Same-Sex Family Units Recognized

Contributed by Bryon Large

By now, most practitioners and immigration advocates are aware of the June 15, 2011 Morton Memoranda regarding the exercise of prosecutorial discretion to persons in removal proceedings in accordance with ICE’s removal priorities.  While there were was vague language regarding family relationships in ICE’s guidance, and while assurances were made that same-sex couples would be recognized in the guidance, no official word came from the Department or ICE in writing.  Advocates for LGBT immigration issues received assurances that the vague language did not require a couple to be married, nor even of opposite sex, when ICE was evaluating a case for prosecutorial discretion.  However, in practice application of the Morton Prosecutorial Discretion Memos was inconsistent throughout the country.  While leadership in Washington seemed to envision inclusion of all couples, regardless of marital status or sexual orientation, the boots on the ground seemed to be looking more for a marriage certificate.

 

On Thursday, September 27, 2012, Secretary Napolitano answered a letter from some Members of Congress requesting clarification on the issue.  Specifically, in her response, Secretary Napolitano clarified that the term “familial relationships” specifically would include long-term, same-sex partners.  She also specified that she has directed ICE to disseminate written guidance to the field clarifying the issue.  Advocates expect ICE guidance in the very near future on this issue.

 

Given the DOMA litigation, the pending Uniting American Families Act which would recognize same-sex relationships for immigration purposes, and the wave of marriage recognition across the country, this forthcoming guidance from ICE at the Secretary’s direction is a large advance for the LGBT community in immigration issues.

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Department of Homeland Security Announces Deferred Action for Eligible DREAMers

By Kim Tremblay & Amber L. Blasingame, Associate Attorneys

On June 15, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), announced that the government will offer indefinite relief from deportation for young immigrants brought to the United States as minors.  Young immigrants, between the ages of 15 and 30 years old as of June 15, 2012, not in deportation proceedings will also be eligible to apply for deferred action. 

Although this is not the DREAM legislation (Development, Relief, and Education for Alien Minors Act) that many have been pushing Congress to enact for years, it is a step in the right direction.  It will allow many young immigrants to come out of the shadows, support themselves, and use the skills they acquired in American schools in the workplace.  The DHS initiative will also provide more opportunities for young immigrants to apply and attend college or university, since many US post-secondary institutes require evidence of legal status for admission.  The department estimates that the new policy may benefit as many as 800,000 potential DREAMers.  However, many questions remain unanswered as both USCIS and ICE have 60 days to implement policies and procedures for filing deferred action requests.

Based on the results of DHS’s prior prosecutorial discretion initiative, it also remains to be seen whether this new policy will be any more successful for young immigrants in deportation proceedings.  The August 2011 DHS memo initiated a policy based on priorities to reduce the immigration court’s overbooked docket.  Under the prosecutorial discretion policy , DHS reviewed all 350,000 pending deportation cases nationwide and offered to administratively close about two percent of cases that were not priorities for DHS to pursue.  This was a much lower number than anticipated.  Thus, for young immigrants already in removal proceedings, it remains unclear whether this new policy will bring about much change. 

More positive outcomes are expected for young immigrants who are not in deportation proceedings.  Applications for individuals who are not in deportation proceedings cannot be filed until USCIS implements a filing procedure.  In the meantime, however, potential DREAMers should consult attorneys to determine their eligibility for the program and start gathering documents to show that they meet the requirements. They should beware of individuals or agencies who claim they can help but who are not licensed to represent and assist individuals in this legal process. 

Potential DREAMers physically present in the United States should also get documentation to show they are here from today and until deferred action is granted.  They should also hold on to anything to show they were present on June 15, 2012.   

Individuals must meet the following requirements to be considered for deferred action:

• Entered the United States before age 16 and not be above 30 years of age;
• Have continuously resided in the U.S. for 5 years as of June 15, 2012;
• Were physically present in the U.S. on June 15, 2012;
• Are currently in school, have graduated from high school or earned a GED, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a serious crime or multiple minor crimes that pose a threat to the national security or public safety.

Those who meet the criteria will be qualified to obtain deferred action for two years, subject to renewal for an indefinite period of time, and will be eligible to apply for work authorization if they can show financial need.



Related Articles:
http://immigrationimpact.com/2012/06/15/president-obama-to-halt-removal-of-dreamers/
http://aila.org/content/default.aspx?docid=40173
http://aila.org/content/default.aspx?docid=40171
http://aila.org/content/default.aspx?docid=40168
http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm

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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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Obama's Amnesty? Not so Fast

The Obama Administration announced on Thursday that it will make a case-by-case review of some 300,000 immigrants facing possible deportation in immigration courts around the country. The stated goal of the review is to focus on removing convicted criminals who might pose a threat to national security or public safety.

