Really? Seriously?  Wow.

Not the most erudite comment I’ve ever made but that’s what I’m reduced to facing this week’s Amendmentpalooza.  Wow.

I’m looking at the breakdown of proposed amendments to the Senate immigration reform bill (S. 744).  AILA National is conducting careful analysis of the hundreds of amendments, figuring out how they would impact our new favorite reading choice, the “Border Security, Economic Opportunity, and Immigration Modernization Act.”

In digging through the 300 amendments proposed by Democrats and Republicans alike, they have found some doozies.  These potential poison pills should be required reading for any immigration attorney, and, for that matter, any business owner and especially for any resident of several states from whom the Senators hail who proposed these outlandish amendments.

This is a bipartisan bill.  That already requires compromise on both sides, but accepting the following amendments wouldn’t be compromising, it would be putting nails in the coffin of a decent immigration bill and burying America’s future with it.

Apparently gutting the legalization process sounds good to several Senators.  Taken together the provisions would essentially ensure that pretty much no one qualified for permanent status—oh, and if Sen. Cruz has his way, no one who was ever willfully unlawfully present would ever get citizenship.  Nope, they’re unworthy.  I’m just surprised that there wasn’t a Scarlet Letter amendment in there too, forcing legalized immigrants to wear an “A” for Amnesty for the rest of their lives.

Businesses would get a pretty harsh wake-up call too, per Sen. Grassley, who would play havoc with the business immigration policies to the extent that American businesses seeking to hire foreign talent—the kind that leads to American jobs and global competitiveness—would be shut out.  At some point, you make an immigration category so difficult that no one will apply.  On the upside, I guess we wouldn’t need to hold an H-1B lottery ever again.

There is amendment after amendment that would roll our immigration policy backward instead of moving it forward, to prevent families from being reunited, and to throw more money at ineffective border security measures, rather than investing in enforcement that will actually make our country safer.  Oh, let’s not forget the amendments that would gut due process and eliminate training for DHS agents in things like civil rights.

Don’t get me wrong—a few stalwart Senators from both sides are offering potentially good amendments, to reunite families, ensure a more inclusive legalization process, and make our immigration system better.  How many of those might be included in any final bill is anyone’s guess.  Again, this is a bipartisan, compromise process so no one will be completely happy but the flip side is that with a decent bill, no one will be entirely disappointed either.

Some things require compromise, but worthless amendments that only serve to destroy the workable framework that the Senate “Gang of Eight” and their staff have built have no place in this process. If you’re in one of the states with a Judiciary Committee member, or have a client from that state, get calls in to your Senators, email their offices, reach out to contacts you made through AILA’s National Day of Action or in-state meetings.  Reach out to local reporters to talk about what is wrong with some of these amendments and why even proposing them is an overt effort to derail immigration reform that our nation desperately needs.  Your voices—and the voices of your clients—need to be heard, but they won’t be, unless you speak out.

With all the buzz about immigration reform, why apply for deferred action now? For those who were waiting to see how the elections turned out or whether the Obama administration’s Deferred Action for Childhood Arrivals or “DACA” program was “real” and not just a trick, the answer is clear: if you are eligible for deferred action, applying now is still the smart way to go, regardless of what Congress does—or doesn’t do—with Comprehensive Immigration Reform (CIR).

• If you qualify for deferred action, a grant can mean an incredible opportunity to take charge of your future. DACA relief includes a work permit and you can apply separately for permission to travel outside the US without abandoning your deferred action status.
• In many states, having an immigration work permit means you are eligible to apply for a driver’s license or other official identification. That means you can open a bank account, start a business, apply for a job, establish your credit, get professional training or start your career. Some states are even welcoming young immigrants to higher education at resident or near-resident student rates.
• If you “wait and see” what happens with CIR, you may be putting yourself (and your family) at risk. Immigrants granted deferred action are considered a “low priority” for enforcement. Unless that changes—for example, because you commit a crime or serious immigration violation—someone with deferred action is unlikely to face arrest, detention or deportation by immigration officials.
• Many proposals already hint at providing a more direct pathway to citizenship for DREAMers. While nothing has been decided yet, it makes sense that people who have already completed the background checks and application process for deferred action might be at the front of that line and have an easier time establishing eligibility.
• A majority of Americans believe that smart immigration reform is critical for our country’s future, and that a pathway to citizenship for the undocumented is a fair and practical solution for the millions of undocumented. The opportunity to fix our broken immigration system is better than ever, but there are no guarantees and real reform could be derailed by partisan politics.

