Executive Action on Immigration: Good, Bad, and Ugly

I went to bed last night mentally doing a checklist of everyone I know who qualifies and does not qualify under the President’s immigration action. As a community advocate and formerly undocumented immigrant, the word that most aptly describes last night is “bitter-sweet.”

While the announcement is not enough, we do need to celebrate our victories, and what change this temporary reprieve will bring to so many members of the community. However, I am also frankly terrified for those that it would not help, and what would happen in the absence of permanent changes.

I am making a quick reference checklist here for myself, family members and friends, similar to the one I made for the Senate immigration bill two years ago as a community advocate. These are simply my initial mental impressions of the various memos released by the DHS yesterday and available here. They are in no particular order:

Good

  1. Expansion of DACA – The DHS will remove the upper level age cap on DACA so people who were above the age of 31 as of June 15, 2012 will not miss out. The date of entry was moved to January 1, 2010 from June 15, 2007, which means thousands more people who are newer arrivals would benefit. DACA will also be made into a temporary reprieve of 3 years, and the changes rolled out in 3 months.
  2. The New DAPA program – The DHS is tasked with creating a separate deferred action program for parents of U.S. citizen sons/daughters or LPR sons/daughters born before November 21, 2014. Parents must have resided in the U.S. since at least January 1, 2010, physically present in the U.S. on the day of announcement and have no lawful status, passed background checks, and are otherwise not ineligible (i.e. not an enforcement priority according to the new Johnson memo).
  3. The provisional stateside waiver (I-601A) will be extended to all family members eligible, which will now include adult sons and daughters, and spouses of LPRs. The provisional waiver is for the 3/10 year bar for unlawful entry, and requires an individual to prove “extreme hardship” to their U.S. citizen family member if they are deported. Usually, individuals who are trying to adjust their status in the U.S. but entered the country unlawfully, need to travel abroad to their home country for approval of a waiver. In 2012, the Administration started accepting “extreme hardship” waivers without requiring immediate relatives of U.S. citizens to leave and wait outside. Now this benefit is also available to the children and spouses of lawful permanent residents. This provision will require rule-making, so it will take some time to roll this out. The DHS will also engage in rule-making to expand the “extreme hardship” definition.
  4. Naturalization – Lawful permanent residents who are naturalizing can now pay via credit card and may qualify for fee waivers.
  5. Expansion of parole-in-place to immediate relatives of those U.S. citizens and lawful permanent residents who “seek to enlist” in the US Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or the Reserve of any of the five Armed Services). This benefit means that not only would the family members of those who seek to enlist not be subject deported–they may also be eligible to adjust their status in the future.
  6. Clarification of travel on advance parole by DHS so that people on DAP, DACA can travel abroad, and return to adjust their status in the U.S.
  7. Department of Labor (DOL) reforms: DOL will start issuing U visa certifications in three key areas: extortion, forced labor, and fraud in foreign labor contracting, and certify applications for trafficking victims seeking T visas. According to DOL, “These efforts will significantly help qualifying victims of these crimes receive immigration relief from the Department of Homeland Security (DHS) and access the range of victim services that they need to recover and rebuild their lives.”
  8. Reforms to the employment-based immigration system such as extension of OPT for STEM graduates, defining “specialized knowledge” for L-1B intracompany transferees, increasing H-1B portability by having USCIS define “same or similar” jobs, expanding the use of the “national interest waiver” and starting a new parole program to bring talented entrepreneurs to the U.S.