The Thursday announcement follows a June memo from the director of Immigration and Customs Enforcement (ICE), John Morton, outlining when and how ICE agents could use prosecutorial discretion in immigration cases.

Administration officials, to this point speaking anonymously, have indicated that those whose deportations are put on hold may be eligible for work authorization. Whether this would come in the form of an order of deferred action or some other way is unclear.

In fact, much of how this new policy will play out on the ground remains unclear. We know that it does not give anyone a new path to lawful permanent resident status. As of yet, there is no known way to affirmatively apply to have one's case put on hold or to apply for work authorization based on the new policy.

How this new policy unfolds will depend on how DHS officers and attorneys implement it. Which immigrants actually end up benefiting from this new policy is still far from clear.

Read the Washington Post Article.

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Prosecutorial Discretion Memo, What Does It Mean?

On June 17, 2011, John Morton, Director of Immigration and Customs Enforcement (ICE), issued two memos encouraging the expanded use of prosecutorial discretion by ICE officers, agents, and attorneys in all phases of civil immigration enforcement.

The new Morton memo is significant because it clarifies that the actions that can be used to exercise prosecutorial discretion include decisions on whether to:

- Issue or cancel a notice of detainer;

-“Reissue” or “serve” Notices to Appear (NTA); this gives an ICE officer the flexibility to allow a respondent to accrue the necessary continuous residence or continuous physical presence time for LPR and non-LPR cancellation, respectively;

-Settle or dismiss a proceeding; this appears to apply at all stages of a removal proceeding, including federal court appeals.

The memo cites as favorable factors to consider: whether the case falls within agency priorities, whether the person has graduated from a U.S. high school or is in pursuit of higher education, family relationships. Only a few negative factors are listed warranting “particular” consideration, including national security risks, serious felons, repeat offenders, those with lengthy criminal records, gang members, and “egregious” immigration violators.

The memo encourages ICE officers to proactively consider prosecutorial discretion even without being asked to do so.

Only a month after the roll-out of the new Morton memos, it is still to be seen how they will play out in the field. Hopefully they will be used to help ICE keep its focus on its stated goal of deporting serious criminal offenders and dangers to the community while spending less time chasing the deportations of DREAM Act eligible and other non-priority cases.

For the Morton Memo, click here.

For an excellent detailed advisory by Mary Kenney for American Immigration Council, click here.

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Colorado to use Secure Communities Program

Earlier this week 9News in Denver reported that Colorado Governor, Bill Ritter, signed a memorandum of understanding with Immigration and Customs Enforcement (ICE) to begin using the program Secure Communities. Secure Communities allows local law enforcement agencies to run the fingerprints of alleged criminals through state and federal websites to check their immigration status.

Congress set aside $1.4 billion to expand Secure Communities and ICE hopes to have it operating in every jail in the country by 2013. Thirty-five other states are currently participating in the program, as well.

To read the full story, please visit http://www.9news.com/news/local/article.aspx?storyid=173517&catid=222

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DHS and Mexico Cooperate to Reduce Crime at the Southwest Border

On October 22, 2010, twenty-four Mexican Customs officers graduated from the inaugural Mexican Customs Investigator Training (MEXIT) in Charleston, S.C. The 10 week training session, modeled on the U.S. ICE Special Agent Training Program, was designed to train Mexican law enforcement officials to more effectively identify and fight crime along the southern border and within Mexico. The training and graduation represents the continuing effort of DHS/ICE to partner with Mexico in combating drug cartels; money laundering; weapons, drug, and human trafficking; and other criminal organizations that operate across the U.S.-Mexico border, threatening the security of people living in both countries.

The training included instruction in both Mexican and U.S. customs law, as well as an emphasis on investigative techniques and officer safety. Both Secretary of Homeland Security Janet Napolitano and Mexican Secretary of Finance, Ernesto Cordero Arroyo, attended the graduation ceremony. In an ICE news release, Secretary Napolitano said that fighting the drug cartels “demands a response that is transnational and coordinated,” while Secretary Cordero remarked that “A well-functioning border is an opportunity for growth – it opens doors to commercial exchange, peace, progress, and human development.” The training is designed to lead to more cooperation and information sharing so both countries can more effectively fight crime on the border.

The Mexican Customs Investigator Training is part of a multiyear, Department of State-led initiative designed to provide assistance to Mexico and Central America to better equip law enforcement agencies to complete their missions. So far, the United States has contributed $1.4 billion in aid for Mexico through the initiative. President Obama is committed to shared responsibility with President Felipe Calderón and the government of Mexico to secure the Southwest border and ensure the security of both nations.

