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USCIS
Anti-Immigrant Crowd Cries Wolf in Response to Administration’s Family Unity Policy
04 weeks ago
The Obama administration’s recent announcement that it intends to change regulations allowing the children and spouses of American citizens to stay together while processing applications for legal permanent resident status has the immigration restrictionists crying wolf—or more accurately “amnesty”—once again. They are characterizing the administration’s rule change, as they do any and all actions that are not enforcement related, as a “backdoor amnesty.” Some are also characterizing the change as a strategy to bypass Congress.
Congressman Lamar Smith, for example, said in a statement that the Obama administration was bending long-established rules to put the interests of “illegal immigrants” ahead of U.S. citizens. Kris Kobach, Kansas Secretary of State, called the announcement “part two” of the amnesty plan first announced last fall when the Obama administration said it would review current cases in deportation proceedings to see whether they were really priority cases. Calling this new proposal any kind of amnesty is not only inaccurate, it’s tired.
As reported on Friday, the administration plans to issue a regulation that would address a long-standing problem in immigration law—a Catch 22 created by requiring those spouses and children of U.S. citizens who have been in the country unlawfully to depart the U.S. before completing the processing of their application for lawful permanent residence. The trouble is that once they leave the country, they are subject to a three or ten year bar for unlawful presence and need a waiver to get back in. The new proposal would allow them to submit the waiver application before departing the U.S., thus reducing the time, anxiety, and sometime danger inherent in waiting abroad for a decision.
This Catch-22 is one of the most notorious problems in the immigration system and the regulatory change is long-overdue. Due to processing backlogs, uncertainty of outcomes and violence in cities with key U.S. consulates—such as in Ciudad Juarez, Mexico—the prospect of becoming a lawful permanent resident has become an uncertain and frustrating affair for some applicants. Recognizing this problem, which arises in part from regulation, is an example of USCIS acting responsibly to address a problem of its own regulatory making in an expedient and lawful way.
USCIS’s proposed change, or “notice of intent”—which will be subject to the full range of public notice and comment—is intended to change a processing requirement set out in a regulation, not in the statute. If anything, offering a notice of intent to issue a rule gives the public even more warning that the government intends to undertake a the regular process of adopting a new regulation.
The truth is this rule change will not open the doors for more immigrants, or provide relief for the millions of undocumented immigrants in this country without the necessary family and work relationships to obtain status. Therefore, calling it “amnesty” is nothing short of hysterical.
The public is tired of knee-jerk responses to all things immigration. Polls consistently show that people want solutions, not political wrangling. The fact that opponents of immigration reform paint everything that isn’t enforcement as “amnesty” isn’t surprising. Their responses, just like their solutions, are limited and short-sighted. In this case, the policy they are calling “amnesty” we call common sense.
Photo by katerkate.
USCIS Seeks to Unify Families Facing Separation through Revised Waiver Process
01 month ago
Today, the administration took another important step toward fixing one of the most notorious problems with our broken immigration system—the 3 and 10 year bars. The U.S. Citizenship and Immigration Services (USCIS) announced today that it was filing a notice of intent to change a rule which would streamline the application process for many relatives of U.S. citizens currently eligible for permanent resident status, thereby minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States.
Under current rules, thousands of people who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering the U.S. for 3 or 10 years because of their unlawful presence in the United States. Many are eligible for a family unity waiver (which waives the bar to admission if extreme hardship to a spouse or parent can be established), but the way the law is currently implemented, the waiver can only be applied for from overseas That process can often take many months or even years, deterring otherwise eligible applicants from applying for legal status who instead remain unauthorized in the U.S. rather than risk separation from their families. (For more information on 3 and 10 year bar, see this fact sheet by the Immigration Policy Center.)
Under the proposed “in-country processing” rule change, spouses and children of U.S. citizens who apply for residence, but need a family unity waiver to re-enter the United States, will be allowed to apply for the waiver without leaving the U.S. The new rule seeks to help only spouses and children of U.S. citizens, not spouses and children of legal permanent residents, and does not alter or revise the eligibility standards for green cards or waivers. The proposed new rule would only affect persons whose sole need for a waiver is based on having lived in the U.S. without authorization (persons seeking a waiver on other humanitarian grounds must still leave the U.S.)
