What’s Next for Family Detention?

The U.S. Department of Homeland Security has made important announcements in the past month regarding family detention – specifically, regarding Central American mothers and children who have been languishing in DHS custody while their asylum claims proceed in immigration court.  Earlier this week, the DHS began releasing many of the mothers and children who have been detained at Karnes and Dilley, Texas, and Berks, Pennsylvania.  The immigration advocacy community has welcomed these announcements, and everyone (myself included) is very excited that these mothers and children are being released from custody.  The announcement is also troubling, however, because it could forecast trouble for families who are detained in the future.

Last month, DHS Secretary Jeh Johnson announced “a plan to offer release with an appropriate monetary bond or other condition of release to families at residential centers who are successful in stating a case of credible or reasonable fear of persecution in their home countries.”  (emphasis added).  The announcement did not indicate that DHS intends to end family detention, however – to the contrary, it specifically noted that “continued use of family residential centers will allow for prompt removal of individuals who have not stated a claim for relief under our laws.” (emphasis added).  In other words, DHS intends to release families who pass a credible or reasonable fear interview, but continue to detain those who do not, so that they may be promptly removed.

This is troubling to me because in April 2014 the USCIS announced changes to the way it would conduct credible fear interviews of persons who request asylum upon arrival in the United States.  The rationale for these changes is the perception that too many people have been passing their credible fear interviews.  These changes represent a departure from humanitarian law and the common sense premise that these initial screening interviews should err on the side of inclusion, because their purpose is not to act as a barrier to asylum, but to ensure that we do not inadvertently return individuals to situations where their lives and freedom would be threatened.

The release of mothers and children who have passed their credible fear interviews is welcome, but in light of the Obama Administration’s inexplicable commitment to family detention, officials may try to use it to justify the future detention and expedited removal of families who are just as deserving of protection.  By making the credible fear interview the determining factor for release after changing the rules so that the credible fear interview becomes harder to pass, the Obama Administration has set a dangerous stage for future asylum seekers.  In this context, Secretary Johnson’s instruction “that USCIS conduct credible fear and reasonable fear interviews within a reasonable timeframe” could ensure that families are shepherded through the process without adequate preparation or access to counsel, all but ensuring that they will not be able to establish a credible fear of persecution under the heightened criteria.

USCIS has hired additional asylum officers, and they will presumably be trained to implement the heightened criteria for determining credible fear.  The release of mothers and children this month should not be used to justify the detention and removal of mothers and children next month.  The Obama Administration may claim that future asylum seekers who fail their credible fear interviews are different from the families being released now, but it is entirely possible that the only difference will be the criteria by which their claims are evaluated.

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DACA (Deferred Action) Forms Now Available

USCIS hosted another stakeholder teleconference this afternoon and announced the availability on the USCIS website of the forms that will be necessary to apply for DACA (deferred action for DREAMers) starting tomorrow (8/15/2012).  The forms are:

1) I-821D, available here, with instructions, and 2) I-765 and I-765 Worksheet, both available here, with instructions.  The I-821D (“Consideration of Deferred Action for Childhood Arrivals”) is the primary form, the I-765 is a standard “Application for Employment Authorization”, and the I-765 Worksheet shows economic need for work authorization.  The instructions should be read carefully, as they include required documents as well as filing locations.

The process was briefly explained.  As with many immigration forms, applicants will first receive a receipt notice, followed by an ASC appointment notice for taking biometrics.  ASC appointments are scheduled a few weeks in advance, and can be rescheduled in case of a conflict, but failure to attend or re-schedule can delay an application or result in denial.  Applications will be reviewed for potential fraud and a background check of the applicant will be conducted.  If insufficient evidence is submitted, the USCIS will issue an “RFE” (request for evidence) or schedule an interview.

If an application is approved, the applicant will first receive an approval notice, and later a work authorization document.  Processing may take several months to complete, but individuals will be able to check status online.  Because notices will be sent by mail, applicants MUST keep USCIS informed at all times of any changes in address.

