with his mother.

    Please join them here.

    Updated 12-13-2013 at 10:29 AM by MKolken

  5. TRAC Reports that Fewer and Fewer Criminals are Being Deported

    by , 12-12-2013 at 10:43 AM (Matthew Kolken on Deportation And Removal)
    Here are the latest statistics from Syracuse University's TRAC Immigration:

    Alleged criminal activity continues to turn up less and less often as the basis for new Immigration Court filings seeking removal orders. So far in fiscal year 2014, only 13.5 percent of individuals have been alleged to be removable based on criminal activity, according to the latest case-by-case court records through November 2013 obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. This is down from 14.2 percent during FY 2013 and 15.5 percent in FY 2012.

    An even smaller proportion -- 3.6 percent, fewer than one out of twenty-five -- have been charged under aggravated felony provisions so far this fiscal year.

    Click here for the complete breakdown.

    Updated 12-12-2013 at 10:54 AM by MKolken

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