Matthew Kolken on Deportation And Removal

Report: Immigrants in Detention Subjected to Punitive and Long-Term Solitary Confinement and Denial of Due Process

Heartland Alliance's National Immigrant Justice Center (NIJC) and Physicians for Human Rights (PHR) have conducted an investigation of more than a dozen immigration detention facilities and county jails that partner with Immigration and Customs Enforcement (ICE) to detain immigrants awaiting removal from the United States.  

They discovered the existence of "egregious human rights violations" resulting from the Obama administration's widespread and arbitrary use of solitary confinement as a punitive measure against immigrant detainees.  They further found that immigrant detainees in solitary confinement are regularly subjected to excessive force, harassment, and/or abuse by corrections officers.

The following is from the summary of the report:

Investigators found that solitary confinement in immigration detention facilities is often arbitrarily applied, significantly overused, harmful to detainees’ health, and inadequately monitored. Some people give up and stop fighting their immigration cases so they will not have to spend another day in “the hole.”

These individuals are then deported to countries they may not remember, or worse, to countries where they have been persecuted or tortured. In short, the use of solitary confinement within the immigration detention system places enormous pressure on immigrants attempting to stay in the United States to abandon their options for legal relief, their families, their communities, and often the only country they have ever known.

This isn't the first report that has been issued condemning the current administration for abusing immigrant detainees.  The administration has known about the occurrences of abuse in immigration detention for years, but has done virtually nothing to correct the problem.

Click here to read the full report.

9th Circuit Denies Emergency Motion to Enjoin "Show Me Your Papers" Provision of Arizona Immigration Law Pending Appeal

It has been reported that the 9th Circuit Court of Appeals yesterday denied an emergency motion seeking an injunction of the "Show me your papers" provision of the Arizona immigration law.  The motion sought to suspend the provision while an appeal filed by a coalition of opponents of the law remains pending.  The provision went into effect on September 18, 2012.

A copy of the emergency motion may be viewed here. 

Rep. Luis Gutierrez: No Promises from Obama to Move Quickly on Immigration Reform if Reelected in November

The Hill reports that the esteemed Congressman from Illinois, Luis Gutierrez (D), has indicated that he has received no assurances from the White House that if President Obama is reelected that he will "move quickly" to address comprehensive immigration reform.

So what?  The President isn't willing to fall into the same trap that he did last time he was campaigning by making MORE promises that he can't keep.  He is learning from his mistakes.  I call that "Change."

No quick movement from the White House on immigration reform.  Got it.

But the President must AT LEAST have a vision for what immigration reform will EVENTUALLY look like in his last four years?  He's got a plan waiting in the wings, RIGHT?  

Wrong.

The Hill reports an "emphatic" "NO" from Congressman Gutierrez.

No immigration reform strategy has been communicated to the leading pro-immigration reform voice in the Congress by the White House, and we are less than two months away from the Presidential election.

Ok, for those keeping score, let's get this straight: (1) no promises to work quickly on immigration reform, and (2) no strategy in the works.

Really?

This latest disappointment comes on the heels of the President (pandering) on Univision where he stated that immigration reform was his biggest failure.

So Mr. President, let me ask you this: if immigration reform is in fact your "biggest failure" why isn't it even listed as an important issue on your campaign website?

Ohhh right... your website is in English.

The immigration reform message is only meant for Spanish speaking voters.

Regardless, Congressman Gutierrez is "positive" that we will see immigration reform in term two, but astoundingly, it is because THE REPUBLICANS are going to lead on the issue.  

REALLY?  

The Republicans?

Yup, you heard it right.  The Republicans are going to lead on the issue.  Not President Obama.  The Republicans.

Gutierrez points to Republicans like Jeb Bush, and Marco Rubio who will take the lead on immigration reform, and will introduce their own reform legislation: “because the Republicans are going to take such a beating in this election that they’re going to propose [their own plan].”

So it appears that Obama's immigration reform strategy is to win soundly in November, garnering the Hispanic vote in the process, but once in office provide no leadership by doing nothing, and solve the problem by allowing THE REPUBLICANS to take the lead through the introduction of their own immigration reform legislation.

I guess I just don't know what to say to that.

Well, what about Mitt Romney?  Did he also talk immigration on Univision?

You betcha.

