ICE Agents File Suit to Block Deferred Action Initiative

Officers of Immigration and Customs Enforcement (ICE) have filed suit in the United States District Court for the Northern District of Texas against their boss, John Morton, and Department of Homeland Security Secretary Janet Napolitano.  

The suit challenges the legality of Secretary Napolitano's June 15, 2012, directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” commonly referred to as DACA.  They are seeking injunctive relief that if granted will prevent the implementation of what they characterize as an "unlawful and unconstitutional Directive."

The lawsuit specifically "seeks to prevent law enforcement officer Plaintiffs from being forced to either violate federal law if they comply with the unlawful Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary. This lawsuit alsoseeks to preserve the balance of legislative and executive powers established by the United States Constitution."

They argue that:

The Directive commands ICE officers to violate federal law... commands ICE officers to violate their oaths to uphold and support federal law, violates the Administrative Procedure Act, unconstitutionally usurps and encroaches upon the legislative powers of Congress, as defined in Article I of the United States Constitution, and violates the obligation of the executive branch to faithfully execute the law, as required by Article II, Section 3, of the United States Constitution.

The Plaintiffs believe that if they follow the Directive, they will be violating their oath of office, as well as violating several laws of the United States. The claim that if they follow the requirements of federal law, contrary to the “Directive,” and arrest an alien or issue an alien an Notice to Appear (NTA) in removal proceedings, they will be disciplined or suffer other adverse employment consequences.

Here are the plaintiffs:

• Plaintiff Christopher L. Crane is an ICE Deportation Officer. He serves in Enforcement and Removal Operations at the Salt Lake City Field Office at 2975 Decker Lake Drive, Stop A, in West Valley City, Utah. He is also the President of the ICE Agents and Officers Union, AFGE Council #118. As an ICE Deportation Officer, Crane is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants. 

• Plaintiff David A. Engle is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Dallas Field Office at 8101 N. Stemmons Freeway, in Dallas, Texas. As an ICE Immigration Enforcement Agent, Engle is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Anastasia Marie Carroll is an ICE Immigration Enforcement Agent. She serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Carroll is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Ricardo Diaz is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Diaz is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Lorenzo Garza is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Port Isabel Detention Center at 27791 Buena Vista Boulevard, in LosFresnos, Texas. As an ICE Immigration Enforcement Agent, Garza is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Felix Luciano is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the San Diego Field Office at 880 Front Street, Suite B- 2232, in San Diego, California. As an ICE Immigration Enforcement Agent, Luciano is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Tre Rebstock is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Houston Field Office at 7405 C-1 Highway 75 South, in Huntsville, Texas. As an ICE Immigration Enforcement Agent, Rebstock is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Fernando Silva is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Silva is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and issue administrative arrest warrants for aliens.

• Plaintiff Samuel Martin is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations in the El Paso Field Office at 8915 Montana Avenue, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Martin is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff James D. Doebler is an ICE Deportation Officer. He serves in Enforcement and Removal Operations in the Dover Sub-Office at 1305 McD Drive, in Dover, Delaware. As an ICE Deportation Officer, Doebler is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants.

Click here to read the full text of the complaint.

AMERICAN FAMILY FACING HORROR OF UNJUST DEPORTATION

Help a Family to be Reunited after Husband's Deportation

USCIS Won't Share the Information Provided on DACA Applications with ICE... UNLESS they decide to Deport You

It appears that when the Obama administration said they will not share the information provided in Deferred Action for Childhood Arrivals (DACA) applications with ICE, what they really meant to say was they won't share your information UNLESS they decide to deport you.

Here is what I found in the recently updated USCIS DACA Frequently Asked Questions:

Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?

Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings UNLESS the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA).  [Emphasis added]

The link in the USCIS FAQ brings you to the November 7, 2011, policy memorandum that establishes criteria for consideration of whether an individual is an immigration enforcement priority that should be targeted for deportation. The memo specifically prioritizes the deportation of individuals that have been found to have committed fraud through the submission of an immigration application.

This policy has been reinforced in the DACA FAQ:

What steps will USCIS and ICE take if I engage in fraud through the new process?

If you knowingly make a misrepresentation, or knowingly fail to disclose facts (i.e., you leave something out that you think will result in the denial of your application), in an effort to have your case deferred or obtain work authorization through this new process, you 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. 

