Tuesday, June 19, 2012

AILA ALERT: DREAMers NOT currently in Deportation Proceedings should NOT apply affirmatively for Deferred Action

Thankfully, the good people at AILA are alerting DREAMers that are not currently in removal (deportation) proceedings to hold off on registering under the new deferred action program
This is a smart and cautious move.  At this time we have no idea how the administration will implement the new policy memorandum.  If past implementation of the Morton memo is any indication of future results, very few people will benefit from deferred action.
If you are currently in proceedings there is nothing to lose by requesting deferred action, as it will potentially stave off removal.
What concerns me the most is that the announced policy in effect creates a database of children that do not have valid immigration status.  There is no way of knowing how this administration, or future administrations will utilize this information should deferred action be denied.  A conceivable result to registration is the immediate institution of removal proceedings, which will stop time for cancellation of removal eligibility.  Moreover, there are no guarantees that should deferred action be granted it will ultimately be extended at the end of the two-year period.  
Needless to say, I have a really bad feeling about this, as I simply do not trust this President.
I REALLY hope I'm wrong.
Prove me wrong Mr. President.

Sunday, June 17, 2012

Morton Memo II: Deferred Action Promised to DREAMers

By now you've probably heard about the big announcement coming from the Obama administration that they intend to exercise prosecutorial discretion on behalf of DREAMers.
The most recent memorandum is dated today (June 15, 2012), and can be read in its entirety here
Here are the criteria for consideration:
The individual must have:
• Come to the United States under the age of sixteen;
• Have continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
• Are currently in school, has graduated from high school, have obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• Are not above the age of thirty.
The memorandum addresses situations where a DREAMer is in deportation proceedings, and further promises work authorization on a case by case basis.
The announcement unsurprisingly comes at the heels of the most recent Time magazine cover story that tells the story of being undocumented America.
What I find most transparently troubling about the timing of this recent "policy shift" is that President Obama has spent the last 3.5 years saying that he is powerless to stop the deportation of approximately 1.5 million people.  With the release of a single article in an election year all of that changed in an instant.
The press is already billing the new memo as amnesty.  To this I say pffft.
Check the fine print and you will see that it confers no substantive right, immigration status or pathway to citizenship, and appears strikingly similar to last year's Morton memorandum that only resulted in about 2,000 cases being administratively closed.
Moreover, whenever I hear the dreaded buzz words "case by case basis" I get a little queasy.
According to a just released Q&A here is how this memo is supposed to be implemented:
Individuals who are not in removal proceedings or who are subject to a final order of removal will need to submit a request for a review of their case and supporting evidence to U.S. Citizenship and Immigration Services (USCIS).  Individuals may request deferred action if they meet the eligibility criteria. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process.
This process is not yet in effect and requests should not be submitted at this time.
That is one seriously big 'if'.  Kinda like when the Obama administration excluded "criminal aliens" from Morton memo eligibility by defining "criminal" to include people that have never committed a crime.
I REALLY hope that I'm wrong about all of this, but as the saying goes: "Fool me once, shame on you.  Fool me twice, shame on me."
Needless to say I'm taking a wait and see approach.

Matthew L. Kolken in the News

L.A. Times article: 

Obama immigration plan: Advocates offer mixed reactions

"Immigration advocates and attorneys had mixed reactions Friday to the Obama administration's announcement that it would grant relief from deportation to some young immigrants.
Some were encouraged, saying the policy change could spare many young people from living under threat of deportation. Others questioned the sincerity of the administration.
Matthew Kolken, an immigration attorney, said he was highly skeptical about the administration’s plans.
“Our president for the last 3½ years has turned his back on the Hispanic electorate that was instrumental in getting him into office and now he’s trying to extend an olive branch because he has another election a few months away,” Kolken said.
Kolken added that he would take a case-by-case approach with his clients. “If an individual has been in the U.S. and they want to make a request for this action they’re exposing themselves to the possibility of removal proceedings and the possibility that their request will be denied. So it’s a tough call,” he said. “For the people who have already been encountered [by immigration authorities] obviously this is another avenue to kick the can down the road.”
The proposed change, Kolken noted, “doesn’t confer any type of lawful status to anyone who receives deferred action. They’d be placed in immigration limbo … the few people who will benefit are the people who are able to receive a work permit.”"
Click here to read the source.