Just like the President, Romney didn't offer any solutions, but appears to have reversed his tone on his previous "self-deportation" plan stating that if elected: “We’re not going to round up people around the country and deport them.” 

Well, at this point, I guess we just need to take what we can get.

Vote Gary Johnson for President in 2012.

Seriously.

Obama Administration Forcibly Removed a Combined 928,000 People from the United States in 2011

The Department of Homeland Security has released the Immigration Enforcement Actions report for 2011.  

Here is the statistical breakdown from the report:

• CBP found 212,000 foreign nationals inadmissible for entry into the United States.

• DHS made 642,000 apprehensions of foreign nationals; 76 percent were natives of Mexico.

• ICE detained approximately 429,000 foreign nationals, an all-time high.

• DHS returned 324,000 foreign nationals to their home countries without a removal order.

• DHS removed 392,000 foreign nationals from the United States.

• Reinstatements of final orders accounted for 130,000, or 33 percent, of all removals.

• Expedited removals accounted for 123,000, or 31 percent, of all removals.

• The highest targeted countries of nationality  for removal being Mexico, Guatemala, Honduras, and El Salvador.

• 32% of all people found to be inadmissible from the United States were citizens of Mexico. 

• Mexican nationals accounted for 67 percent of total detainees.

• Mexicans accounted for 83 percent of expedited removals.

• 82% of all reinstatement of removals were against citizens of Mexico

In total, if you combine the number of people found indamissible (212,000), with the number of people officially removed (392,000), and the people that were returned to their native countres without a removal order (324,000), we are talking about a total of 928,000 people that the current administration forcibly returned to their native country in 2011, a disproportionately large percentage of which being Hispanic.

So folks, those are the numbers.  As you can see the Obama administration's deportation grinder continues to relentlessly destroy families in this country through deportation, with no foreseeable end in sight.

Here is the cold harsh reality: this President is waging an aggressive war against immigrant communities, and the statistics show that you should be particularly concerned if you are Hispanic.

Realizing Liberty: The Use of International Human Rights Law to Realign Immigration Detention in the United States

Professor Denise Gilman of the University of Texas School of Law has written an issue paper on the U.S. immigration detention system from a human rights perspective.  It is entitled "Realizing Liberty: The Use of International Human Rights Law to Realign Immigration Detention in the United States."

Here is the abstract:

This article takes a comprehensive look at the extensive U.S. immigration detention system from a human rights perspective. The article represents a first effort to synthesize and present recently-developed international human rights standards and apply those rules to the U.S. immigration detention system. It engages in an in-depth analysis to identify the changes necessary to realign U.S. law and scale back immigration detention in accord with international human rights law. The article proposes that U.S. courts should effect those changes through the interpretation of constitutional and statutory provisions in light of the international human rights law standards. This use of the human rights standards is appropriate, because the standards represent binding obligations for the United States as a matter of international law and closely track U.S. constitutional law principles relating to civil detention in contexts less contentious than immigration. The article demonstrates how the application of international human rights law standards can bring rationality and humanity to U.S. immigration detention by revitalizing the right to liberty, which constitutes a core conception in both international human rights law and U.S. constitutional law.

The paper is 72 pages, and can be downloaded in its entirety here.

Federal Court to Obama Administration: Stop Deporting Defense Witnesses

It looks like you can add defense witnesses to the list of immigrants that are a deportation priority of the Obama administration.  Sandra Hernandez of the L.A. Times has reported that the 9th Circuit Court of Appeals issued a stern warning to the federal government, who apparently has made a habit of deporting witnesses that are able to provide material testimony that would assist in the defense of defendants in criminal proceedings.

The case involves an individual that was ultimately convicted of the crime of alien smuggling under 8 U.S.C. § 1324(a)(2)(B)(iii).  There were four immigrants that were willing to be potential witnesses.  The three immigrants that were willing to testify in a way that was favorable to the prosecution were permitted to remain in the United States.  The one immigrant that gave statements on multiple occasions exonerating the defendant was deported.

Judge Alex Kozinski issued the following decision:

May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has even been appointed? We believe the answer is self-evident, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated defendant.

This is not the first time that the government admitted to deporting defense witnesses.

We had assumed... that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States Attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today.