Read more:
http://www.ice.gov/news/releases/1010/101022northcharleston2.htm

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Local Governments Cannot Opt Out of the “Secure Communities” Program

“Secure Communities” is Immigration & Customs Enforcement’s “comprehensive strategy to improve and modernize the identification and removal of criminal aliens from the United States.” Put into practice, when a person is arrested and routinely fingerprinted, even for a something as routine as a traffic infraction, their fingerprint check is run against a database maintained by the Department of Homeland Security. The goal is to discover if that individual has any immigration violations as well, and if so they are often turned over to the custody of ICE. Some communities, including Arlington County, Virginia, Washington, D.C., and Santa Clara County in California, have voted to opt out of participating in the Secure Communities program. Officials cite that the program can lead to racial profiling. However, because the agreement is between the federal government and state governments, not the local governments, ICE announced last Friday that local leadership cannot opt out of participation. ICE director John Morton announced that he would meet with local leaders to discuss this issue if they wished.


Read more:
http://www.washingtonpost.com/wp-dyn/content/article/2010/10/08/AR2010100805657.html

http://www.ice.gov/secure_communities/

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Major Colorado ICE Operation Leads to Arrests

According to the Denver Post, Immigration and Customs Enforcement ("ICE") has just completed a three-day operation which led to the arrest of 78 immigrants in towns across Colorado and in the town of Wamsutter, Wyoming. Using a law called Reinstatement of Removal, ICE has stated that those with prior orders of removal will be immediately removed from the country. Those subjected to Reinstatement of Removal will not have the opportunity to present a case for relief from removal in front of an immigration judge.

Read the full article from the Denver Post here.

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ICE Helps to Arrest Gang Members in New Orleans

Yesterday U.S. Immigration and Customs Enforcement (ICE) reported that its office, along with the Offices of Homeland Security Investigations (HSI), Enforcement and Removal Operations (ERO), U.S. Customs and Border Protection (CBP), and various local law enforcement agencies in the New Orleans area, arrested twenty-eight individuals with ties to the MS-13 and Latin Kings street gangs. After a three-day operation in the New Orleans area, the twenty-eight individuals are now facing criminal charges or deportation. Of the twenty-eight arrested, eighteen are from Mexico, six are from Honduras, three are from El Salvador, and one is from Guatemala.

These arrests were made as part of Operation Community Shield, which is “an ongoing initiative by the ICE HSI National Gang Unit in which the agency uses its powerful immigration and customs authorities in a coordinated strategy to attack and dismantle criminal street gangs across the country.” According to the article, HSI’s National Gang Unit “identifies violent street gangs and develops intelligence on their membership, associates, criminal activities and international movements” in order to stop gang operations.

Operation Community Shield began in February 2005, and to-date, ICE agents nationwide have arrested more than 18,000 gang members and gang associates, who are frequently foreign-born individuals involved in human and contraband smuggling, immigration violations and other crimes with a connection to the border.

For more information, please visit http://www.ice.gov/pi/nr/1009/100923neworleans.htm

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ICE Rescues Individuals Held in Los Angeles Area Residence and Continues Efforts to Combat Human Trafficking

Immigration & Customs Enforcement officials rescued 44 individuals being held in a house in Riverside, California, following a tip from a concerned relative. The relative called police, saying that the smugglers had threatened to kill his relative, who was being held because the family had been unable to make another payment to secure his release. Los Angeles police in turn alerted ICE to the human smugglers.

After a thorough search of the suspected neighborhood, ICE agents discovered the human smuggling "drop house" in the Riverside area. All 44 individuals were in a small bedroom at the back of the house. The windows were boarded up and the room's only door was locked from the outside. As a further deterrent against escape, all of the individuals had been stripped of their shoes. Some had gone days without food.

Human smuggling is a brutal reality, and remains a problem. As part of the Department of Homeland Security (DHS) "Blue Campaign", ICE has continued its efforts to educate the public about the plight of human trafficking victims. Recently, they have placed an anti-trafficking message in foreign language newspapers across the United States; it will appear in Chinese, English, Korean, Thai, and Spanish. The advertisements highlight some of the indicators of human trafficking. The public can notify ICE by calling 1-866-DHS-2-ICE if they suspect that someone is being exploited.


To read more about Immigration and Customs Enforcement’s involvement in these activities:
http://www.ice.gov/pi/nr/1009/100908riverside.htm
http://www.ice.gov/pi/nr/1009/100916washingtondc.htm

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Border Security Bill Signed Today by Obama

Today President Obama signed a new border security bill known as the Southwest Border Security Bill. According to a statement issued by the White House, the bill provides $600 million “to enhance technology at the border, share information and support with state, local and tribal law enforcement, and increase (federal) presence and law enforcement activities at the border.”