Thursday, June 14, 2012

Addressing the Predictions of the Immigration Policies of a Romney White House

My esteemed colleague Roger Algase has just written a blog that addresses some perceived concerns of what is likely to occur if the Republican challenger wins the White House this November. 

In sum, Roger has listed the following predictions of potential changes in immigration policy should Romney win the election.  I strongly, and respectfully disagree with both Mr. Algase's predictions, and conclusions, offering the following in response.

Prediction 1.    There will be "[m]assive federal grants of money and manpower to the states in order to help them enforce their Alabama and Arizona type immigrant persecution laws"
This is already happening under Obama as he just increased the number of deportation agents by 25%.
Obama has justified this increase by stating that ICE is targeting "criminal" aliens, when the statistics actually show that far fewer criminal aliens are being deported.  Moreover, the Obama administration's definition of "criminal" includes people that have never committed a crime.

Prediction 2.    Romney will make "all immigration violations, even the most trivial and technical, felonies."

Since taking office President Obama has more than DOUBLED the amount of federal criminal prosecutions for "trivial" immigration related crimes. There has never been a President in the history of the United States that has targeted immigrants for criminal prosecution like the Deporter in Chief.

Prediction 3.    Romney will "nullify the 14th Amendment's guarantee of birthright citizenship."

The President does not have the authority to unilaterally "nullify" any amendment of the Constitution.

This statement is hyperbole at best.  

Prediction 4.     Romney will put an immediate end to prosecutorial discretion.

Did it ever begin? About 2,000 cases nationwide have received a favorable exercise of prosecutorial discretion and many of those involved cases that garnered media attention.  Wouldn't want any more bad publicity in an election year.

The Morton memo was nothing more than a PR stunt to placate the Hispanic electorate, and to distract people away from the fact that the vast majority of people being deported have no criminal convictions, have United States citizen spouses and children, qualify for a favorable exercise under the established criteria, and have been racially profiled by the administration for deportation.

As for increasing the annual number of deportations to 1,000,000, this is literally an impossibility, or President Obama would have already achieved it. The current Obama deportation rate is 400,000 per year.  

A record.

The immigration courts are so backed up with pending Obama deportations that it is common practice for immigration judges to adjourn cases for 1-2 years between hearings. In order to accommodate 1,000,000 deportations per year Romney would need, at the very least, to double the number of immigration judges nationwide, which is currently impossible due to the hiring freeze in place.  Even if the freeze is ultimately lifted it would take time to hire and train the judges. This doesn't happen overnight.

In addition to overwhelmed judges, Office of Chief Counsel has been dragged away from their caseload to review hundreds and thousands of pending Obama deportations, which in 99% of the cases they ultimately move forward with deportation.  If anything, Obama has wasted taxpayer resources to create the illusion that he is pro-immigrant.  

Not exactly my idea of what constitutes "smart" immigration enforcement, unless of course if you define "smart" as idiotic and wasteful. 

Parenthetically, I would welcome the increase in the number of immigration judges as well as trial attorneys because due to the caseload that President Obama has forced them to accommodate, immigration judges and trial attorneys are overworked, and understaffed, which adversely impacts my clients' right to due process.

Prediction 5.    Romney will create a moratorium on all further immigration.

False.  Congress creates the law.  This is beyond the power of the Chief Executive who may only sign or veto legislation that is placed on his desk for consideration.  

Isn't this the same tired excuse offered by Obama over the last 3.5 years?  That he doesn't have the power to change the law.  This line has been repeatedly parroted by Obama to excuse his complete inaction on immigration reform.   

It should be noted that the current draconian immigration law that has been described by most as "beyond broken" was signed by President Clinton, the last Democrat who held office.  I find it tragically ironic that the current Democrat in office is utilizing the law signed by the last Democrat in office to destroy more families with deportation than at any time in history, while attempting to paint the Republican challenger as anti-immigrant.

With friends like these, who needs enemies.

I believe that the exact opposite will occur if Obama loses this election. I envision an increase in the number of H-1B visas, as well as a reallocation of employment bases visas.

There has never been a period in my career where an administration has been more hostile towards business immigration. Obama has put up barriers to obtaining the most mundane employment based visa. It as if he has put a moratorium on immigrants coming to the United States for business purposes.

The bottom line: vote Gary Johnson for President in 2012 if you want to stand behind a man that will not lie to your face and then stab you in the back as you cast your vote in the voting booth.