This “in-country processing” proposal means that USCIS could grant a provisional waiver here in the U.S, and many applicants would not face the same waiting period outside the country. It is important to note that applicants would still be required to depart from the U.S. before receiving final approval and legal status. But eligible immigrants will be encouraged to go through the process rather than remain unlawfully in the U.S.
Although the actual rule change will not go into effect for several months—a “notice of intent” to change the rules governing the adjudication of waivers for the 3 and 10 year bars was published in today’s Federal Register and will be followed by a call for comments and a comment period—the revision will make a huge difference in the lives of many U.S. families.
Applicants currently face long separations from their U.S. citizen family members as well as dangerous situations while they wait. Many waivers are processed in Ciudad Juarez, Mexico, a city wracked with violence over the last several years. This small step of allowing these family members to apply for and receive waivers inside the U.S. may save them from long, potentially dangerous separations from their families.
Some may argue that this rule change is an example of the president overstepping boundaries and bypassing Congress to reform the immigration system. These claims are wrong. While Congress writes the laws—including the 3 and 10 year bars—the executive branch decides how to execute the laws through rules and regulations which align with their priorities and current agency resources. The waivers are currently processed overseas because of an administrative rule, and the current administration has every right to change that rule, just as all administrations before them.
The Obama administration is proposing a rule change that will partially ameliorate one of the most contradictory rules of immigration law, thereby encouraging legal immigration and helping to keep U.S. families together.
Photo by Kevin Luu.
Give Me Your Tired, Your Poor, Your Huddled Masses…But Don’t Let Them Work?
04 months ago
BY MELISSA CROW AND EMILY CREIGHTON
Every year, thousands of people flee persecution in their home countries and seek safe haven in the United States. Many of them spend their entire savings on the journey, travel under life-threatening conditions, and arrive on our shores with not much more than the clothes on their backs. Those who are lucky find long-lost relatives, compatriots, or religious communities who help them get back on their feet. Then they begin the process of applying for asylum, which often takes years. Fortunately, our laws allow asylum seekers to obtain work authorization if their cases are not decided within 180 days. The 180 days, however, are counted by an “asylum clock,” which is too often stopped for unwarranted reasons.
Under existing law, the “clock” stops counting days when an asylum applicant causes a delay in proceedings before an asylum officer or immigration judge. For example, when an asylum seeker asks for time to find a lawyer, the immigration judge stops the clock until the next hearing, which may be many months in the future, instead of restarting the clock when the applicant secures counsel.
Due to misinterpretation and misapplication of what constitutes applicant-caused delay, many asylum applicants have to wait much longer than 180 days before they are authorized to work. Some eventually are forced to work without authorization at serious risk of exploitation, while others must rely on the goodwill of others to support themselves and their families.
In late August, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman issued recommendations intended to address ongoing difficulties with the asylum clock. The recommendations aptly describe certain implementation problems, such as erroneous clock stoppages for non-applicant-caused delays, the lack of any mechanism to restart the clock after an applicant-caused delay has been cured, and the lack of notice to applicants about the status of their clocks. They also correctly note that any workable solution must have buy-in from both USCIS, which adjudicates applications for work authorization, and the Executive Office for Immigration Review (EOIR), which oversees the immigration courts.
The Ombudsman’s recommendations focus on the need for increased information-sharing and interagency dialogue. While better coordination between USCIS and EOIR would undoubtedly help, the underlying problems with the asylum clock go much deeper. The core problem with the asylum clock is agency misinterpretation of the governing law. Overly broad interpretations of what constitutes applicant-caused delays—such as a postponement due to the judge’s unavailability or due to the need for additional time to complete testimony—have yielded a system that unfairly penalizes immigrants who seek work authorization to survive economically. (For more examples, see Up Against the Asylum Clock: Fixing the Broken Employment Authorization Asylum Clock, published in February 2010 by the Legal Action Center and Penn State Law’s Center for Immigrants’ Rights.)