The call went on to provide additional guidance on several issues, including the educational requirement.  In summary, in order to be considered to be “in school” an applicant must show that he or she is enrolled in:

• a public or private elementary school, junior high or middle school, high school, or secondary school;
• an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where [they] are working toward such placement; or
• an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under State law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent State-authorized exam.

As with all applications, the burden will be on applicants to show eligibility, and circumstantial evidence will not be considered to show compliance with the education requirement (for example, an affidavit stating “I graduated from high school” will not suffice in place of a high school diploma).  It was noted that if an applicant who is currently in school wishes to renew their application in two years, they will have to show that they have made substantial progress toward completion of (or have completed) the program in question.

It was reiterated that if an applicant is referred to ICE or issued an NTA (for the reasons previously discussed), USCIS will NOT share information about their family members or guardians, however, that information may be shared for purposes other than removal (including fraud prevention, criminal investigations, or national security).

Finally, a lot of issues that were previously addressed were expanded upon during the Q&A – one new issue that was clarified is that previous immigration violations such as repeated unlawful entries, immigration fraud, or false claims to citizenship could result in denial as a matter of discretion, and would be addressed on a case-by-case basis.  If this is an issue that applies to you, it may be best to consult an attorney before submitting an application.

As always, the best source for information on DACA is the USCIS website, which has been updated today to include the information discussed on the call.

Deferred Action for DREAMers

On August 3, 2012, USCIS Director Alejandro Mayorkas and other senior DHS officials held a stakeholder conference call to discuss Secretary Janet Napolitano’s June 15th Deferred Action policy memorandum.  The following are my notes from that call, regarding what USCIS is calling “deferred action for childhood arrivals” (but what is being more widely referred to as “deferred action for DREAMers”).  For more direct information on the process, an FAQ section, flyer, and a “how do I?” guide, please visit the website USCIS has created for this.

Beginning August 15, 2012 – and not until that date – USCIS will begin accepting applications from individuals wishing to be considered for deferred action under the June 15, 2012 Napolitano memo.  In order to qualify, individuals must meet the following criteria:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before their 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making their request;
5. Entered without inspection before June 15, 2012, or had their lawful immigration status expire before June 15, 2012;
6. Are currently in school, or (at the time of filing) have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Process: Beginning August 15, 2012, requests for consideration can be submitted to USCIS using a new form (that will be available on the USCIS website) and a second form to request an Employment Authorization Document (“EAD”).  The total USCIS fees for the application (including work authorization) will be $465.00.  There is NO premium or expedited processing, there is NO fee for forms or information, you will be able to track applications online.  (please do not let yourself become a victim of immigration fraud!!  For more information on protecting yourself, visit the USCIS or AILA pages on the issue.)  The applications will be mailed to a lockbox address and reviewed at all four USCIS Service Centers.  After receipt of the application a biometrics appointment will be scheduled and a thorough background check will be done.  It will be possible to apply for “advanced parole” using Form I-131 (and paying the $360 fee), but only AFTER deferred action has been granted (not concurrently with the application for deferred action).  Advanced parole will generally be granted only in cases where travel is necessary for educational, employment, or humanitarian reasons.

The forms and filing address will be available on the USCIS website on August 15, 2012.

There will not be a fee waiver available, however, certain individuals under the age of 18 with incomes below 150% of the federal poverty line (such as those who are homeless or in foster care, are unable to care for themselves due to disability, or have accumulated more than $25,000 due to medical care in the last 12 months) will be able to request a fee exemption.  This request would have to be made prior to filing a request for deferred action.

An interview will not be required except in exceptional cases.  All applicants as of August 15, 2012 must go through USCIS except those who are detained – persons in custody should continue to request deferred action through ICE.  There will be no appeal or review of deferred action denials – motions to reopen or reconsider will not be available (it was not said, however, that subsequent applications would be barred by a denial).