Get the facts and don’t get scammed! Not every young immigrant qualifies for deferred action, and some people have better options for immigration relief that offer a more direct or permanent path to citizenship. Only a lawyer can give you the advice you need to decide whether applying for deferred action is safe and smart, for you.

For AILA members and other stakeholders, there are a lot of easy ways to get the word out to potential applicants in your area. Check out the eight different print Public Service Announcements (PSAs) that AILA has developed to use in our outreach to the community about Deferred Action.

This week, USCIS launched the new I-601A provisional waiver program, allowing certain relatives of American citizens who are in the country illegally to get a decision on their waiver case, before leaving the United States.

The exact numbers are not known, but it is clear that the new rules will impact thousands of US families.  For those who wouldn’t undertake the artificially-imposed, but very real risk of “touching back” to their home country under the old rules, the new regulations mean that it’s finally safe to complete the residency process.  For thousands of others, the goodwill shown by immigration authorities in trying to alleviate the hardship created by the meaningless departure requirement has inspired them to start a process that was unthinkable before the new rules were put into place.

There is no question that the new rule is an overwhelmingly positive development for American families.  Immigrants and their citizen family members now have some measure of peace, knowing that their loved one will not be stranded in a foreign country for an unknown length of time, potentially risking life and limb, while waiting for a decision on their case.  USCIS’s continued impressive handling of deferred action applications has shown that the agency has the capacity to handle a large volume of applications, and get it done right.  And, promisingly, USCIS has indicated that the provisional waiver process should be extended to qualified relatives in other family categories, as resources allow.

In the context of immigration reform, this “solution” to a problem that never should have existed in the first place this begs the question of why we punish American families (and U.S. employers) by forcing the very immigrants that already have a path to citizenship to undergo separation, financial and emotional hardship, and risk their safety to attend a 10 minute interview abroad, when the same process can be achieved at a local USCIS Field Office.

Unfortunately, for many other equally qualified relatives, the new provisions will do nothing to fix their immigration problems, and they and their family will remain stranded by the unworkable scheme Congress put into place nearly two decades ago.  Moreover, the new processing rules do nothing to fix the draconian “permanent bar” which results in de facto exile of a decade or more for immigrant family members.  As we move forward to try to find real solutions to our broken immigration system, Congress would be wise to consider the real cost to American families and U.S. competitiveness when trying to retain the failed policies or create new penalties which do nothing but harm the very people who already have a path to citizenship.

Regrettably, despite numerous comments from immigrant communities and advocates, the new rules perpetuated some of the absurdities of the process.  Instead of fixing the problems identified by experts in the field, the agencies inserted a glaringly punitive rule, inexplicably excluding individuals who had already started the process and had already paid the required government fees.   The irony is that this change serves only to leave out in the cold those families who were playing by the (old) rules.

As a result, thousands who had bravely begun the very last chapter of the application process have been stranded—ironically, after most put their cases on hold because the agency announced the proposed process over a year ago in draft form.  Under the final rules, those individuals cannot take advantage of the new procedures and must risk waiting outside the US for an indeterminate amount of time, without any sense of whether their case might—or might not be granted.

Not even filing a new consular application will allow a person with an approved petition to benefit from the new procedures.  The only way to have the same protections as other families appears to be withdrawing all applications and starting a case over from the very beginning.  In practical terms, this means that applicants who were nearly at the front of the line after years of processing, are being forced to choose between going forward, with all the uncertainty and risk of the “old” system, or abandoning their applications, getting into the back of the line, waiting years until they might see a new appointment and, to add insult to injury—paying twice for the privilege.

