Administration Promises Fixes to Immigration System in Lieu of Comprehensive Immigration Reform

November 17th, 2014

The Obama Administration has conceded that comprehensive immigration reform will not be enacted in the foreseeable future and thus has promised to use executive authority through regulatory reform and other mechanisms to address some of the urgent problems facing our immigration system. While the President announced that such measures would be initiated by the end of August, more recently the Administration decided that any executive actions will have to wait until after the November 6 mid-term elections for fear that pro-immigration candidates as well as Democrats in general would be penalized at the polls for his actions.

Under already-existing authority, the President can pursue a number of actions that could help families and businesses that rely on foreign personnel. Some of these measures could include (1) extending DACA relief to parents of those young adults who have already received DACA relief; (2) granting work authorization and “Deferred Action” to undocumented parents of U.S. citizen children; and (3) counting only principal visa applicants against visa quotas (rather than counting both principals and their derivative family members) in an effort to clear up extreme backlogs for green cards that stretch into decades for certain categories.

In a new study released by the American Immigration Council, the authors of Executive Grants of Temporary Immigration Relief, 1956–Present, found that since at least 1956, every U.S. president has granted temporary immigration relief to one or more groups in need of assistance. The publication includes a chart of 39 examples that span actions large and small, taken over many years, sometimes by multiple administrations. Some presidents announced programs while legislation was pending. Other presidents responded to humanitarian crises. Still others made compelling choices to assist individuals in need when the law failed to address their needs or changes in circumstance.

Stay tuned.

Update on Central American Border Crossers

November 17th, 2014

While the news media has now focused their attention on other news, the plight and circumstances of children and families fleeing violence in Central America continues unabated. Regrettably, the Obama Administration continues to direct its agencies to deport children and families as quickly as possible, making them a priority for speedy proceedings. As of early October, hundreds of women and children have been deported on an expedited basis, and some deportees — even child deportees — have been murdered upon their arrival back home. The Administration’s current detention and removal policies have been widely denounced as both inhumane and unconstitutional, and in violation of our country’s legal and moral obligations under the 1951 Refugee Convention.


As previously reported, the American Immigration Lawyers Association, among other groups, has stepped in to provide pro bono legal representation during the last three months, primarily at one of the detention facilities in Artesia, NM.  Attorneys with long histories of representing clients at remote detention facilities have described Artesia as not just the worst situation they have ever encountered, but something far worse than anything they could have imagined.  Their client interviews reveal that hundreds if not thousands of mothers and children have suffered domestic violence, sexual assault, gang violence, and other atrocities protected under U.S. asylum and humanitarian law. Yet, these individuals most likely will be repatriated to their home countries.  Based on hundreds of interviews with detained families that these expert lawyers have conducted, it is clear that the center at Artesia is a due process failure and a humanitarian disaster, and it should be closed immediately.

Meanwhile, the Department of Homeland Security has continued its expansion of family detention, including a new facility in Karnes, Texas, with at least 500 beds, and a planned 2,400-bed facility in Dilley, Texas, expected to open in early November.  The South Texas Family Residential Center will be the fourth facility DHS is using to increase its capacity to detain and expedite the removal of adults with children who illegally crossed the Southwest border. Within months, DHS will be detaining nearly 4,000 mothers and children, a 40-fold increase in the use of detention on immigrant families.

To put the current numbers of unaccompanied minors into perspective, an estimated 60,000 children arrived in FY14; approximately 25,000 arrived in FY13, some 14,000 in FY12, and an average of less than 7,000 a year since 2003. Of the 60,000 unaccompanied minors who entered in FY14, many were placed with family members but those who came with their mothers are generally detained.

News in Brief

October 31st, 2014

New Director of USCIS Sworn In: On July 9, 2014, Leon Rodriguez was sworn as the director of U.S. Citizenship and Immigration Services (USCIS). Born in Brooklyn, Rodriguez comes to USCIS with a broad legal background and will lead the nearly 18,000-employee agency charged with administering the nation’s immigration system. He previously served as the director of the Office for Civil Rights at the Department of Health and Human Services.


Changes to Dates of Birth and Names on Certificates of Citizenship: USCIS has issued policy guidance relating to changes of dates of birth and names per court orders. Recognizing that the dates of birth of children born abroad are not always accurately recorded in the countries in which they were born, and that in some adoption cases, the child’s adoptive parents may obtain evidence of a mistake in the name or date of birth (DOB) reported by the foreign jurisdiction, USCIS will issue an initial, or replacement, Certificate of Citizenship with a new DOB or with a name other than that on a foreign record of birth if a U.S. state court order recognizes the new DOB or orders the legal name change.


