Articles Posted in Immigration Reform

On December 12 2016, the U.S. Department of Education (“DOE”) announced that it is no longer recognizing the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.  This decision affects more than 16,000 international students in the United Stated attending nearly 130 Student and Exchange Visitor Program (SEVP)-certified schools and programs that are accredited by the Accrediting Council for Independent Colleges and Schools (ACICS).

While most SEVP-certified schools are not required to obtain accreditation and may provide evidence in lieu of accreditation, there are two major instances, both involving immigrant students, when it is required:

  1. Accreditation is required for all English as a Second Language (ESL) programs, per the Accreditation of English Language and Training Programs Act. This act states that all ESL programs must possess accreditation by a regional or national accrediting agency recognized by the Department of Education.

The Department of Homeland Security (DHS) is removing regulations relating to an obsolete special registration program created after 9/11 to track noncitizen men from predominantly Muslim countries.  NSEERS, which DHS has not used since 2011, has for many years been deemed redundant, used to capture data manually that was already captured through automated systems, nonetheless the structure has remained intact until now.  The program has been discontinued, for these reasons and for reasons pertaining to NSEERS’ inability to provide a discernible public benefit, as the program no longer provides an increase in security in light of DHS’s evolving assessment of the threat posed to the United States by international terrorism. 

In August 2002, less than a year after the September 11, 2001 terrorist attacks, the former Immigration and Naturalization Service (INS) finalized the proposed program to require designated nonimmigrants to be fingerprinted and photographed and to provide additional biographical information.  The rule also authorized INS to designate certain ports of departure for nonimmigrants subject to the program.  The following months, INS announced by way of a Federal Register notice, that the new program would be applied to those who were subject to the earlier registration program (first established in 1991)—nonimmigrants from Iraq, Iran, Libya, and Sudan—and added nonimmigrants from Syria.  Between November 2002 and January 2003, INS added another 20 countries to the compliance list, bring the total to 25 countries.

Once the responsibility for administering NSEERS was transferred to the Department of Homeland Security (DHS) in 2003 as part of the Homeland Security Act of 2002, DHS determined that automatically requiring 30-day and annual re-registration for designated nonimmigrants was no longer necessary.  Leading up to 2011, DHS began to utilize a more tailored system in which they would notify nonimmigrants subject to the program to appear for re-registration interviews where DHS deemed it necessary to determine whether they were complying with the conditions of their status and admission.

In November, the Supreme Court heard a class-action challenge brought forth by thousands of immigrants, many of whom are living in the United States legally, who were kept in detention without a real opportunity to vouch for their release.

As it stands, federal law grants immigration authorities a great deal of leeway in measures they may take to detain foreign-born people.  The Supreme Court’s task was to determine what limits may exist to stymie that authority.  On December 12, 2016, the Supreme Court issued an order in this still-pending case, asking lawyers for the federal government and the American Civil Liberties Union (ACLU) to file a new round of legal briefs addressing whether the Constitution would require a hearing in front of a judge—or even a release, in the event that the government fails to present strong enough evidence that the person shouldn’t be released.

At the center of the case is Alejandro Rodriguez, who was a year old when his parents brought him to the U.S. from Mexico, and 9 when he became a legal permanent resident.  After running into trouble with the police for a joyriding and a minor drug offense, Rodriguez was soon placed in immigration detention for three years and faced deportation.  Due to his convictions, he was subject to “mandatory detention” under immigration law and was therefore denied a chance to stand in front of a judge nor ask for release on bond.

Immigrants across the country are regularly denied bail or offered bail that’s too expensive.  Last Spring, news broke of a State Senator from Queens, New York, lobbying to scrap the obsolete bail bond system of holding people who could not afford bail, many of whom were immigrants, in jail before their trial.

State Senator Michael Gianaris, in an interview with Vice News, called the current regime of setting bail in New York “something left over from England in the Middle Ages.”  Now, California’s district courts are starting to take apart the same archaic bail-setting schemes that left so many disenfranchised New Yorkers in prison before they were proven guilty of the accused crime.

Unlike in criminal court, where those charged often hire bail bondsmen and only have to pay 10 percent of the total bail amount, immigrants detained by Immigration and Customs Enforcements (ICE) often have to pay the full amount of a bond.  Most bond companies require collateral such as a house or a car, which many low income immigrants lack, resulting in a scarcity of bond companies geared toward immigrants.

Just last week, Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Dianne Feinstein (D-CA), and Lisa Murkowski (R-AK) introduced the Bar Removal of Individuals who Dream ad Grow our Economy (BRIDGE) Act, which would provide work authorization and relief from deportation to individuals who are eligible for the DACA initiative created in 2012 by the Department of Homeland Security (DHS).

Under DACA, or Deferred Action for Childhood Arrivals, individuals who arrive in the United States as children must pass a background check and meet specific age, education, and United States residency requirements.  Once such requirements are met, eligible individuals are granted a temporary reprieve from deportation and are then able to receive a renewable two-year work permit.

Since 2012, approximately three-quarters of a million individuals have come forward to take advantage of the career and higher education opportunities that are made accessible to them through the provisions of DACA.  The BRIDGE Act would reinforce protections provided by DACA, while extending protection from deportation and eligibility of employment authorization to individuals who are not DACA recipients, but do qualify for the program.

Last Week the New York Times reported that mass deportations would negatively impact the housing market, as evidenced by research showing that mass deportation of more than three million undocumented immigrants between 2005 and 2013 helped exacerbate foreclosures.  Simply speaking chronologically, the massive pile-up of foreclosures during the housing crash, one in five of which affected homeowning Hispanic households, seemed to coincide with the mass exodus of undocumented immigrants, about 85 percent of whom were working Latin American men.