Clarifications: The call reviewed documentary requirements, general criminal ineligibility issues, and other general matters explained on the USCIS “deferred action” page.  I highlight the following clarifications because I have received questions regarding these particular issues:

a. Applicants cannot have been 31 or older on June 15, 2012.

b. A “brief, casual and innocent absence” from the US before August 15, 2012 will not interrupt physical presence, but it will disqualify an applicant if it took place after August 15, 2012.

c. Information provided in the application is protected from disclosure to ICE and CBP for the purpose of enforcement proceedings unless the applicant meets the criteria for issuance of a Notice To Appear under the USCIS guidelines already in place.

Individuals who are approved for deferred action will not be referred to ICE, however, information provided may be shared with law enforcement and ICE and CBP for purposes other than removal (national security, investigation/prosecution of criminal offenses, fraud detection, etc.) – this also applies to family of applicants.  This policy is subject to change and does not create any rights or obligations.

If a person makes misrepresentations or omits significant facts they will be treated as a priority for enforcement and removal – they will go after people who lie to obtain deferred action.

d. Persons who obtain a GED of high school diploma after June 15, 2012 will still be eligible to file, but they must have obtained it before the time when they file.

e. There will be a renewal fee.

f. Persons who have other pending applications with USCIS will be eligible for deferred action, but only until any such application is approved.

g. The criminal grounds of ineligibility continue to be i) any felony (any crime punishable by more than one year in jail), ii) a significant misdemeanor (any conviction for domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or any other misdemeanor resulting in actual incarceration for over 90 days), or iii) three or more misdemeanors.   The definition of “significant misdemeanor” has changed slightly so as not to exclude people with convictions for certain “minor crimes”.

h. Minor traffic offenses such as driving without a license will not be considered misdemeanors but multiple such offenses may be viewed together to warrant a denial of prosecutorial discretion.

DHS To Announce Deferred Action for “DREAMers”

BREAKING NEWS from AILA National:

“DHS will formally announce this morning that it will offer deferred action to DREAMers.

Preliminary information indicates that eligible applicants must:

• Be 15-30 years old, and have entered before age 16

• Have been present in the U.S. for 5 years as of June 15, 2012

• Have maintained continuous residence

• Have not been convicted of one serious crime or multiple minor crimes

• Be currently enrolled in high school, graduated or have a GED, or have enlisted in the military The deferred action offer will be available to those in proceedings as well as to those who apply affirmatively.

The White House is expected to make a formal announcement this afternoon at 1:15 EST.”

More information will be available as details emerge.

National Day(s) of Action – Part 3 – Act Locally!!

This week, your federal elected officials are home for District/State work.  This provides you with the opportunity to visit their local offices and events such as town hall meetings and advocate for needed reforms even if you were unable to be in Washington, D.C. for the “official” NDA.

If you are an AILA member, I urge you to get involved in local NDA-related activities this week.  You can find your local coordinator here.  So when you go to your Congressmember’s office, or local event, what do you do?  What do you say?  Here is some background (from AILA) and a concise message on three specific issues:

1. VAWA re-authorization.  Background: “First enacted in 1994, VAWA includes several provisions that protect battered immigrants whose noncitizen status can make them particularly vulnerable to crimes of domestic violence, sexual assault, dating violence, and stalking. The abusers of undocumented immigrants often exploit the victims’ immigration status, leaving the victim afraid to seek services or report the abuse to law enforcement and making them fearful of assisting with the investigation and prosecution of these crimes. Through the VAWA self-petition, T visas, and U visas, VAWA enhances the safety of victims and their children and provides an important tool for law enforcement to investigate and prosecute crimes.  The current VAWA reauthorization bill, S. 1925, was introduced by Senator Patrick Leahy (D-VT) and has an additional 61 co-sponsors (as of March 22) of which 8 are Republicans and 53 are Democrats. In February, the Senate Judiciary Committee passed the bill and soon the full Senate will vote on it. The House does not yet have a bill.  In the  Judiciary Committee, Senator Grassley won inclusion of an amendment that would make it an aggravated felony upon a third drunk driving conviction. If this provision stays in the bill it will be the first time since VAWA was enacted that VAWA includes provisions not germane to its purpose of protecting victims of violence.”  The Message: Keep VAWA focused on protecting victims of domestic violence, sexual assault, dating violence, and stalking.