Fraud is not the only thing that may result in the institution of removal proceedings after the submission of a DACA application.  The Obama administration has created a new term of art called a "significant misdemeanor."

It has been defined as follows:

Any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

Also be aware that just because you don't have a criminal record does not in any way prevent the Government from denying your application and sharing your information with ICE for the purpose of instituting removal.

They added the following catchall:

Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

Translation: they can deny your DACA application and deport you if they decide to... and by the way, their decision is final.

So what does this mean?  

If you have a conviction, regardless of the seriousness (i.e., it has no immigration consequences), USCIS can deny your application and have ICE institute removal proceedings. Alternatively, even if you don't have a conviction, but have criminal charges that did not result in convictions, your DACA application may be denied in the exercise of discretion, and ICE may be notified for the purpose of instituting removal proceedings.

So here is the bottom line, when you are submitting a DACA application DO NOT be fooled into thinking that there is no chance that you will be deported.  The fine print that keeps being added to the process clearly permits the institution of removal proceedings for almost any reason, or no reason.

I am not saying that you shouldn't submit a DACA application if you believe that you are both eligible, and a low priority risk.  You can decide that for yourself after consulting an immigration lawyer that is experienced in deportation defense.  

What I am saying is that anyone that tells you that there is no/minimal risk of deportation when applying for DACA is lying to you.

USCIS: Misrepresentation, or Knowing Failure to Disclose Facts on a DACA or Work Authorization Application will result in Treatment as an Immigration Enforcement Priority

From USCIS website, updated on August 15, 2012:

What steps will USCIS and ICE take if I engage in fraud through the new process?

If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have your case deferred or obtain work authorization through this new process, you 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. 

I am VERY concerned that this deferred action initiative is a ticking time bomb for many people.

The people who are claiming that this is a simple straight forward process simply do not understand the complexities of immigration law.  This process is so much more than simply filling out a form. 

I see issues relating to the admission of fraudulent use of a social security number, as well as potential false claims to United States citizenship on I-9 attestation forms that very well may result in the institution of removal proceedings, and deportation with no waiver available.

It is patently irresponsible for politicians to be stating that there is no need for an immigration lawyer in these applications.  The one thing I can say with absolute certainty is that you are going to need an immigration lawyer the moment this administration determines you are an enforcement priority.

Talking Points on Why Deferred Action is NOT Amnesty

If you find yourself being interviwed by any media source feel free to use the following talking points to answer the inevitable claims that Deferred Action for Childhood Arrivals is amnesty.

1. Contrary to the misinformation being spewed all over the media, President Obama has NOT issued an executive order.  DHS Secretary Napolitano has issued a nonbinding policy directive that does not have the full force of law, and may be ignored by adjudicating officers at their election.

If past results are any indicator there is not much to be optimistic about.  The last policy memorandum issued by John Morton only resulted in a favorable exercise of prosecutorial discretion in 1.9% of all reviewed cases.  We have absolutely no idea at this point how the new memo will be implemented. As such, there clearly is no guarantee that just because a deferred action application is submitted that discretion will be favorably exercised.

2. The deferred action initiative is temporary (two-years), and may be cancelled at any time for any reason, or for no reason.

3. We have no idea how long it will take for the current administration to issue decisions.  It is assumed that at a minimum it will take months, and decisions may not be issued until after the November election.   If denials come pouring in after the election there is little likelihood that the program will be renewed even if Obama wins.

4. Despite official statements to the contrary, there is no guarantee that the biographical information being provided on applications won't be used at some point in the future as a basis to institute removal proceedings.  Given the current administration's approximately 1.5 million deportations in 3.5 years, I tend to be cautiously pessimistic.

5. If prosecutorial discretion IS favorably exercised applicants are NOT guaranteed to receive a work permit.  To receive one you must establish economic necessity for employment.  Who knows how that will be interpreted.  The work permit will presumably be valid for two years, and must be renewed.  As stated above there is no way of knowing if subsequent permits will be issued.

6. If prosecutorial discretion is denied you have no right to due process to seek an appeal of the denial.  As stated above denials may be completely arbitrary and without justification, and there is nothing an applicant can do about it.

7. True immigration reform may only be accomplished through an act of Congress so we must continue to fight for reform. Our mission has NOT been accomplished.  

So there you have it.  If you hear someone claim that Obama has created an illegal amnesty through executive order you are now armed with a response.