So, is there any reason these families are being singled out and put at risk?  No one involved in the process seems to have an answer, much less a defensible reason for this oversight.  If this feels like being in a long line at the grocery store and being relieved to see a new lane open, only to have the clerk take the guy behind you first, you’re not far off.  Except in this analogy, you not only get stuck at the back of the line, you end up paying for your groceries twice.

Written by Laura Lichter, AILA President

“Tough, but fair.” That’s how President Obama described a critical element of any immigration reform plan:  a pathway to citizenship for millions of immigrants now living in the shadows. For these aspiring Americans, many of whom have been caught in our dysfunctional immigration system for more than a decade, a pathway to citizenship will allow them to become full members of our communities.  It’s the right thing to do—for our country, for our economy, and for our communities. And yes, the time IS now, and we cannot afford more partisan bickering and immigrant bashing.

So why is a path to citizenship so critical for reform, and what might “tough but fair” really mean?  Without a path to full inclusion, reform simply won’t work.  Without a path to full inclusion, we will be again left with an underclass in our communities.  The prize of U.S. citizenship comes with serious obligations, yet every day, thousands of would-be Americans come to our shores, sometimes risking life and limb for a chance to become one of “us.”  And why?  Because fairness is one of America’s core values.

Under both the Bipartisan Senate principles and President Obama’s plan, those seeking a path forward would be required to pay a fee and submit to background checks in order to receive a provisional status.  There’s nothing particularly controversial about that—criminal and national security checks are a long-established part of the immigration process and USCIS regularly requires filing fees, whether for a DREAMer requesting deferred action, or a long time resident starting the citizenship process.  And when it comes to keeping our borders safe and secure this illustrates yet another reason why real immigration reform isn’t amnesty, but actually a path to smart immigration enforcement.  Registration and background checks mean we know who’s here and can easily identify—and take action—if someone is a threat to our communities or national security.

But when the roadblocks begin to obstruct the road ahead, that’s when it stops being fair.  The requirement that would-be citizens pay back taxes is fair, but any plan should also recognize that undocumented immigrants already account for more than $11.2 billion dollars in just state and local taxes.  What about Selective Service?  Immigrant youth (males between the ages of 18 and 26) not already long to register, but we know—even before the President’s deferred action initiative—that these undocumented Americans so love this country that they want the right to serve in our military.

The plans call for additional fees and penalties, as well as a requirement that would-be citizens learn English and U.S. civics.  As under current law, under the proposed reform principles five years after receiving a green card, individuals will be eligible to apply for U.S. citizenship like every other legal permanent resident. Ironically, the commitment we would require for a green card is the same or more than we demand from long-term residents seeking naturalization. Many families will manage the financial burden, but for others, it will be out of reach.  That’s not one of our core values, either.

Much has been made about making those who might benefit from a path forward go to the back of the line, to wait until those who “played by the rules” make it through the lengthy and convoluted process.   But it’s our broken system—with decades-long waitlists for green cards—that caused these problems in the first place.  In fact, many of the 11 million who need reform are already “in line.”  Without meaningfully addressing visa backlogs, making someone wait at the end of a line to nowhere makes no sense.

If we’re going to achieve meaningful reform, any path to citizenship must be fair—and that means that it should not contain insurmountable obstacles that will dissuade people from even trying in the first place.  If it’s too tough, then it’s not fair.

What we have yet to see is whether Congress is actually going to work with the President to pursue meaningful reform and common sense workable ideas to fix this mess, or whether this historic opportunity will disintegrate into the same old partisan bickering and gridlock.

Call me an optimist—it’s not a label you will find frequently used by those who work with our immigration laws—but I know we can do this.

As the President said in Las Vegas “Now is the time.”

Written by Laura Lichter, AILA President

Starting March 4, 2013, certain relatives of American citizens who are in the country illegally and need a waiver of unlawful presence before being eligible for a green card can get a decision on their case before leaving the United States.

