Planning for a Shutdown in Immigration-Related Services

Contributed by Amber L. Blasingame, Associate Attorney

 

Once again, we are looking into the abyss that we call “government shutdown” with fear and apprehension.  If Congress fails to agree on funding for the federal government or pass yet another continuing resolution on the many appropriations bills on the table, the federal government may shutdown on October 1, 2013.  So, at midnight on September 30, 2013, we will know whether we can visit the Rocky Mountain National Park next weekend, if you can get past the washed out mountain roads, or have to postpone a visit to the White House during your 8^th Grade field trip to Washington, DC.

The most recent government shutdowns occurred from November 13-19, 1995, and December 15, 1995, to January 6, 1996.  During the 5 day shutdown in 1995, the government furloughed approximately 800,000 employees.  The 21 day shutdown between December 1995, and January 1996, is deemed the longest federal government shutdown.

Not all of the federal government would shutdown during a government “furlough.”  The Office of Management and Budget (OMB) defines who works during a mandated federal furlough and who stays home.  Prior to 1995, employees were divided into “essential” and “non-essential” categories.  To not hurt anyone’s feelings, after 1995, the category titles were changed to “excepted” and “non-excepted.”  Although, the Department of Homeland Security (DHS), for variety, labels the categories “exempt” and “non-exempt” and refers to the shutdown as the “emergency furlough” or “federal funding hiatus” in a 2011 contingency plan.  Essential or excepted services include services necessary for national security including military and border patrol, public safety “to the extent that they protect life and property,” including air traffic control and emergency medical care, or “programs written into permanent law” that would not rely on appropriations for funding, such as Social Security services.  Also categorized under “excepted” are independently funded services, such as the United States Postal Service and the Federal Reserve.

The federal government requires that all agencies prepare, maintain, and update a contingency plan in the event of a government shutdown.  The last contingency plans were prepared or updated in 2011, during the last threat of a government shutdown.

The Department of State (DOS), in 1995, reported delays in processing 20,000 to 30,000 visa applications for foreign nationals.  In addition, 200,000 applications from US citizens for passports were shelved during the 1995 and 1996 shutdowns.  The DOS 2011 contingency plan looks much the same as the plan executed in 1995 and 1996.  Visa and passport functions, for the most part are non-excepted.  Emergency passport services will be provided, but “passport offices will be closed for the acceptance of new applications” and processing of passports may be limited to “expedited applications already in the system.”  The DOS anticipates “a significantly higher percentage of excepted positions abroad than in Washington,” to maintain diplomatic functions, global presence, foreign relations, international agency support, national security, and “[b]ecause many countries’ labor laws require that our local employees and contractors be paid regardless of attendance.”  DOS excepted services, among other essential services, include American citizens’ services, refugee assistance, and emergency visa services (such as “those for life/death or medical emergencies, humanitarian cases involving minor children, and diplomatic travel”).  Staffing at foreign posts may also be determined by international events and the nature of diplomatic relationships with host countries at the time of the shutdown.

DHS did not exist as a cohesive entity in 1995/96, but now oversees the majority of administrative, enforcement, and protective services related to immigration.  Law enforcement tops the list of “exempt” functions under DHS management, including “illegal alien interdiction” qualifying under “the exception of protection of human life or property.”  The United States Citizenship and Immigration Service (USCIS) would also continue functioning during a “federal funding hiatus.”  According to the DHS 2011 contingency plan, USCIS performs “Fee for service activities” which would not be affected by annual appropriation lapses.  DHS lists, among the “non-exempt” services in the 2011 contingency plan as follows: “auditing,” “regulatory, legislative, and intergovernmental affairs,” and “training and development.”

The Department of Justice (DOJ), which oversees the Executive Office of Immigration Review (EOIR), including the immigration courts and the Board of Immigration Appeals (BIA), 2011 contingency plan reduces personnel by 20% during a shutdown.  All law enforcement services and legislative support remain on duty.  While litigation services, including the courts, are divided between criminal and civil matters.  All criminal litigation is labeled as “excepted” and is scheduled to “continue without interruption as an activity essential to the safety of human life and the protection of property.”  Civil litigation, however, which includes immigration removal proceedings, is “curtailed or postponed to the extent” possible without compromising any “significant degree” of safety for human life or the protection of property.  The decision to curtail or postpone cases rests with the courts, but supervisors are reminded to limit staff to only what is essential to comply with any given court order and “to protect life and property.”

The Department of Labor Foreign Labor Certification office oversees labor certifications, labor condition applications, and prevailing wages, among several immigration related support services.  The Employment and Training Administration (ETA) manages the FLC.  The DOL 2011 contingency plan reduces ETA personnel as much as 97% in anticipation of a government shutdown.  The reduced staff does not appear to include FLC functions, as the only ETA functions listed on the plan include “maintaining support for Job Corps Centers training and housing [sic] approximately 44,000 students,” because the function is “necessary for the safety of life and [sic] Other funding source (by necessary implication).”

