Tag Archives: removal

Immigration Court Backlog

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Immigration Court Backlog Worsens

 

One of the major news stories of last summer was the unforeseen increase in the number of unaccompanied children who crossed the American border. It was a humanitarian crisis (President Obama’s phrase) by itself, but it also had practical ramifications for immigration court. It swelled the number of individuals facing trial in immigration court and increased the already present backlog.

Immigration Court is facing its highest caseload in its history. At the conclusion of April 2015, there are 445,607 cases pending before the Immigration Courts. That represents a 9.2% increase from the beginning of the 2015 Fiscal Year and an astounding 29.5% increase from the beginning of the 2014 Fiscal Year. The Executive Office of Immigration Review is part of the Department of Justice and an Article I Court (executive branch of government). The unaccompanied children are a small part, however, of the overall immigration court backlog.

Please note that EOIR, Immigration and Customs Enforcement, and Department of Homeland Security are separate from USCIS, which grants immigration and nonimmigration benefits for individuals not in removal proceedings.

The four most represented nationalities in Immigration Court at the moment are Mexico, El Salvador, Honduras, and Guatemala. This is probably explained by their proximity and the current country conditions. China is the fifth most represented nationality. The states with the most individuals in removal proceedings are California, Texas, New York, Florida, and New Jersey. These are among the most populous states in the Union and also the states that have the most immigrants and visitors overall.

 

Thank you to the Transactional Records Access Clearinghouse at Syracuse University for the statistics. It provides comprehensive, independent, and nonpartisan information about US federal immigration enforcement.

Mass Deportation Bill?

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Mass Deportation Measures?

While the DAPA and Expanded DACA programs are undergoing litigation between the Justice Department and federal court system, the House of Representatives is working on removal legislation. The Michael Davis, Jr., and Danny Oliver in Honor of State and Local Law Enforcement Act would be the most severe form of immigration enforcement Congress has passed recently (if it did pass). The proposed legislation contains four parts:

  • Being in the United States without authorization is a civil offense. The bill seeks to make unauthorized presence a crime.
  • It would grant state and local law enforcement the power to enforce immigration law. Immigration law is firmly settled as federal law and non federal law enforcement would be enabled to detain anyone with probable cause of being present in the country without authorization.
  • Any immigrant apprehended by local law enforcement would be taken to federal custody for deportation. The federal government currently has discretion in that choice.
  • The bill would alter the priority system created by the November 20, 2014 executive action memos and announcement and make deportation nearly mandatory.

The point is to reduce chances of prosecutorial discretion and deferred action, means for unauthorized immigrants to remain in the country. HR 1148 would overturn the Supreme Court’s decision in Arizona v. U.S., which affirmed that states and localities should not be enacting and enforcing their own immigration laws. The House attempted to criminalize unlawful presence in 2005, but that measure did not succeed after massive nonviolent protests throughout the country.

The American Immigrant Lawyers Association has strongly condemned the bill, which is a second attempt of the previously failed “SAFE Act” from 2005. Aside from harmful to American families, businesses, and the economy, it is “fundamentally inconsistent with the principles of due process and fairness grounded in the Constitution.”

 

Judge Stops DAPA and New DACA

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A federal judge in Texas temporarily stopped the expanded DACA and DAPA programs. Today, February 18, 2015, USCIS was supposed to begin accepting applications for expanded DACA (Deferred Action for Childhood Arrivals). DHS Secretary Jeh Johnson issued a press release acknowledging the decision to shut down the two programs temporarily before they even began accepting applications.

 

The lawsuit involved 26 states that argued the Obama Administration had exercised substantive and legislative powers that only belong to the legislative branch. Executive actions pertaining to immigration have been issued by every president since Eisenhower. The government noted that deferral actions have been taken since the 1960s in their brief. The judge agreed with the 26 states, finding unconstitutionality in his order. DHS vows that it will appeal the decision. The Office of Legal Counsel, which serves an advisory role for the executive branch, issued an opinion on November 19, 2014 (the day before the executive actions were announced by President Obama). The opinion advised that DAPA and an expanded DACA program would be legal and within the constitutional powers of the president.

 

The older version of DACA remains in effect and the recipients of DACA are not affected by this decision.

That first version of DACA was not at issue in the lawsuit, though it was tangentially mentioned and criticized. Seeing as over half of the states participated in bringing this lawsuit and the Obama Administration and DHS are planning to appeal, more court battles are expected over the separation of powers, adherence to the Administrative Procedure Act, and DAPA and DACA. The president issued his series of executive orders in November 2014 as a result of congressional inability to pass comprehensive or incremental immigration reform that has been clamored for years. The Senate passed immigration reform in 2013, providing a pathway to citizenship, but that bill did not become law because the House voted against it.

INA in the Supreme Court

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Supreme Court

The US Supreme Court on Wednesday heard arguments on whether the government is required to prove a connection between a drug possession conviction and a congressionally defined controlled substance for removal of a permanent resident under the Immigration and Nationality Act (INA). The INA is the immigration law of the land and it allows for removal of non-US citizens for violations pertaining to controlled substances. The case is Mellouli v. Holder. Mellouli is a lawful permanent resident of the US from Tuisia. He was convicted for possession of drug paraphernalia in Kansas, but it is not clear what that substance it is and whether it is controlled or not. Mr. Mellouli argued that the government cannot remove him without proving the connection between the conviction and substance. He was appealing because the US Court of Appeals for the Eighth Circuit ruled that the conviction was covered under the INA.

 

Lawful permanent residents can be removed for any number of reasons. One of the benefits of US citizenship is a safeguard against removal. Permanent residents can be removed for drug convictions, aggravated felonies, among other crimes, even though they have legal status beyond just holding a visa. There are avenues for relief that can be argued for during removal proceedings. Famously, three permanent residents were removed for illicit group membership, despite having families of American citizens and being permanent residents for thirty years.

 

It is unknown when the Supreme Court will release its opinion of Mellouli v. Holder. We will be keeping an eye on this case, as it speaks on the important burden the government has in removing a non-citizen.

TPS for Liberia, Guinea, Sierra Leone

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Department of Homeland Security Announces Temporary Protected Status for Liberia, Guinea, and Sierra Leone.

USA Flag

 

Lost in the immigration news avalanche of last week, in which President Obama announced executive action for deferred action, business immigration reforms, and enforcement priorities, was the granting of Temporary Protected Status (TPS) to nationals of three countries. On November 20, the Department of Homeland Security granted TPS to nationals of Liberia, Guinea, and Sierra Leone, in response to the ebola crisis that is ravaging those nations.

 

Temporary Protected Status means that nationals of those countries (and stateless people who last habitually resided there) will not be removed from the United States and will have work authorization, effective November 21, 2014. The grant lasts for 18 months (May 2016). Not all nationals are automatically eligible. Nationals must pass a criminal background check and cannot be national security threats. There is a 180 day registration period. An applicant must show that he or she has been continuously residing in the United States since November 20, 2014 and has been continuously physically present in the United States since November 21, 2014. The date requirements are strict. Nationals cannot start arriving from those countries and request TPS. It is a very limited grant of status – it is nothing like asylum status or a green card – but it is often a necessary protection for individuals fleeing civil war, disease, natural disasters, and awful country conditions,

 

Other countries currently with Temporary Protected Status include El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria.

 

If you have any questions about your eligibility for Temporary Protected Status or would like assistance, please contact immigration attorney Andrew Wood.