Got Immigration? The World’s Best Damn Blog About U.S. Immigration

I had one of the best laughs I’ve had in a long time this morning when I read that the Department of Homeland Security had created a social networking site called “Our Border“  My mind was immediately flooded by a multitude of perplexing questions.  What freaks of nature would want to socially network over a DHS site?  What would possess DHS to think that this is a good use of taxpayer money?  How much freedom would people networking over a government-owned site have to say what they really wanted?  The very concept of a Facebook-type site sponsored by the Department of Homeland Security boggled my mind…until I actually visited it.

The first thing that struck me was that essentially every post was from someone named “DHS Richard.”  Upon scrolling down, I saw that DHS Richard had also created the site using a company named Ning’s software platform.  Hmmm…maybe this site isn’t actually government-funded; maybe a very enthusiastic DHS employee took the initiative to create the site on his own.  On further inspection, I also noticed that the Department of Homeland Security’s emblem is featured at the lower-right corner of the main page, right under the links to ”privacy” and “terms of use.”  Well if that’s not ominous, I don’t know what is.  Is DHS Richard hinting that your privacy on his site is subject to DHS approval?  What is really going on here?  Conspiracy theories aside, it seems like DHS Richard works for his namesake Department, likes border issues, and wants to simply meet other people that are also interested in issues concerning the nation’s southern border.  Nothing wrong with that, right?  I just wish it was a little clearer that this site is not connected with the Department of Homeland Security, rather solely to Mr. DHS Richard, whoever that nameless border enthusiast might be.

If you decide to check out the site, I urge you to peruse DHS Richard’s photo gallery as well, which contains lots of pictures of U.S. security personnel in action, especially the Coast Guard.  Ah yes, that forgotten front in the battle against illegal immigration, the nation’s water borders.  Seriously, though, this is a noble, if slightly bizarre, effort in promoting dialogue on border issues, and I’m very curious to see what becomes of it.

There’s an excellent story in today’s online edition of the Wall Street Journal that discusses the plight of the Mira family of St. Paul, Minnesota.  Three children, Pablo, Rene, and Silvia Mira were forced to flee their native El Salvador due to gang harassment, which included threats of bodily harm and death.  According to the article, the street gang that controls their town, Mara Salvatrucha 13 (or MS-13 for short), pressured the two Mira brothers to join the gang, and even threatened their sister, telling her that “‘she would find [her brothers'] bodies in a dumpster’ and be raped or murdered if the twins didn’t join.”  The siblings fled El Salvador in order to escape these threats to their lives and safety, and applied for asylum after they arrived in the United States.

The history of the Mira’s asylum claim is long and convoluted, but suffice it to say that they were rejected at every stage of the adjudications and appeals process, until their case landed before Justice John Paul Stevens of the U.S. Supreme Court (this was after a less sympathetic Justice Alito turned down their request for an emergency stay of removal).  Justice Stevens asked the government to explain why it refused to consider delaying the children’s deportation, and referred the matter to the full Supreme Court for consideration.  Almost immediately afterwards, ICE miraculously released the children from detention, and notified the children’s attorney that it was willing to reopen their removal case. 

Apparently, when the Supreme Court gets involved, DHS listens – and listens well.  My guess is that DHS did not want a Supreme Court precedent involving gang-based asylum claims, and decided to bury the matter in a favorable adjudication before the Court could take further action.  As good as this result is, it shouldn’t take Justice Stevens’ intervention to change the way that DHS treats gang-related asylum cases.  This is a major problem right now for America’s asylum system, and it requires an intelligent and comprehensive solution that prevents a flood of asylum applicants from Central America while recognizing that many of these people truly need protection from gang persecution in their countries. 