Immigration judges use the clock to manage their dockets, without seeming to understand how desperately asylum seekers need work authorization. Nonetheless, USCIS, the agency with authority for adjudicating work authorization applications, relies on EOIR’s databases to make determinations about eligibility for work authorization. Because immigration judge decisions about the clock are adopted wholesale by USCIS, the clock often stops for long periods of time that cannot fairly be attributed to the applicant. As a result, the affected individuals are unable to seek employment or, in some cases, accept pending job offers.
The Ombusdman notes that “the current regulatory scheme provides little guidance” and proposes that “regulations could provide a more expansive and meaningful definition of applicant-caused delay.” While clearer regulations might help, USCIS cannot wait for a new regulatory scheme to correct a flawed process. Asylum seekers have waited years for a fair interpretation of applicant-caused delay, and it is critical that USCIS offer it now.
Photo by Paolo Rosa.
Immigration Lawyers Clarify What DHS’s Announcement on Prosecutorial Discretion IS and IS NOT
05 months ago
There has been much confusion in the wake of DHS’s recent announcement about how immigration agencies will use prosecutorial discretion in determining low and high priority immigration cases. What is considered a low priority case? Who is eligible for employment authorization? How should those with pending removal cases proceed? In an effort to protect immigrants who might be taken advantage of by immigration consultants (or notarios) and to clarify the information currently available, the American Immigration Lawyers Association (AILA) recently issued a consumer advisory outlining what DHS’s announcement is and is not.
AILA’s advisory starts with a series of basic warnings to protect folks against misinformation and immigration scams
- Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the Secretary Napolitano’s August 18, 2011 announcement!
- There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.
- Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell you about your rights. Do NOT seek legal advice from a notario or immigration consultant.
The advisory then describes what DHS’s announcement IS NOT. It is NOT a blanket legalization program or a policy designed to give large groups of people temporary relief. No one will get a permanent legal status, nor is there a program to sign up for. Contrary to recent attention-grabbing headlines, DHS’s announcement is about targeting its limited enforcement resources on high priority immigration cases by removing low priority cases from the system. As AILA’s advisory clarifies, “the announcement applies ONLY to cases already in the system, ensuring that low priority cases do not continue to clog up an already overburdened immigration court system.”
So what IS DHS’s new policy on prosecutorial discretion and what does it do? According to the advisory, DHS expanded prosecutorial discretion guidelines—taken from a June memo by ICE Director John Morton—agency wide and the created a high-level working group to:
- Review all cases already pending before the immigration courts. Those that are considered “low priority” may be administratively closed. Those that are considered a “high priority” will be prosecuted more aggressively. There are no rules or guarantees that a particular type of case will be considered a “low” or “high” priority. Recent guidelines are helpful, but no one can tell you if your case is a low priority-only immigration authorities will make that decision.
- Create department-wide guidance to help USCIS, CBP, and ICE agents and officers make better, more consistent decisions about who to place in removal proceedings. In the future, immigration authorities will review the cases people before they are placed in removal proceedings. Those that are “low priority” may not be referred to the immigration court.
- Issue guidance on providing discretion in compelling cases for persons who already have a final order of removal.
Folks who have been caught up in our broken immigration system for years are understandably hungry for more information about how DHS’s recent announcement might affect them and what they can do to be proactive. Unfortunately, the best advice for them right now is to “wait and see” as the government makes more information available.
As of now, DHS has not provided any further details on how the review process might work or when it will begin. In the meantime, AILA is advising interested parties to “consult an immigration lawyer or accredited representative” (www.ailalawyer.com), and NOT to rely on the advice of immigration consultants (notarios) or rumors from friends, neighbors or coworkers. Most importantly, immigration attorneys warn folks not to fall victim to immigration scams by staying up-to-date on notario fraud.
Photo by alternativemeans.