Bad

  1. Elimination of Secure Communities with a new program that targets immigrant communities: DHS is replacing the current “Secure Communities”  program with a new “Priority Enforcement Program” to remove individuals convicted of criminal offenses. While it could be a marked improvement that moves us from a pre-conviction to post-conviction model and uses notification instead of detainers, unfortunately, this continues the entanglement of local law enforcement with immigration enforcement.
  2. Exclusions for parents of DACA recipients, undocumented workers and farm workers without families, and LGBT individuals less likely to have family members in the U.S. – While these exclusions are not categorical, and some parents of DACA recipients who also have U.S. citizen/LPR children would continue to benefit, the President’s immigration action does not specifically benefit those who do not have immediate family ties to the U.S. but are nonetheless, members of our community. It is also unclear at this point whether parents with final orders or re-entries after deportation would be eligible for the program. At this point it appears that they would be eligible since they are not priorities under the new memo.
  3. Visa backlogs – The announcement punts on the question of family visa backlogs that affect so many of us. However, there will be Presidential Memorandum to create an interagency group to look at “visa modernization” which has 120 days to prepare recommendations for further action.
  4. Limited expansion of DACA:  It is great to see an expansion of DACA and elimination of the age-cap. It would have been nice to see public benefits such as ACA (healthcare) given to DACA recipients, as well as increasing the age of entry to 18 from 16 years.
  5. Employment-based immigration: DHS expects to finalize regulation on H4 visa holders soon but the rule will not be expanded to all H4 visa holders
  6. New enforcement priorities that continue to target immigrant communities: The President is rescinding past memos such as the Morton Memo, and issuing a new one, effective January 5, 2015. The new priorities are troubling and continue to criminalize immigrant and border communities, pitting good immigrants against bad immigrants, and separating families. I have listed the priorities below, and some initial thoughts on each:

Priority 1: Non-citizens convicted of aggravated felonies, suspected terrorists, convicted gang members, people apprehended at the border while unlawfully entering the U.S., will be a priority for removal unless they qualify for asylum or another immigration benefit.

Most troubling here is the use of language such as “suspected terrorists” without built in civil rights protections that discourage racial profiling. Additionally, people apprehended at the border will now be a top priority, even though many are coming to reunite with family. The prioritization of people with gang-related membership (without conviction) is very troubling, as law enforcement targets specific racial/ethnic groups as gang-affiliated.  

Priority 2: Non-citizens convicted of three or more misdemeanor offenses, non-citizens convicted of significant misdemeanors (including DUI), non-citizens apprehended who entered after January 1, 2014; non-citizens who are perceived to abuse the visa waiver program should be a priority of removal unless they qualify for asylum or another immigration benefit.

Significant misdemeanors – a new legal fiction created by DACA – is here to stay, even though it has no legal foundation. The prioritization of people with a DUI, and their exclusion from DACA, is incredibly troubling, as is the prioritization of people who overstay their visas under the visa waiver program. Many of these people are immediate relatives of U.S. citizens and have much to contribute to the U.S.

Priority 3: Non-citizens issued final orders of removal after January 1, 2014 should generally be a priority for removal unless they qualify for asylum, or another immigration benefit.

Immigrants who dared to come to the U.S. in 2014 will now be subject to draconian enforcement. 

Ugly

  1. Increased border enforcement – DHS plans to fund an additional 20,000 CBP agents, and continue to trend towards further border militarization of the Southern border we share with Mexico.
  2. Ramped up interior enforcement through existing programs such as the Criminal Alien Removal (CARI) Program, which profiles Latinos for detention and deportation, and  ICE raids, which will continue under these new announcements, despite right-wing talking points.
  3. Due process concerns: Expedited deportations and Operation Streamline will continue.
  4. No reforms to the existing detention system: Family detention will continue as the DHS opens a brand new center in Dilley, Texas, and arriving asylum seekers at the border will continue to be detained.

Finally, I just want to say that this is a deeply personal issue for me. I want to send some love and light to everyone who has worked hard for this announcement and emotionally drained from yesterday, and left out or have family members who are left out. I had a cab-driver yesterday, who unexpectedly started telling me about his son, and trying to figure out how to bring him here, just as I was getting out of the cab. I wish I had the time and opportunity to help him, and I hope he reunites with his son soon. We all deserve justice; we all deserve to be able to reunite with our families; and we most certainly deserve to be able to go home to safety–wherever that is.

If anyone has further thoughts, questions and concerns, feel free to comment or contact me.

Executive Action On Immigration – Who You Should Thank Before the Party Gets Out of Control

Credit: NDLON

Photo Credit: NDLON

For more than a year now, I have worked with the grassroots movement trying to secure broad administrative relief from President Obama on immigration. I co-authored the Not1More Blue Ribbon Commission Recommendations to the President in the Spring. Just a few months ago, we were quite unpopular amongst advocates in the Beltway, who were asking the President to delay issuing administrative relief on immigration, but since the midterm elections, we are all the rage, and invited to cocktail parties everywhere. The Democrats may have lost the Senate due to the delay, but now that the President has signaled his desire to take executive action on immigration, the Democratic base seems fired up and ready for change.

