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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.

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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.

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#Not1More Blue Ribbon Commission to the White House

Families Protest Deportations  at the White House

There has been big movement on the Not 1 More Deportation campaign front in the past few weeks. Key politicians have called on the White House to curtail deportations. The New York Times writes that President Obama is feeling the heat for his 2 million deportations. Janet Murgia jumped into the fray last week by calling the President “The Deporter In Chief” to which the President replied that he was “Champion-In-Chief of comprehensive immigration reform.” Of course, the the two are not mutually exclusive and in response to the growing pressure, the President called a meeting with various immigration reform organizations in D.C. and asked for 90 days of ‘unity’ while ICE finds more “humane” ways to carry out enforcement.

Honestly, I’m not sure how one can more humanely tear families apart. However, in a typical Friday news leak, Homeland Security disclosed that it is considering two measures to ease deportations: end or scale down Secure Communities, and stop deportations of people without criminal convictions. These are certainly welcome changes but there is a lot more that can be done. NDLON’s rule-making petition and NILC’s briefing on how how the President can use executive authority to stop deportations make it crystal clear that there are various things the President can do to ease deportations. It is no longer a question of legal authority but one of political will. 

As the calls for Not One More deportation become more mainstream, it is important to continue escalating and not step off the gas just because the President is trying to pacify us with calls for unity. At this time, it is also important to solidify around a list of goals and recommendations as to how to ease deportations, and ensure that the negotiations are not limited to easing deportations on the lowest hanging fruit. As Marisa Franco writes:

At some point the calls for what the President should do will get more specific, and inevitably negotiations of some sort will begin.  We must hold the line and try to win the most expansive relief possible.  We should also take aim at the deportation programs that have been the driving force behind racial profiling, detention and deportation of migrants.  This should not be a time for simply reaching for the lowest hanging fruit.  Not one More, period.

To that end, immigrant leaders who have been directly impacted by U.S. immigration policies established the #Not1More Blue Ribbon Commission to the White House this past week. The goals of the Commission are to keep the pressure on the White House, release recommendations on how to ease deportations by April 5, 2014, and request that the leaders are allowed to present the recommendations to the President. I’m excited to see what the Commission can come up with in the next month to move us all forward.

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A Laundry List of What President Obama Can Do On Immigration

“There’s really no such thing as the ‘voiceless’. There are only the deliberately silenced, or the preferably unheard.”
-Arundhati Roy

Ju Hong’s “yelling” to issue an executive order to stop deportations echoed across the country, and has sparked a series of actions mostly calling on the President to use his executive authority to stop deportations. Over 500 national organizations (and growing), including the Mexican American Legal and Education Defense Fund, United We DREAM, the National Day Labor Organizing Network and AFL-CIO, have signed on to a letter asking the President to exercise discretion in stopping his deportations. Even House Democrats joined the chorus yesterday, with 29 House Democrats signing a letter to the President to suspend deportations and expand DACA:

If your child has received DACA, you should not be deported. If you qualify for legalization under the Senate bill — a bill the President and the rest of the country supports — you should not be deported. We cannot continue to witness potential citizens in our districts go through the anguish of deportation when legalization could be just around the corner for them. We look to you to firmly contribute to advancing inclusion for immigrants by suspending deportations and expanding DACA.

President Barack Obama said during a trip to New Orleans, “We should be fighting to make sure everybody who works hard in America, and hard right here in New Orleans, that they have a chance to get ahead.” However, instead of trying to reduce deportations, the Obama Administration is piloting a new, unprecedented and extraordinarily harsh effort to hunt down and deport thousands of hardworking undocumented immigrants in New Orleans.

The Obama Administration’s hypocrisy on immigration knows no limits. Instead of taking action, the President would rather hide behind the “rule of law” discourse, and pretend that he doesn’t have power to do anything. Invoking the “rule of law” is not only disingenuous but dangerous because it is used to quell the demands of the lesser privileged for real, tangible, social change. President Obama says he can’t stop deportations because it isn’t within his powers. Yet, he finds it within his power to carry out mass surveillance, drone attacks, topple regimes, and order extra-judicial killings.

