Articles Posted in Enforcement

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tpsdave [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe U.S. Constitution gives the federal government exclusive authority over immigration law and policy. State and local governments have no direct authority to enforce immigration law, and the federal government generally cannot compel state or local agencies to do so. See Printz v. United States, 521 U.S. 898 (1997). In certain cases, however, federal immigration enforcement requires local government input. The New Jersey Supreme Court recently ruled on two consolidated cases from the Family Division that involved children seeking Special Immigrant Juvenile (SIJ) status. H.S.P. v. J.K., et al., Nos. 074241, 074527, A-114 Sept. Term 2013, A-117 Sept. Term 2013, slip op. (N.J., Aug. 26, 2015). The court found that New Jersey family courts lack jurisdiction to rule on actual immigration benefits, but they play a limited role in the immigration process because of their expertise in family law and child welfare.

Federal immigration law allows “special immigrant” status for unmarried children under the age of 21, for whom a return to their country of origin “would not be in [their] best interest.” 8 U.S.C. § 1101(a)(27)(J). U.S. Citizenship and Immigration Services (USCIS) makes a determination as to whether a child qualifies for SIJ status. It must find that the child has been declared a dependent of a state-level juvenile court, that this court has ruled that reunification with the child’s parents is not viable, that it would not be in the child’s best interests to be removed from the U.S., and that this situation is likely to continue until the child reaches the age of majority. 8 C.F.R. § 204.11. This requires certain specific findings from a state juvenile court. Once a child receives SIJ status, they may be able to obtain permanent residency and naturalization.

The two cases consolidated in the H.S.P. ruling involve child custody proceedings. In the first case, the child came to the U.S. from India without documentation in 2011 at the age of 16. When he was 15, he took a construction job working 75 hours per week to support his mother, who was too sick to work. When he also became sick, his mother sent him to the U.S. to live with her brother, H.S.P. In 2012, H.S.P. petitioned for legal custody of the child and requested the findings needed to obtain SIJ status. The family court declined to make those findings, holding that neither parent had “abandoned” the child.

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OpenClips [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration law allows U.S. citizens and permanent residents to petition for immigrant visas for family members. Certain family members of U.S. citizens, including spouses, are not subject to any numerical restriction. Relatives of permanent residents fall into various preference categories and may face substantially longer wait periods before obtaining a visa. Once a family member has an immigrant visa, they can begin the process of applying to adjust status to permanent residence. Since marriage to a U.S. citizen is one of the fastest routes to obtaining a green card, immigration authorities are wary of fraud, such as through “sham marriages” between a U.S. citizen and a prospective immigrant. Two recent cases from New Jersey and New York illustrate how federal and state officials investigate and handle these types of cases.

U.S. Citizenship and Immigration Services (USCIS) places a high priority on detecting marriage fraud in immigrant visa petitions and applications for adjustment of status. They may require a substantial amount of evidence establishing that a marriage is genuine, and USCIS inspectors have broad discretion to determine whether a marriage is genuine or not. If an immigrant was married for less than two years at the time their application for permanent residence is approved, they receive “conditional permanent residence.” They may petition to remove the conditions after two years by showing that they are still married, that they are divorced or widowed, or that they were subjected to domestic abuse or other extreme hardship. A “bad” marriage is not necessarily a fraudulent one. The key question is whether the couple entered into the marriage primarily for the immigration benefits.

The head of a New Jersey immigration consulting firm was sentenced to two years in prison in March 2015, after pleading guilty to three charges arising from various acts of immigration and marriage fraud. United States v. Poku, No. 1:14-cr-00492, judgment (D.N.J., Mar. 30, 2015). The defendant was accused of creating sham marriages for numerous individuals, mostly from Ghana, to help them obtain immigrant visas and green cards. According to the government, he hired people to pose as spouses in USCIS interviews, forged documents demonstrating cohabitation in the U.S., and forged Ghanaian government documents. He pleaded guilty to one count of illegally inducing people to come to the U.S. without legal documentation for commercial advantage. 8 U.S.C. §§ 1324(a)(1)(A)(iv), (a)(1)(B)(1). He also pleaded guilty to two counts of money laundering and wire fraud.