H-1B Cap Subject Cases Still Pending at USCIS: USCIS reached this fiscal year’s H-1B cap on April 7, 2014. Shortly thereafter the Vermont and California Service Centers (VSC and CSC) began to process, select, review, and adjudicate H-1B petitions for work that will commence on October 1. Some cases have been issued a request for additional evidence (RFE). The VSC reported earlier in the summer that it hoped to adjudicate all H-1B cases still pending due to an RFE by mid-August.


Court of Appeals Blocks Arizona’s Ban on Driver’s Licenses for DACA Recipients: The U.S. Court of Appeals for the Ninth Circuit recently held it could identify no legitimate state interest that was rationally related to Arizona’s decision to treat DACA (Deferred Action for Childhood Arrivals) recipients disparately from other noncitizens who are permitted to use their work authorization cards as proof of their authorized presence in the United States when applying for driver’s licenses. Reviewing a district court’s denial of a preliminary injunction, the Ninth Circuit remanded the case back to the lower court with instructions to enter a preliminary injunction prohibiting defendants from enforcing the current policy of the Arizona Department of Transportation to refuse DACA recipients’ EADs as proof of their authorized stay in the United States.


DHS Statistics on Who Has Become a Lawful Permanent Resident in FY 2013

October 24th, 2014

The DHS Office of Immigration Statistics recently issued data on the number and characteristics of persons who became lawful permanent residents (LPRs) during fiscal year 2013.  A total of 990,553 people became LPRs, a decrease of about 4 percent from 2012.  54 percent of new LPRs already lived in the U.S., and the majority, or 66 percent, were granted LPR status based on a family relationship. Mexico, China, and India were leading countries of birth.  Historically, new LPRs have been younger than the native population. This held true in 2013:  the median age for new LPRs was 32 years in contrast to the median age of 35 for the U.S. native population.


Foreign Nationals Adjusting Status Based on Employment are Reminded that USCIS Reviews All Status Documentation

October 17th, 2014

During a recent meeting with USCIS, immigration lawyers questioned why the agency requests all status documents ever issued to an applicant for adjustment if the case is based on employment, when according to long-standing guidance the only relevant periods of being out of status under the immigration laws are those that occurred since the most recent admission. In response, the agency provided several reasons why all of an applicant’s status is reviewed. The main reason is to look for inadmissibility due to unlawful-presence, previous periods of unlawful presence that may trigger one of the bars (three years for 180 days of unlawful presence and 10 years for one year or more of unlawful presence). For example, an individual who overstayed his or her previous visa status for a year or more would be ineligible to adjust status for 10 years, unless eligible for a waiver. Another example given when an applicant’s full nonimmigrant visa status history is relevant relates to J-1 exchange visitors who may be subject to the two-year home residency requirement, unless waived. USCIS also states that because adjustment of status is a discretionary benefit, previous violations of status or overstays can be weighed as a negative factor when adjudicating the adjustment application even though status from the last lawful admission forward is the critical portion that is examined.

DOS Practice Alert: Technical Problems with Passport/Visa System Resolved

October 13th, 2014

The Department of State’s Bureau of Consular Affairs reported in late July that it was experiencing technical problems with its passport/visa system and that visa and other applicants would experience delays and in some instances would be unable to obtain a passport, Consular Report of Birth Abroad, or visa. DOS has since made significant progress and reports that it has issued most of the worldwide backlog of nonimmigrant visa cases and is printing visas for these cases and all cases with very few delays. Immigrant visas, adoption cases, and emergency nonimmigrant visa cases continue to be prioritized. Clients are advised to check with the appropriate embassy or consulate for additional information.

Ebola Outbreak–related Immigration Relief Measures Available for Nationals of Guinea, Liberia and Sierra Leone Currently in the United States

October 10th, 2014

USCIS reports that it is closely monitoring the Ebola outbreak in West Africa, and is offering relief measures to nationals of Guinea, Liberia, and Sierra Leone who are currently in the United States. These measures include:


  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited processing of immigrant petitions for immediate relatives (currently in the United States) of U.S. citizens;
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Consideration for waiver of fees associated with USCIS benefit applications.


These accommodations must be requested by the national.