Good luck!

Undocumented immigrants line up for relief from deportation

ICE chief of staff on leave after new allegations of lewd conduct surface

Legal Immigrant Spared Self-Deportation

CNN Money has reported that legal immigrant Lauren Gray has been granted a two-year reprieve that will permit her to remain in the United States presumably under President Obama's recently announced deferred action initiative.  The article didn't provide specifics about the reprieve.  

Here is what I do know.  Lauren, a citizen of the United Kingdom, came to the United States as a four-year-old child with her parents in 1995 on a valid E-2 visa. She is a college graduate, speaks with an indistinguishable American accent, and looks as American as apple pie.

Her parents came to the United States to invest in a hotel and restaurant in a small town in Missouri.  She has maintained lawful status for every second that she has been in the United States.

Despite the fact that she has always followed the law, on August 8, 2012, she was facing the very grim prospect of either having to leave the country or becoming undocumented, which would result in the accrual of unlawful presence in the United States.  This would preclude her ability to apply for the Green Card that she has been patiently waiting for, or any other type of temporary immigration status.  Moreover, if she accrues either more than 180 days or one-year of unlawful presence she would automatically trigger a three or ten year bar to readmission respectively should she leave the country.

Her immigration crime you may ask?  Her 21st birthday.

The 21st birthday for most born in American is a date of liberation and is the first step towards true adulthood.  It is a day of celebration.  For Lauren, there was nothing to celebrate, as her 21st year resulted in her no longer being entitled to derivative status under her parents' E-2 treaty investor visa. 

For Lauren, it was time for her to either pack her bags and leave the country that has been her home for 17 of her 21 years, the country that she earned her college degree, the country where her family will continue to live, or having to step into the shadows under the stigma of being an undocumented immigrant.

In simple terms she was stuck between a rock and an immigration hard place.

Lauren and her family have been trying for nine years to legally fix this problem, but due to severe visa backlogs there simply is no immediate solution for her.  In 2003, her mother was sponsored for a Green Card under the family based 3rd preference category as a married daughter of a United States citizen.  According to the most recent visa bulletin individuals that have had immigrant 3rd preference petitions filed on their behalf on May 15,  2002, are now finally at the front of the line to apply for lawful permanent residence.

For Lauren, and for tens of millions of other people that are patiently waiting in line for their visa, the law is both unforgiving and punishing. Thankfully, Senator Claire McCaskill (D-MO) intervened on Lauren's behalf, and she has been given a temporary two-year reprieve by the Obama administration.

The time is long overdue for our leaders in Washington to seriously address comprehensive immigration reform, not just for the people who are here illegally due to no fault of their own, but for the people that are being punished for following the law.

It would be nice if our President could at least acknowledge the complexity of the immigration reform problem by including it as an important issue on his campaign website.  His opponents have.  Although admittedly it would be little more than a token gesture, it at least would be a pledge that the President will aggressively work with Congress to form a bi-partisan solution should he win reelection.  That is what he promised last time around.

At the very least President Obama needs to release a working framework of a reform plan to start the dialogue.

Isn't that what leaders do?

Click here for the original source of this story.

Detained Immigrants Being Used as Slave Labor

It has been reported that detained immigrants are being paid $1 a day while held in privately run detention centers awaiting deportation.

Northwestern University Professor Jacqueline Stevens sums it up quite nicely:

"People who are being detained only while they await an immigration court audience and not for punitive reasons are being forced to work for a dollar a day and this not only seems to violate the minimum wage laws, but also the 13th Amendment against slavery."

The Obama administration counters that these programs are voluntary and that when an individual is confined their labor does not constitute employment.

The ACLU of Georgia begs to differ explaining that food provided in detention centers is substandard and that detained immigrants work so that they are able to supplement their diet with food purchased from the in-prison vendor, as well as to purchase telephone cards to be able to keep in touch with loved ones.  As such, their "employment" is a necessity, and is anything but voluntary.  

Anyone else see the irony in the fact that many/most of these immigrants are in detention facing deportation because they did not have authorization to work, and yet the Obama administration permits them to be hired at a slave's wage to do a job that a Citizen could be doing at a reasonable rate of pay?  To add to the cruel irony is the fact that the dollar a day they are being paid ends up going right back into the pockets of their captors.

And why is this happening you may ask?  Profit of course.

In the words of the fictional Gordan Gekko: "Greed, for lack of a better word, is good."