For those who can take advantage of the new rule, this means peace of mind, knowing that their loved one is likely to successfully complete the immigration process and not be stranded in a foreign country for an unknown length of time.  For some, however, the new rule will do nothing to resolve their immigration issues.

1.      What is the new rule and how can it help my family?

Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad.  Unfortunately, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived.  Before this new rule, immigrants could be stranded outside the country for weeks, months or even years while waiting for a decision on whether they could return to their life in the United States. And all that time, the immigrant was stuck abroad, usually with no legal way to return.  Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply were unwilling to take the risk.

The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of days.

2.      Who can apply under the new rule?

Only applicants who are an immediate relative of a US citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives.

The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad.  Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence.  Applicants who have criminal issues or other immigration violations cannot use the provisional procedure.

Individuals who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case.

To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count.  Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

3.      What does it mean that the waiver is “provisional?”

Even if a waiver is granted, the approval is “provisional.”  As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light.  For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked.

If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case.

4.      When can I apply?

The new rule goes into effect on March 4, 2013, and no filings will be accepted before that date. You can only apply for a provisional waiver after an immigrant petition has been approved.  If you haven’t filed yet or you’re still waiting for a decision on a pending petition, you can’t apply for the provisional waiver—yet.

5.      What else do I need to know about provisional waivers?

A provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.

If an application for a provisional waiver is denied, there is no appeal.  If you have more or better evidence to prove your case, you can re-file, with a new filing fee. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyone needs a waiver.

6.      Do I need to work with an attorney?

The immigration process can take months, even years, and government filing fees and other expenses are significant—it’s best to know your options before investing time and money.  A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family, not just evaluate eligibility for a provisional waiver.

Always work with a licensed immigration attorney.  Never trust legal advice from an unregulated consultant or notario. Consider consulting with an experienced immigration lawyer before starting the process to make sure that you qualify, and that stateside waiver processing is the best solution for your immigration case.

Additional Resources

Always turn to reputable sources for immigration advice and information about new developments. Finding an AILA lawyer is a good place to start. Members listed on www.ailalawyer.com meet legal education and malpractice insurance requirements, and have been AILA members for at least two years.

AILA Immigration Lawyer Referral Service

AILA Resources for Stateside Waivers

USCIS Resources on Provisional Waivers

Consumer Protection for Victims of Immigration or Notario Fraud

Written by Laura Lichter, AILA President

The holiday season was in full swing in New York when AILA President-Elect Doug Stump and I “invaded” the city last week. No stealth maneuvers here, this was a planned, coordinated campaign – we were there to talk to the press.

Most of the reporters were people AILA Communications has been working with for a good long while. These journalists turn to AILA for expertise on immigration topics ranging from detainers to waivers, from DACA to H-1Bs. So, while juggling the schedule was a challenge, each reporter gave us a generous amount of time to share our views, to answer questions, and to see where we can be of most help in the future.

Did you ever wonder how we have been so successful at getting our members’ voices heard? Look no further than AILA’s crackerjack Communications Department! Kudos to Senior Director of Communications George Tzamaras and Manager of Communications Belle Woods not only for a successful tour, but for making it their mission that people turn to AILA as the reliable resource for immigration expertise.

The tour included meetings with The Guardian, the Wall Street Journal, CNN Money, the New York Daily News, CNN, the Associated Press, and the New York Times. Discussions ranged widely but here are some of the topics we covered:

• At every meeting, Comprehensive Immigration Reform (CIR) was the first topic that came up, and always led to a lively discussion about what did we think about the prospects for next year, and what did AILA think real reform might look like.

• We talked about what DACA means to our clients and their families and what we think we’ll see in terms of applications next year. We also highlighted how complicated a “simple” application can be, and how critical it is to have good legal advice in the process.

• We talked about the many ways our current immigration system is broken, and how the current mess is the inevitable result of multiple barriers to legal immigration that are literally written into the law or just part of the adjudications process, as well as illustrated how they affect businesses and families, alike.

