Immigration Droppings

AILA Letter to Secretary Napolitano

On February 9, 2012 the American Immigration Lawyers Association (AILA) submitted a sign on letter to the Secretary of Department of Homeland Security (DHS) Janet Napolitano.  Included in the signators were the American Civil Liberties Union, the American Immigration Council and the Immigrant Defense Project.  The purpose of the letter is to encourage DHS to recommit itself to the principle benefits outlined in the recent prosecutorial discretion memorandums.  

The letter highlighted nine main departures by DHS.  

First, the letter encouraged DHS to issue employment authorization for those who have been granted prosecutorial discretion but may not have an independent means of obtaining same.  Second, the letter encouraged DHS to use deferred action as a benefit and on a generous basis.  Third, DHS should robustly review all detained cases; both current and future matters.  Fourth, that DHS should educate and inform the public and pro se immigrants regarding their rights under these memorandums.  Finally, DHS should incorporate the November 2011 Guidance to ICE Attorneys with the June ICE Prosecutorial Discretion Memorandum and do so in a public manner.

In addition to the above and perhaps the most important issue, DHS should encourage their trial attorneys to stipulate to grants of relief.  Instead, most ICE chief counsel offices have taken the position that administrative closure is the main thrust of the prosecutorial discretion memorandums.  This line of thinking is contrary to the purpose and intent of the memorandum and in reality violates the spirit of same.  ICE TA's should be stipulating to relief on a regular basis.  Instead, they engage in five hour cross examinations of low priority respondents.  This is not only violative of the memorandum but a colossal waste of resources.  

The sign on letter also encourages Customs and Border Protection to take steps embracing the memorandums and thought processes.  USCIS has done so but CBP has not.  DHS is an umbrella that encompasses all three (ICE, USCIS, CBP) and therefore the principles should be equally employed and executed.  

Finally, the sign on letter should include the LGBT community and family members as well as enforcing the June 17, 2011 Victims Memorandum.  

The primary issue with agencies is that they are executive branch creations that do not have sufficient judicial oversight.  In a sense, there is no "Sword of Damacles."  The agencies do what they want and by the time a regulation or policy is challenged and brought into court, the harm cannot be undone.  DHS issued policy memorandums.  DHS now selectively chooses how to implement them.  Is that really prosecutorial discretion or is it prosecutorial selectivity?  

Our office has successfully employed the memorandums due in large part to trial attorneys and ERO agents who "get it."  If you, someone you know or a loved needs immigration assistance and think you qualify for a prosecutorial discretion memorandum, please do contact us.

Philip Eichorn 

 

 

Bottleneck in Butler County Jail for Bond Hearings

At present, the Cleveland Immigration Court is struggling to provide bond hearings in a reasonable period of time for detainees primarily located at the Butler County Jail.  Here are the dynamics.  Any foreign national who resides or is arrested south of I-70 (through Columbus) and is detained by CBP, ICE or other entity for removal proceedings is transferred to the Butler County Jail.  ICE / ERO agents from Columbus make a bond determination on each individual.  If custody is transferred from CBP, then ICE agents have the authority to redetermine the bond amount.  

For almost all detainees, ICE issues a "no bond" or does not disturb a previously issued "no bond" by a sister agency.  This means that the foreign national cannot post a bond, be released and attend his or her removal proceedings.  Foreign nationals do have the right to bond and also have the right to have an immigration judge (in Cleveland) redetermine a previously set bond (or “no bond” in this case).  

There are factors that both ICE and the IJ's are required to use.  First, a determination if the foreign national is a risk to society pursuant to Matter of Urena.  Then, if either ICE or the IJ determines he/she is not, a bond is determined based on the factors enounced primarily in Matter of Patel.  

So why the bottleneck in Butler Co.?  Personally I believe this is a trickle down issue.  Congress's intent on bond is clear.  Their intent for bond, to ensure appearance at a future removal hearings and removing risky foreign nationals from public, has been grossly exaggerated by ICE and their leaders in this area to include punishment for not having proper immigration status and in specific for having crossed without papers.  Unless challenged they use bond as a punitive measure and as a leverage tool to get a foreign national to sign a stipulated order of removal.  As ICE’s performance is primarily correlated to the number of removal orders obtained and executed, it just makes sense. 

This aggressive and punitive state of mind has become pervasive due primarily to 9/11 and the years of negative media coverage.  The on-the-ground ICE agents simply don't buy into what Congress intended, follow the directives of their leaders and fail to apply common sense.  

As taxpayers we are paying over $70.00 a day to house people who sometimes have no or little criminal history.  That's simply a monumental misspending of tax revenues.  Wouldn’t that money be better served finding aliens who have criminal histories that are fugitives?  That thought process would be in-line with the recent national DHS-ICE memorandum on civil enforcement goals.  But that though process doesn’t get removal orders or people removed and therefore the stats aren’t padded and raises aren’t issued.

The immigration judges in Cleveland are generally very fair.  They routinely issue bonds in the range of $2,500 - $7,500.  These are reasonable bonds.  But in order to get to an Immigration Judge, the foreign national must find a lawyer from jail, retain that lawyer, file the motion, wait his turn in line for a hearing and then spend time and resources on a reasonable redetermination.  If the IJ's are routinely issuing bonds in this amount, why is ICE "no-bonding" people and fighting the reality?  

For ICE in this neck of the woods, it’s either ignorance as to the issue (which is scary that they don’t know what’s going on in their jurisdiction) or arrogance (which is even scarier). 

The Ohio AILA EOIR Liaison Chapter has had much success working with the Cleveland Immigration Court to accelerate the bond hearings and the ACIJ and Court Administrator are to be lauded for their responsiveness.  Now if only ICE would participate in justice and due process instead of ignoring this issue.  

www.eichorn-law.com