The American Immigration Council reported that U.S. law professors sent a letter to the White House stating that President Obama has wide legal authority to make needed changes to immigration enforcement policy. The president is considering how to use his authority to mitigate the damage caused by our dysfunctional immigration system and protect certain individuals from deportation.
The letter was written by Stephen H. Legomsky, John S. Lehmann University Professor at Washington University School of Law and former U.S. Citizenship and Immigration Services (USCIS) Chief Counsel; Hiroshi Motomura, Susan Westerberg Prager Professor at UCLA School of Law; and Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar at Penn State Law. It was signed by professors from 32 states, the District of Columbia, and Puerto Rico.
“As part of the administration’s legal team that ironed out the details of DACA, I can personally attest that we took pains to make sure the program meticulously satisfied every conceivable legal requirement,” said Legomsky. “In this letter, 136 law professors who specialize in immigration reach the same conclusion and explain why similar programs would be equally lawful.” (DACA is the acronym for Deferred Action for Childhood Arrivals, the program the president initiated in June 2012.)
In their letter, the law professors point out that “The administration has the legal authority to use prosecutorial discretion as a tool for managing resources and protecting individuals residing in and contributing to the United States in meaningful ways.” The letter goes on to explain that presidents from both parties have used prosecutorial discretion to prevent specific, and often large, groups of immigrants from being deported.
“Our letter confirms that the administration has specific legal authority to use prosecutorial discretion as a tool for protecting an individual or group from deportation,” said Wadhia. “This legal authority served as foundation for prosecutorial discretion policy across several administrations. Historically, this policy has been premised on the twin policy goals of managing limited resources and shielding people with compelling situations from removal.”
This is the second major letter about prosecutorial discretion that law professors have sent to President Obama. The first letter, sent in 2012, outlined the legal argument for expanded administrative relief, which later became the blueprint for the president’s DACA program. That program allows qualifying noncitizens who came to the United States as children to apply for relief from deportation and work authorization.
“This letter reflects a clear, broad, and informed consensus on two key points,” said Motomura. “First, the president has the legal authority, exercising his discretion as the nation’s top immigration prosecutor, to establish enforcement priorities. Second, the president’s lawful discretion includes the authority to set up an orderly system, modeled on DACA, for granting temporary relief from deportation.”
The US Department of Labor announced that as of August 25, 2014, PERM system passwords will need to be changed every 90 days and must meet certain security criteria to be valid
The American Immigration Council reported that positive changes are happening at the local level throughout the country. A growing number of cities, counties, and metropolitan areas get that welcoming immigrants for better and more comprehensive integration is good for their communities. Just within the past week, for example, the Ohio cities of Cincinnati and Springfield officially decided to become more immigrant-friendly. Along with Dayton and the state capital Columbus, several cities in Central and Southwest Ohio now share a common message: “immigrants are welcome here.”
Last week, Cincinnati’s Mayor John Cranley officially kicked off a 78-membertask force on immigration with the goal to make Cincinnati the most immigrant-friendly city in the country. “This is a country of immigrants, and this is a place where immigration is rewarded and thanked,” Cranley said. “We’re all going to be richer and better by being a friendly city for immigrants.” And Thomas Fernandez, co-chair of Cincinnati’s new immigration task force, said the move will be good for business, but added, “That’s not our motivation. Our principle motivation is it is our obligation; our obligation to pay it forward, create the same opportunities others have created for us.” He also noted that “if we make it easy and inviting as much as possible, I think we’ll be able to compete against larger cities that already have programs in place.” With a view toward comprehensive immigrant integration, Cincinnati’s task force will focus on five key areas: economic development, community resources, education and talent retention, international relationships, and rights and safety.
Springfield, which is in House Speaker John Boehner’s congressional district, also officially became more welcoming toward immigrants last week, through the efforts of Welcome Springfield. Specifically, Springfield’s city manager and city commission unanimously approved a resolution declaring the City of Springfield as a place “welcoming of immigrants and immigrant-owned businesses.” “We have these folks in our community and they need to be included and considered part of the community,” Mayor Warren Copeland said. As the Springfield News-Sun observed, the resolution “calls for the city to adopt policies that promote inclusion and integration of immigrants in the community.”
Municipalities charting a goal to become an immigrant-friendly city aren’t exactly new. Other cities, like Chicago, Baltimore, and St. Louis, are also aiming for similar goals. And within the past year, other cities, like Charlotte and Atlanta, have launched similar task forces and working groups composed of a diverse cross-section of the community to learn about and recommend best practices and policies for their cities to become more welcoming and immigrant-friendly. Shelly Bromberg, professor at Miami University, said the actions of Cincinnati and similar cities serve as examples of places “saying we want to see a positive resolution on all sides and we want a positive reaction versus a negative one. Maybe this is a strategy that will produce a more productive conversation.” And as Cranley stated, “I just think it shows cities are on the forefront of long-term economic growth in the country.”