• Producers and reporters wanted facts. And boy did we give them facts: facts about how difficult it is to navigate our current system; how unwieldy, unforgiving, and unfair the process can be; how much our nation needs its immigrant communities; and the high cost of letting politics instead of common sense dominate the discussion. And thanks, IPC, for making us look so smart!

• We talked about notario fraud and AILA’s efforts to educate the public about the danger these scammers pose to immigrant communities. We introduced them to resources on UPL, including AILA’s consumer protection website, http://stopnotariofraud.org (now in four languages).

• We also highlighted our Chapters’ and individual members’ extraordinary efforts to educate their communities about the risks and potential rewards of deferred action, the value of working with an immigration lawyer and how for many, getting good legal advice can mean the difference between a bright future and deportation.

While not a media meeting, another highlight of the trip was meeting with the Partnership for a New American Economy (out of Mayor Bloomberg’s Office), which was a great opportunity to talk potential partnerships/collaboration with AILA in the coming year. It was also a chance to learn from each other. For instance, PNAE has been involved in a micro loan program to help qualified DACA applicants borrow enough for government filing fees. The program has been in effect for a few months, and PNAE has promised to let us know how that progresses, as the $465 fee has been a roadblock for many young immigrants.

By the end of the second day of meetings, we felt like we’d definitely made an impact. While not everyone can get to NYC and blitz through meetings as we did, we want to emphasize that working with your local press outlets is something that AILA members around the country can and should do. Take a look at these notes, think about what the various outlets were most interested in, and pitch a story tailored to your local news outlet. Want some help crafting your message? Run a pitch by AILA Communications—George and Belle are more than happy to help.

So, let’s take a well-deserved break over the holidays and then come back in the New Year ready to take on the immense task of restructuring our nation’s broken immigration system.

We don’t have all the details yet, but the basic requirements to qualify for deferred action seem, well, pretty straightforward—and a motivated high school graduate or college student might be tempted to try to apply on their own, without seeking advice from an attorney or legitimate nonprofit.

Even though the requirements look simple, you don’t need a law degree to know that looks can be deceiving.  So when do you really need a lawyer?  And just as importantly, what can (and should) a lawyer do for you?

In order to be considered for deferred action for childhood arrivals or “DACA” (apparently the new government acronym for the program) an individual must have arrived in the U.S. when they were under age sixteen.  In addition, they must have been physically present in the U.S. and under age 31 when the policy was announced on June 15, 2012, as well as show that they continuously resided in the U.S. for at least five years before that date.

In order to qualify, the applicant must be in school, have graduated high school, obtained a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces.  Individuals who have been convicted of a felony offense, a “significant misdemeanor offense,” three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety may not qualify. Only youth who are at least 15 years old will be able to apply, unless they are currently facing deportation.

Some of the red flags are obvious; some are not.

If a DREAMer has ever had any contact with law enforcement, even if it never resulted in a conviction, the case should still be screened by a lawyer.  Why?  A competent immigration lawyer should be able to review your records and determine what’s really in there (hint:  it’s often a whole lot different than what you thought).

For example, an incident you thought was resolved without any consequences may actually be a real problem. If the judge said you wouldn’t have a record because you were a minor, or told you your record would be wiped clean if you kept out of trouble or completed public service hours, that incident might still be used to disqualify you, either as a conviction for immigration purposes or under public safety grounds.  Just the suggestion—even without proof—of gang activity, or a history of certain traffic infractions might affect your application.

On the other hand, if you think a prior brush with the law means you can’t qualify, remember that these requirements are evolving, so it’s best to have an immigration attorney evaluate your case.  Even if a conviction stands in the way, a lawyer may be able to find a legal basis to reopen that case to obtain post-conviction relief.

Anyone who has ever filed anything or had any contact with immigration authorities would be smart to have a lawyer review their immigration file and history. Perhaps a prior application has gone missing—or gone south.  Cases filed by a notario—even something filed on your behalf by a family member—may contain inaccurate or even fraudulent information that could knock you out of consideration.  Sometimes, an out-of-date address means notices didn’t reach you and your case was referred for a deportation hearing—one that you never knew about and never went to.

