Author: mopress

Except for Cubans willing to denounce Fidel Castro, tens of thousands of immigrants in formal removal proceedings may be detained while hopelessly backlogged and under-funded immigration judges process their cases. The U.S. will have to construct new detention centers for immigrants, usually placed in remote areas of the country where building and operational costs are lower. Because they lack adequate access to counsel in these remote detention sites, tens of thousands of immigrants, unfamiliar with their rights, will clog the immigration courts each year with a wide range of hand-written petitions and appeals seeking release or legal status.

Likely thousands of immigrants who would otherwise be working and contributing something of value to society, and supporting their families while their removal proceedings are pending, will instead be languishing in detention centers that the likes of Halliburton will make handsome profits building and operating. Cost to the U.S. taxpayers will certainly run into the hundreds of millions of dollars each year.

At the same time as detention of immigrants will expand, the right of those immigrants to challenge the legality of their detention in the courts will be restricted. This is a recipe for mass sweeps in ethnic–mainly Latino–neighborhoods, mass arrests and detentions, and virtually no access to the courts to challenge illegal detentions.

Thousands of detained immigrants may also join the ranks of the Guantanamo prisoners of war, facing indefinite detention if third countries refuse to accept them. Section 202 of the Frist bill and section 202 of the Specter bill are intended to override the U.S. Supreme Court’s decision in Zadvydas v. Davis by allowing for indefinite and possibly permanent detention. These sections allow indefinite detentions by (1) modifying the starting point for calculating the 90-day removal period; (2) permitting the Secretary of the DHS to detain individuals, who are inadmissible or deportable for criminal offenses, beyond the 90-day removal period “without any limitations” and (3) authorizing the Secretary to indefinitely renew certifications that an individual is a “threat” to public health or safety, the determination of which may be based on “secret evidence.”

Citizens will pay for this policy in ways not even yet imagined. Businesses whose employees are detained will pass on to their customers the added costs of replacing those workers. Detainees’ U.S. citizen children will be eligible for government social service programs they otherwise would never have needed. As indefinite detentions lead to old age of migrant detainees that third countries refused to accept, the taxpayers will pick up the costs of elder medical care and eventually burials.

Since even with major increases in detention the vast majority of undocumented immigrants will still never be apprehended or detained, the detention policy will hardly serve as a deterrent to encourage undocumented migrants to leave the country or to discourage new ones from coming.

3. Blocking traditional avenues leading to legalization of status will increase the undocumented population during the next decade

What the compromise position being considered by the Senate offers with its right hand–a reduction in the size of the undocumented population through a legalization program that may benefit several million immigrants–it takes away with the left hand by blocking avenues to legal status for millions of other immigrants.

When traditional avenues for legalization are cut-off-for example for immigrants filling jobs U.S. workers refuse to accept and for those with U.S. citizen and permanent resident families-immigrants don’t hold garage sales and quietly slip out of the country. They simply remain in order to be with their families, or to work so that they may support their families, and swell the size of the undocumented population.

The Senate compromise will make millions of immigrants now and in growing numbers in the future ineligible to convert from undocumented to documented status for a range of reasons, including, for example, their use of false social security numbers to obtain employment. Similarly, immigrants who misrepresented their status on employer I-9 forms to obtain employment will be ineligible for visas. As mentioned above, thousands of immigrants with minor convictions will become ineligible for visas. For the first time in the nation’s history, U.S. citizens with certain types of convictions will be precluded from petitioning to legalize the status of their spouses or children. Immigrants denied voluntary departure under the Senate compromise will become subject to formal deportation orders making them ineligible for visas in the future.

When Congress passes laws effectively cutting off traditional avenues to legal status for undocumented immigrants, it contributes to the size of the undocumented population because very few immigrants leave the country simply because their path to legalization has been blocked. As social conservative family-values oriented elected officials should understand, the drive to remain with one’s family, or on a job that helps to support one’s family, is too powerful to be undone by a person having to endure the exploitation and mistreatment that accompanies undocumented status.

The result of blocking traditional routes to legalization is therefore unquestionably to inexorably increase the size of the undocumented population.

4. Restrictions on federal courts’ ability to review unlawful removal orders will result in numerous improper deportations

The fundamental problem with unfairness in removal proceedings˘entirely ignored by the immigration reform compromise˘has its roots in the Department of Justice immigration court system itself. Currently about 215 immigration judges hear approximately 300,00 removal cases per year. See Letter from Hon. Richard Posner to Hon. Richard Durbin (March 15, 2006). This caseload makes it virtually impossible for immigration judges to avoid frequent errors in deportation orders. The Board of Immigration Appeals (BIA), comprised of about 11 judges, also has an unmanageable caseload of some 43,000 appeals per year. Id. In the past few years this massive caseload, combined with the limited resources made available to the BIA, has caused the Board to affirm immigration judges’ deportation orders with one-line decisions that avoid any explanation how or why the decision was reached.