Leaders at the city and metropolitan level play a critical role in cultivating an inclusive environment for all community members, including immigrants and newcomers, and encouraging immigration policies that contribute to community cohesion and economic growth rather than undermine it. Ultimately, the proactive actions many cities are taking to comprehensively grow the human and social capital—without which economic growth would not be possible—in their own communities stands in stark contrast to the lack of action in Washington to upgrade our 20th century immigration system for the 21st century. A growing number of cities and metropolitan areas are doing what they know will strengthen their regions, and are doing what they can to better integrate newcomers into their communities within the current immigration system.
The American Immigration Council reported that more than half of the unaccompanied Central American children who are in U.S. custody after crossing the U.S. border could be found eligible for relief by a U.S. immigration judge, according to an assessment by Refugee and Immigrant Center for Education and Legal Services (RAICES). This assessment is particularly timely, as several members of Congress have proposed legislative changes that would effectively speed up deportations of the Central American children by changing reducing the opportunities for screening and immigration court review.
RAICES has provided “Know Your Rights” presentations and legal screenings for the roughly 1,200 unaccompanied children who are in custody of Health and Human Services officials at Lackland Air Force Base. Jonathan Ryan, RAICES’ executive director, writes in letters to President Obama and congressional leaders that in their review of 925 immigrants children’s intake screenings, 63 percent could qualify for forms of relief like asylum, “U visas” for victims of serious crimes, and “T” visas for trafficking victims.
As Ryan explains, the initial screening of unaccompanied children is essential. He said RAICES spends 45 minutes to one hour individually meeting with the children after a presentation about their legal rights, and they often have to do follow-up interviews. “It is often the only opportunity these children will have to articulate their claims, talk with an attorney, and to access the protections that our laws provide,” Ryan writes. “Without this screening, the 63 percent of children who likely qualify for relief might never have been identified.”
Border Patrol agents are the first people children often see after they are apprehended for crossing the border, but many are hesitant to report abuse or tell their full stories in the initial screening by border officials, according to The New York Times. Andrea, a Honduran who was living in Mexico when she twice tried to cross the border, told the Times that she did not tell uniformed agents about having been forced into prostitution by her relatives with ties to cartels. “I was just trying to protect myself, and I was not saying anything to no one,” she said. Twice she agreed to leave voluntarily and was returned to Mexico.
And Kevyn Merida, who fled Guatemala in 2009 after Mexican drug traffickers tried to recruit him to be a courier, said he did not tell the Border Patrol officer who caught him about his history:
“You can’t talk to them,” [Merida] said last week. “They are just trying to throw you back again.”
But after a week in a health department detention shelter in Harlingen, he said, he watched a presentation about his legal rights and later met a lawyer from Mr. Ryan’s organization. “I felt comfortable talking to them,” he said. “I changed my mind and decided to tell the truth.”
Because of the vulnerability of the unaccompanied children, Ryan of RAICES urged lawmakers to resist any measures that would truncate the screening and adjudications for the children and asked them to “ensure that every child receives adequate due process and the required humanitarian protection.”
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The American Immigration Council reported that as the number of unaccompanied children arriving at the United States border has increased, some lawmakers have argued that children frequently disappear into the woodwork, and propose mandatory detention as a solution. Some say as many as 90 percent fail to attend their immigration court hearings. Yet government data recently published by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) may indicate the opposite. Not only do a majority of children attend their immigration proceedings, according to TRAC, but 90 percent or more attend when represented by lawyers.
TRAC’s data, obtained through the Freedom of Information Act, examines 101,850 immigration court proceedings begun while a child was under 18, from Fiscal Year (FY) 2005 through June 2014. TRAC then reports the number of “in absentia” designations by courts in those cases. “In absentia”—Latin for “in absence”—is a term for a judicial hearing held without the individual present. Any delay in appearing at any immigration hearing may lead to a court removing someone in absentia, according to the Immigration Court Practice Manual and under federal regulations.
TRAC’s data, for the first time regarding cases begun while a child was under 18, allows comparison of the number of “in absentia” designations to cases overall. (EOIR previously reported “in absentia” numbers, but without breaking out children’s cases). TRAC’s data indicates that:
- Children have been designated in absentia only 18.4 percent of the time. Thus, in 82.6 percent of cases, the child has either appeared in court or insufficient evidence exists for removal or relief, so far.
- Similar rates exist for children released to U.S. family. In 79.5 percent of cases in which a child was released or never detained, and in a parent or guardian’s custody, the child has not been designated in absentia.
- Although many recent cases are still pending, even in closed cases, children were designated in absentia only 31.2 percent of the time. 68.8 percent of children appeared in court.
Moreover, TRAC’s data indicates that children represented by lawyers rarely are designated in absentia:
- 95.4 percent of children represented by lawyers have not been designated in absentia.
- Similar rates exist even for children with US family. 95.1 percent of children represented by lawyers, and in a parent or guardian’s custody, have not been designated in absentia.
- In closed cases, 93.5 percent of children represented by lawyers were not designated in absentia.
TRAC’s data, however, differs from verbal Senate testimony by immigration courts Director Juan Osuna on July 9 and July 10. Osuna, when asked by Senators John McCain (R-AZ) and Jon Tester (D-MT) about failures to show, responded by stating a 46 percent in absentia rate for juveniles. This is higher than data reported by TRAC, although still much lower than claims of “90 percent” failure rates, as Politifact reported (before TRAC released its data).
