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  1. New Deportation Review Policy is merely a Baby Step

    by , 08-22-2011 at 07:19 AM (Matthew Kolken on Deportation And Removal)
    I just read a great editorial on that questions the viability of the administration's new deportation review policy. It puts things in proper perspective:

    So the questions remain.
    Who is going to be carrying out this new case-by-case review? Is it going to be the ICE agents whose union doesn't want to use its discretionary power and calls this a  "back door amnesty?" What is their incentive to review cases fairly?
    And when the administration says that they will focus on "criminals", what do they mean? Isn't immigration policy the same set of laws that famously calls people "aggravated felons" for things that are neither aggravated nor felonies? Isn't ICE the same agency that deported thousands of suspected "terrorists" after 9/11 that were never really terrorists? And don't ICE's "worst of the worst" categories include a Baptist pastor with a 16 year old conviction from when he was homeless, a Gulf War Veteran with Post Traumatic Stress Disorder who was arrested for marijuana possession after his wife died, and a 36-year-old youth community worker who helps young people stay away from the mistakes he made as a 16 year old? If the Administration is really turning over a new leaf, does that mean ICE is turning over a new leaf?
    And then there is what the Obama Administration still refuses to do. It still refuses to create enforceable standards for how it treats immigrants in detention so that they don't die in custody. The administration still refuses to reign in the deputized powers it gives to bad sheriffs with long lists of civil rights complaints like the real-life Boss-Hog, Joe Arpaio. The Administration still refuses to call of its "creepy" Secure Communities program, which is looking more and more like the first step of a science fiction-like national database that may one day include everyone.

    I agree with the author, the administration is taking the first baby step towards a more humane and just deportation policy.  That being said, we are a long, long way from seeing any real reform.
    At least it is something to build on.
  2. Asylum for Women Who Can’t Get Abortions?

    In Nicaragua, abortions are illegal under all circumstances.* That includes cases of rape and incest, and when the life or health of the pregnant woman is at risk.* Women and girls who have abortions are subject to long terms of imprisonment.* Health professionals who perform abortions also face stiff criminal penalties.* Of course, with abortion (as with any remotely political subject these days), there are strong opinions on all sides of the issue, and little agreement on the facts.
    Amnesty International issued a report documenting the opposition to the law from Nicaraguan health care professionals, and documenting some unintended consequences of the law-certain treatments are now less available to pregnant women because the treatment might put the fetus at risk.* Amnesty also cites the case of a pregnant woman with cancer who could not get treatment because of the law.* On the other hand, a pro-life website called Life Site News claims that the maternal mortality rate in Nicaragua has dropped by almost 30% since the law went into effect (though I have not seen any evidence that the law actually caused the drop in mortality rates).

    Apparently, Nicaragua is not in the running this year.

    While I personally think this law is a bad idea, the morality or efficacy of the law is not my concern here.* Rather, I wonder whether women who are prevented from terminating their pregnancies, or health care professionals who perform abortions, might be eligible for asylum in the United States.
    Nicaraguan Women
    To obtain asylum, a woman would need to show a well-founded fear of persecution based on a protected ground.* The protected ground that might apply here is "particular social group."* I can think of two possible "particular social groups:" (1) women who have had an abortion, and who now face jail time, and (2) women who are pregnant and face risks to their life or health (physical or mental health) because they are not permitted to abort their pregnancies.
    While the first category seems to me a cognizable social group, such women would have a hard time demonstrating that the prison time they face rises to the level of "persecution," as that term is defined by case law.* I've actually spent some time in a Nicaraguan prison (long story), and what I saw would likely not qualify as persecution.* Of course, I am no expert, and if prison conditions are bad enough, they may be considered persecution. See, e.g., Phommasoukha v. Gonzales, 408 F.3d 1011, 1015 (8th Cir. 2005).
    The second category-pregnant women who face health problems because they are unable to obtain abortions-is more interesting.* Again, this is probably a cognizable particular social group.* The harm, which includes physical and mental harm, and even the possibility of death, could, I think, qualify as persecution.* The Board of Immigration Appeals has held that severe economic deprivation, including deprivation of liberty, food, housing, and other essentials of life may constitute persecution. See Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).* Health care is certainly an "essential of life," and if a woman is denied the care she needs, she can demonstrate a possibility of persecution.
    So it seems to me that women in the second category-and perhaps also in the first-would qualify for asylum under the Immigration and Nationality Act.
    Nicaraguan Health Care Workers
    The law also provides for incarceration of health care workers who perform abortions, even so-called therapeutic abortions, which are done to protect the life or health of the mother.* As I discussed above, I doubt that prison time in Nicaragua would be considered "persecution," so the health care workers would have difficulty establishing this element of an asylum claim.* Even assuming they could demonstrate persecution, I think they would have a hard time showing that the persecution is based on a protected ground.
    One possible protected ground is political opinion, i.e., that women should be allowed to have abortions.* However, the Nicaraguan government does not arrest health care workers (or anyone else) on account of their opinion that women should be permitted to obtain abortions; the government arrests people who actually perform abortions.
    The other possible protected ground is particular social group-health care workers who have performed abortions.* The problem here is that the health care workers are seeking classification as a particular social group based on the criminal act that causes them to fear persecution.* In Bastanipour v. INS, 980 F.3d 1129 (7th Cir. 1992), the Seventh Circuit held:
    Whatever its precise scope, the term "particular social groups" surely was not intended for the protection of members of the criminal class... merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other....* We suppose there might be an exception for some class of minor or technical offenders... who were singled out for savage punishment in their native land. *
    Bastanipour does not completely close the door on the Nicaraguan health care workers, but it certainly presents a hurdle for them to demonstrate that they constitute a "particular social group."
    So far, I do not know of any United States asylum cases arising from Nicaragua's* abortion law (or similar abortion laws in other countries), but I would not be surprised if we see some soon.* If you are interested to learn more about this topic, check out Rights Undone, a blog about the "struggle to repeal the ban on life-saving abortions in Nicaragua."
    Originally posted on the Asylumist:
  3. Wadhwa: Skilled Worker Visa Reform Could Boost Housing Market