It is certainly a pivot in the right direction. My experience as an undocumented immigrant has prepared me well for this moment since something similar happened when we won Deferred Action for Childhood Arrivals (DACA). “Dreamers”—the beneficiaries of DACA—became the “cool kids” that everyone tried to hang with, while we tried hard to grapple with how it divided our community into deserving and undeserving immigrants. My experience as an LGBT individual is also quite similar. Straight people, for lack of a better term, want to celebrate with us at our parties now, and act like they are cool with us, which makes for rather awkward conversations. I have learned to take people at face value, revel in my accomplishments, and forget about them the moment the happy hour is over. Because we have much more important work to do.

Nothing has been announced yet, so if you are confused about all the noise on executive action, you need to consult the chart here. The delay is cause for protests, not parties as the President continues to deport more people than ever before. Moreover, family detentions continue, as the Obama Administration builds a brand new facility in Dilley, Texas to imprison mothers and children escaping persecution in their home countries.

If any announcement does come, remember to thank NDLON’s Not One More Deportation movement. Without NotOneMore, we would have a dead immigration bill with no momentum for change and frankly, no prospects for executive action. Remember to thank the undocumented workers, parents, and youth who stopped buses, infiltrated detention centers, put their bodies on the line to ask for this change, and endured many attacks from pro-reform advocates. Unlike what Julia Preston writes in the New York Times, it is not big money which has brought us here, but big, courageous hearts of those who have been directly impacted by our devastating immigration laws. This is an undeniable fact, and perhaps it would not make it into the history books, but you had better not forget it.

It’s also important to remember that whatever the President announces will mean thousands left out and left to fend for themselves. Many of them are among the ones who organized for this change in the first place. They are our friends, loved ones, and members of our community. We have to help those who qualify but we must also fill the gap for those who did not make it, and work to ensure that they are represented as well.

Those who opposed administrative action at any time should start redeeming themselves by doing applications for relief at no cost to applicants, and contribute some application fees while they are at it. But don’t hold your breath. You’ll notice that they are the first ones taking credit and trying to make money from this.

Got legal questions for me or need help? Hit me up here.

Community Voices: Pretexts

Justice for Ayyub-aI’m thinking a lot about pretexts nowadays. In the U.S., when people demand to know where you are from, what they mean is that you couldn’t possibly belong here because of your skin-color or accent. When people inquire as to how your family took your coming out as gay, they are harboring false assumptions about how brown people deal with queerness. Pretext happens when you get pulled over for your skin-color but get charged with “driving without a license” and face deportation. Heck–not having papers is a pretext. The land of the free and home of the brave is full of these sorts of pretexts, and life here is about  learning and navigating them.

 

So Justice for Ayyub is a campaign to free a man, Ayyubb, from the prison-industrial complex who got caught up in it due to pretexts. Ayyub–a Muslim man and the son of a Black Panther–was targeted by the FBI to become an informant, and when he refused to serve as a snitch, the FBI reportedly fabricated a weapons charge against Ayyub, offering him exoneration only if he became an informant to spy on the Muslim community. The ongoing trial is a pretext–what the FBI really wants from Ayyub is his cooperation.

Another pretext-the White House arranged a news leak this week that more executive action is coming, but leaked the news in advance to gauge the reaction of both immigrant rights groups and rabid right wingers. The response: quite underwhelming from the left as the changes appear to be hollow, and a nasty letter from the GOP. Message the White House gained from this: If you can’t make either side happy, perhaps you are doing the right thing. Meanwhile, the hunger strikes at the White House continue, with a Congressional briefing on May Day next week featuring Not One More Blue Ribbon Commission members on how the President can act to stop deportations.

 

The other pretext, of course, is suggestions by advocates that acting to stop deportations would kill any chances of the long-dead CIR. We used to hear the same thing when pushing for a standalone DREAM Act, and then DACA. Real reason for inaction: Lack of political will.

The Department of Homeland Security (DHS) is just a pretext for thug life. There’s nothing else I want to say about this rogue and miserable agency.

 

Arguments against affirmative action nowadays use Asian-Americans as pretexts telling us that if we don’t rise up against the use of race in college admissions, we are doomed as affirmative action hurts Asian-Americans. The real reason for opposing affirmative action is the maintenance of white privilege, and white supremacy. Plain and simple.