These data discrepancies seriously call into question the rationale for detention of children, even on efficiency grounds. (As to human rights, the United Nations has stated that detention is never in a child’s best interest, for immigration violations alone). Previous reports by the Department of Justice’s Inspector General have found fault with immigration courts’ recordkeeping.
Yet several bills proposed this week contain mandatory detention provisions for children—such as Senator Jon Cornyn’s (R-TX) and Rep. Henry Cuellar’s (D-TX) HUMANE Act; Rep. Goodlatte’s and Rep. Jason Chaffetz’s (R-UT) Asylum Reform and Border Protection Act; and Sen. David Vitter’s (R-LA) and Rep. Bill Cassidy’s (R-LA) bill. Before Congress passes bills requiring mandatory detention of children, at a minimum, data on failures to show must be better understood.
Moreover, the data calls into question lawmakers’ claims that children overwhelmingly fail to show for immigration proceedings. Substantiation of those claims has been fuzzy. For example, Sen. Jeff Flake (R-AZ) said that he heard 90 percent of children fail to show from House Judiciary Committee Chair Rep. Bob Goodlatte (R-VA), whose Judiciary Committee staffer said the number was anecdotal evidence, from a local “Los Angeles County sheriff’s detective,” quoted by conservative website Newsmax.com.
Lastly, given TRAC’s data, if Congress wants to ensure children attend proceedings, perhaps Congress should consider appointing lawyers to children. Lawyers are more cost-effective, humane and fair than detention. The Council and others recently filed a national lawsuit to provide lawyers to children in immigration proceedings.
Beneficiaries of approved H-1B petitions with a 10/1/14 start date may now begin filing their visa applications at U.S. consular posts.
CNN reported that President Barack Obama said Monday he was starting “a new effort to fix as much of our immigration system as I can on my own, without Congress,” adding that he directed his team to recommend steps he can take this summer and that he would then act on those steps “without delay.”
Obama plans to take executive action on immigration reform after House Speaker John Boehner told him last week the House won’t vote on a comprehensive bill this year, a White House official said.
Obama will make a statement on immigration at the White House later Monday to announce some steps, including a request for emergency funds as the United States grapples with a surge of undocumented children and adults crossing the border from Mexico.
According to the official, Obama will order a shift in security resources to border regions and call for additional action he can take “without Congress but within his existing authorities to fix as much of our broken immigration system as we can.”
The President also sent Congress a letter asking that legislators work with him on providing additional money and leeway to deal with the situation on the southern border.
On Sunday, an administration official indicated the money will go to securing appropriate space for the detention of children but also stemming the tide of immigrants.
The government hopes to increase its ability to investigate and dismantle smuggling organizations as well as quickly return children and adults to their home countries if they do not qualify for asylum, according to that official.
So far, the federal government has struggled to process and accommodate the influx of illegal human traffic but specifically the spike in children.
U.S. authorities estimate that between 60,000 to 80,000 children without parents will cross the border this year in what the White House is calling an “immediate humanitarian crisis.”
Earlier in June, the White House announced a plan to spend millions in a government-wide response by sending aide to governments in Guatemala, Honduras and El Salvador to help with crime and violence prevention.
In mid-June, Vice President Joe Biden also spoke with leaders in the three countries as well as Mexico about working together to promote security.
Biden’s objective was to emphasize that adults arriving with their children in the United States don’t meet the requirements for a policy that defers deportation for children brought to the United States before June 15, 2012.
Obama also spoke with Mexican President Enrique Peña Nieto about the issue and has warned families who see the dangerous trip as the best option for their children.
The Associated Press reported that Michelle Obama turned a flag-waving swearing-in ceremony for 50 new American citizens Wednesday into a platform to call for action on the long-bogged-down issue of immigration.
“In many ways, it is because of — not in spite of — our immigrant population that we grow stronger every single day,” the first lady told the newest Americans-by-choice.
Fifty people from 44 nations, from Afghanistan to Zimbabwe, took the oath in the historic setting of the National Archives rotunda, where originals of the U.S. Constitution, Declaration of Independence and Bill of Rights are displayed.
The new citizens waved small U.S. flags afterward, and each got a hug from the first lady.
Mrs. Obama was clearly speaking to an audience beyond the rotunda when she told the new citizens that “much of our success is because we still very much are a nation of immigrants.” She recited statistics on immigrants who start small businesses, serve in the military and contribute in the arts and sciences.
“Yet today in Washington, folks are still debating whether or not to fix our immigration system even though just about everyone agrees that it is broken,” she said.
Mrs. Obama said overhauling immigration policy was the president’s legislative priority and that he would keep fighting for it.
President Barack Obama has been pressing House Republicans to act, but they show no appetite to move on legislation to address the millions of immigrants living illegally in the U.S.
The president has been resisting calls from supporters of an immigration overhaul to move ahead unilaterally on the limited changes that he can do on his own.
The Board of Immigration Appeals has found that an applicant for asylum or withholding of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief.
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