    by , 08-20-2011 at 07:49 PM (Greg Siskind on Immigration Law and Policy)
    Here's the gist of his plan:

    Our country needs to expand the numbers of EB-1, EB-2, and EB-3 visas available, remove the per-country limits, and tie the immediate issuance of these visas to the purchase of a home. I estimate that at the least 20% of qualified immigrants will take the government up on this offer. That amounts to more than 100,000 houses being sold within a short period of time--a roughly $25 billion potential boost to the anemic housing market. Plus these workers will furnish their new houses, buy new appliances, and buy new cars. That amounts to billions more in economic stimulus. 
    Unlike the bailouts and subsidies that our leaders have been debating, this will cost taxpayers practically nothing. It will also reduce the outflow of talent and allow these ambitious immigrants to start new businesses that create jobs. With the economy in the doldrums, lingering unemployment, and a political stalemate on how to deal with the nation's problems, we need some fresh, out-of-the-box thinking. A program like what I am proposing will appeal to both sides of the political spectrum and give our economy a badly needed boost.
  4. New Deportation Priorities: How Will This Work?

    On August 18, the Obama Administration announced that all 300,000+ persons currently in removal proceedings as well as those subject to final orders of removal will have their cases reviewed by ICE, and that many of them will have their cases terminated and some will even be granted work permits. This announcement was greeted with great delight by immigration advocates and with angry blasts of vitriol from the anti-immigrant right wing. Congressman Luis Gutierrez (D-IL) was effusive in his praise, calling this "a victory not just for immigrants but for the American people as a whole" and calling on ICE Director John Morton to appear before Congress to explain how the new program will be implemented. Senator Richard Durbin, (D-IL) a co-sponsor of the DREAM Act, and one of 22 Senators who had called on the Obama Administration to halt DREAM Act deportations, stated that "the Administration's new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented." However, House Judiciary Committee Chairman Lamar Smith (R-TX) denounced the new program as a "backdoor amnesty".

    The big questions left unanswered are who will benefit from this new program and how?

    We recommend that our readers carefully examine the text of the following three documents:

    1. DHS Secretary Napolitano's letter to Senator Durbin's dated August 18, 2011.
    2. ICE Director Morton's prosecutorial discretion memo dated June 17, 2011.
    3. The August 18, 2011 post on the White House Blog entitled "Immigration Update: Maximizing Public Safety and Better Focusing Resources"

    Although Senators Durbin and Lugar (R-IN) and 20 of their colleagues wrote solely about the DREAM Act students to Secretary Napolitano, her reply is written more broadly:

    "Accordingly, the June 17, 2011 prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities. Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Finally, we will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety."

    A case-by-case review on all individuals currently in removal proceedings in order to implement the June 17 prosecutorial discretion memorandam will be quite an undertaking. First, the number of individuals involved exceeds 275,000. That's a lot of files to evaluate. It will take not days or weeks to evaluate all of these cases, but many months. Secondly, the government not only needs to review pending court cases, but those on appeal and those with final orders. Finally, the government will need to evaluate who will be placed in removal proceedings in the future. This will truly be a massive undertaking, and given the immensity of the bureaucracy and varied outlooks of ICE District Counsels (who must coordinate with the USCIS, CBP and other governmental agencies), the results may be highly divergent.

    Another wild card is the ambiguity of the June 17th Morton memo. This memo builds on seven previous prosecutorial discretion memos, most of which are listed on our website. The Morton memo lists 19 factors that should be considered in exercising prosecutorial discretion and cautions that "this list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

    What's that suppposed to mean, you ask? Wait, there's more!

    Consider the concluding paragraph of the White House Blog:

    "So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person's ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn't - that's the smartest way to follow the law while we stay focused on working with the Congress to fix it."