2. Detention funding. Background: “This year, the American taxpayers will spend over $2 billion to detain 34,000 immigrants per day—an arbitrary, congressionally-set figure not based on demonstrated need. By law, some individuals must be detained. But thousands of others do not. ICE has all the tools it needs to safely release thousands of individuals it chooses to hold in detention.”  The Message: Immigration detention is costly to taxpayers and should be used only when necessary. ICE has other options, like bond and ankle bracelets.

3. Prosecutorial discretion.  Background: “In June 2011, ICE issued an updated policy on prosecutorial discretion and in November, it issued additional guidelines on how it would be implementing the policy. ICE said it would put on-hold low priority cases pending before the overburdened immigration court so that it could focus on individuals posing a risk to national security and public safety, and other priorities.”  The Message: Prosecutorial discretion by ICE is about prioritizing resources and ensuring fair and just outcomes.  Discretion strengthens enforcement.

If in-person advocacy is not your cup of tea, why not make your voice heard via Twitter?  You can find your member of Congress here (scroll down to search by name or zip code), or see a list of accounts for various government agencies and elected officials here.  Logged in to Twitter, found your Congressmember and unsure what to say?  Lucky for you, the “messages” above are all under 140 characters long – all you have to do is “tweet” them.

National Day(s) of Action 2012 – Part 2

I have one of these PFAW posters on a wall in my office.  I got it at a May 1 immigration march in Chicago a few years ago.  “Today We March – Tomorrow We Vote“.  To me, it’s a reminder of my background in political and community organizing, but it’s also a call to action for my clients.

I think it’s important during the National Day(s) of Action to remember that part of our role as immigration advocates is to participate in the political process and to engage our clients in that process.

When we come across “hopeless” cases – people who don’t have any viable options unless there’s a change in the law – we should be giving them the tools with which to work toward changing the law.  We should ask about relatives, friends, and neighbors who may be adult US citizens who can vote and help bring about the very changes in law that they need.  If a “DREAMer” comes to your office with no real options – why shouldn’t she help organize a letter-writing campaign?  How many US citizens might she know who are sympathetic to her situation but who are not even registered voters?

You can find the federal mail-in voter registration form in seven languages on the US Election Assistance Commission’s website.  The next time someone comes to your office with a US citizen spouse, friend, parent or sibling, ask those citizens if they are registered to vote.  If they are not, take a minute to print out this form, have them complete it, and then mail it in for them.  Give them homework – help them find their elected officials and give them an issue to contact them about.

By engaging the community now we can create and expand the networks that will ensure that when the time comes to vote on comprehensive reforms, our clients’ interests are on the minds of our elected officials.  It may not be the fastest way to help our clients reach their immigration objectives – but sometimes, it may be the only way.

National Day(s) of Action 2012

 March 29, 2012 is the AILA National Day of Action.  Immigration advocates from around the country will be donating their time and resources to travel to Washington, D.C. and deliver a simple but important message to our nation’s leaders:

Immigration and immigrants are good for America.

They will be joined in the coming days by those of us who are unable to be in D.C., but who will deliver that same message to our elected officials when they come home for State/district work:

Immigration and immigrants are good for America.

A number of important issues affecting immigration and immigrants are currently either pending in Congress or in need of being addressed by Congress, and we need to stop treating the November election as an excuse for inaction and start treating it as an opportunity to be heard.  These range from detention reform, to reauthorizing the Violence Against Women Act (VAWA), and reintroducing the DREAM Act.