If you have ever left the U.S., you will want to ask a lawyer whether that departure interrupted your continuous presence (especially if you left because you were granted voluntary departure or ordered removed).  And if there were any issues on your return—like being refused entry, caught at the border, or using a fake document—there will be immigration consequences to consider.

What about someone who isn’t sure how to prove that they were here on June 15, 2012, or isn’t sure they can show they have been continuously residing in the U.S. for five years?  A competent immigration lawyer can help, especially if you think you don’t have access to reliable evidence (or maybe don’t have all the evidence in your own name).

Did you ever use a false identity, make up a social security number or claim to be a United States citizen?  Did you use your cousin’s U.S. birth certificate to get an ID or a job or a driver’s license?  See a lawyer to understand the immigration consequences.

Ok, so people who have had run-ins with law enforcement or who have a tricky immigration history may already know they need a lawyer, but what about the “easy” cases?  You may be able to navigate the application procedures by yourself, but even for the cleanest cases, the real question is not whether it’s safe to apply, but smart.

Every applicant is coming “out of the shadows” and providing detailed information to the government.  If you’re wrong about your case or how you handle your application, maybe you only wasted time waiting for a decision and money on government fees.  But what if you find yourself in custody or facing removal?

In an initial consultation, an immigration attorney should not only review DACA eligibility, but also take your complete immigration history (and even your family members’ history, in some cases) to see if there are other options or particular risks to applying.  You should have a chance to ask the lawyer questions and leave with a clear understanding about your immigration case.  If that can’t be handled in the short time and with the limited information available during your consult, you should at least know what needs to be done to figure things out.

Even though it’s often better to have a lawyer handling your case, not every case will need a lawyer to be successful.  But if things aren’t going smoothly—if you get a notice that says your evidence isn’t good enough or a letter you don’t understand, consult with an attorney immediately to understand your rights.  If your application is denied, or you wind up being issued a Notice to Appear and referred to immigration court, it’s time to get back to a lawyer’s office!

Only a competent immigration attorney or BIA accredited representative can evaluate your case, identify the risks and even explore other legal avenues for gaining status (which might even be better than deferred action).

Consider using the American Immigration Lawyers Association referral service to find a lawyer in your area. The listed individuals are licensed attorneys who have been AILA members for at least two years and comply with annual continuing legal education requirements, as well as carry malpractice insurance.

If you can’t afford a lawyer, consider working with a legitimate nonprofit that provides immigration legal help, usual through a BIA accredited representative (a non-lawyer legal professionals trained and supervised by attorneys). Remember, not every group that claims to be a nonprofit is working in the community’s best interests.

Finally, if you think you’ve been scammed—by an attorney, or just someone posing as an attorney—report it to your local bar association before they take advantage of someone else! Be smart, be safe, and protect yourself and your family—get the right information to make the decision that’s right for you.

By Laura Lichter, AILA President-Elect

Why would anyone agree to volunteer a significant amount of time to serve on an advisory task force representing nearly two dozen wildly divergent perspectives on immigration enforcement tasked with studying, analyzing, and offering solutions to a problem that some of the best minds and most committed advocates in the country haven’t yet managed to sort out?  Was it worth trying to get to consensus on smart immigration enforcement—and could safer communities be balanced with respect for due process and civil rights?

I didn’t know if it would be successful, but I knew it was well worth the effort.

Within a very short time, it became apparent that, despite the very different views held by individual Task Force members, we had broad consensus that ICE’s Secure Communities program wasn’t doing what the agency said it was designed to do.  Indeed, far from making communities safer, Secure Communities was actually making communities less secure.  The overly-broad net the program cast was hurting community policing and raising very serious concerns about civil rights abuses. States thought they’d been played and that ICE had engaged in a bait-and-switch.  Many state and local officials—after seeing the unintended impact in their communities—just weren’t buying what ICE had to sell.  But this all had to be balanced with those same communities’ recognition that targeting serious offenders was smart enforcement of the immigration laws.