Judicial review of removal orders made by immigration judges is particularly important given the high number of erroneous decisions issued by these judges and the one-sentence decisions affirming these decisions often issued by the Board of Immigration Appeals. Recently, immigration judges have been under fire regarding their poor decision-making. In a 2005 decision a federal appeals court noted that about 40% of all deportation orders reviewed by the appeals court were overturned on appeal. See Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005)..

Supporters of the Senate’s compromise version of immigration reform simply ignore the catastrophe immigrants face in obtaining fair removal proceedings, and instead offer proposals that will even further strip immigrants of the right to fair removal proceedings and accurate deportation decisions.

Section 701 of the Specter bill and section 501 of the Frist bill would remove jurisdiction of the Federal Circuit Courts of Appeals over possibly unlawful deportation orders by consolidating all such appeals before one court in Washington DC, the United States Court of Appeals for the Federal Circuit. Senate Judiciary Committee Chairman Arlen Specter withdrew Title VII Immigration Litigation Reform of the draft Chairman’s Mark. Chairman Specter held hearings on April 3, 2006 to further examine the topic of immigration litigation reform. Because some form
of these provisions may well be included in any final Senate bill, the sections of Title VII are included in this analysis.

The Federal Circuit court was established in 1982 with the merger of the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims. The Federal Circuit is unique among the thirteen federal Circuit Courts of Appeals in that its jurisiction and experience is generally limited to cases involving international trade, government contracts, patents and trademarks, certain money claims against the United States government, and federal personnel claims.

Consolidating appeals from throughout the nation in the Federal Circuit court in Washington DC will in many cases limit immigrant’s access to judicial review of erroneous deportation decisions. As the Brennan Center for Justice points out in a letter to Senate Judiciary Committee Chairman Specter and Senator Leahy: “A failure to confront the questions on how to get to an immigration court to have one≠s claim heard, or who will be admitted to practice before such a court, will result in a court that is dangerously disengaged from the wider community and claimants, who cannot get a fair hearing because they literally cannot get to court.” See Letter from the Brennan Center for Justice to Hon. Arlen Specter and Hon. Patrick Leahy (March 1, 2006).

Judge Richard Posner of the Seventh Circuit Court of Appeals notes in a letter to Senator Durbin that consolidating appeals in the Federal Circuit would “disserve the judiciary and the immigrant community because the Federal Circuit primarily reviews patent appeals and therefore does not have immigration law expertise. Immigration appeals often also involve questions of constitutional law, criminal law, and specialized administrative law, areas in which the Federal Circuit has little experience.”

Another practical concern is whether one court will have the capacity to adequately manage the caseload of appeals. According to Judge Posner, nearly 1,500 cases are filed annually with the Federal Circuit. These cases are divided among 12 judges approximately totaling 125 cases per judge. The number of appeals for review of deportation orders filed annually is more than 12,000. If these appeals are consolidated in the Federal Circuit, each judge will be responsible for their original 125 cases plus an additional 1,000 immigration appeals. This unmanageable caseload will hinder the court’s ability to provide genuine judicial review and will undermine immigrants’ rights to due process.

To even further limit the right to judicial review of erroneous deportation orders, Section 707 of the Specter bill and section 507 of the Frist bill, establish a screening process for appeals of Board decisions under which appeals of removal orders will be referred to a single judge on the Federal Circuit Court of Appeals. Only if the immigrant appealing a deportation order establishes a “prima facie” case that the appeal should be granted, will the single judge screening the appeal issue a “certificate of reviewability,” which will allow the appeal to proceed before a three-judge panel. If the screening judge judge declines to issue a certificate of reviewability or fails to issue such certificate within the 60-day allotted time period, the appeal is simply dismissed. The Senate compromise offers no further appeal of the screening judge’s decision to block the appeal from going forward or from the judge’s failure to issue a certificate within 60 days.