In the next few days I will write more about specific issues, but in the meantime, please make the decision to become politically involved in 2012.  You can use this link to find and contact your national elected officials, and this link to contribute to Immigrants’ List – a bipartisan political action committee dedicated to promoting the fair and just immigration laws Americans desire.  Locally, please make sure you’re registered to vote (Chicago residents, click here), and support local organizations such as ICIRR.

Make your voices heard on the 2012 National Day(s) of Action!

HB 5750 (Illinois)

At this year’s AILA Annual Conference, there will be a number of programs dealing with the overlap between immigration law and criminal law, and with post-conviction relief after Padilla.  The “Criminal Law for Immigration Litigators” panel will discuss the need for procedural avenues with which to pursue post-conviction relief, and “Protecting Our Clients: How to Combat Anti-Immigrant Legislation” should provide great ideas for community mobilization.  I highlight these programs because for me, in many ways, 2012 is, has been, and will be about changing post-conviction relief in Illinois.

On February 16, state representative LaShawn Ford introduced HB 5750 to amend the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1, et seq).  The amendment “[a]uthorizes persons who are subject to being confined by the State, local, or federal government as a result of a State criminal conviction to seek a post-conviction hearing in the trial court.”  The Act as it reads today limits post-conviction relief to persons who are subject to state custody, which led to the Illinois Supreme Court’s ruling in People v. Carrera, 940 N.E.2d 1111 (2010) that Padilla relief is unavailable under the Post-Conviction Hearing Act to persons who have successfully completed their criminal sentences.

The result is that if two aliens rely on erroneous legal advice and plead guilty to different crimes, one punishable by 10 years in prison and the other by 2 years probation, and 8 years later they find out that the erroneous advice leads to a drastic immigration consequence, the alien who is still in prison may use the Act to challenge his conviction, but the alien who successfully completed his probation 6 years earlier may not – even if the former is at Shawnee Correctional Center and the latter is in ICE custody 30 miles away at Tri-County Detention Center.

Noncitizens who rely on erroneous advice often do not learn of the disastrous immigration consequences of that advice until years later.  A routine traffic stop may result in mandatory detention and expedited removal, an application for naturalization may lead to immigration court, a family trip abroad could end with deferred inspection.  The Padilla court noted that “[d]eportation is an integral part – indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes” and recognized the need for a remedy when noncitizens are injured by the erroneous advice of counsel.  HB5750 would ensure that persons with meritorious claims for post-conviction relief in Illinois have a procedural vehicle with which to present those claims.

So, what does this have to do with me?  Fellow AILA attorney (and teacher, humanitarian, and activist) Royal Berg currently serves as co-chair of the Human Rights Committee of the Chicago Bar Association.  Last year he asked me to serve as legislative liaison for the committee, and we began work on what has since become HB5750.  The committee heard from the wife of a man who was in ICE custody as a result of a years-old guilty plea which, he had been told by his attorney, would not constitute a criminal conviction (which was true under Illinois law, but not under immigration law).  We heard about the hardship that she and their children were enduring as a result of his ongoing detention, and we decided to focus on amending the Post-Conviction Hearing Act.  Our proposal was endorsed by the Hispanic Lawyers Association of Illinois, the AILA Chicago Chapter, and the CBA Board of Managers, and last month it was introduced in Springfield by Representative Ford.  The bill is currently before the Rules Committee, and may not advance to the full House until the Fall, or even next year, but in the coming months we will work with groups across Illinois to build support for the measure, in hopes that it will eventually move forward and become law.

It has been great so far to work with so many dedicated attorneys on this important project – I hope to work with many more in the months ahead, and I look forward to learning about similar efforts underway across the country during the AILA Annual Conference.  Please check back for updates on the progress of HB 5750!

Evento: Recursos Para Negocios Chicos (12/14/2011)

La Chicago Public Library (Biblioteca Pública de Chicago) presenta un evento gratuito en español: Información y recursos para negocios chicos – miércoles 14 de diciembre, 18:30-20:30 en la biblioteca Harold Washington (400 S. State St.).

