The year 2012 was rich with immigration news, influential precedents, state legislation, and new policies. It was marked by several US Supreme Court cases, which indicates that the topic of immigration reform remains very important. Looking back, we will discuss the notable events that caught our eye during the past year. Some of them were in the news, some of them were not, but they still have an impact on the lives and fates of millions of immigrants in the US.
1. Obviously, Deferred Action of Childhood Arrivals (DACA) was the most important and most cheered event in immigration in 2012. It became an alternative for the DREAM Act that had never come to life. This administrative action announced on June 15, 2012 by Secretary of Homeland Security, Janet Napolitano, gave temporary relief to young undocumented immigrants who fulfill the following criteria:
• Be under the age of thirty-one as of June 15, 2012
• Entered the US before the age of sixteen
• Have been residing continuously in the US since June 15, 2007
• Physically present in the US on June 15, 2012 and when applying for the relief
• Have no legal status by June 15, 2012
• Are in school, graduated or got a GED, or were honorably discharged from the US military, and
• Have not been convicted of a felony, significant misdemeanor, or 3 or more other misdemeanors and are not a threat to national security or public safety.
By mid-December, over 355,000 applications had been accepted for processing (which generated over $165 million in revenue for the government) and over 100,000 applications have approved to date. It is a breakthrough for many young undocumented immigrants since they can stay and work legally in the US. However, the future of these immigrants remains unclear and the fact that their information is now in the DHS database makes them vulnerable to further ICE and DHS actions (which may not necessarily be progressive).
2. 2012 was marked by another important US Supreme Court decision - Arizona, et al., Petitioners v. United States - that made immigration one of the hottest topics and divided the country. The US Supreme Court precedent confirmed that the federal government will not allow states to interfere where federal power traditionally takes over. The controversial "Support Our Law Enforcement and Safe Neighborhoods Act"- signed into law on April 23, 2010 by Arizona Governor Jan Brewer stirred up emotions and split people into advocates or opponents of the law. The act made it a state misdemeanor crime for an illegal immigrant to be in Arizona without carrying the registration documents required by federal law. It authorized state and local law enforcement of federal immigration laws and cracked down on those sheltering, hiring, and transporting illegal immigrants.
The question at issue was whether this law took over the federal government's authority to regulate immigration laws and to enforce them. The federal law preempted. However, it showed that some states have their own ideas on immigration and are willing to impose their own restrictions because the slow moving federal regulations do not respond adequately to each state's needs.
3. 2012 has become an infamous year for the number of deported aliens, despite the fact that fewer immigrants crossed the border over the past few years. Since the beginning of Obama’s presidential term, the number of deported aliens has been substantially growing. Multiple discussions and incentives to put the illegal immigrants on the path to citizenship and decrease attempts to enter the US illegally did not have any effect, so the number of deportations last year went through the roof and finally met the goal mandated by Congress on “interior” deportations – 400,000 a year. The number has been steadily growing during the Obama administration. From 389,834 in 2009, 392,862 in 2010, and 396,906 in 2011 to 409,849 deported immigrants in 2012.
4. Proposed in 2012 and eventually released on January 2, 2013, another important initiative brought to us by Obama’s administration is the I-601A provisional waiver. The I-601A provisional waiver allows an alien to waive the accumulated unlawful presence (but not other grounds of inadmissibility) prior to departure to home country to attend an immigrant visa interview. Specific conditions, including extreme hardship to qualifying relatives, apply. The significance of this waiver is that the alien will know before departure from the US if his/her unlawful presence will bar him/her from moving to the US as a permanent resident based on an approved I-130.
“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano. It is definitely a step towards eliminating harsh immigration rules, but it is still not that easy to meet the “extreme hardship” standards.
Basically, this waiver is meant to encourage spouses, children, and parents of U.S. citizens to return home by allowing the waiver of the 10 and 3 year bars for unlawful presence in the U.S. to be approved prior to departure. The better solution would have been to eliminate the 212 (a)(9)(B) waiver altogether, as it only applies if one leaves the country. It is not in any way a panacea for waivers that would still apply if one remains in the U.S.