Asylum Claim Denials on the Rise

October 6th, 2014

In its newest report, the Transactional Records Access Clearinghouse (TRAC) finds that the odds of an asylum claim being denied in immigration court has risen to 50.2 percent during the first nine months of 2014. After reaching a historic low of only 44.5 percent of cases denied two years ago (FY 2012), the denial rate has been on the rise. However, put in a historical context, ten years ago almost two out of three individuals seeking asylum lost their cases. Meanwhile, the immigration courts are tremendously backlogged, with some 350,000 cases pending, and that was before the recent influx of immigrants from Central America. During 2013, 20,941 cases were decided by immigration judges, while ten years earlier, 70 percent more cases, or 35,782, were decided.  FY2014 portends to be no better than FY2013.

CBP Issues New Customs Declarations Form, Features Expanded Definition of Family Members

October 4th, 2014

CBP issued a new customs declaration form that expands the definition of family members for arriving travelers as “members of a family residing in the same household who are related by blood, marriage, domestic relationship, or adoption.” The recent regulation change allows more returning U.S. citizens, residents, and international visitors to file a joint customs declaration for items acquired abroad, reducing paperwork for people traveling together as a family and increasing efficiency for CBP and airlines.


In addition to clarifying the definition of family members, the final rule also clarified the term domestic relationship, which includes: foster children, stepchildren, half-siblings, legal wards, other dependents, and are not married to, or a partner of, anyone else. “Domestic relationship” does not extend to roommates or other cohabitants not otherwise meeting the above definition. “Members of a family residing in one household” continues to encompass relationships of blood, adoption, and marriage.


Under the new definition of domestic relationship, one combined family declaration can now be presented to the CBP officer upon arrival. As with any joint declaration, verbal or written, the person making and/or signing the declaration will be held accountable for its validity.


For returning U.S. residents, to be considered members of a family and to group exemptions from customs duty and internal revenue tax, the travelers must have lived together in one household at their last permanent residence and intend to live together in one household. Regulations allow U.S. residents to combine the personal duty exemptions of each family member. For example, a family of five members returning directly from France would be entitled to a combined personal duty exemption of $4,000 ($800 x 5 individuals = $4,000). For international visitors, regulations allow international visitors certain exemptions (gifts, tobacco, personal effects, etc.), and they can file a single family declaration.

Unaccompanied Minors from Central America: What’s Happening on the Ground and Why This is Not a Border Security Crisis But a Crisis Demanding Humanitarian Relief

October 4th, 2014

For much of the summer, the immigration news has been dominated by the recent surge of some 60,000 unaccompanied minors and young children with their mothers fleeing the violence and lawlessness in Honduras, Guatemala, and El Salvador. The Central American humanitarian crisis has resulted in a national debate about how to treat this vulnerable population: send them back to their home countries or grant them humanitarian relief in the United States.  Below is a very brief overview of what the federal government’s response has been thus far, a depiction of conditions on the ground, and a historical perspective on the numbers.

Shortly after the crisis emerged, the Obama Administration marshaled the resources of the numerous federal agencies involved in the apprehension, processing, housing, and repatriation of unaccompanied minor children, and sought emergency funding from Congress. Unfortunately, the Senate and the House of Representatives could not agree before their August 4 recess, and will have to resume negotiations and deliberations when Congress returns after Labor Day. In the meantime, the immigration courts have been instructed to expedite the hearings these immigrants are afforded to determine if their fears are credible, if they are eligible for asylum status, or if they should be deported.

While many of the children have been reunited with other family members who already live in the United States or have been released to sponsors, many others are being detained in detention centers awaiting hearings. One such center is the federal detention center at Artesia, a tiny town in Southeastern New Mexico. Artesia has been thrown into the national spotlight because the federal training center located there was turned into a make-shift detention center for women and children fleeing violence in Central America.

In the wake of the crisis, the immigration bar mounted a massive pro bono effort to ensure that detainees are afforded due process. Teams of experienced immigration lawyers, many of whom are members of the American Immigration Lawyers Association, are volunteering their time and experience to help these mothers and children. The following dispatches from lawyers who have spent a week at Artesia sheds some light on the conditions in these detention centers:

“I spent last week at the Artesia ‘family detention’ center, a 4-hour drive from both Albuquerque and El Paso. We had a group of roughly ten volunteers (attorneys, translators, and administrative staff) trying to stop the rapid deportations and see that the women and their children get some modicum of due process. This was the first week there has been a full time volunteer attorney presence on site during the month it has been open.