According to a recent study published by sociologists Jacob S. Rugh and Matthew Hall, the roundups of undocumented immigrants from 2005 to 2013 help explain why Hispanics faced the highest foreclosure rates during the housing crash—even among households with legal residents and American citizens.  According to Rugh and Hall, “Latino immigrants put down roots in the United States, including household home ownership across mixed legal statuses.  Among those deported, the median length of U.S. residence is 14 years.”

Furthermore, since many of those deported were Latino males, presumably a good portion of whom were primary income earners, the loss of such income, formerly devoted to mortgage payments, raises the likelihood of household foreclosure. These findings reveal the often unseen effects of mass deportation on the United States’ economy and the social groundwork.  No longer just the stuff of academic studies, these findings have now found themselves a critical place at the policy-making table as President-elect Donald Trump weighs whether to follow through on his campaign promise to deport millions of undocumented immigrants.

Typically, a foreign national who has accrued more than one hundred eighty (180) days but less than one year of unlawful presence is subject to a three (3) year bar from returning the US after a departure. A foreign national who has accrued more than one year of unlawful presence is typically subject to a ten (10) year bar from returning to the U.S. after a departure (commonly referred to as the “3/10 year bar”).  While a waiver of these bars remains available, applicants may only apply for this waiver from outside the US.  This process carried a very significant risk of being trapped outside of the US for months or even years pending the adjudication of the waiver.  Even worse, if the waiver application were to be denied, the applicant would be unable to return to the US for 3/10 years, depending upon the previous duration of unlawful presence.

As of March 4, 2013, immediate relatives[1] of US citizens were eligible to apply for the provisional unlawful presence waiver (“601A waiver”) to request that USCIS grant a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas— rather than applying for a waiver abroad after their immigrant visa interviews.  This provided applicants with a significant degree of certainty that they would be eligible to return to the US after their interview because the Applicant would already know if their waiver had been granted prior to departing the US.  If the 601A waiver were denied, most Applicants would simply remain in the US.  In practice, while many Applicants were able to make use of the 601A Waiver to reenter, there remained a modicum of danger, as US Customs and Border Protection (CBP) ultimately determines admissibility at the time of entry.  In addition, this iteration of the 601A left out many otherwise qualified individuals, such as immediate relatives of legal permanent residents (LPR).

On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a final rule, to expand the class of individuals who may be eligible for a provisional waiver of certain grounds of inadmissibility based on the accrual of unlawful presence in the United States.  The final rule is to take effect on August 29, 2016.

On November 2, 1966, Congress passed the Cuban Adjustment Act, which permitted Cuban nationals who have been physically present in the United States of America for at least one year, who have been admitted or paroled, and who are admissible as immigrants to the United States to apply to for adjustment of status to that of a legal permanent resident (“LPR”). As a legal permanent resident, they would be eligible for certain benefits, such as being eligible to stay and work in the country legally, being able to start a business, and eventually naturalizing and becoming a citizen of the United States. As a legal permanent resident from Cuba, they also enjoy certain benefits that are typically not available to LPR’s from other countries, such as food stamps and access to Medicaid.

This policy was later modified in 1995, in what has been commonly known as the “Wet Foot, Dry Foot” policy, which was the result of a negotiated settlement with between the Clinton Administration and the Cuban government. The policy provides that anyone who is caught in the waters between Cuba and the United States would be sent back to Cuba, whereas anyone who makes it to shore would be eligible to become a permanent resident, and would eventually have a path to becoming a citizen of the United States.

Recently, another modification has been considered for this special program. According to CNN’s article, “The last flight and first steps: ‘Historic’ surge of Cubans crossing into the U.S.”, thousands of Cubans have been continuing to flee north with many eventually reaching North America. “More than 35,600 Cubans have arrived at U.S. ports of entry since October 1 [2015], nearly three-quarters of them at the Texas border, according to U.S. figures.” As Cubans fled from the repression and financial hardships of their home country, they faced many challenges along the way in potential host countries, including low wages as undocumented workers in Ecuador, hiking for days through the Colombian jungle, facing rough terrain, armed groups and extortion by authorities, with some South American countries closing off their borders to the refugees or others threatening to deport them. When faced with these options, many chose to continue the journey into the United States where greater opportunities lay.

(This is the final part of our three-part series with a look at DACA in the courts and how recent developments in the US Supreme Court will affect this program)

In our previous articles, we spoke about the inception of DACA, the proposed DACA expansion and the creation of the DAPA program. While the implementation of the DACA expansion and the DAPA program have been stalled in the federal courts, the original DACA program is still fully operational.

From the beginning, there have been many proponents and critics of President Obama’s plans. On one side, representatives from 26 different states banded together to challenge the President’s initiatives. There is widespread support on the other side as well, with 15 states and the District of Columbia, 73 US mayors and county officials, 181 US Representatives, four US Senators, and numerous advocacy groups representing educators, children, and immigrants, as well as various civil rights, labor, immigrants’ rights groups and business interests.

(This is part two of our three-part series on the development of Deferred Action for Childhood Arrivals, with a look at President Obama’s its proposed expansion and the development of DAPA)

On November 20, 2014, President Obama announced an expansion of the DACA program which increased the pool of potential DACA applicants by easing some of the restrictions that were previously in place. President Obama also initiated a program called Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA which would have protected the undocumented parents of US citizen children or lawful permanent resident (LPR) children.

The proposed DACA expansion had three significant changes: