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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:
- 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.
- 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).
- 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.
- Naturalization – Lawful permanent residents who are naturalizing can now pay via credit card and may qualify for fee waivers.
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- Due process concerns: Expedited deportations and Operation Streamline will continue.
- 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.
Democrat apologists are coming out of the woodwork to defend the Obama Administration’s deportation record.
After all, once you deport 2 million people, expand immigration enforcement, and preside over the largest immigration detention complex in the world, there is nothing stopping even the conservative National Council of La Raza from calling you ‘Deporter-in-Chief.’
The esteemed Julia Preston for the New York Times tells us that court deportations have dropped 43 percent in five years. There is a very simple explanation for why court deportations are down. It is because most people are being deported without ever even seeing a judge, through a process called expedited removal–a term that is so impersonal, but essentially means deportation. Preston paints a rosy picture of the deportation crisis by ignoring the reality that 75 percent of people removed from the country never even saw a judge. They were deported in the most inhumane way–without due process of law. Moreover, due to budget reasons, our immigration courts are so backlogged that many people languish in limbo for years–awaiting a final hearing–before they are deported. And many people in removal proceedings are lawyering up, which makes removal less likely through the immigration court system, and much more likely through the process of “expedited removals.”
The most creative attempt to make the President look good on deportations comes from the New Democrats Network (NDN). The NDN report plays on the legally-crafted distinction between removals and returns to say that Obama may be “removing” more people but is “returning” less than Bush:
The NDN report shows that removals under Obama’s administration have indeed increased, from a record low of 165,168 during the Bush administration in 2002 to a record high of 419,384 in 2012. However, the number of returns has plummeted — dropping sharply from 2008 to 2009, when Obama first took office, and declining steadily since. In 2001, there were 1,349,371 returns, but in 2012 there were only 229,968 — a drop of nearly 83 percent.
What’s the difference between removals and returns? Well, deportation is a rather harsh word, so lawmakers have opted to move away from it since 1996, and categorize deportations as “removals” and “returns.” Removals are actual deportations, and returns constitute voluntary departure. For the government, voluntary departure expedites and reduces the cost of removal. For the non-citizen, voluntary departure removes the stigma of deportation and allows a person more time to depart the country at her or his expense. Many times, non-citizens are actually forced into accepting voluntary departure, so the phrase is a euphemism in practice, and literally means deportation from the country, without the harsh legal consequences of removal.
The 2 million figure contains both removals and returns. However, as the NDN reports admits, Obama has presided over more removals than returns, which means people face harsher consequences if they are deported nowadays. The Immigration Policy Center confirms that the trend has been towards removal rather than return:
The end result is that the number of “removals” (deportations) has trended upward since the mid-1990s. Meanwhile, the number of apprehensions has fluctuated widely, primarily in response to changing economic conditions in the United States and Mexico, and nose-dived when the recession of late 2007 hit. The number of “voluntary returns” has tracked apprehensions closely. However, since 2005, voluntary return has been made available to fewer and fewer apprehended immigrants as deportation (with criminal consequences for re-entry into the country) becomes the preferred option of U.S. immigration authorities.
Another colleague, Anna Law, who is a professor at CUNY Law, penned “Lies, damned lies, and Obama’s deportation statistics” only to be somehow caught up in the web of lies. She concludes in her well-written article that Obama has emphasized returns over removals even though the statistics from ICE and the NDN report tell us otherwise. Law also appears to be downplaying the harmful impact of “expedited removals” by pointing out that “two-thirds of Obama’s overall expulsion numbers consist of returns of people who have previous final orders of removal and who are recently arriving entrants.”
Surprisingly, nowhere in the article does Law analyze that many of these “recently arriving entrants” who have final orders to leave the country actually have family members in the United States, and that “expedited removal” tears apart American families without due process of law. Law does not even mention how the Administration has steadily given more people criminal convictions for mere entry and re-entry such that immigration convictions account for the largest portion of federal convictions. In effect, the Obama Administration is increasingly criminalizing immigrants–giving us criminal records, locking us up in detention centers, and deporting more people who have such minor criminal records.
In conclusion, Obama has presided over more actual removals than former President George W. Bush, criminalized immigrant communities to prioritize us for removal, and in total, the number of returns and removals under his Administration surpasses 2 million.