Needless to say the 9th reversed the conviction, and remanded the case back to the lower Court to decide whether to dismiss charges with prejudice as a consequence of the Government's (mis)conduct.

This is not the first time I have seen deportation used as a weapon against defense witnesses.  In one of my own cases a Special Agent from ICE testified under oath that he threatened my defense witness with deportation if he wasn't willing to testify for the Government.

Apparently, the government has forgotten that their duty is not to win at any cost, but to ensure that justice is done.

Thankfully, we have the 9th Circuit Court of Appeals to remind them.

Click here to read the full opinion of the Court.

USCIS Issues Guidance on Whether or Not to Disclose Fraudulent Use of a Social Security Number on Employment Authorization Application

On September 14, 2012, USCIS issued an update to their Deferred Action for Childhood Arrival (DACA) frequently asked questions page. One of the updates is of significant importance, as it answers the big question that we have all been asking: should a DACA applicant disclose ALL social security numbers used, real or otherwise, on the Form I-765, Application for Employment Authorization.

I'm specifically referring to Question 9 on the I-765 that asks the applicant to provide your social security number and then followed in parentheses states: "include all numbers you have ever used. If any."

Many of us have voiced concerned about this question because the DACA FAQ also contains the following warning: 

"USCIS is committed to safeguarding the integrity of the immigration process. If individuals knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have their case deferred or obtain work authorization through this process, they will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States." [Emphasis added]

The updated FAQ adresses these concerns by issuing guidance relating to the disclosure of social security numbers:

"New - Q9. How should I fill out question nine (9) on the Form I-765, Application for Employment Authorization? 

A9. When you are filing a Form I-765 as part of a Deferred Action Childhood Arrivals request, question nine (9) is asking you to list those Social Security numbers that were officially issued to you by the Social Security Administration."

Here are my first glance concerns.  

The USCIS FAQ does not have the full force of law, is unsigned by any USCIS official, and is subject to change at any time.  Equitable estoppel does not generally apply in the immigration context, and as a result if an individual detrimentally relies on the current guidance, and if that guidance is later revoked or altered, it is feasible that a future administration may negatively interpret any failure to disclose "all social security numbers used." 

There is an entire line of case law that specifically deals with failure to disclose material facts. Generally, if the concealment of material facts constitutes a misrepresentation it may subject an individual to deportation.

I'm not saying that a change in the current interpretation of Question 9 is imminent, or even likely to occur, but I do see the red flag, so I am mentioning it for consideration.

The bottom line is that I would feel a whole lot more comfortable if USCIS amended the actual Form I-765 rather than just the FAQ.  In a perfect world the question would read: "include all social security numbers ever used that have been assigned to you by the Social Security Administration."

Unfortunately, the world of immigration law is anything BUT perfect.

Obama Engages in Revisionist History, Claims He Did Not Promise to Complete Immigration Reform in His First Term.

Yesterday, the Deporter in Chief was interviewed by a Spanish news agency where he said that he didn't promise to enact comprehensive immigration reform during his first term in office, and merely stated that he would start the process, but that it would require more than one term to complete the job.

Here is his direct quote from the interview courtesy of Fox News Latino: "there are some things, like comprehensive immigration reform, that we have not got done yet. But in 2008 I didn't promise that I would have everything completed by the end of the first term. I said that we would begin work on all these things."

Ummm... yeah ya did:

"We can't wait 20 years from now to do it, we can't 10 years from now to do it, we need to do it by the end of my first term as president of the United States of America." Then Senator Barack Obama.

Mr. President, do you think we are stupid? Why do you insult our intelligence by lying to our faces about your failed immigration reform record as your agency CONTINUES to deport more people than any administration in history, while withholding complete deportation statistics in a blatantly obvious attempt to cover-up the true number of deportations that continue to climb on your watch.

Do you think your revisionist history will cover-up the fact that you are gaming the actual deportation numbers by denying immigrants their right to due process, and depriving them of the ability to seek administrative relief from deportation before an immigration judge?

Are you hoping that we won't notice that you are packing already over burdened immigration courts with more cases than can feasibly be handled, while imposing a hiring freeze on new immigration judges and trial attorneys?

Will you also walk-back last June's policy memorandum that has had virtually no impact on stemming the flow of deportations in practice?