DHS Acknowledges that U.S. Immigration Policy Needs to Spark Economy and Attract Entrepreneurs
06 months ago
By PAUL ZULKIE, PRESIDENT OF THE AMERICAN IMMIGRATION COUNCIL
Yesterday, Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced a series of policy initiatives designed to “fuel the nation’s economy and stimulate investment” by attracting foreign entrepreneurs who can invest in fields of high unemployment, create jobs, and form startup companies. It is encouraging that USCIS recognizes that immigrant entrepreneurs and innovators are a key to continued growth and to maintaining America’s competitive edge into the 21st century. It’s important that the agency keep this recognition in mind as it adjudicates visa petitions and applications.
The release of the USCIS guidelines coincided with a meeting in Palo Alto, CA, of the President’s Council on Jobs and Competitiveness. The meeting, which included a number of Silicon Valley CEOs—including Facebook—highlighted the need for reforms in both educational and immigration policies. As the participants in the meeting explained, the struggling U.S. economy needs more entrepreneurs and highly skilled workers who can help to create jobs. For this to happen, the U.S. educational system must draw more students into high-tech fields, while the U.S. immigration system must attract (and retain) more foreign talent.
The importance of immigrant entrepreneurs in fueling U.S. economic growth and job creation was the subject of a June report by the Partnership for a New American Economy. The report, entitled The “New American” Fortune 500, finds that immigrants founded 18 percent of all Fortune 500 companies. These companies generate $1.7 trillion in annual revenue and employ 3.7 million workers worldwide. The report argues that this is evidence of how immigrants “create American jobs and drive our economy.” However, notes the report, the U.S. immigration system often forces immigrant entrepreneurs away, rather than welcoming them.
And if the United States drives them away, there are other places they can go. As an April report from the Kauffman Foundation describes, many highly educated and skilled immigrants are opting to return to their home countries and start successful businesses there. The authors of the report, entitled The Grass is Indeed Greener in India and China for Returnee Entrepreneurs, interviewed nearly 300 returnees in India and China who had started their own businesses. Some interviewees cited the difficulty in getting a U.S. “green card” as a reason for returning home, but the biggest reasons had to do with family ties and with improved quality of life and career opportunities in India and China. In other words, China and India are becoming increasingly competitive in the global market for highly skilled professionals and the United States risks falling behind. According to the report’s lead author, Vivek Wadhwa of Duke University, “Innovation that would otherwise be happening here is going abroad. Without realizing it, we are exporting our prosperity and strengthening our competitors.”
Yesterday’s announcement is significant because DHS is acknowledging that the way it has applied existing immigration laws has hurt rather than helped the economy and job creation. The announcement sends a clear message to the rank and file employees of DHS that the agency needs to be more business friendly. Hopefully, yesterday’s announcement will be the first of many areas where the administration can change the way it interprets and applies existing immigration laws to facilitate economic and jobs growth in the US.
Agency Urges USCIS to Streamline “Deferred Action” Process
06 months ago
In a new report issued this week, the United States Citizenship and Immigration Services’s (USCIS) Ombudsman’s office called on USCIS to create a standardized procedure for accepting and tracking requests for deferred action made to the agency. The timing of this report, following ICE’s memos on prosecutorial discretion last month, further reinforces the importance of understanding and applying the tools of executive branch authority in immigration law. It also gives USCIS an excellent opportunity to build on these new developments to offer its own contribution to the discussion over deferred action, prosecutorial discretion and executive branch power.
The Ombudsman’s office is an independent agency established under the Department of Homeland Security Act of 2003 which is charged with monitoring the delivery of benefits by USCIS and making recommendations to improve USCIS procedures. To that end, the new Ombudsman report stresses process, recommending a number of ways for USCIS to increase the transparency and accountability of its handling of deferred action requests.
Deferred action, which has gotten a lot of attention in the context of ICE cases, especially over the potential removal of DREAM Act students, is a discretionary determination to decline to institute proceedings or execute a removal in a given case. In USCIS’s case, requests for deferred action may arise when someone is found ineligible for a benefit but nonetheless can make a compelling case for remaining temporarily in the country. More recently, many Haitians who were in the U.S. but ineligible for Temporary Protected Status because they arrived after the earthquake devastated their country began affirmatively asking for deferred action.