Given the large number of appeals filed annually by immigrants seeking judicial review of deportation orders, and the small number of judges who serve on the Federal Circuit, judges assigned to screen immigrants’ appeals will at most have a few minutes to review each case and decide whether to allow the appeal to proceed or not. Asylum cases often involving life and death matters, and appeals involving the permanent separation of families from their US citizen children or spouses, will therefore be decided by judges with little or no experience in federal immigration laws, forced to make their decisions in a matter of minutes. “[W]orkload pressures will prevent the judges from giving more than cursory attention to the petitions. This streamlining process will not provide meaningful judicial review and will likely lead to the summary dismissal and denial of appeals that actually have merit.” See Letter from Judicial Conference of the United States to Hon. Arlen Specter (March 31, 2006).

This new process also will, for the first time in U.S. law, waive the Government≠s obligation to file with the appeals court a response to a petition to review a removal order, which may in turn eliminate any possibility of settling such appeals. “The immigration agency’s current obligation to respond to all petitions before the federal courts often brings to light claims that inarticulate and/or pro se plaintiffs have not identified and prompts settlement offers without need for court intervention.” See Letter from the Brennan Center for Justice (March 1, 2006).

5. New Limits on Judicial Review of denials of citizenship will leave qualified applicants without a remedy

Section 204 of the Frist bill (and section 609 of the Sensenbrenner bill) strip the federal courts of jurisdiction to review a DHS decision in citizenship applications whether “an alien (1) is a person of good moral character; (2) understands and is attached to the principles of the Constitution of the United States; or (3) is well disposed to the good order and happiness of the United States.”

Because these standards are subject to varying interpretation–whether an applicant has “good moral character,” or “understands and is attached to” the Constitution˘judicial review of erroneous or arbitrary decisions by immigration officials is crucial. Such review is even more critical in cases in which immigration officials claim to rely upon “secret evidence” to deny citizenship to long-term resident immigrants.

Making appeals of denials on such grounds beyond review by any federal court invites abuses of discretion and unlawful denials masked by a finding of “bad moral character,” or perhaps based upon secret evidence the applicant has never even seen.

Section 204(d) of the Specter bill retains judicial review of the above-mentioned DHS discretionary determinations. This section imposes a 120-day time limit on seeking federal court review and it allows the court to determine whether there was substantial evidence in the administrative record and findings of the DHS to indicate that the individual possesses good moral character, is attached to the principles of the Constitution, and is well disposed to the good order of the United States.

However, Section 204(g)S limits federal district court review when the Government delays in adjudicating a naturalization application. An individual may seek review in a federal court when the DHS fails to adjudicate the application within a 180-day time period beginning on the date on which the agency states that it has completed all examinations and interviews. However, the DHS makes the determination as to when it has completed all examinations and interviews, and unlawful delays in completing such examinations therefore becomes non-reviewable by the federal courts. The Senate bills give DHS the power to define the terms “examinations” and “interviews.” This in turn gives the agency the power to determine when these stages are complete and when the 180-day to make a citizenship decisions expires. See Letter from Lenni Bension and Stephen Yale-Loehr to Senator Arlen Specter (March 16, 2006).

In addition, unlike current law that in delay cases permit the federal court to actually grant citizenship, the Senate compromise limits the federal courts to review and then remand cases to the DHS, presumably with instructions to issue citizenship in cases in
which all examinations and interviews have been completed. See, e.g., United States v. Hovsepian, 359 F.2d 1144, 1160 (9th Cir. 2003) (“Congress intended to vest power to decide languishing naturalization applications in the district court alone, unless the court chooses to Œremand the matter’ to the INS, with the court’s instructions”).

By effectively wiping out judicial review of citizenship applications, and barring the federal courts from granting or denying such applications, a process no federal courts have complained about, the Senate compromise position will likely cause thousands of citizenship cases erroneously denied to avoid judicial review every year. The result will not only be to deny full integration into society of long-term lawful resident immigrants, but to limit their ability to legalize immediate family members. This is turn, as with many of the other compromise positions discussed above, will swell the ranks of the undocumented population.

6. Wiping out Voluntary Departure for many immigrants will make them deportable and ineligible for future visas

Historically the immigration laws have included a provision permitting immigration judges to grant undocumented immigrants “voluntary departure” in lieu of formal “deportation” from the country. Generally to obtain voluntary departure the immigrant must show that he or she is a person of good moral character, has no serious criminal convictions, and can afford to pay his or her way out of the country. Such voluntary departure is usually granted to qualifying immigrants for a period of 30 to 60 days, after which, unless the voluntary departure period is extended, a formal order of deportation goes into effect.