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By Dabit100 / David Torres Costales  Pictures of Ecuador (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsThe Deferred Action for Childhood Arrivals (DACA) program, first announced by President Obama in 2012, allows undocumented immigrants who arrived in the U.S. as children, and who have graduated high school or served in the military, to remain in the U.S. and obtain work authorization. The program represents an agreement by immigration officials to defer any enforcement action. One question that seems to have received little public attention is whether a DACA recipient may leave the U.S. temporarily without jeopardizing their deferral. Any DACA recipient wanting to leave the U.S. must first obtain advance parole from U.S. Citizenship and Immigration Services (USCIS), a process that can unfortunately be both cumbersome and uncertain.

An article published by Vox in April 2015 describes the difficulties faced by a DACA recipient, who came to the U.S. from Ecuador at the age of eight, obtaining approval to travel to Ecuador for professional purposes. The woman works as an advocate for undocumented immigrant students, helps administer a $25 million scholarship fund, and frequently receives invitations to give speeches all over the country. When she was asked to speak at two events in Ecuador, she applied to USCIS for advance parole.

Advance parole is essentially an acknowledgment from the federal government that the recipient may leave the country without giving up their “continuous presence” in the U.S. Since DACA recipients are, by definition, potentially subject to deportation, voluntarily leaving the country could mean that they will not be allowed back in. Two immediate problems present themselves for people in the DACA program: USCIS can be very slow to process advance parole requests, and the applicability of advance parole to DACA is not at all settled.

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Ellis_Island_photo_D_Ramey_Logan.jpgThe E-Verify system, which assists employers in verifying employees’ work eligibility, is now in use by hundreds of thousands of employers around the country. Federal immigration law requires employers to verify that employees and new hires are U.S. citizens or legal permanent residents, or that they have work authorization from the government. State and local governments may establish their own policies regarding the use of E-Verify. New York and New Jersey have no statewide laws regarding the system, but some states require state agencies, government contractors, and even private employers to use E-Verify.

U.S. citizens and permanent residents have work authorization by definition. People with certain nonimmigrant visas, such as H-1B or L-1, and people in programs like Deferred Action for Childhood Arrivals (DACA) may obtain a work authorization card from U.S. Citizenship and Immigration Services (USCIS). Employees must submit Form I-9 to their employers, along with specific documents to establish their identity and work authorization. Employers may be subject to civil or criminal penalties for employing unauthorized workers.

E-Verify, an online system that originally launched in 1997, is supposed to assist employers by allowing them to check an employee’s information against multiple government databases, rather than rely on their own visual inspection of the documents. USCIS touts the system’s “speed and accuracy” with regard to the information it provides, while critics have pointed to allegedly erroneous results.
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White_House_DC.JPGPresident Obama’s executive actions (EAs) on immigration, announced on November 20, 2014, offer relief to millions of undocumented immigrants who have lived here for years and have contributed to American society. Since the President took these actions without Congress, they have been highly controversial in some circles. Several federal agencies have offered support of the White House’s legal authority to take these actions, while numerous states have filed suit seeking an injunction against them.

We described the EAs in detail in an earlier post. The EAs, in part, expand the Deferred Action for Childhood Arrivals (DACA) program and offer deferred action or waivers of unlawful presence for certain relatives of U.S. citizens and lawful permanent residents. They are essentially a form of prosecutorial discretion, much like DACA. The Executive Branch of the federal government has authority to prioritize certain types of immigration cases for prosecution, typically meaning deportation. A November 19, 2014 memorandum by Principal Deputy Assistant Attorney General Karl R. Thompson (the “DOJ memo”) reviewed the President’s, and by extension, his Cabinet’s legal authority to take executive action on immigration without Congress.

While an estimated 11.3 million undocumented immigrants live in the U.S., Thompson states that the federal government can handle no more than 400,000 removal cases per year. The U.S. Supreme Court has held that the President is not required to pursue every “technical violation of [a] statute” to meet his Constitutional duties. DOJ memo at 4, citing Heckler v. Chaney, 470 U.S. 821, 831 (1985). Thompson concluded that deferred action is a permissible form of prosecutorial discretion for relatives of U.S. citizens and lawful permanent residents, but not for family members of DACA recipients, who are not themselves lawfully present in the U.S. except through deferred action.
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WhiteHouseSouthFacade.JPGPresident Obama announced a wide range of executive actions (EAs) on immigration in late November, including an expansion of the Deferred Action for Childhood Arrivals (DACA) program, deferrals for family members of citizens and lawful permanent residents (LPRs), and potential eligibility for certain public benefits. The EAs do not substantively alter federal immigration law by, for example, creating new immigrant categories or giving undocumented immigrants a new means of obtaining lawful status, but they do grant millions of people a reprieve from the threat of deportation and the opportunity to work.