5. Another immigration matter was heard by the US Supreme Court. In November 2012, the US Supreme Court heard the oral arguments in Roselva Chaidez v. United States, (USSC No. 11-820, cert granted 4/30/12) to determine that Padilla v. Kentucky, 130 S. Ct. 1473 (2010) should apply retroactively. Decided in 2010, Padilla established that a criminal defense attorney’s failure to advise a client of the immigration consequences of a criminal conviction can be considered “ineffective assistance of counsel” and set the conviction aside. Padilla rules do not apply retroactively because of another US Supreme Court case Teague v Lane, 489 U.S. 288 (1989) which defended the position that an invalid criminal judgment will not be overturned because of the society’s interests in finality of and deference to a court's decision that should not be overcome.
Thus, Chaidez’s litigation targeted the Teague rule, and it successfully dismissed the above mentioned concerns. We are still waiting for the decision, but the US Supreme Court will most probably limit the Teague rule, so it will not preclude immigrants from seeking protection under Padilla to obtain post-conviction relief. Eventually, this will allow reversing criminal convictions, and avoiding undeserved deportations.
6. There was a clear notion in 2012 towards setting a precedent in Immigration law that would eventually allow or prevent immigrants from seeking adjustment of status based on same-sex marriage. Three appeals and a motion to reopen were filed with the BIA on behalf of same-sex married couples. In all four cases, the BIA remanded the record for further proceedings. In the meantime, the BIA refused to accept jursidiction on the constitutionality of DOMA due to the lack of jurisdiction.
In all the cases, the I-130 visa petitions were filed on behalf of the same-sex spouses who duly registered their relationships under state laws. The petitions were denied based on the section 3 (a) of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2149 (1996) ("DOMA"). The marriages and one civil union between the petitioners and beneficiaries were not valid relationships for the purposes of Federal law pursuant to the section 3 (a) of DOMA. The petitioners filed a motion to reopen and appeals with the BIA. The BIA remanded the records for further proceedings, ordering the parties to address the following issues:
Whether the petitioner and the beneficiary have a valid marriage under the state laws; and whether, absent the requirement of section 3 of DOMA, the marriage of the petitioner and the beneficiary would qualify the beneficiary to be considered a “spouse” under the Immigration and Nationality Act. Clearly, this is an uncommon situation where BIA’s efforts indicate that they are responsive to society’s current demands for change. We can foresee that these remands will grow into a landmark decisions granting relief to the same-sex couples, and thereby resulting in permanent residency for beneficiaries.
What is also important, in 2012, a new addition was made to the prosecutorial discretion guidelines for same sex couples. In John Morton’s memorandum issued in June 2011, it is specified that ICE officers, agents, and attorneys should consider “ties and contributions to the community, including family relationships” when deciding whether to halt a deportation. Napolitano clarified that the “family relationships” recognized for the purpose of prosecutorial discretion include “long-term same-sex partners.” It led to thousands of deportation cases to be closed under prosecutorial discretion, which allows the immigrants to remain in the United States indefinitely. That is most certainly a big step forward.
7. In November 2012 the Fourth Circuit decided on another critical issue. It reversed the agency’s pretermission of petitioner’s application to adjust status, finding that petitioner, who had previously adjusted to Legal Permanent Resident ("LPR") status within the United States, was still eligible for a § 212(h) waiver despite his aggravated felony conviction. The court held that LPR Status does not constitute being “admitted” in the context of § 212(h).
Mendoza entered the United States illegally, married a US citizen and adjusted his status to that of an LPR in 1995. In 2008, Mendoza was convicted in Virginia state court of receiving stolen property. The DHS sought to deport Mendoza, who subsequently filed a waiver under INA § 212(h). One of the central issues before the 4th Circuit Court was whether the waiver can be granted to a person “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” The court determined the language of INA did not apply to Mendoza because he initially entered the country illegally and only later gained LPR status.