However, short of placing a moratorium on deportations, there are many things the Administration can do to relief the pressure on immigrant families across the country that are well within executive powers. These include:

  • Detention: Redefine “in custody” as inclusive of ankle-monitoring programs, in order to let people–62 percent of whom have no criminal records–out of detention;
  • Enforce existing memos that allow for parole of asylum seekers who have passed their credible fear interviews;
  • Stop the Department of Justice (DOJ) assault against undocumented law school graduates such as Sergio Garcia, Caesar Vargas, and so on;
  • Issue “Notice to Appear in Removal Proceedings” only in the most severe criminal cases, which would reduce the immigration court docket over time by more than 60 percent;
  • Work on crafting a narrower definition of “aggravated felon” — a catch-all phrase that now includes both serial rapists and lawful permanent residents who have committed non-violent crimes in the past;
  • Put an end to Secure Communities (S-COMM), an administrative deportation program that targets persons with minor criminal records, and has led to the ICE detention of over 3000 U.S. citizens;
  • Roll back new harsh effort “Criminal Alien Removal Initiative”;
  • Pardon prior re-entry;
  • Expand Deferred Action for Childhood Arrivals (DACA) to cover all childhood arrivals rather than place an arbitrary age cap;
  • Stop assault on lawful permanent resident parents by giving full meaning to the Child Status Protection Act so that thousands of young people, including many Dreamers, can finally reunite with their parents.

And the list goes on. This week, a judge ruled that the President’s uncle, Omar Obama, could stay in the U.S.

But justice is nowhere in sight for those of us with no ties to the President, our deporter-in-chief.

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Testimony for the D.C. City Council Immigration Detainer Compliance Amendment of 2011

The District is considering ending the cooperation between local law enforcement and ICE, and I was one of the many to testify at a hearing on Friday. I would like to thank Sarahi Uribe from NDLON for sharing her story and also for giving me a chance to speak at the hearing.

Dear Council Members,

Thank you for giving me a chance to speak on the Immigration Detainer Compliance Bill in front of you today. My name is Prerna Lal and I am one of the founders of DreamActivist.org, a national network of immigrant youth.

My parents immigrated to this country when I was about 14 and they became legal residents over time. Right now, I am pursuing my second graduate degree at The George Washington University Law School. And despite the fact that I appear accomplished on paper, I’m undocumented. I’m one of the thousands of immigrant youth who have grown up in this country and know no other home. And since I live in D.C., I am taxed without representation twice over.

Today I am representing immigrants like me across the country, who have been targeted, placed in deportation proceedings due to Secure Communities, and fighting to live in the only country we call our home. Every X-mas and New Year, when my law school peers are on vacation, I remain busy getting undocumented youth across the country out of detention facilities — young people who are mostly in detention due to minor traffic violations.

I don’t know how many of us can say that about ourselves but the reality is that undocumented youth can be detained and deported for as little as a traffic violation, due to Secure Communities. To give you just one example, In Texas, a young student was pulled over by the police for a broken tail-light. Since she did not have driver’s license, the local police held her in jail overnight and handed her over to ICE. This was two years ago. This particular student is still fighting deportation proceedings even while attending law school. And lets be clear about one thing: she has no criminal record.

The stories are many. The circumstances are similar. It’s hard to ignore the truth that this country has made criminals out of thousands of people. People like me.

“Secure Communities” is not about finding and deporting “dangerous criminals.” It’s about securing the country from the growing presence of immigrants who are mostly brown-skinned. And the real fugitive of this story is Immigration and Customs Enforcement (ICE) — a rogue agency that is keen on deporting anyone who looks different regardless of their immigration status. Last year, our wonderful friends at ICE deported a 4-year old U.S. citizen girl to Guatemala and a 14-year old U.S. citizen teenager to Colombia. And these are not the only U.S. citizens they have deported. But like any agency, ICE has a litany of excuses.

We are mistakenly racially profiled. We are mistakenly arrested. We are mistakenly rounded up and sent to private detention facilities away from our homes and families. We are mistakenly deported thousands of miles to a foreign country, with little hope of ever seeing our families again. Mistakenly. It may be a mistake for local police and maybe even ICE, but that one mistake costs us our whole lives.

That mistake is the difference between whether a child ends up in foster care or has a stable family home. That mistake is the difference between a mother fighting to survive after the deportation of her son or a mother who is able to fund her daughter’s education so that the whole family can beat the cycle of poverty. That one mistake is the difference between my presence in front of you today or my deportation to a country where I can be killed for my sexual orientation.

As an undocumented resident who lives, works and attends school in the District, Secure Communities is a misnomer that only serves to make me insecure. If I am a victim of a crime, I cannot go local law enforcement with a program like Secure Communities in place for fear that they would report me to ICE. If I witness an accident, I am too terrified to come forward and help with a police investigation. If I get into an accident, my first reaction is always to flee the scene regardless of how hurt I am because the police may do more damage.

Logic then dictates that the real mistake is the so-called Secure Communities, which makes entire communities insecure and undermines both law enforcement efforts and community policing.

Therefore, I strongly urge the DC City Council to pass the immigration detainer compliance bill with the amendments suggested by Ms. Altman so that hard-working, productive people like me are not turned over to ICE by local police for minor infractions.

Photo Courtesy: Lizbeth Mateo

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