The President announced the EAs on November 20, 2014, after a long period of inaction by Congress. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, in a bipartisan vote on June 27, 2013. The bill would create new opportunities for lawful immigration status while enhancing immigration and border enforcement. It would crack down on abuses in the H-1B visa system and provide additional visas for students in science, technology, engineering, and mathematics (STEM) fields at U.S. colleges and universities. The bill never has even been introduced in the House of Representatives.

The EAs will expand eligibility for DACA, the program that allows undocumented immigrants who entered the U.S. as children and meet other criteria, about 90 days after the announcement date. The upper age limit, currently set at people born on or after June 15, 1981, will be removed, and the continuous presence requirement will be moved up from June 15, 2007 to January 1, 2010. The program still will not be available to anyone who entered the U.S. after that date.
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Usnaturalization.jpgThe New York Times reported the story of a man who came to the United States from Pakistan as a child, faced possible deportation several times, and finally became a U.S. citizen after years of waiting. Mohammad Sarfaraz Hussain came to the U.S. with his mother, and remained here after she died. He became fully “Americanized,” according to the Times, but the nation’s response to the events of September 11, 2001 put him and others in a difficult position. He was required to register with the National Security Entry-Exit Registration System (NSEERS), a now-defunct program created as part of the “War on Terror.” He avoided deportation and obtained asylum. By enduring some of the worst the immigration system has to offer and becoming a citizen, Hussain offers quite the success story.

According to the Times story, Hussain’s uncle, a physician in Queens, New York, petitioned for an immigrant visa for his sister, Hussain’s mother. As her minor son, Hussain would share her immigrant status. While the petition was pending, she was diagnosed with cancer and traveled to the U.S. on a tourist visa for treatment, bringing eight year-old Hussain with her. Hussain’s mother died in New York, and he overstayed his visa to remain with his uncle. His father died of a heart attack in Pakistan when he was fifteen. Another relative petitioned for an immigrant visa for Hussain, but the September 11 attacks occurred while it was pending.

The Immigration and Naturalization Service (INS), the predecessor to U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), created NSEERS in 2002. The program required certain nationals or citizens of various countries in the Middle East, North Africa, and South Asia to register with INS. This included male nationals of Pakistan who were over the age of fifteen at the time. 67 Fed. Reg. 77136 (Dec. 16, 2002). NSEERS was heavily criticized as a form of racial profiling that was both offensive and ineffective. The Department of Homeland Security began scaling the program back as early as 2003, and effectively ended it in 2011. Hussain registered with NSEERS in early 2003, and managed to avoid deportation when massive public support led ICE, which had by then replaced INS, to exercise “prosecutorial discretion” and dismiss the case.
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USGS_Rikers_Island.pngWhile programs like Deferred Action for Childhood Arrivals (DACA) offer hope and opportunity for many otherwise undocumented immigrants, the federal government continues to pursue an aggressive deportation program. The Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) deported 438,421 people in fiscal year 2013. That number reportedly represents an increase of over 20,000 from fiscal year 2012, which showed an increase of over 51,000 over fiscal year 2011. Since taking office in 2009, the Obama administration has deported more than two million people. DHS often relies on the cooperation of local governments, which it expects to abide by “detainers” issued for individuals held in custody by state and local law enforcement. Many local governments, however, are refusing to honor immigration detainers and are enacting legislation to this effect. The New York City Council passed two laws in October 2014 that place further restrictions on the city’s already limited cooperation with federal immigration officials.

DHS officials, which include ICE and CBP, are authorized by federal regulations to issue detainers to other law enforcement agencies. 8 C.F.R. § 287.7. A detainer notifies the other law enforcement agency that the federal government intends to take custody of an individual in that agency’s custody for the purpose of deportation. This frequently takes place before any adjudication of the person’s deportability or inadmissibility has occurred. Officially, a detainer asks the local agency to notify DHS before releasing the individual. In practice, it often means that the local agency is expected to continue to hold the person, even beyond the time he or she is otherwise entitled to release, until DHS can take the individual into custody. The federal government expressly disclaims any financial responsibility for the cost to local agencies of holding a person solely for a detainer. Id. at § 287.7(e).

