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The Growth of the U.S. Deportation Machine

More Immigrants are being “Removed” from the United States than Ever Before

Despite some highly public claims to the contrary, there has been no waning of immigration enforcement in the United States. In fact, the U.S. deportation machine has grown larger in recent years, indiscriminately consuming criminals and non-criminals alike, be they unauthorized immigrants or long-time legal permanent residents (LPRs). Deportations under the Obama administration alone are now approaching the two-million mark. But the deportation frenzy began long before this milestone. The federal government has, for nearly two decades, been pursuing an enforcement-first approach to immigration control that favors mandatory detention and deportation over the traditional discretion of a judge to consider the unique circumstances of every case. The end result has been a relentless campaign of imprisonment and expulsion aimed at noncitizens—a campaign authorized by Congress and implemented by the executive branch. While this campaign precedes the Obama administration by many years, it has grown immensely during his tenure in the White House. In part, this is the result of laws which have put the expansion of deportations on automatic. But the continued growth of deportations also reflects the policy choices of the Obama administration. Rather than putting the brakes on this non-stop drive to deport more and more people, the administration chose to add fuel to the fire.

IRCA and the New Era of DeportationsRead more...

Published On: Wed, Apr 09, 2014 | Download File

Deferred Action for Childhood Arrivals: A Q&A Guide (Updated)

On June 15, 2012, the Obama administration announced that it will offer “deferred action” to immigrants who were brought to the United States as children and meet other specific requirements. Hailed by immigrant-rights advocates as a bold response to the broken immigration system, the move temporarily eliminates the possibility of deportation for many youths who would qualify for relief under the DREAM Act—thereby giving Congress the space needed to craft a bipartisan solution that gives permanent residence to qualifying young people. This Q&A guide outlines basic facts about the “Deferred Action for Childhood Arrivals” (DACA) initiative, including eligibility requirements and important information on process and timing.

Additional information may be obtained from U.S. Citizenship and Immigration Services (USCIS) by calling (800) 375-5283 or visiting www.uscis.gov/childhoodarrivals. Attorneys and other legal representatives may also wish to consult the practice advisory from the American Immigration Council’s Legal Action Center, Deferred Action for Childhood Arrivals.


What is deferred action?

When an immigrant is granted “deferred action,” it means the Department of Homeland Security (DHS) has deemed the individual a low priority for immigration enforcement and has chosen to exercise its discretion and not deport the individual. Deferred action provides temporary relief from enforcement but may be revoked at any time. Deferred action is not amnesty or immunity. It does not provide lawful immigration status or a path to a green card or citizenship. It does not extend to any family members of the person granted deferred action.

Who will be eligible for deferred action?Read more...

Published On: Fri, Aug 17, 2012 | Download File

Prosecutorial Discretion: A Statistical Analysis

In August 2011, the Department of Homeland Security (DHS) announced that it would review more than 300,000 pending removal proceedings to identify low-priority cases meriting favorable exercises of prosecutorial discretion. The initiative was officially launched in November 2011 and is expected to continue for much of 2012. To date, DHS has released statistics on three occasions measuring the progress of the initiative. This fact sheet provides background information about the case-by-case review process and a statistical assessment of those figures. Read more...

Published On: Mon, Jun 11, 2012 | Download File

From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond

By Jennifer Lynch

The collection of biometrics—including fingerprints, DNA, and face-recognition ready photographs—is becoming more and more a part of society. Both the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI) are in the process of expanding their biometrics databases to collect even more information, like face prints and iris scans. The expansion of biometric data collection, however, is uniquely affecting undocumented immigrants and immigrant communities. Under DHS’s Secure Communities program, for example, states are required to share their fingerprint data with DHS, thus subjecting undocumented and even documented immigrants in the United States to heightened fears of deportation should they have any interaction with law enforcement.

In this report, co-sponsored by the Electronic Frontier Foundation (EFF), author Jennifer Lynch explains the different technologies for collecting biometrics, as well as how that data is collected, stored and used. She raises concerns about data-sharing, legal protection, technological problems, then proposes changes to control and limit the storage of biometrics to benefit not only immigrants, but all people in the U.S. Read more...

Published On: Wed, May 23, 2012

Falling through the Cracks

How Gaps in ICE's Prosecutorial Discretion Policy Affect Immigrants Without Legal Representation

By Joan Friedland

While the Obama administration’s has expanded use of prosecutorial discretion in immigration cases, the subject of immigrants without legal representation and their ability to access this discretion remains unresolved. In 2011, nearly half of all immigrants in removal proceedings appeared “pro se,” or without legal representation. While immigration attorneys can explain the effect of these policies to their clients, pro se immigrants may be unaware that new policies are even in effect. Immigrant advocates have thus been rightly concerned about whether pro se immigrants in removal proceedings will benefit from Immigration and Customs Enforcement’s (ICE) prosecutorial discretion policies.