More "Change" you can believe in.

Click here to read the source of this story.

DREAMers Infiltrate Immigration Detention Center - Stop Low Priority Deportations

Obama's Deportation Quotas have Resulted in a Multi-Billion Dollar Cost to the American Taxpayer

President Obama's 400,000 deportations per year quota has resulted in a multi-billion dollar bill to the American taxpayer, to the benefit of the private prison industry.  It is estimated that the cost to taxpayers will exceed $2 billion dollars this year alone.

The Associated press reports the following:

In 2011, nearly half the beds in the nation's civil detention system were in private facilities with little federal oversight, up from just 10 percent a decade ago. 

The companies also have raked in cash from subsidiaries that provide health care and transportation. And they are holding more immigrants convicted of federal crimes in their privately-run prisons. 

The financial boom, which has helped save some of these companies from the brink of bankruptcy, has occurred even though federal officials acknowledge privatization isn't necessarily cheaper.

It should surprise no one that the private prison industry has given a combined $45 million to politicians and lobbyists at both the State and Federal level over the last decade.  You can count Debby Wasserman Schultz (D-Fla), chair of the DNC, as one of them.

Here is what a spokesman from Corrections Corporation of America (CCA) has to say about it: "As a matter of long-standing corporate policy, CCA does not lobby on issues that would determine the basis for an individual's detention or incarceration."

Anyone buying that bridge?

Click here to read the article that was the source for this blog.

Matthew L. Kolken, Esq. in the news:

• President Obama: Deporter in Chief, Forbes Magazine
• SB 1070 ruling spurred muted response at first, The Arizona Republic
• President Obama limits deportations for some immigrants, The Los Angeles Times
• Obama Immigration Plan: Advocates offer mixed reactions, The Los Angeles Times
• Lies and Immigration, The Philadelphia Daily News
• Allowed to stay, Miami student becomes face of Obama immigration policy, The Christian Science Monitor
• Barnaby admits DWI but avoids jail, The Buffalo News
• Longtime legal residents get caught in ramped-up campaign of deportations, Albany Times Union  
• Are Obama Deportations truly aimed at 'criminals'?, The Christian Science Monitor
• 'Dreamers' languish in deportation limbo, The Buffalo News
• Immigration Lawyers Say Enforcement of Deportation Memo Falls Short, The Daily Beast
• Albion Killing Sparks New Debate on Illegal Immigrants, NBC News
• Immigration memo called 'backdoor amnesty' by ICE union, Yahoo News
• Undocumented immigrant tries to navigate uncertain future, Salt Lake City Tribune
• Americans Married to Immigrants Push for Reform, Huffington Post
• Motion seeks dismissal of UC student's deportation case, Cincinnati.com
• Proceedings in Liberian's Deportation Trial Closed, The Daily Record
• UC Honor Student Faces Deportation, NBC News
• Immigration Courts Face Backlogs, The Daily Record
• Former U.S. Ambassadors testify at trial for alleged Liberian Warlord, Democrat and Chronicle
• Somali arrested in Montreal no-fly case released, National Post
• George Boley Sr. deportation trial set to start, Democrat & Chronicle
• Could Missing Soldier's Wife Be deported?, ABC News
• Missing Soldier's Wife Faces Deportation, CBS News
• Missing Soldier's Wife Won't be Deported, Fox News
• Green Card for Missing Soldier's Wife, USA Today

President Obama has expanded Secure Communities to over 3,000 Jurisdictions, a 21,429% increase

Alex Nowrasteh just wrote an article that appeared in Forbes Magazine appropriately titled Obama: Deporter in Chief.  In it he provides some jaw dropping statistics to support his conclusion, many of which have been printed over the past year in this blog:

• Since taking office President Obama has expanded SCOMM to over 3,000 jurisdictions in the United States, a 21,429% increase in jurisdictional reach.
• In 3.5 years President Obama has deported more people than during the first six and a half years of George W. Bush’s administration.
• The backlog for pending deportation cases has risen to a record 314,147 this June.
• The “Morton Memo” only resulted in the favorable exercise of prosecutorial discretion in a mere 5684 cases (1.9% of all cases reviewed).
• Obama has increased remote worksite audits, and silent raids, as well as increasing fines and arrests for business owners violating immigration employment regulations.  

Click here to read the full article.  It is worth your time.