According to the Ombudsman’s report, interviews with stakeholders suggest that there is currently no clear path for understanding what takes place when a deferred action request is made. The report, however, does note that USCIS tracks formal requests for deferred action and that some offices, such as Miami, provide guidelines to the public on necessary evidence. But all in all, the report suggests formalizing what is essentially an informal process.
While the government’s authority to grant deferred action is clear, uncertainty remains about what really constitutes deferred action with a capital D. Is it simply declining to pursue a case, or is it the more formal decision to specifically give someone protection from removal for a certain period, and to provide work authorization where appropriate? Although many advocates are pushing for a more formalized process for deferred action as a way to keep thousands of people out of the grip of deportation, this is not the intention of the Ombudsman’s recommendations. The recommendations essentially ask USCIS to provide improved information about a process that seems unclear to the public. Although aimed at USCIS, the recommendations apply equally to all of DHS.
A far more difficult question, however—one that the Obama administration must continue to address—is whether anyone who isn’t already facing deportation will be allowed to access the deferred action process. No matter how clear a procedure may be, if it is essentially unattainable for most people, it will remain frustrating and confusing because people will not understand why the term “deferred action” is bandied about, but isn’t really used. Like it or not, deferred action is no longer the last trick that can be pulled out of the hat, but is instead becoming more and more part of the advocacy world’s tool kit because so little relief is available.
Honest conversations about what and how discretion will be used in the cases that aren’t immediately in DHS’s line of sight have to come. Perhaps the Ombudsman’s report is an invitation to that conversation—a conversation that DHS and the Administration, not just USCIS, should be having.
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Senators Introduce Military Families Act
08 months ago
The week before the Memorial Day holiday, several senators honored U.S. military families caught up in our broken immigration system by introducing The Military Families Act. Senators Robert Menendez (D-NJ), Harry Reid (D-NV), Richard Durbin (D-IL), Charles Schumer (D-NY), Patrick Leahy (D-VT), Daniel Akaka (D-HI), Michael Bennet (D-CO), and Kirsten Gillibrand (D-NY) introduced the bill.
While there are certain immigrants serving in the military who can accelerate their access to legal permanent residence through their service, their families often cannot. Some spouses of active duty military are even being deported while their partners serve on active duty. The Military Families Act would allow the spouses, parents, sons, and daughters of active duty military servicemen and women to apply for green cards if they are otherwise eligible.
According to the New York Times:
Immigration lawyers and Department of Homeland Security officials say that many thousands of people in the military have spouses or close relatives who are illegal immigrants. Many of those service members have fought to gain legal status for their family members — only to hit a legal dead end created in 1996, when Congress last made major revisions to the immigration laws.
Immigrants have a long and proud tradition of giving back to their adopted nation through military service. In 2009, the Immigration Policy Center published “Essential to the Fight” which notes that as of June 30, 2009, there were 114,601 foreign‐born individuals serving in the armed forces, representing 7.91 percent of the 1.4 million military personnel on active duty. Roughly 80.97 percent of foreign‐born service members were naturalized U.S. citizens, while 12.66 percent were not U.S. citizens.
The family members of these U.S. Service members also present yet another group of worthy individuals that the Obama Administration could help right now by exercising its executive authority. While the President continues to wait on Congress to pass new laws these families continue to suffer. (Downloadable file of case examples of families who would benefit: http://americasvoiceonline.org/page/-/americasvoice/reports/Military%20Family%20Act%20Cases.docx.)
This Memorial Day is an appropriate time to remember how we can honor not only the service members of yesteryear, but those of today. Soldiers who continue to defend our nation, while at the same time fearing that the very country they seek to protect will separate them from those they love most.
