Immigration reform is once again stalled, despite the fact that politicians on both sides of the aisle acknowledge that our immigration system is broken. There are a number of signs that the current immigration system is failing. Case in point: the backlog in immigration courts across the nation with over 350,000 ongoing deportation cases each year in a country where an estimated 11.7 million people are undocumented. You don’t have to be a mathematician to realize that the U.S. government doesn’t have the resources to simply deport everyone who is here without status or whose status is now expired.
Yet another example of this system failure is “Operation Streamline” a federal program focused on prosecuting immigrants who illegally enter the U.S. or reenter after prior immigration violations. Operation Streamline is intended to deter immigrants from illegally entering the United States by swiftly detaining these immigrants at the border and placing them in federal criminal proceedings. In a recent New York Times article, a federal judge bragged about his record of deciding the fates of 70 such desperate immigrants in 30 minutes. With sentences for illegally entering the United States range from 30 days to 6 months in a federal penitentiary or jail, that hardly seems sufficient to determine an individual’s fate, or that of their families. With the majority of immigrants crossing the border illegally out of desperation to find a better life for their families, due to stark economic conditions or fleeing from violence, or both, this border enforcement measure does not appear to be deterring repeat offenders. The rate of immigrants illegally reentering the United States after being prosecuted under Operation Streamline was 27% for 2012. At best, Operation Streamline is a band aid on a gaping wound. In order to meaningfully increase border security and deter intending immigrants from illegally entering the country, there must be a comprehensive immigration reform which provides a path to lawful status based on U.S. need for skilled and unskilled workers, providing a path to lawful status for the roughly 12 million undocumented immigrants already in the U.S. and increased sanctions for businesses who hire illegals.
Headlines ranging from CNN to TMZ and Perez Hilton have declared that the petition with more than 100,000 signatures to deport Justin Bieber from the U.S. must be reviewed by the White House, suggesting that the White House can simply deport Mr. Bieber in one fell swoop. While the White House website indicates that any petition with more than 100,000 signatures obtained within 30 days will get a response from the website, this in no way means that the Executive branch can deport Bieber because he has been arrested for driving under the influence and drag racing. First of all, Bieber has not been found guilty of any crimes and in the United States you are innocent until proven guilty (at least in theory). As a matter of fact, Bieber pled not guilty to the pending DUI charge. Second, Bieber entered the United States legally on an O1-B visa for artists of “extraordinary ability.” To be clear, such a visa does not mean the U.S. government endorses Bieber’s brand of music, but rather that he meets certain objective criteria within his industry. As Bieber entered the United States lawfully, he has certain due process rights, albeit less than a U.S. citizen or a green card holder. If Justin Bieber committed an offense that makes him deportable, then he would be placed in removal proceedings where an Immigration Judge would determine if he is in fact deportable, and, if so, whether there are any forms of relief from removal. Under the Immigration and Nationality Act Section 237(a)(2)(B), only aliens “convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance…is deportable.” So even though Justin Bieber has admitted to illegal drug use, this by itself does not make him deportable.
Where things get tricky for Bieber is that admitting to drug use does make you “inadmissibile.” Under the Immigration and Nationality Act Section 212(a)(2)(A)(i), which states, “Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foregin country relating to a controlled substance…is inadmissible.” However, there is a waiver for this grounds of inadmissibility if the alien can show it is in the “national interest to do so.” This is a discretionary waiver which is decided by the Department of State, or even the Attorney General. Accordingly, “We the People” would be better off petitioning for Bieber to be denied admission to the United States, an option actually within the purview of the Executive branch rather than petitioning for his deportation (or more accurately, his removal from the United States).
After serving as an immigration judge since 1993, Judge Wayne R. Iskra recently announced his retirement, effective January 16, 2013. The Department of Justice has a partial hiring freeze in place –allowing for the replacement of every three immigration judges with the appointment of one immigration judge. As such, there are no plans to replace Judge Iskra, which will cause tremendous delay on the Arlington Immigration Court’s docket. Of particular concern are detained cases which will have to be reassigned to other Immigration Judges. Immigrants who are subject to mandatory detention and must fight their cases from ICE detention facilities were already receiving final hearings anywhere from six months to nine months out. Judge Iskra’s retirement would likely lead to further delay as his caseload must be redistributed to the remaining immigration judges who have their own full caseloads and were operating with reduced staff and resources.