After hearing from experts in the field, it became clear that the unintended consequences of the program—destroying community trust in law enforcement and potentially inspiring racial profiling and other biased policing—were violating the public’s trust and seriously impacting local law enforcement’s ability to effectively do its job. The Task Force quickly came to understand that ICE must strengthen accountability mechanisms, including prevention of and remedies for civil rights violations.  Regardless of unresolved questions regarding the legal authority for the program, it became clear throughout our months of work that ICE had to do a much better job of working with local communities, clarifying the programs it operates, and responding to community concerns.

The Task Force found that Secure Communities didn’t just target the dangerous convicted criminals ICE said it would.  Instead, almost 60% of the people arrested and deported under the program either had no criminal history or had only been convicted of a misdemeanor.  While Secure Communities has been responsible for removing some dangerous individuals from our communities, the Task Force noted that ICE already has other programs that work with local law enforcement to identify serious convicted criminals in the United States illegally.  It also found that, as currently administered, Secure Communities lacks sufficient transparency and accountability, and demanded better monitoring of local law enforcement “outliers” for abuses.

ICE’s stated policy is to prioritize and target dangerous criminals and national security threats.  If this effort at smart enforcement of the immigration laws is to be successful, Secure Communities must be brought in line with ICE’s stated policy objectives.  At a minimum, this must include the consistent exercise of prosecutorial discretion—a critical tool in management of competing law enforcement concerns.   The Task Force said loud and clear that Secure Communities should not be a tool for going after individuals who pose no threat to our communities, people who at most are civil immigration violators or were convicted of misdemeanors.

The final report issued by the Task Force yesterday is nothing less than remarkable.  It is the product of a broad-based group of law enforcement officers, state and local officials, academics, legal experts and advocates. We all agreed that Secure Communities isn’t working, and is in need of a serious overhaul, if not suspension or outright termination.  We had broad consensus that Secure Communities casts too wide a net and squanders limited law enforcement resources on low priority cases, instead of prioritizing those who are a danger to the community or our national security. That some members felt that the program was fatally flawed and others thought it could be fixed “on the fly” doesn’t change our agreement that Secure Communities has some very serious, if not fatal, problems.

Everyone on all sides of the immigration debate agrees on one thing—the system is badly broken.  Until Congress finds the political will to roll up its sleeves and give the nation an immigration system that meets the needs of America’s families and business, serves as a beacon to the best and the brightest from around the world, and respects and protects due process and the rule of law, the law must be enforced in a way that secures the borders, protects our communities, and keeps hard working families together.

Today, in the wake of the release of the Task Force Report, there is the predictable second guessing and Monday morning quarterbacking.  The end product is far from perfect.  And it is certainly no substitute for meaningful reform.  That’s Congress’ job.  But as a citizen, lawyer, and AILA leader, I knew my continued involvement would insure that the cries of the clients we are so privileged to represent would be heard loud and clear in Washington, and in particular, in the inner sanctum of the Department of Homeland Security.

That’s why I stayed on. And that’s how we were heard.

In the first week of May—without comment or, apparently, any concern for its impact—U.S. immigration officials unilaterally rewrote the law, disqualifying thousands of families and workers trapped half-way through the green card process. As a result, people who just last month would have been welcomed as legal residents are now facing deportation, most with no hope of return.

It’s not clear what prompted this policy, but the draconian new interpretation wasn’t needed to implement or comply with new law. And given the administration’s stated goals of promoting both change and transparency, this mean-spirited end run by an agency that lacks even a sitting Director, is puzzling at best.