Photo by superman_ha_muerto
CIS Report Marred by ‘Deception and Disorder’
0
By Anam Rahman
In a report issued earlier today, the restrictionist Center for Immigration Studies (CIS) took aim at problems facing the U.S. immigration court system—a topic worthy of serious discussion. Unfortunately, as with many of CIS’ publications, today’s report combines dramatic rhetoric and unsubstantiated data with ill-conceived solutions. While it is unlikely the report will gain traction in Congress or the media, a few of its—and its author’s—shortcomings remain worth pointing out.
The author of the report, Mark H. Metcalf, was appointed as an immigration judge in 2006. As indicated by the Justice Department’s own press release, he possessed no immigration experience prior to the appointment. Instead, as the department’s Inspector General later concluded, political appointees awarded him the job through a coordinated effort to place partisan loyalists in civil service positions.
Since resigning after less than three years on the bench, Metcalf has been writing a book on the problems facing immigration courts, which, in his words, represent the “heart of a system that nurtures scandal,” where “weakness is supreme and its impact is pervasive.” Metcalf’s biggest beef is not the crushing backlog facing immigration courts, which was the topic of a Senate Judiciary Committee hearing last week, but various statistics in the Department of Justice’s annual reports to Congress, which he depicts as a manipulative stage production of bland language and twisted numbers.
In seeking to undermine the government’s numbers, Metcalf presents a surfeit of his own figures. Yet Metcalf’s statistics are themselves misleading. For example, Metcalf cites Justice Department estimates that 39 percent of noncitizens failed to appear at removal hearings in 2005 and 2006. These cherry-picked numbers not only represent the highest annual rates since the start of the Clinton Administration, but mask the dramatic decline in failures to appear in more recent years, which fell to 11 percent in 2009.
In another example, Metcalf cites Justice Department figures indicating that noncitizens in removal proceedings receive favorable judgments around 20 percent of the time. According to Metcalf, “accuracy reveals” that noncitizens receive favorable judgments 60 percent of the time. Unfortunately, readers seeking statistical corroboration are left disappointed. The footnote merely provides a lengthy account of inconsistent data sets, unexplained deductions, and arcane recalculations.
Numbers aside, the CIS report is filled with other perplexing statements. For example, Metcalf habitually equates seeking relief from removal—such as submitting an asylum application—with filing a “lawsuit” to remain in the United States. In doing so, Metcalf misses the point: quite distinct from civil plaintiffs, noncitizens only seek relief from removal in response to government efforts to deport them. His attempts to attach the negative stigma associated with civil litigants to noncitizens defending themselves and seeking to regularize their status fail.
While there are certainly many problems requiring attention in our nation’s immigration courts—including growing backlogs, high rates of noncitizens forced to appear without legal representation, and a lack of an independent judiciary—Metcalf’s report seeks to divert focus from these true challenges. Ultimately, the report does exactly what it accuses the government of doing: manipulating numbers and making misleading claims.
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DHS Removes Countries from Special Registration List, But Leaves Door Open for Future Placements
09 months ago
This week, the Department of Homeland Security (DHS) announced that it will remove all countries from the National Security Entry-Exit Registration System (NSEERS). Previously, nonimmigrant travelers from Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen were forced to comply with special registration requirements, including providing fingerprints, a photograph, and any additional information required by DHS to DHS officials at the time the nonimmigrant applies for admission at a U.S. port of entry.
The reason for the change is twofold. First, over the past six years, DHS has implemented automated systems which capture entry and exit information on nonimmigrants, and using NSEERS to capture this information manually is now redundant and provides no increase in national security. Second (though not stated in the federal register notice), is that the program made travel cumbersome—nonimmigrants were required to register upon each arrival, taking 30 minutes per person.
However, NSEERS has not been completely eliminated. The new regulation would simply remove the aforementioned nations from the NSEERS list, but would leave the program in place so that it could possibly be used in the future by adding countries back on the NSEERS list. Joanne Lin, ACLU Legislative Counsel, analyzed this decision:
Though DHS has made great progress in indefinitely suspending NSEERS, today’s move simply delists the affected countries and leaves the door open for renewed registration in the future. DHS should completely scrap this program and draw the appropriate lesson from the failure of NSEERS for its larger immigration enforcement strategy. Dragnet immigration enforcement programs that ignore lawful individual grounds for suspicion in favor of enabling group-based profiling are counter-productive to the goals of promoting public safety and national security and contrary to American values.