For non-detained cases, clients have already seen hearing dates being scheduled for as far out as January of 2017, for their first hearing before an immigration judge. While the backlog benefits immigrants who are not eligible for relief and will ultimately be ordered removed, it will cause enormous difficulties for clients who have meritorious cases in a number of different ways. For example, for clients who have meritorious asylum claims, they must wait years before their case can be heard. They must wait until their case is decided before they can petition for derivative status for any immediate family members residing abroad. Often asylum applicants have emotional and psychological problems such as depression and post-traumatic stress disorder as a result of the persecution they have endured. Waiting years for a decision that could mean the difference between life or death only adds to the anxiety and the uncertainty of their situation and that of their families. Finally, these delays are costly for immigrants. Of those immigrants who are eligible for work permits while their case is pending before the immigration court, many must pay $380 each time they renew their work authorization. For immigrants who are not eligible for work permits while their case is pending, such as applicants for withholding of removal under the Convention against Torture, finding work can be difficult.
In the landmark case, United States v. Windsor (2013), the Supreme Court struck down Section 3 of the Defense of Marriage Act (1996), or DOMA – which had defined marriage as between a man and a woman only. Under this provision of DOMA, same-sex couples were denied access to hundreds of federal programs and benefits available to heterosexual couples, including immigration benefits. With almost twenty-five thousand same-sex binational couples living in the U.S., many of these citizens were not able to petition for their foreign-born spouse to obtain a green card, or even prevent their spouse from being deported. This discriminatory law also prevented children of foreign-born spouses from being granted a green card through their gay or lesbian step-parent. In June, however, the Supreme Court struck down this segment of DOMA as violating the Due Process Clause of the Fifth Amendment, finally granting same-sex couples equal access to numerous government benefits.
One of the most important impacts of this Supreme Court decision is that U.S. Customs and Immigration Service (USCIS), a federal agency tasked with overseeing immigration applications and benefits, will now recognize same-sex marriages performed in states and countries where same-sex marriage is legally recognized. Currently, this includes Washington, D.C., these fourteen states, and internationally in any of the fifteen countries, or regions in other countries, with full marriage equality (see map for more details). Even if a same-sex couple is living in a state that doesn’t legally recognize their marriage, as long as they were married in a state or country that does, the U.S. citizen spouse will be eligible to petition for their foreign spouse, if they meet all other immigration requirements.
Similarly, U.S. consulates abroad will also recognize any same-sex marriages performed in a country, or a region of a country with full marriage equality. Even U.S. consulates located in countries that do not recognize gay marriage will accept immigrant visa applications submitted by eligible same-sex binational couples.
Previously denied applications by same-sex couples will automatically be reviewed for improper rejection as well if they would have otherwise been accepted after Section 3 was overturned. For example, Sean and Steven Brooks, a gay couple living in New York City were upset when Steven, Sean’s husband from Colombia, was denied a green card and instead was placed in removal proceedings, facing an imminent threat of being deported. After the Supreme Court decision in Windsor. he was informed that the court would remove the deportation threat and let Sean sponsor Steven for residency. This would let both of them live together and raise a family in America and afford Steven the opportunity to later become a citizen.
Undocumented immigrants living in Maryland may now begin applying for drivers’ licenses, regardless of their immigration status. To be eligible, you must be a resident of Maryland, have filed your Maryland income taxes for the past two years, and pass a written test and driving test. Undocumented immigrants can begin the process of applying as soon as today, however, these new drivers’ licenses will not be issued until January 1, 2014.
Although the driver’s license can serve as a form of identification for state purposes, it cannot be used as a form of ID for federal purposes. For example, it cannot be used to board an airplane or vote in elections. This is because under the REAL ID act, in order for a driver’s license to be recognized for federal use, it required that states request evidence of lawful status of the person applying:
- “is a citizen or national of the United States;
- is an alien lawfully admitted for permanent or
temporary residence in the United States;
- has conditional permanent resident status in the
- has an approved application for asylum in the United
States or has entered into the United States in refugee
- has a valid, unexpired nonimmigrant visa or
nonimmigrant visa status for entry into the United States;
- has a pending application for asylum in the United
- has a pending or approved application for temporary
protected status in the United States;
- has approved deferred action status; or
- has a pending application for adjustment of status to
that of an alien lawfully admitted for permanent residence
in the United States or conditional permanent resident
status in the United States.”
Recently, states have been skirting these REAL ID act requirements by creating drivers’ licenses that indicate that they are not intended for federal use. California, Colorado, Connecticut, Illinois, Nevada, New Mexico, New York, Oregon, Washington have similarly passed laws giving undocumented immigrants access to drivers’ licenses.
Each year thousands of immigrants are detained for driving without a license and then referred to Immigration Court because they can’t obtain a driver’s license but need to get to work and drop off their children at school or daycare. With an increasing number of states extending limited driver’s licenses to undocumented immigrants, this should help reduce the number of non-criminal aliens being deported annually, leaving DHS with more resources to focus on their stated enforcement priorities of criminal and dangerous aliens.