 

 

 

What’s not a pretext is that I’m signing off now because an island awaits me for the next month. It isn’t paradise, but it comes close. Hasta la vista!

Keynote Speech at Hampshire College: “Crimmigration – We Are All Criminals”

For a primer background, see “But We Are Criminals: Countering the Anti-Racial Justice Framework of Immigration Reform

I received a call from my friend Farzana yesterday. Farzana has been in the country since she was 5 years old. She is 35 now. She’s from Pakistan but she has basically lived here for most of her life. When she was about your age—she got in a little trouble. She sold some drugs to a cop for $15. But she cleaned up. She did her time and community service. She started working with at-risk youth, got married to a U.S. citizen, had three kids and put it all behind her.

Or so she thought.

Farzana called me yesterday because ICE agents had showed up at her door earlier this week, to arrest her. She was calling from a detention facility in New Jersey—scared and confused because she thought she had done her time, and she didn’t know why ICE was coming after her. It turns out that even though she was in the country lawfully as a green card holder, the $15 of meth that she had sold a cop some 15 years ago was coming back to haunt her. She was facing deportation to Pakistan—a country he had left as a five year old.

My name is Prerna. I’m a first-generation immigrant from Fiji. I’m also undocumented, and so I know a little about immigration law. That’s what brought Farzana to me and that’s why I am here today.

I’m sure we all know some of the repercussions of being undocumented.

We’re locked out of economic opportunities (no financial aid, no instate tuition in this state). We’re locked out of school (in states such as Georgia, South Carolina). We’re caged within the walls of America, detained by the invisible bars for unlawful presence and so we cannot live here and cannot leave here. Our existence is reduced to a limbo – existing illegally in America.

But what does it mean to be an undocumented person in America – an undocumented Asian-American or Pacific Islander? As an API undocumented person, I’m supposed to be a model minority, make the best of what America has to offer, achieve the American dream (whatever that means) and serve as a justification to incarcerate my black and brown brothers and sisters.

I refuse to do so.

All people of color are criminalized, albeit in different ways.

Low-income black people are more likely to be incarcerated in prisons for minor drug offenses. Low-income Latinos more likely to be incarcerated in detention centers built for immigrants for minor immigration offenses.

Black children are forced to grow up without parents who are incarcerated. Latino children are forced to grow up without parents who have been forcefully removed (deported) from the country.

I learned in high school – post 9-11, that my type of Asian is seen as A-rab and hence, a terrorist.

In essence, we are demonizing and criminalizing and entire generation of black and brown kids. This is not just a problem for our cities—it is not just a New York, Boston, Los Angeles problem. This is an American epidemic, a national crisis, where it has become acceptable for the state – through local police and federal immigration agents – to view people of color as a threat to society, first, as a cancer that needs to be removed, and as citizens, maybe last.

The last few years, we have seen an unhealthy marriage between our criminal justice system and immigration system. What do I mean by this? Crossing the border or remaining here unlawfully past our visas is actually an administrative violation much like getting a traffic ticket. Yet, if we turn on the news, we are told that undocumented immigrants are here to take our jobs, take advantage of our healthcare system, and take welfare benefits—basically that we are a threat to this country, and many times, a security problem.  This is ironic because we advertise America as a great country, as a land of immigrants, but complain when people actually buy the false advertisement and come here to work, to better their lives, to reunite with their loved ones.

To tackle this alleged threat of immigrants, states like Arizona and Alabama have tried to shift the nature of the “violation” from administrative to criminal. For instance, states such as Georgia and South Carolina banned higher education for undocumented students. Alabama took it further, compelling schools to check the immigration status of students and report the data to the state. And of course, Arizona has become famous for making unlawful presence in the state a crime. These state laws compel police to check the immigration status of anyone they suspected may not be in the country legally, thereby implicating the criminal justice system in immigration enforcement.

But I don’t want you to leave this room thinking that it is something that only states are doing. The federal government has expanded this criminalization of immigrants. Under the Bush Administration, the Customs and Border Protection agents used to “catch and release” immigrants caught at the border. Under the Obama Administration, people caught within 100 miles of the border are no longer “caught and released.” Many of these people—who are here to work or reunite with their families—are given criminal convictions, and subjected to expedited removal, which is the act of deporting someone without due process of law. In fact, immigration convictions make up the majority of federal convictions. And we have a president who has deported more than 2 million people in the last six years, earning himself the title of “deporter-in-chief.”