NSEERS is a legacy of post-9-11 hysteria over immigration. While DHS is essentially shelving the program, it is refusing to put it to rest, a sign that it can’t shake the need to have programs in place—even if only on paper—that sound extra tough on countries suspected of producing terrorists. If the program is, in fact, redundant then DHS should close it down for good. As IPC wrote in 2004, DHS authority to remove and restrict admission to the U.S. is incredibly broad, and the idea that we need to keep this outdated and misguided policy is wrong.
Two Years Under the Obama Administration, How Does DHS Measure Up?
010 months ago
Nearly two years ago, expectations ran high as President Obama took office and Secretary Napolitano took the reins of the Department of Homeland Security (DHS). In review of DHS’s first year under the Obama Administration, the Immigration Policy Center (IPC) found that while many promising changes were initiated, few were successful due to limiting political constraints. Today, two years out, we find a department still struggling to balance priorities, entrenched in an enforcement-heavy debate, claiming that without Congressional action, its hands are tied on administrative reforms. That claim, however, is inconsistent with the wide range of executive branch authority available to DHS and the President.
This week, the Immigration Policy Center released its second DHS review, Second Annual DHS Progress Report: An Analysis of Immigration Policy in the Second Year of the Obama Administration, which looks at DHS’s actions in 2010 through three critical lenses—prioritization, transparency and coordination—to assess whether DHS has made progress since last year. The report also looks at whether DHS has the capacity to follow through on the vision of reform outlined by the Obama Administration.
As is so often the case, there are no black and white answers. Findings on DHS’s record were mixed, with progress in some areas and setbacks in others. DHS’s treatment of Haitians over the last year represents some of the best of the Department and its people, yet it also evidences the lack of coordination and vision endemic to the institution. For example, at virtually the same time that USCIS was poised to implement the Help Haiti Act of 2010 (which grants permanent residence to orphans paroled into the U.S. after the earthquake), ICE announced that it would resume deportations to Haiti, despite the abysmal conditions that continue to exist one year after the earthquake. This lack of a disciplined and coordinated approach to issues seems to routinely undermine the good work that does happen within the agencies.
When it comes to prioritization, ICE failed to live up to its stated focus on criminal aliens. Instead, ICE touted the large numbers of noncriminal aliens rounded up and deported through programs like Secure Communities, which continued to operate behind a veil of secrecy.
Among other things, DHS also gets low marks on the coordination front as it consistently fails to provide the critical leadership and reporting structure needed to bridge the gaps and move forward with a coherent and unified agenda. The lack of coordination between CBP, ICE, and USCIS has led to uneven and inconsistent application of information-sharing practices, defying many of the Obama Administration’s directives to cut red tape and provide the public easy access to information.
So what can DHS do in the absence of Congressional action? Plenty. As an executive branch agency, DHS has wide discretion to enforce, implement, and interpret existing laws. Some of the report’s recommendations include the following:
- DHS must assert its executive branch authority, even in the face of Congressional opposition. The president articulated a vision of a just and humane immigration system during his speech at American University last year. While CIR is needed, there are improvements that the Administration can make now. Such reforms are not end runs around Congress, but are instead critical exercises in interpreting, implementing, and enforcing existing law within the context of changed circumstances.
- DHS must carefully monitor and supervise state and local law-enforcement partnerships so that individuals who are not ICE priorities are not caught up in the net of Secure Communities or 287(g) programs.
- DHS must streamline its regulatory process as well as coordinate functions across CBP, USCIS and ICE to prevent conflicts in the interpretation of law and policy.
- DHS must move forward with detention reforms, promote better funding for integration programs and engage the public to comment on policies across department agencies.
While DHS can and should implement these changes, the report also acknowledges that the Obama Administration and the front offices of DHS need to be more engaged on the day-to-day implementation of immigration policy and exhibit real leadership if any of these reforms are to become a reality.
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