    And what are these "common sense guidelines"? Here, the Blog wisely punts this issue by linking these three key words to the Morton memo.

    And none of the above statements deal with persons who are not in removal proceedings which raises the question: If you want to obtain a work permit, do you have to find a way to get yourself in removal proceedings, and then ask ICE to terminate proceedings? Curious immigrants want to know.

    And, finally, what is a "low-priority case"?

    As a former INS prosecutor, I can't explain it to you, but I know it when I see one ;-)

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    Updated 12-02-2013 at 02:53 PM by CShusterman

  5. A Nation Divided By Immigrants ‚Äď DHS Announces Plan To Review 300,000 Cases in Removal Proceedings; By Danielle Beach-Oswald

    It is increasingly difficult to try to pinpoint where President Obama truly stands regarding immigration. Although his administration has been a harsh critic of state immigration laws with the Obama administration filing lawsuits against several states including Arizona, Alabama, and Georgia for their state immigration measures, statistics from Immigration and Customs Enforcement (ICE) note that the deportations during the Obama administration have seen a 10% to 25% increase from the later years of the Bush administration.
    Although Obama believes that immigration should remain in the federal domain, earlier this month he showed his clear support for the mandatory use of the Secure Communities Program by preventing states from withdrawing from the program. Rather than trying to insure that immigration remains a federal issue, Secure Communities does exactly the opposite. By requiring local enforcement agencies to share the fingerprints of all detained individuals with ICE in order to verify their legal status in this country, Secure Communities gives too much power to local law enforcement authorities in immigration matters. ICE advertises on its website that Secure Communities is a "common sense way" for it to carry out its priorities, however several states including Illinois, New York, and Massachusetts disagreed and unsuccessfully attempted to "opt out"of the program. When started in 2008 it was clearly stated by the Obama administration that any state could opt out. Now the exact opposite has been stated and states are prevented from opting out of the program. By 2013, Secure Communities will exist in all law enforcement jurisdictions in the United States.
    President Obama previously promised that the focus of his deportation efforts would be "the worst of the worst." However, Jorge Mario Cabara of the Huffington Post noted that over 25% of those deported under the Secure Communities Program had no criminal charges filed against them. The Secure Communities Program has led to over 77,000 deportations and estimates from the Associated Press noted that over 25% were from minor criminal convictions.
    On August 19, the Obama administration has once again shown a change of face on the issue of immigration. After protests in several American cities and widespread criticism from immigration advocacy groups and Hispanic organizations regarding his Secure Communities policy, the Obama administration's August 19th announcement is yet another unclear change of policy. Many are wondering if the Obama's administration latest decision is a way to attract Hispanic voters as this election season gears up. His administration's decision to require the Secure Communities Program is also under new judicial scrutiny after the decision of Federal District Judge Scheindlin to release ICE documents which stated that ICE would have to re-write prior memos to comply with the administration's new mandatory adoption of Secure Communities.
    With so many changes on immigration policy, it's hard to understand where President Obama truly lies. Although his August 19, 2011 decision is to be commended, one can't help wonder what direction this administration will take next and who would administer this change with so many branches of DHS and ICE.
    So what exactly does this August 19 announcement mean for individuals in deportation/removal proceedings? The New York Times stated that this would help the youths of America by removing their possibility from deportation proceedings. Here are some of the possible effects according to Reform Immigration for America

    The announcement is about deportation cases only. This announcement is DHS's attempt to "unclog" the deportation case log by removing "low-priority" cases in order to focus on individuals who pose serious dangers to our communities and our country.
    "High-priority" individuals include, but are not limited to, those who pose a serious threat to national security, are serious felons and repeat offenders, are known gang members, or have a record of repeated immigration violations.
    "Low-priority" individuals include, but are not limited to, veterans, long-time lawful residents, DREAMers and others brought to the US as children, pregnant women, victims of domestic abuse and other serious crimes, and spouses.
    Individuals in deportation proceedings who are deemed "low-priority" will get a letter from DHS stating their case has been administratively "closed".
    Those whose cases are closed can apply for a work permit program. Decisions about work permits will be made on a case-by-case basis. Undocumented immigrants not in deportation proceedings cannot seek work permits.
    Individuals SHOULD NOT attempt to be placed in deportation proceedings in order to apply for a work permit.
    While these changes do not directly benefit non-criminal, undocumented immigrants who are not in deportation proceedings, if implemented properly, these individuals will not be placed into deportation proceedings in the first place.
    The announcement does not change programs such as 287g and Secure Communities.
    This is not "back-door amnesty" as our opponents will claim. This is a procedural change in the implementation of DHS's enforcement policies to target only those who pose serious threats to the US and those with long criminal records.

    However, the problem lies in implementation and discretionary review and it does not help all those who currently are here unable to work or to leave the country.
    For further information see:

    Prosecutorial Discretion: A Resource Page
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