There’s an “ICE hold” – now what?

When a non-citizen is arrested by local law enforcement, a bond may be set for their release – but sometimes friends and relatives go to the jail to pay that bond, only to be told that the person will not be released because there is an “immigration hold”, or an “ICE hold”.  What does this mean?  What can be done?  What SHOULD be done?

What it means:

When the non-citizen was taken into local custody, his or her fingerprints were run through some federal databases, and if ICE believes that the person may be subject to removal, they file a “detainer” with the local jail using Form I-247 (the form changed in June 2011, but the old form is still used regularly).  It is not necessary for the fingerprint check to reveal any criminal history, it could just show that there is no record of the non-citizen currently having lawful immigration status.

The detainer is commonly referred to as an “ICE hold” or an “immigration hold”, and what it does is request (not require) that the jail basically do two things: (1) notify ICE in advance of when they plan to release the person, and (2) hold the person for an additional 48 hours – not counting weekends and holidays – beyond that release time so that ICE has an opportunity to take custody of the person.

An ICE hold is not an order of removal.  It does not mean that the person will be removed as soon as you pay the local bond and ICE takes custody.  An ICE hold normally just means that removal proceedings can begin – for many (but not all) this includes the right to be released from ICE custody, to see an immigration judge, and to apply for relief from removal.  Some aliens may be released by ICE on their own recognizance or on electronic monitoring, but others may have to pay a bond.  An immigration attorney should be able to tell you what to expect in each particular case.

You should know that immigration bonds can be more expensive than local bonds (the minimum amount is $1,500.00), they have to be paid in full (there are no “10% bonds”), and they have to be paid by someone who is a U.S. citizen or permanent resident.  The immigration bond is separate and apart from any bond you would pay at the local level before a person goes into ICE custody.

What you can do:

For a variety of reasons, local jail officers may sometimes seem to say that you cannot post a local bond because of an ICE hold, or that you should not post a bond because of an ICE hold.  They usually will not explicitly say that you can’t post a bond – but they may ask something like “why would you pay the bond?  they are not going to be released anyway.”

This may leave you with the impression that they will not accept a bond, even if they have not actually said that they wouldn’t.  The truth is that under normal circumstances, an immigration hold does not mean that you cannot post a local bond – it means that once the local bond is paid, ICE will be contacted, and the 48 hour period will begin, in the same way it would begin if the person was going to be released because they had a trial and won, or lost a trial and finished their sentence, or for any other reason.  In many cases (but not all), paying a local bond will not change what happens when the person goes into ICE custody (because the local case will still be pending).

If after discussing the case with an immigration attorney your intention is to pay a local bond, then an ICE hold alone should not prevent you from doing so.

What should be done:

This depends on a number of particular factors, including the person’s immigration and criminal history, the charge for which they were arrested, and the ICE office that would take custody of them upon release from the local jail.  It may not always be a good thing for someone to get out of local custody and go into ICE custody.  A person may have a prior criminal conviction that makes them ineligible for an immigration bond, or an old deportation order that would prevent them from seeing an immigration judge – the time in local custody could be used to reopen those old cases so that the person goes into ICE custody in a better position.

Once the local bond is paid, ICE will probably take custody of the person within a few days, and removal proceedings will begin.  This is why it is very important to consult with an immigration attorney before paying a local bond in order to determine what the best course of action would be in each particular case.  It is also important to have representation in the local criminal case.  ICE will not bring a detainee back to local court for scheduled appearances, and this could lead the local court to mistakenly believe that the person has breached their local bond, resulting in a forfeiture and an arrest warrant.

Conclusion:

An ICE hold means that once you post a local bond for someone, they may go into ICE custody instead of being released.  What happens at that point will vary case by case.  The federal case causing ICE custody and the local case causing local custody are wholly independent, but once a local bond is posted, both cases will move forward at the same time.  It is a good idea to consult an attorney prior to posting a local bond in order to develop a strategy for addressing both the local case and the immigration case.