Under current immigration law gang persecution is generally not a basis for asylum in the United States.  Asylum requires a well-founded fear of persecution on account of ethnicity, political opinion, religion, nationality, or “social group,” which is the catch-all category for any claims that don’t neatly fit into the first fourt categories.  Since these first four categories generally don’t apply to gang-based persecution cases, attorneys try to fit their clients into a social group, an approach that has met with extremely limited success (political opinion has been used as well, with slightly more success, although these claims are also difficult to prove).  The problem is really that the legal framework for asylum in this country was never designed for gang persecution situations.  Our definition of asylum – cited above – is a product of the post-World War II era, when the Holocaust and other Nazi atrocities served as the basis for identifying protected groups of people.  Specifically, the United States adopted its definition for asylum from the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, and is obligated to recognize asylum claims conforming to the standards contained in these treaties.  Gang persecution, though, didn’t exist in 1951, and I doubt that any of the treaty’s drafters could have envisioned the situation that currently exists in Central America, whose governments are virtually powerless to combat their gang problems.  People are being killed because they live in a town controlled by one gang, which angers a rival gang, or they refuse to join their local gang, or maybe their brother or sister joined a gang and left, and now they are being targeted as retribution for this “insult.”  The police are usually outgunned and outmanned by these gangs, and many are even in league with the gangs themselves.  The bottom line is that people are being killed and no one is protecting them, which, as far as I know, is the exact reason anyone is ever granted asylum.

As a matter of basic humanity, the United States should provide a mechanism for people fleeing gang violence to obtain asylum.  Maybe call it something else, and make the grant temporary, or at least renewable every year pending reauthorization from Congress based on country conditions, along the lines of Temporary Protective Status.  Either way, something must be done soon, or many, many people are going to die in Central America unnecessarily.

Immigration and Customs Enforcement released a statement yesterday informing the public that an additional 10 detainees had died while in ICE custody between 2004 and 2007.  These 10 deaths were previously not on ICE’s list of detainee deaths, and only appeared after “an in-depth review of records” concerning individuals that died while in ICE custody.  In response, ICE’s Assistant Secretary John Morton stated that “”this is a serious matter that we uncovered and it requires an immediate response.  Appropriate tracking and accounting of the deaths of individuals in ICE custody is imperative…this highlights why I am passionate about the need for more direct federal oversight of ICE’s detention system…”  The announcement goes on to describe the August 14th death of Huluf Guangule Negusse, a 24-year-old Ethiopian national being detained pending final removal – no pun intended.

I’m glad to see that someone in ICE is serious about reform.  I’ll believe it, though, when I see it.  ICE has a tendency to operate at the fringes of the Constitution, and has created  a system of entrenched interests that has strong financial incentives to maintain the status quo.  Specifically, I’m talking about the network of public detention facilities (such as L.A. County’s Mira Loma Detention Center in Lancaster) and private detention centers (such as those operated by the Corrections Corporation of America) that contract with ICE to detain foreign nationals.  Despite requiring every facility that contracts with ICE to abide by a set of minimum standards, the fact that so many detainees die in custody – not to mention the fact that the quality of each facility varies dramatically – shows that achieving macro-level change will be no easy task.  I hope that Mr. Morton is up to the challenge.

I’ve already written about President Obama’s enhanced immigration law enforcement efforts, especially his increased emphasis on worksite enforcement.  Among other things, this means that employers need to start thinking about whether their employees are legally allowed to work for them.  This should be easy in theory - the employment authorization form, called an I-9, contains a list of documents that employers can check in order to see whether someone is authorized to work.  These documentation includes a U.S. birth certificate, a Permanent Residence (“green”) Card, an employment authorization card, and a U.S. passport, among others.  The I-9 is a veritable roadmap for employers, showing them step-by-step how to determine whether their employees are “legal” or not.

The problem with this system is that many employees simply use fake documents to fool employers – or, to provide employers with an easy out if ICE comes knocking and asks to see their I-9 forms.  After all, many employers can claim that they checked the required documents, but had no idea that they were fake (cue righteous indignation).  This problem was the impetus behind the creation of online databases such as E-verify, which allows employers to check work authorization in a matter of seconds.  E-verify and similar systems have their own problems, but the fact remains that most employers have stacks of I-9 forms for existing employees, and are tied to whatever is contained on them if ICE pays a visit.  The many violations – intentional and not – that I-9 forms often reveal about a company’s workforce have spawned a thriving subspecialty within immigration law, I-9 defense.  There are ways to fix many I-9 violations, including amending the form, re-checking identification documents, and, in some cases, firing undocumented workers.  A great article in BusinessWeek outlined issues and strategies for employers to consider in the I-9 context, which I strongly suggest every employer should look over.

An I-9 audit can be an especially heartwrenching experience for many employers.  They might discover that beloved employees no longer have – or have never had – work authorization, and that they now have to be fired.  They could find out that all of the workers in a certain department or division have to be let go, and that they suddenly need to hire 5  people overnight in order to remain productive.  Employers could also learn that they’re facing a potentially 6- or 7-figure fine for I-9 violations that cannot be cured.  The more information employers have now about what might happen, and the sooner they check their own I-9s for any problems, the better they’ll be able to weather the President’s latest attempt to look tough on immigration.