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States Seek to Deny Driver’s Licences to New Category of Deferred Action Cases

Contributed by Aaron Hall, Attorney

On August 15, 2012, the Department of Homeland Secretary (DHS) began accepting applications for Deferred Action for Childhood Arrivals (DACA).  The procedures for DACA are now in place and the first applicants have already received their receipt notices and biometrics notices from USCIS.

The new DACA program is designed to allow qualifying applicants who entered the U.S. as children to be temporarily safe from being deported and would allow them to seek employment authorization while they are here.  Such employment authorization would ordinarily allow them to apply for a driver’s license from their state DMVs.  But Governors Jan Brewer of Arizona and Dave Heineman of Nebraska have declared that despite the REAL ID Act of 2005 listing deferred action grantees as eligible for driver’s licenses, their states will refuse to issue such licenses to those who are granted deferred action through DACA.

 

Their decision to deny driver’s license to those with DACA is certain to lead to litigation on the matter but at this point it is unclear how many other states may join Arizona and Nebraska in keeping work-authorized DACA grantees from getting their licenses.

 

Further Reading:

-Christian Science Monitor article on states refusing to issue driver’s licenses for deferred action

-USCIS Frequently Asked Questions on DACA

-JLF DACA Site at http://www.dreamtoimmigrate.com

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30 year-olds Don’t Despair, Deferred Action Still Within Reach

Contributed by Aaron Hall

When Department of Homeland Secretary (DHS) Napolitano announced the new deferred action program on June 15, 2012, it was announced that one of the requirements for eligibility would be that applicants “are not above the age of thirty” as of June 15, 2012.

 

The initial assumption was that this requirement would disqualify a potential applicant who was 30 years and two months old at the time of the announcement.  Fortunately, DHS has now clarified that potential applicants will meet the age requirement so long as they were under 31 years old on June 15, 2012.  Therefore, many people who were 30 at the time of the announcement will qualify for the new deferred action program.

 

For further information on the eligibility requirements, go to our website dedicated to deferred action at http://www.dreamtoimmigrate.com/. 

 

Further Reading:

6/15/12 DHS Announcement

USCIS on Consideration of Deferred Action for Childhood Arrivals Process

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Napolitano Predicting Record Deportations

On October 5, 2011, Department of Homeland Security (DHS) Secretary Jane Napolitano wrote an Op-Ed piece for Politico about the enforcement of immigration laws.

Secretary Napolitano sought to respond to critics of immigration policy from both sides. In the editorial, she predicted that next year DHS will break records with the number of deportations from the United States but explained that "while the overall number of individuals removed will exceed prior years, the composition of that number will consist of more convicted criminals, recent border crossers and repeat immigration law violators than ever before."

The administration's focus on prioritizing which individuals should be deported with limited resources makes sense. However, her prediction that DHS will break records for deportations next year calls into questions the hope for those low-priority individuals who seek prosecutorial discretion. Rather, it seems more likely that DHS will see that "record" number of deportations for the coming year as a mandate from above or a quota. Unfortunately, the data can be easily massaged to make it look like DHS has really sharpened its focus on high-priority aliens. By lumping all criminal offenses together, DHS can crow about the removal of criminal aliens. Secretary Napolitano stated in her Op-Ed that "50 percent of immigrants removed from our country had been convicted of a criminal offense."

Such statistics don't delve into what percentage were deported for drug offenses or violent offenses and what percentage were deported after being pulled over for having a tail light out and then convicted of driving without a license because their international driver's license is only good for a short period here in the United States.

All crimes are not the same and we should remember this for the coming year when DHS produces statistics of record deportations of "criminal aliens."

Click here to see Secretary Napolitano's Op-Ed .

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First Reported Cases Benefiting from 8/18/11 Obama Administration Announcement

Scattered reports in the media have indicated that the August 18, 2011 announcement by the Obama Administration may be starting to have some effect.

CNN reports that an Arizona attorney was contacted by Department of Homeland Security (DHS) officials and told that she should request that her case be dismissed. The Huffington Post reports that two teenage men in Georgia have also had their deportation cases closed under the new policy.

Despite these reports of what seems to be an implementation of the August 18 announcement, it is important to recognize that the announcement is not an amnesty and does not grant anyone legal status. There is no new application that can be filed or that a person can sign up for. The announcement does not create any new way to file for a work permit either. The American Immigration Lawyers Association (AILA) put out a consumer advisory warning that there is no sure way to know whether one's case would be safely considered "low priority" under the new announcement and no sure way to know that a particular "low priority" case won't be prosecuted anyway.

While it will be interesting to see if these sporadic reports turn into a general trend of closing cases deemed "low priority" by DHS, for the time being there seems to be little change on the ground.