This is all beside the point. Numbers can be skewed in many ways, and we’ll continue to see both conservatives and liberals spin numbers for political reasons. But numbers don’t tell us the real stories of how people across the country continue to suffer the devastating impact of immigration enforcement. Numbers are impersonal–they do not tell of the violence and terror done to our communities. It does not matter whether Obama or Bush deported more people–what matters is that actual people are suffering due to harsh enforcement programs carried out by the Executive Branch ranging from Operation Streamline to Secure Communities to the Criminal Alien Removal Initiative.
The President can change this, but thus far, he has refused to act. And so we continue the hunger strikes on his lawn, carry on with shutting down ICE, and do what we must to put the pressure where it belongs.
Growing pressure on the Administration from immigration activists has led the President to announce yet another review of deportation policies with the aim to make them “more humane.” Following the announcement, there was a mad rush to get “administrative action” memos to the White House from various groups, including the Congressional Hispanic Caucus, and the National Immigration Law Center (NILC).
Parallel to the White House directive, former and currently undocumented immigrant leaders from across the country formed a Blue Ribbon Commission to perform an independent review and present its recommendations to the President, helping fill the noticeable lack of representation from those seeking legal status and citizenship in recently-convened White House meetings. The executive summary and full report is available here.
Labeled as ambitious by some media outlets, the myriad of recommendations, ranging from stopping deportations to curtailing the use of detention to scaling back on immigration enforcement and extending labor protections to undocumented workers, are certainly lofty, as described by MSNBC–but nothing short of ambitious and lofty would do at this point.
- Expand deferred action to the fullest extent of the law, to as many people as possible;
- End all programs involving ICE and local-law enforcement collaboration, including Secure Communities, 287(g) agreements and the Criminal Alien Program (CAP);
- Protect basic rights by granting deferred action to individuals filing civil, labor or human rights complaints, and adopting a formal non-retaliation policy prohibiting agents from targeting defenders of civil, labor and human rights for arrest, detention or deportation;
- Eliminate the bed quota and end or drastically curtail the use of detention;
- Revise ICE’s enforcement priorities and expand the low-priority criteria;
- Improve conditions in detention facilities and expand protections for vulnerable detainees including pregnant women, HIV+ and transgender individuals, and people with disabilities;
- Stop collaborating with rogue Sheriffs and terminate agreements with local law enforcement officials that undermine civil, labor, and human rights
- Expand use of humanitarian parole to ensure that people previously deported can return to the U.S.;
- End all ICE home and community raids programs including the Criminal Alien Removal Initiative (CARI), eliminate the use of mobile biometric devices, and ensure the protection of civil rights during all enforcement operations;
- End Operation Streamline;
- Terminate all federal contracts with private prison conglomerates such as Corrections Corporation of America (CCA) and GEO Group Inc.
- End expedited removal of SIJS-Eligible Youth;
- Implement prosecutorial discretion policies for CBP, act to limit scope of CBP enforcement, including ending internal raids, and take action to end migrant deaths on the border;
- Renegotiate trade agreements to eliminate provisions that cause displacement of communities and increase economic pressure on people to migrate, and end negotiations on the Trans Pacific Partnership.
The Not 1 More Blue Ribbon Commission members include Jose Alvarado, Erika Andiola, Guadalupe Andiola, Hareth Andrade, Mario Andrade, Cecilia Sáenz Barrera, Eleazar Castellanos, Angelica Chazaro, Neidi Dominguez, Lourdes Hernandez, Angel Agustin Hernandez Gomez, Edgar Godoy Valladares, Ju Hong, Prerna Lal, Fanny Lopez, Yoselyn Madrid, Juan Jose Mangandi , Raymundo Mendoza, Maricela Muñoz, Jose Moreno, Shellion Parris, Jaime Reyes, Carlos Rojas Álvarez, Hector Ruiz, Erlin San Martin Gomez, Caesar Vargas, Rosa Ángela Velázquez, Maru Mora Villalpando, Tania Unzueta, Reyna Wences. Full bios with organizational affiliations are available here.
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.
Yes, that’s an Upworthy-style title. You got me. But this is seriously worth 15 seconds of your time.
Immigrant families from across the country are gathered at the White House right now, hunger-striking and demanding the President to stop deporting their loved ones. He sent ICE to their doorsteps, so they came to his doors. Come meet us at the Northeast lawn of Lafayette Park. A daily schedule of events is here.