I went to USCIS’s L.A. District Office – or the LADO, as we call it - today for a client’s adjustment of status interview. I came out of the Federal Building speechless. Why, you might ask? My clients and I had to wait two and a half hours to be seen by an officer. TWO AND A HALF HOURS.

Interviews at most USCIS local offices are scheduled in blocks of 45 minutes. We had an 11:15 appointment, which meant that the apppointment slot before us was for 10:30. Well, something strange was going on at 10:30, or maybe it was at 9:45 – or maybe it all started at 7:00, the first appointment slot of the morning. Whatever the case might be, officers finished interviewing the 10:30 people at 1:15. The first 11:15 file was then called, and then something completely unprecedented happened: an officer brought out all the other 11:15 files, told all the beneficiaries to line up outside the room with their spouses, other family members, and attorneys, and go to another room where, presumably, the officers there had some extra time on their hands. After another 30 minutes or so, we were seen, adjudicated, and out of bureaucratic never-never land.

I don’t care what the reason is – there’s no excusing a two and a half hour wait. Well, fine – if the building catches on fire, or if there’s an earthquake, or if the officer with my file has a heart attack, I’ll let the matter pass. But such was not the case at the LADO today. They had too many files, but too few officers. They were at the mercy of a system that does its scheduling from one location in Missouri for interviews around the country, without regard to that local office’s needs and specific case volume. They have a staff that’s overworked, underpaid, and not trained to care about the quality of the customer service they provide. Until these and other problems are directly addressed, the process of immigrating to the United States will be a truly miserable experience for many. I would like to dismiss all of this as a result of chronic government underfunding of the nation’s immigration system, but I don’t really think that would be an accuarate assessment of this situation. USCIS filing fees are a source of tremendous revenue for the immigration service, but these fees largely don’t translate to improved service and better decisions. USCIS has money – it’s just not used very effectively.

The Senate confirmed Sonia Sotomayor yesterday as the 111th Justice of the United States Supreme Court. Judge Sotomayor – soon to be Justice Sotomayor – will become the first Latino to serve on the High Court, a truly important day for anyone that cares about equality and diversity.

One would think that, as a Latina, Justice Sotomayor will have a unique take on immigrants’ legal issues. Now, far be it from me to pre-judge anyone’s worldview based on such an inaccurate predictor as ethnicity, but still – as a very successful and now very powerful person of Latin heritage, shouldn’t she have a special place in heart for all those less successful and less powerful people of Latin heritage struggling to create lives for themselves in this country?

The answer appears to be “no,” at least according to an article in the Washington Post, which itself quotes research from an article published in the Stanford Law Review. On June 9, 2009, Amy Goldstein reported that Sotomayor is within the “judicial mainstream” on immigration, meaning that she ruled for the government over the foreign national, and vice versa, at approximately the same rate as other judges on the 2nd Circuit Court of Appeals, of which she was a member until yesterday. Overall, she has sided with immigrants in asylum cases 17 percent of the time – 2 percentage points about the national average, at least for 2004 and 2005, the two years studied.

Based on this article, which admittedly studies only a small portion of Judge Sotomayor’s judicial career, it looks as if Justice Sotomayor will not be a tremendous friend to immigrants, although she probably won’t be an enemy either. If she’s within the 2nd Circuit’s mainstream, and 2 percentage points above the national circuit court average, one has to really look to specific decisions to understand her thinking on immigration issues. I haven’t read any of Judge Sotomayor’s decisions yet, but given yesterday’s confirmation and the new role she’ll have in shaping the nation’s laws, I think I just might have to brush up on some 2nd Circuit case law.

According to an article in the New York Times, the Obama Administration might be as tough, if not tougher, on undocumented immigrants as the Bush Administration was.

It seems that the Obama Administration has moved away from the high-profile raids that became the hallmark of the Michael Chertoff years at Homeland Security. These raids severely damaged the Bush Administration’s image in the eyes of many Latinos, and drew criticism from the legal, policy, and immigrant rights communities. President Obama correctly decided, as a matter of policy, to reduce the use of immigration raids as a law enforcement tool, but seems to have compensated for this decision by stepping up enforcement in other areas.  The Department of Homeland Security has expanded the use of its 287(g) program, whereby it “deputizes” state and local law enforcement agencies to enforce immigration law, expanded the use of E-verify to determine an employee’s immigration status, and dramatically increased the number of criminal prosecutions of immigration violations - by 32%, apparently, over the same period a year ago.