The bill will provide increased agents, investigators, and prosecutors in an effort to target illicit trafficking of people, drugs, illegal weapons and money. The hiring of 1,000 new Border Patrol agents will be funded by the bill, in addition to the hiring of more Immigration and Customs Enforcement agents. The new Border Patrol agents will be deployed at critical areas along the border.

For more information, please visit the following sites:
http://content.usatoday.com/communities/theoval/post/2010/08/obama-signs-border-security-bill/1
http://www.msnbc.msn.com/id/38692070/ns/politics

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ICE announces launch of Online Detainee Locator System

U.S. Immigration and Customs Enforcement (ICE) announced July 23, 2010, the launch of ICE's Online Detainee Locator System (ODLS), a public, Internet-based tool. It is designed to assist family members, attorneys and other interested parties in locating detained aliens in ICE custody. ODLS is located on ICE's public website www.ice.gov and provides information on the locations of the detention facility for the ICE Enforcement and Removal Office in the region where the facility is located. A brochure, in English, Spanish, French, Mandarin, Vietnamese, Portuguese, Russian, Arabic, and Somali, explaining ODLS is also available on the website.

ODLS users will be able to locate detained aliens by either entering the individuals alien registration number (also know as "A" number) and their country of birth, or by entering the individuals first and last names, county of births and date of birth. The agency is committed to detainee privacy, therefore, responses to ODLS queries are only generated if the information entered is an exact match to the data in the system. ICE limits the availability of data within the ODLS to ensure users cannot phish the system for information. For example, ODLS will not provide additional biographical information about an individual detainee other than what the user has already entered (i.e. if a user searches by first and last name and country of birth, the system will not provide the detainee's "A" number, vice versa). The creation of ODLS is said to be a concrete example of ICE's commitment to detention reform.

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Renewed Push for Immigration Reform

President Obama and congressional leaders met on Tuesday to discuss strategy for a renewed push for Comprehensive Immigration Reform. President Obama will also address the American public on Thursday with a speech dedicated to the need to reform our immigration laws. Hopefully this renewed push will create the momentum needed to pass a reform. Also, Immigration and Customs Enforcement released a memo on Tuesday which lists the agency priorities for detention and removal. The memo indicates that the greatest emphasis should be on detaining and removing those who present a national security threat or a threat to public safety.

For more details, see the Los Angeles Times Article at http://www.latimes.com/news/nationworld/nation/la-na-obama-immigration-20100630,0,6185729.story .

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VIOLATIONS OF FEDERAL IMMIGRATION LAW

ALABASTER CONSTRUCTION COMPANY OWNER CHARGED WITH EMPLOYING ILLEGAL ALIENS

BIRMINGHAM, AL - A 38-year-old woman was indicted here yesterday on charges for harboring and employing undocumented persons following a U.S. Immigration and Customs Enforcement (ICE) and Alabaster Police Department Investigation. Beverly Linan, who owned and operated Rodriguez Construction Company with offices in Alabaster, Alabama, was charged in a three-count indictment.

Rodriguez Construction performed masonry work throughout the Jefferson and Shelby County areas. Count one charged Linan with harboring undocumented persons and counts two and three charged her with knowingly employing undocumented persons and a forfeiture to recover profits made from employing undocumented persons respectively. If convicted on all counts, Linan faces a maximum term of imprisonment of 10 years and a fine of $250,000. More on Employer Compliance

SUPERSEDING INDICTMENTS CHARGE 7 IFCO MANAGERS WITH VIOLATING FEDERAL IMMIGRATION LAW

ALBANY, NY - A federal grand jury today returned superseding indictments on seven IFCO Systems of North America managers stemming from a U.S. Immigration and Customs Enforcement (ICE) investigation of undocumented immigration and employment-related practices at IFCO's pallet management services plants nationwide. So far in the investigation 16 IFCO managers and employees are facing criminal charges. Of those, nine have already pleaded guilty to a variety of federal criminal immigration charges and the remaining seven have been indicted.

On April 19, 2006, ICE agents, in concert with other federal and state authorities, conducted a work site enforcement action at over 40 IFCO pallet plants in 26 states, which resulted in the detention of 1,182 undocumented persons working at those plants. Last month, the United States reached a record corporate settlement with IFCO, pursuant to which the company agreed to pay $20.7 million dollars in civil forfeitures and penalties over four years. The settlement amount included $2.6 million dollars in back pay and penalties relating to IFCO's overtime violations with respect to 1,700 of its pallet workers. IFCO also agreed to pay $18.1 million in civil forefeitures that will be available to support future law enforcement actitivities. More on Employer Compliance.

FOR MORE INFORMATION VISIT www.ice.gov

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