Do you think that we overlooked the fact that you waited until the 11th hour of your first term to do exactly what you spent the first 3.5 years of your Presidency saying you do not have the legal authority to do.  And incidentally, why no executive order?  You know, something that ICE can't IGNORE in the exercise of discretion.

Mr. President, we AREN'T stupid.  We know when we are being lied to.  We would have more respect for your failures if you acknowledged them, rather than pulling a Mitt Romney by walking back proclamations that four years later appear to be solely motivated by political expediency to win election.

We respect honesty Mr. President.

Maybe in your second term you can give that a try. 

DACA Approvals Being Mailed... But How Many?

On September 10, the Wall Street Journal reported that USCIS only received 40,000 Deferred Action for Childhood Arrival (DACA) applications out of a pool of an estimated 1.7 million potential applicants.

Yesterday (September 11, 2012), the Associated Press reported that USCIS received 72,000 DACA applications and that a "small group" have been approved.  DHS has not released the actual statistics on DACA approvals.

This report of approvals has been confirmed by the American Immigration Lawyers Association (AILA). AILA was contacted directly by DHS who indicated that electronic notifications of approval of DACA applications are being sent, and that grants should start "trickling out in the coming days." AILA InfoNet Doc. No. 12091150 (posted Sep. 11, 2012).

So the question becomes: have there been 40,000, or 72,000 DACA applications received, and moreover, where are these statistics coming from if DHS isn't releasing the actual numbers?

The cynic in me can't help to think that the ambiguity in reporting is politically motivated, as there is no other viable reason for the most transparent administration in history to be tight-lipped about the number of DACA approvals... unless the actual numbers are exponetially lower than what is expected. Kinda like when the Morton memo only resulted in 1.9% of all reviewed cases receiving a favorable exercise of prosecutorial discretion.

So that being said, here are the questions that I, and an estimated 1.7 million potential DACA applicants, would like some hard answers to:

1. How many DACA applications have actually been received by USCIS?
2. How many DACA applications have been approved by USCIS?
3. How many DACA approval notices have already been mailed?
4. How many DACA applications have been denied by USCIS?
5. What was the basis for the denial (i.e., fraud in the application, serious misdemeanor, ineligibility, etc.)?
6. How many DACA applications have received requests for additional information?
7. How many DACA applications are awaiting adjudication in the pipeline?
8. And most importantly... How many denials, if any, have resulted in a referral to ICE for the institution of removal proceedings.

Maybe I'm being a stickler for details, but if you are going to use the lives of undocumented immigrants as a political football it is only fair to put all of the facts on the table.

I'm not holding my breath.

At least 39,426 People Deported in May 2012... that we know of.

Syracuse University's TRAC immigration has determined that the Obama administration deported a total of 39,426 individuals in May 2012. They also determined that ICE is doing an end-around the immigration courts by utilizing the expedited removal process in one-third of all cases (11,735).

Another 13,697 people were sent back home by ICE through the reinstatement of a previous removal order. This happens in cases where a person was previously deported, left the U.S. and then returned illegally. Only one-quarter (approximately 10,000 people) were ordered deported by an immigration judge.

These numbers do not include expedited removals issued by Customs and Border Protection, so there is no way of knowing how many people were actually deported in May 2012. TRAC requested the data, but so far the Obama administration hasn't released it.

ICE also refuses to release complete records for months before May 2012, and continues to withhold statistics relating to court-ordered deportations versus administrative agency summary removals.

What we do know is that there is a growing trend of the Obama administration of depriving individuals of their day in court.

Here is what TRAC has determined:

ICE deportations increasingly appear to be bypassing the Immigration Courts. For example, during fiscal year 2010, the ratio of monthly Immigration Court deportation orders issued to monthly ICE-reported deportations was 42 percent. During fiscal year 2011, this ratio fell to 40 percent, and during the first eight months of fiscal year 2012 it had declined to 33 percent. 

So basically the Obama administration has dealt with the shortfall of immigration judges, and the increasing backlog of immigration cases by simply depriving people of their right to counsel, and full panoply of due process protections by preventing people from having a full immigration hearing, and merely deporting them through an administrative process.

In short... Deportation by Star Chamber.

But the Democrats let a DREAMer speak for two minutes at the DNC, so I guess it's all good.