I honestly have no problem with the government enforcing existing laws - that’s the Executive branch’s job,  after all.  I do have a problem, though, with the government enforcing laws that are misguided, flawed, and that simply don’t work, especially by a new administration that has the political capital to change them.  The consensus for quite a while has been that E-verify is riddled with mistakes, that the 287(g) program impedes crime fighting, and that criminal prosecutions of non-citizens largely don’t deter anyone from breaking the law.  Why is President Obama – the candidate of change – sticking with these half-measures that basically just make people’s life miserable without addressing the root causes of illegal immigration?  One possible answer might lie with the President’s choice of Homeland Security Secretary, Janet Napolitano, who was considered very tough on immigration when governor of Arizona.  Another possible answer might be, as the Times’ article suggests, that the President needs to show increased enforcement activities in order to sell Comprehensive Immigration Reform to Congress and the public next year.

Be that as it may, political considerations shouldn’t serve as an excuse for bad policy.  Our government can do better.

The State Department announced today that it was starting to use a new nonimmigrant visa (NIV) application – the DS-160 – which will one day replace all existing NIV applications.  As anyone that has applied for an NIV knows, there are several different applications now – the DS-156, DS-157, DS-158, and a few others, many of which are paper-based.  Now, the completely online DS-160 will incorporate all the information from every other form, and I assume that it will be tailored for the requirements of whoever is using it.  DOS even stated that applicants will be able to upload a digital photo directly onto the form!  Talk about high tech for the government, eh?  Only 12 consular posts – including several in Canada and Mexico - will be using the DS-160 for now, but DOS said that it will expand its use as server bandwith can be increased.

Word today out of Washington that Senators Robert Menendez (D-NJ), Kirsten Gillibrand (D-MA), and Ted Kennedy (D-MA) took action to fix America’s inadequate system of immigrant detention.  Senators Menendez and Gillibrand submitted the Strong STANDARDS bill today in the Senate, which would require the Secretary of Homeland Security to promulgate rules in 15 different areas of immigrant detention, including access to phones and medical care.  All three Senators co-authored another bill submitted today, the Protect Citizens and Residents from Unlawful Detention Act, which would require DHS to take steps to prevent Lawful Permanent Residents and U.S. Citizens from being wrongly detained by immigration authorities. 

I think both bills are an excellent start to fixing a seriously flawed system, which is actually less a system and more a patchwork of semi-enforced rules and regulations, substandard public and private detention centers, and overworked, overburdened, and sometimes downright confused state and federal law enforcement personnel.  Any attempt to “fix” this system – in quotation marks because “fix” is too weak a word to describe the massive amount of work that must be done – must start by ensuring that each and every facility meet basic standards of habitability, something that many currently lack.  Next, there must be adequate access to proper health care and to an attorney.  Countless reports have emerged – one this week – about immigration detainees dying in custody from untreated health problems.  There is no excuse for this, pure and simple – you detain someone, you become responsible for their wellbeing until detention is over.  An almost equally serious problem is lack of access to counsel, equally serious because access to counsel might end the detention altogether in many cases.  I can’t recall how many times I’ve had clients in custody that can’t call my office, that can’t call family members so that they can call my office, or that simply can’t contact anyone on the outside because they’re moved around so much – another topic that really riles me up but that I’ll save for a future post.  Criminal detainees are appointed attorneys, yet immigration detainees don’t have a similar right, even though their liberty is just as restrained as any criminal defendant’s.    It’s critical that they be able to access legal counsel too, just as readily as anyone else in custody.

There are many other things wrong with DHS’s detention system, but it would take a multi-volume treatise to outline everything.  I think if the above three items are fixed, however, a lot of the problems with immigration detention will be solved.  Given that, I think the second bill submitted today is somewhat less important than the first - the number of permanent residents and citizens detained by mistake seems small compared with the number of detainees forced to endure substandard conditions, and who might not even need to be detained in the first place, who might be able to get out with proper legal counsel.  I’m very curious to see how the full Senate and House react to this legislation.