Obtaining voluntary departure is critically important to immigrants who have available to them avenues to legalize their status through close family members or Government-approved job offers. While voluntary departure orders generally do not block an immigrant’s ability to lawfully immigrate in the future or be granted a visa based upon an already pending application, the entry of a formal deportation order for the most part renders immigrants ineligible for visas. If such immigrants do not depart the country, they add to the population of undocumented permanent residents. Preserving voluntary departure opportunities is therefore yet another significant tool in controlling the size of the undocumented population. As with so many other provisions, the Senate compromise will add to the size of the undocumented population by cutting back on voluntary departure eligibility.

This result is accomplished by barring the courts from reinstating, enjoining, delaying, staying, or tolling any period of voluntary departure. These proposals reverse current policy and the decisions of the appellate courts that in many cases extend voluntary departure upon the filing of timely appeals or motions to reopen cases. See for example In re A-M-, 23 I. & N. Dec. 737, 743 (BIA 2005) (stating “recent statutory and regulatory changes have not altered the basic principle∑that the timely filing of an appeal with the Board stays the execution of the decision of the Immigration Judge during the pendency of the appeal and tolls the running of the time authorized by the Immigration Judge for voluntary departure”); Matter of Chouliaris, 161 I. & N. Dec. 168 (BIA 1977). See also Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir. 2005) (“in cases in which a motion to reopen is filed within the voluntary departure period and a stay of removal or voluntary departure is requested, the voluntary departure period is tolled during the period the BIA is considering the motion”); Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005) (holding that “the pre-IIRIRA voluntary departure provision requires that aliens be afforded a reasonable opportunity to receive a ruling on the merits of a timely-filed motion to reopen”).

To make matters worse, the Senate bills modify the law to require that an immigrant effectively waive his or her right to appeal an erroneous deportation order as a condition of applying for voluntary departure. This anti-due process proposal places immigrants in the absurd position of having to waive a legitimate appeal simply to preserve their right to seek voluntary departure so that they may legally immigrate in the future.

In summary, the voluntary departure provisions of the Senate compromise will remove judicial review of voluntary departure decisions, encourage erroneous and arbitrary decision-making, and force immigrants to elect between a legitimate appeal of an erroneous deportation order versus preserving their right to voluntary departure. Most people denied voluntary departure will likely remain in or return to the U.S. in undocumented status since they will be ineligible for visas despite having qualifying family members or job offers in the U.S. Again, the Senate compromise takes away with one hand what it grants with the other through a possible legalization program.

7. Further restricting immigrants’ ability to bring Motions to Reopen their deportation cases will leave immigrants in undocumented status despite their eligibility for visas

Section 508 of the Frist bill and section 708 of the Specter bill (as well as section 212 of the Sensenbrenner House bill) state that decisions to grant or deny motions to reopen or motions to reconsider deportation and other immigration decisions are in the discretion of the Attorney General and his or her subordinate officers. Further, there shall be no review by the federal courts of decisions that are to be made in the discretion of the Attorney General’s subordinate officers.

Preserving judicial review of erroneous decisions by immigration judges or the Board of Immigration Appeals in response to motions to reopen or reconsider cases is critically important to immigrants who have a way to legalize their status but can only do so if they are able to get an old removal hearing reopened.

Most such cases involve immigrants with old orders of deportation who qualify to legalize their status through U.S. citizen or lawful resident immediate family members or job offers approved by the Department of Labor. While such immigrants may be approved for the issuance of visas by the DHS, because they have old deportation orders, they are required to bring their requests for adjustment of status before the immigration judges or the Board of Immigration Appeals. They do so by filing a motion to reopen their old deportation cases.

Immigration judges and the Board of Immigration Appeals not infrequently deny motions to reopen cases for improper legal reasons or abuse their discretion by failing to take into account relevant evidence, or considering irrelevant evidence, or by not properly weighing the evidence of record. The enormous backlogs facing immigration judges and the Board of Immigration Appeals, and pressure to make decisions as rapidly as possible to reduce such backlogs, certainly contribute to these errors.

Without the ability to have these decisions reviewed by a federal court, immigrants with erroneous denials of their motions to reopen will be left with no remedy whatsoever to legalize their status, despite their underlying eligibility to do so based upon already approved visa petitions filed by their family members or employers.

8. Expanded use of secret evidence against immigrants will undermine the reliability of deportation decisions

Section 204 of the Frist bill and section 204 of the Specter bill, (and section 609 of the Sensenbrenner bill) expand the “Terrorist Bars” and allow for the expanded use of “secret evidence,” inviting violations of individuals’ fundamental rights and the principle of government accountability.

When the government uses secret evidence to make decisions in immigration and deportation proceedings, the immigrant has no opportunity to confr
ont and
dispute the evidence, or test i