To read the CNN article, click here;

For the Huffington Post article, click here;

To review the AILA consumer advisory, click here.

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Staunch Cold War Ally Faces Deportation from U.S.

General Eugenio Vides Casanova, a former defense minister from El Salvador, was found by a 1983 United States Department of State report to have "acquiesced" in the cover-up to the rape and murder of four Catholic nuns and the assassination of Archbishop Oscar Romero. He has also been found liable for the brutal and systematic torture of the detained Salvadorans during his time in power.

At the same time, Mr. Vides Casanova was a valued cold war ally of the United States who was praised for his iron-fisted approach to the battle with marxist guerillas. He was awarded the Legion of Merit award by President Reagan. He eventually retired to a coastal community in Miami, Florida.

Now, the Department of Homeland Security is seeking to deport this once valued ally for his role in torture and other human rights abuses. An immigration court in Florida is scheduled to hear Mr. Vides Casanova’s removal proceedings this week. Though normally removal proceedings take only a half-day, the immigration court has scheduled Mr. Vides Casanova’s case for a full week. Former U.S. ambassadors are supposed to both testify against Mr. Vides Casanova and in his defense.

This case involves a fascinating intersection between the U.S. history of realpolitik foreign policy in opposing leftists and Latin America and the Department of Homeland Security’s desire to deport a man responsible for severe human rights abuses. It will be interesting to see how it unfolds.

For more on the removal proceedings against General Eugenio Vides Casanova, click on the following links:

-article from the Florida Center for Investigative Reporting;

-article from The Guardian;

-article from The New York Times.

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Customs and Border Patrol Commissioner Calls for Comprehensive Immigration Reform

In remarks addressed to the Migration Policy Institute, Customs and Border Patrol ("CBP") Commissioner Alan Bersin detailed recent accomplishments and future goals of the agency's enforcement efforts at the border. Refreshingly, he also indicated an understanding that immigration at root is a matter of labor markets and challenged the country to tackle the tough issues in order to enact comprehensive immigration reform. Commissioner Bersin identified three key elements that must be included for successful reform. First, he indicated that the Federal government must continue to take the responsibility to secure the borders. Second, a reform needs to implement responsibility and accountability from employers. Finally, he indicated that those currently here without status must be required to register, admit that they are present in violation of the law, pay a fine and back-taxes, and learn English to get started on the path to citizenship. Commissioner Bersin aptly concluded his remarks with a challenge to Congress to "move past the false debates and start focusing on the long term needs of our nation."

Read the CBP Commissioner's remarks in their entirety here.

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Record High Deportations from U.S.

On October 6, 2010, Immigration and Customs Enforcement ("ICE") announced that it had deported more people in fiscal year 2010 than in any year in history. Department of Homeland Security Secretary Janet Napolitano and ICE Director John Morton announced that they had deported 392,000 people. According to ICE, more than 195,000 of the people deported had been convicted of some crime.

While those who see enforcement as the only important policy piece of our immigration system will likely be happy to see the record numbers, one has to wonder whether the immigration court staff is growing at an similar rate in order to ensure that all are afforded full and meaningful due process before being removed.

To see the ICE announcement, click here.

For a New York Times article on the record numbers, click here.

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Human Rights Watch Drafts Letter to Secretary Napolitano On Immigration Detainers

The international organization Human Rights Watch released a letter to DHS Secretary Janet Napolitano commenting on the new Immigration and Customs Enforcement ("ICE") draft detainer policy. The draft detainer policy was drafted with the goal of clarifying and standardizing the circumstances that should lead to ICE placing immigration detainers on foreign nationals held by local law enforcement agencies. While Human Rights Watch applauded DHS for its attempt to formalize a detainer policy, it pointed out that the current draft policy does not do enough to safeguard the rights of detained immigrants.

Importantly, the draft policy does not include any requirement that there be a clear legal basis for the issuance of a detainer and does not provide detainees with any grounds to challenge their custody under a detainer. Human Rights Watch also suggests that ICE implement data tracking systems on the duration of time individuals spend in the custody of local law enforcement due to ICE-issued detainers, how many people are held under detainer who are not ultimately served with a Notice to Appear, the underlying basis for detainers, and the immigration status of persons held under detainer (including how many U.S. Citizens are mistakenly held on detainers).

To read the complete letter to Secretary Napolitano, click here.

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Designation of El Salvador for Temporary Protected Status

The Secretary of Homeland Security has extended the designation of El Salvador for temporary protected status (TPS) for 18 months.  Now rather than expiring on September 9, 2010, TPS for El Salvador will expire on March 9, 2012. The Department of Homeland Security has set forth procedures necessary for nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) with U.S. Citizenship and Immigration Services (USCIS).  Re-registration is limited to persons who previously registered for TPS under the designation of El Salvador and whose applications have been granted or remain pending. Certain nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.  For more information click here.

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