New York City has passed several laws in recent years limiting the city’s cooperation with immigration detainers. In 2011, it enacted a law preventing police from holding a person in custody beyond the point when, in the absence of a detainer, he or she should be released. Police should only notify DHS of the person’s release in certain limited circumstances. Another law passed in 2013 bars the NYPD from turning certain individuals who are subject to a detainer over to DHS, such as those who are only charged with low-level offenses.
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Ebola_virus_virion.jpgThe outbreak of Ebola virus disease (EVD) in west Africa is a serious health crisis that threatens the entire region. The disease is only communicable through contact with infected bodily fluids, and therefore it is not likely to pose a major threat to people in the United States. Despite such reassurances from medical experts, some people have expressed concern regarding immigrants entering the country. Immigration laws and regulations allow officials to deny entry to people who have certain specified diseases, including EVD, or who lack certain vaccinations. Airlines are also permitted to deny service to people who have communicable diseases that appear to pose a threat to other passengers’ safety. The federal government has announced measures to assist people from the countries affected by the outbreak who are already in the U.S.

According to the World Health Organization (WHO), EVD first appeared in two simultaneous outbreaks in Africa in 1976. EVD causes a hemorrhagic fever with a mortality rate of up to 90 percent. It can only be transmitted from one person to another by contact with infected bodily fluids, such as saliva or blood. The WHO declared the current outbreak to be an international public health emergency in early August 2014. Cases have been reported in at least three west African nations: Guinea, Liberia, and Sierra Leone. The death toll exceeded 1,400 by the end of August.

In response to the outbreak, many countries have closed their borders or restricted access to people from affected countries. This has met with criticism from health organizations, who say that this is making the situation worse. Direct assistance from the U.S. has been sparse, but immigration authorities are offering some relief to people from these countries who are already in the U.S. This includes extensions of nonimmigrant visas, deferrals of deportation proceedings, and expedited approval of work authorizations and petitions for immediate relatives of U.S. citizens. These measures make it easier for people from these countries to stay here and support themselves and their families.
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CBP_UH-60_street.jpgThe federal government introduced the “Secure Communities” (S-Comm) program in 2008 as a means of focusing immigration enforcement on individuals deemed a priority for deportation. The program began in a small number of local jurisdictions and has since expanded to cover most of the country. Federal immigration authorities have long used “immigration detainers,” requests to local law enforcement to continue to hold a detainee beyond the point when he or she would normally be released, as part of their enforcement procedures. This procedure became more official under S-Comm, with holds of at least 48 hours, not counting weekends. Several court rulings have held that these detainers are not binding on local law enforcement, and multiple cities have enacted laws limiting cooperation with the program. Local law enforcement in many areas has been slow, however, to respond to the backlash against S-Comm, if they respond at all.

U.S. Immigration and Customs Enforcement (ICE) describes these high-priority categories as “criminal aliens, those who pose a threat to public safety, and repeat immigration violations.” These designations are made in the sole discretion of ICE, and detainers under S-Comm are not subject to challenge by a detainee. The Third Circuit Court of Appeals ruled in Galarza v. Szalczyk, 745 F.3d 634 (3rd Cir. 2014), that mandatory immigration detainers violate the Tenth Amendment’s prohibition on commandeering state or local law enforcement. A federal judge in Oregon ruled that a county violated a woman’s Fourth Amendment rights by holding her pursuant to an immigration detainer after she was eligible for release on bail. Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317, opinion (D. Ore., Apr. 11, 2014).

Numerous U.S. cities have enacted laws or policies limiting cooperation with ICE regarding immigration detainers. The New York City Council enacted Local Law 62 in November 2011, which added a new section to the city’s Administrative Code stating that police should not detain a person beyond the time that he or she would otherwise be released, nor should they notify ICE of the person’s release, except under specified circumstances. See N.Y.C. Admin. Code § 9-131. The law listed numerous exceptions, including conviction of any felony or misdemeanor, pending criminal charges, outstanding warrants, and gang membership.
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