Actually, the federal government has all of these euphemisms for the new penology of immigrants to try and hide or justify what they are really doing to our communities:

“Operation Streamline” – program that brings criminal charges against anyone trying to enter the country, and leaves people with criminal convictions. I’m not sure what exactly is being streamlined.

“Worksite enforcement action” – violent, sloppy raids of workplaces that puts U.S. companies out of business and workers out of jobs

“Voluntary departure” – When immigration agents force someone to agree to their own deportation. So much for voluntariness.

“Secure Communities” – Federal government program that removes hard-working migrants from our communities without due process of law, making us feel less secure

“Criminal Alien Removal Initiative (CARI)” – They should have just called this “stop and frisk” for Latinos. CARI is a program that was piloted in New Orleans – involves local police and ICE arresting, detaining and deporting people who appear to be Latino.

Basically, the list of euphemisms is long. The destruction of our communities at the hands of the state very real.

To address the situation at hand, some of our politicians in Washington D.C. are trying to enact some sort of immigration reform. These politicians promise that it will be different this time—that reform will stop the deportations and decrease the use of detention against people of color.  The two groups most targeted by immigration control law over the last century, Latinos and Asians, have increased in numbers and political power and so these politicians want to give us a peace offering.

But the proposals on the table are dominated by a focus on getting “right with the law” in order to get citizenship, and billions in funding for the same border and interior enforcement that is tearing our families apart. The same advocates trying to pass immigration reform in Washington D.C. are the same ones who talk about stopping unnecessary deportations as if some are deportations are necessary. These advocates tell us that “we are not criminals” even while ignoring the very real criminalization that we are undergoing as people of color. They talk about which groups of immigrants are “good” and which are “bad” and thus, divide up our communities. They tell us that citizenship will solve all our problems – ignoring that citizenship doesn’t mean much when you are brown or black in America.

In effect, immigration reform from Washington D.C. will leave thousands languishing in detention, facing deportation and continue to tear apart families and communities. So perhaps then, the lack of reform is a blessing in disguise. What we need is justice.

What does justice look like?

Justice requires intervention — when people put their bodies on the line to join campaigns that are about them, but often do not include them;

Justice looks like the simultaneous hunger-strikes in detention centers across the country;

The Not 1 More Deportation campaign, and the hunger strike in Washington D.C. led by the directly impacted to call on the President to stop deportations;

Justice requires that we organize to end policies like “Secure Communities” that divide up our communities into good and bad immigrants, and tear us apart;

Justice involves taking risks and pushing the boundaries – the infiltration of detention centers, the actions taken at the border by brave young people to reunite families;

Justice is no to legalization in exchange for more enforcement;

Justice requires that we stop saying “we are not criminals” and start working towards ending the ways in which we are all criminalized;

Justice requires that we build black-brown solidarity by recognizing how the state criminalizes our bodies, our people, and uniting in our fight against the prison industrial complex;

Justice is about treating everyone equally, regardless of whether we have papers or not – which means driver’s licenses, instate tuition, and health care, and jobs for undocumented immigrants without subjecting us to mass arrest and incarceration;

Justice is to forgive my friend Farzana’s prior transgression, and to fight for her to be able to stay in here with her family.

While President Obama Takes 90 Days To “Review” Deportations, Here Are Some Deportations To Stop

Photo Credit: NDLON

Photo Credit: NDLON

While the President sits with his hands tied behind his back even as he deports people in record numbers, and Congress remains as ineffective as ever, here are some cases of deportations that need your immediate attention:

These are just less than 1 percent of the numbers of people deported daily from the U.S. Now I don’t believe that deportation is the worst thing that can happen to a person. The invisible detention regime that keeps the undocumented imprisoned inside the cages of America and separated from their loved ones at home is far more insidious, sinister and life-threatening than deportation in many scenarios. Our advocates do not talk about it because it means answering critical questions about America’s role in creating and sustaining conditions that lead us to leave our homes, and serve as a reserve army  of the marginalized and exploited here in the U.S.

But at the same time, our communities need relief now, and they are not likely to get it through Congress. In the meanwhile, keep signing these petitions and keep organizing.