This paper lays out what immigration authorities can do to ensure that pro se immigrants understand what prosecutorial discretion is, how they can seek it, and what they should do after receiving (or not receiving) an offer of it.

 

Published On: Mon, May 14, 2012 | Download File

Using All the Tools in the Toolbox

While it is true that Congress makes the laws and the President executes them, it is also true that the President, the Cabinet, and a host of regulatory agencies spend countless hours interpreting and implementing the laws. Congress can never foresee all of the myriad details that must be worked out to actually turn a law into a functioning process.  It falls to the executive branch to carry out that work through the regulatory process—the system of rulemaking and public comment that generally takes place after a law is enacted.

However, it is often the case that Members of Congress do not agree with how the executive branch has interpreted and implemented a law. Disputes of this nature can quickly escalate from simple disagreement to frenzied hyperbole. Consider the over-the-top political rhetoric which has characterized much of the immigration debate for many years, with any act of generosity towards an immigrant quickly labeled “amnesty” by some lawmakers. Such rhetoric quickly turns into a pitched battle between Congress, as the maker of the law, and the Administration, as implementer of the law.Read more...

Published On: Thu, Sep 01, 2011 | Download File

Immigration and the Defense of Marriage Act (DOMA): A Q&A Fact Check

Q: What is the Defense of Marriage Act?
A: In 1996, Congress passed the Defense of Marriage Act (DOMA). Section 3 of DOMA defines marriage as a legal union between one man and one woman. At the time DOMA was enacted, no state permitted same-sex marriages. Today, six states and the District of Columbia permit same-sex marriages; several other states honor out-of-state marriages and/or recognize civil unions. Read more...

Published On: Thu, Aug 18, 2011 | Download File

So Close and Yet So Far: How the Three- and Ten-Year Bars Keep Families Apart

Most Americans take it for granted that marriage to a U.S. citizen and other family relationships entitle an immigrant to a green card, but there are barriers that often prevent or delay these family members from becoming lawful permanent residents, even if they are already in the United States.  Among these barriers are the “three- and ten-year bars,” provisions of the law which prohibit applicants from returning to the United States if they were previously in the U.S. illegally. Thousands of people who qualify for green cards based on their relationships to U.S. citizen or lawful permanent resident relatives leave the U.S. to obtain their green card are caught in a Catch-22—under current law they must leave the country to apply for their green card abroad, but as soon as they leave, they are immediately barred from re-entering the U.S. for three or ten years. Read more...

Published On: Mon, Jul 25, 2011 | Download File

Dissecting the HALT Act: The Impact of Eliminating Discretion from Our Immigration System

Immigration restrictionists on Capitol Hill are attempting to move legislation through Congress that would prevent the Obama Administration from exercising the executive branch’s long-held power of prosecutorial discretion.  The “Hinder the Administration’s Legalization Temptation Act" (HALT Act) is a bill introduced by Representative Lamar Smith (R-TX) that would suspend certain discretionary forms of immigration protections and relief until January 21, 2013—the day after the first Obama administration comes to an end.  The bill would also revoke any of the specified protections and relief that are granted between the date of the bill’s introduction (July 12, 2011) and the date of its enactment.  According to a letter circulated by Rep. Smith to solicit support for the HALT Act, its purpose is to “remind the Obama Administration that the founding fathers put Congress in charge of setting the nation’s immigration policy.”  What Rep. Smith seems to forget is that the American system of justice has long granted the executive branch of government the discretion to decide how, and against whom, to enforce federal immigration laws. Read more...

Published On: Mon, Jul 25, 2011 | Download File

The Morton Memo and Prosecutorial Discretion: An Overview

By Shoba Sivaprasad Wadhia, Esq.

On June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued two significant memoranda on the use of prosecutorial discretion in immigration matters.  Prosecutorial discretion refers to the agency’s authority to not enforce immigration laws against certain individuals and groups.  The primary memo (the Morton Memo on Prosecutorial Discretion) calls on ICE attorneys and employees to refrain from pursuing noncitizens with close family, educational, military, or other ties in the U.S. and instead spend the agency’s limited resources on persons who pose a serious threat to public safety or national security.  Morton’s second memo focuses on exercising discretion in cases involving victims, witnesses to crimes, and plaintiffs in good faith civil rights lawsuits.  The memo instructs “[a]bsent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”  

A closer look at the Morton Memo on Prosecutorial Discretion reveals that it reaffirms many of the principles and policies of previous guidance on this subject.  The memo, however, takes a further step in articulating the expectations for and responsibilities of ICE personnel when exercising their discretion.

Published On: Wed, Jul 20, 2011 | Download File