In our current “zero-tolerance” climate, even the most minor immigration violation often prevents a person from obtaining legal status. Since 1996 (and before), our immigration laws have provided severe penalties for overstaying a visa, working without proper documents or remaining in the country unlawfully. At the same time, however, Congress also provided a limited—and critical exception: those with established family ties or employment–people with no criminal history, no record pf serious immigration violations or security concerns–might nonetheless complete the process after paying a whopping $1000 fine, beyond the usual hefty fees and expenses.Even with these harsh restrictions, for those that complied with the law, there was at least the prospect that families could be reunited and needed workers successfully become residents.

But that all changed when USCIS—the agency tasked with adjudicating immigration benefits—decided to ignore more than a decade of precedent (including two circuit courts of appeals decisions).Now, the agency will not only refuse to accept any applications filed under this provision, but will deny—and seek to deport–those who relied on the law.

These immigrants weren’t taking advantage of a loophole or cutting ahead of the thousands who are trapped in our unworkable immigration system:on the contrary, they stood in line and paid thousands in extra fines and fees; and many have been waiting more than a decade for their chance at citizenship.

This decision doesn’t just impact intending immigrants, but also their families, employers and the communities in which they have legally resided all these years.We insist that would-be immigrants play by the rules, but what happens when USCIS changes the rules in the middle of the game? We all lose.

Editor’s Note: The policy change referenced here relates to a May 6, 2009 USCIS memo on Consolidated Guidance Concerning Unlawful Presence.

We all know that, if you get caught breaking the law, you risk getting arrested and a trip to jail.But we’ve got a pretty fair system, right?You can make a free phone call, talk to a lawyer, and get a hearing in front of a judge, pretty much right away, don’t you?The bad guys go to jail, and the good guys go free, right?We all know how this works, if only from what we learned in school or just watching too much TV.

Unfortunately, that’s not true for immigrants in this country.A person can be arrested and detained by ICE on the most basic suspicion that there’s something not quite right with their immigration status, and we treat them worse than criminals. That’s the rule for anyone who’s not a citizen (and even some who are, but might have trouble proving their citizenship).And the process doesn’t look anything like it what they told us in school or what you learned from reruns of Law & Order: immigrants face death-penalty-like consequences with only traffic court-level protections.

Those arrested often spend hours without knowing why they were arrested, where they will be taken, or whether there is any hope of release, with no way to contact their loved ones.Worse yet, many are pressured to sign away their rights on the threat that they might otherwise spend months in detention before inevitable deportation. Others spend weeks—yes, weeks—shuffled from state to state, before they can make their case for release to an immigration judge.The lucky ones might be able to buy their freedom until their case can be heard, but many can’t afford to pay $10,000 or more for a bond.And that’s cash, mind you:no 10% down or personal recognizance bonds here.Those that can’t pony up the money face months of detention until a judge can decide their fate.Some are detained for years.

And about that lawyer? Well, that doesn’t look like what you learned in school either: there’s no such thing as a public defender for immigrants, and about two thirds of immigrants face the prospect of deportation without a lawyer to help them understand what’s been called the most complex and arbitrary area of the law.

Who are these immigrants?Are they criminals, are they dangerous?Rarely.The overwhelming majority of those arrested by ICE have no criminal history—and those that do were involved with relatively minor offenses, not violent crimes, and even those with the most minor criminal history are rarely eligible for release. So who are tax payers detaining at $100 or more a day? Mostly, we’re talking about families trying to get ahead, people fleeing injustice and persecution, victims of domestic violence and other crimes, hardly a good place to be spending money in such a tight economy. It’s no surprise that the Department of Homeland Security has been criticized for telling Congress that the agency is going after dangerous criminal aliens, but in reality netting only bus boys, construction workers and nannies.

DHS, through its enforcement arm, ICE, claims that detention is necessary to protect the public and prevent immigrants from absconding, but the facts show that just isn’t true.So why does it continue? Because only a small percentage of the population has had to confront the realities of this system, and those that have suffered through this decidedly un-American gulag, are shocked.Somewhere along the way, it became normal and acceptable to lock up immigrants.Strikingly, that was around the same time detention became big business.And the lines between the business interests and government interests have become so blurred that we’ve lost sight of the public interest.tyle=”">It’s time to reevaluate the system.