“The first impression you get . . . is that all the children are sick, with coughs at minimum. They are dehydrated and listless. They are cold — there were two mornings where the temperature was around 60, and there were no jackets or blankets, so mothers and kids walked around with towels wrapped around their shoulders for warmth. Nearly all of them have valid claims for asylum — the majority based on domestic violence or gang issues. An unfortunate number were already deported without the opportunity to even consult with an attorney. Some mothers are giving up and asking to be deported because their kids are so sick.” [Editor’s Note:  Individuals are giving up even though the conditions in their home countries are dire.  For example, five recent Honduran deportees were murdered by gangs upon their arrival in Honduras. NPR, 8/21/2014.]

One pro bono lawyer from Oregon describes her experience in Artesia in this way:

“The lack of justice, due process, and the gross infringement on basic human rights at Artesia is truly staggering. . . . We need to send our members here to see and experience what is happening firsthand, so that they can shed light on this very dark place. . . . These are the most vulnerable people in the world, and our government is using them to send the message that America’s southern border is closed. As advocates, we can’t sit by and allow this voice of hate to be the loudest.”

A third volunteer lawyer reports:

“Women and children detained at length, being refused a chance for a fair hearing and access to counsel, and ultimately being sent back to the danger from which they fled. That’s what we’re seeing at Artesia . . . .

It shouldn’t be like this. But this is what we’ve come to. We need to help these families, to offer them due process and humane conditions, and ultimately address the root cause of this crisis: the conditions in Central America and the smugglers and traffickers who are making money off the misery of others.”

A recent op-ed article, “Children Deserve Protected Status,” written by noted immigration lawyer and author Ira J. Kurzban and published in the July 16 issue of the Miami Herald, sums up the current crisis and our moral imperative to provide relief:

The presence of more than 50,000 children who have crossed the U.S. border in the past two years hardly evokes the hysteria and predictions of chaos and ruin touted by politicians and the anti-immigration lot. That the United States is being overrun by children and that their numbers will create some cataclysmic event is not only morally abhorrent, it is factually erroneous.

To begin, let us put the numbers in perspective. Today the world has more than 50 million refugees and displaced persons. The government of Lebanon currently has over 856,500 refugees in a population of 4.4 million, representing 19.4 percent of its population. Jordan, 641,000 refugees in a population of 7.3 million representing 8.79 percent of its population.

Accepting 60,000 children in a population of 317.2 million — less than two hundred-tenths of 1 percent (.02 percent) of our population — would hardly be straining our resources.

Despite the vast differences in wealth and resources between our country and those of Lebanon, Jordan and even Iran, which currently has one of the world’s largest refugee populations, the end-of-the-world scenarios proffered by some ring of hyperbole.

At a time when we were a more generous, caring nation, we brought 14,000 children into the United States from Cuba under Operation Peter Pan. In 1966, we flew 266,000 Cuban men, women and children into the United States from the Port of Camarioca. At the time, those 266,000 Cubans represented .14 percent of our population, seven times the number of migrants we are talking about today.

The way to tackle this problem is not to deprive children of their right to a fair hearing regarding their fear of returning to their countries of gang violence and poverty.

The proposals to call up retired immigration judges and have “expedited” hearings for these children is nothing more than an offer of sham proceedings in the same way that U.S immigration authorities offered Haitian refugees “expedited hearings” in Miami in the late ’70s and early ’80s. Those expedited hearings were described by U.S. District Judge James Lawrence King as “a systematic program designed to deport [Haitians] irrespective of the merits of their asylum claims.”

Nothing short of that will occur here, and public-spirited lawyers dedicated to treating children fairly will use our legal system to expose the sham. Worse, we will spend billions of dollars creating this unfair system. Such expedited hearings were unfair then and made a mockery of our country’s pledge to be a country of asylum — and will be now.

The president wisely sent Vice President Joe Biden to Guatemala when the issue arose. If we want to address this issue properly, address it at the source of the violence in Guatemala, Honduras and El Salvador. As a powerful northern ally, the United States has the ability, if it has the will, to address these problems in their countries of origin.

At the same time, recognize these helpless children for who they are — victims of violence — and grant them Temporary Protective Status.

Granting TPS has several benefits. The billions of dollars in savings, by canceling sham hearings, can be used to address the root causes of smuggling and gang violence in their countries.

This is not an issue of border security. The children are not being smuggled into the country; they are brought to the border. We need to address the smugglers and the causes that allow the smugglers to thrive. Grant TPS, and go after the smugglers and causes of gang violence.

We could not agree more. This is not a border security crisis that demands deporting kids to deadly conditions back home; it is a humanitarian crisis that demands due process and temporary relief.