8. In 2012, in Matter of A-Y-M-, 25 I&N Dec. 791 (BIA2012) the BIA reversed the decision of an immigration judge (“IJ”) in California, applying the provisions of the Child Status Protection Act Pub. L. No. 107-208, 116 Stat. 927 (2002) (“CSPA”). The Board found that the 23-year-old unmarried child was eligible for derivative asylum status since she was under 21 while the asylum application was pending.
The importance of CSPA is that it prevents the children of asylum applicants from losing their eligibility due to “aging out.” The CSPA explains that an unmarried alien seeking derivative asylum status based on the approval of the parent’s asylum application and who turned 21 while the application was pending is still considered a “child” for the purpose of acquiring derivative asylee status under §208 (b)(3)(B) of INA, 8 U.S.C. § 1158(b)(3)(B) (2006).
In this particular matter, the respondent, a 23-year-old unmarried native and citizen of El Salvador, was found inadmissible, denied relief based on an asylum claim, and ordered removed from the US because she reached the age of 21 before her mother’s application for asylum was granted. The respondent appealed the IJ’s decision before the BIA. At the time when the respondent’s mother applied for asylum, she was 16 years old and included in her mother’s I-589 application. Precisely, when her mother submitted the asylum application, she was 17 and unmarried. The IJ granted asylum to respondent’s mother, but not to the “aged out” respondent who was 22 at that time. The Board overturned the IJ's decision based on CSPA.
9. 2012 showed that the threat to US demographics to be taken over by immigrants from Mexico has clearly diminished. The Pew Report, which is based on multiple data sources, analyzes the numbers, immigrants’ profiles, and reasons for the immigration backdrop over the recent years. The Mexican migration so far has been the largest wave of immigration in the US history, and it had brought over 12 million people to the US. Lately, the flow not only stopped, but has begun to reverse since many Mexican citizens leave and return back to their country of origin.
The Mexico-US border wall might soon become useless as the number of apprehensions at the Mexico-United States falls. Obviously, the US economy would be the main factor to blame. The US housing and construction markets have collapsed significantly over the recent years. Other factors are the increasing number of deportations, the heightened border enforcement, and the growing dangers of crossing the border illegally. On the other hand, not only worsening conditions in the US, but the improving level of living and lower fertility rates in Mexico have contributed to the reversal in Mexican migration. Basically, taking into consideration all the factors, living in the US is not as attractive as it used to be.
10. In the very end of 2012, another take on immigration reform fell. Democrats in the Senate blocked consideration of the STEM bill that Republicans passed in the House of Representatives. The STEM bill would give 55,000 permanent resident visas to foreigners graduating from American universities with advanced degrees in science or technology. It would replace the Diversity Visa ("DV") Lottery program.
The STEM bill, as expected, was opposed by most Democrats. It would have given permanent residency to immigrants who obtained master’s or doctoral degrees in the so-called STEM fields, science, technology, engineering and mathematics. In order not to increase the number of visa numbers available, it was suggested to abolish the DV lottery that allocates green cards to foreigners from countries with traditionally low immigration to the United States. The outcome was predictable. Republicans had approved the STEM bill to show that they are open for a dialogue in the immigration field. In the meantime, Democrats argued that the DV lottery, gives permanent residency to many immigrants from Africa and Eastern Europe who would otherwise be excluded.
Optimistically, the administrative measures and new precedents throughout 2012 will help comprehensive immigration reform lawmaking in the future. The reform has been discussed for years since 2004 when Sens. Ted Kennedy, D-Mass., and John McCain, R-Ariz., began working together on compromise legislation. Obama’s second term will tentatively be another attempt at Comprehensive Reform. He admitted that immigration was his failure, but he is still hopeful that the 11 million of illegal immigrants will eventually become legal permanent resident of the United States.