Archive for the ‘Interior Enforcement’ Category.

Getting a Little Serious about the Need for Immigration Reform

shutterstock_197321441This is a post adapted from my speech last week in accepting an award from AILA for outstanding contributions made as a young lawyer in the field of immigration and nationality law. While the occasion was a happy one and I was honored to receive that award, I took the opportunity, as I do here, to emphasize what is wrong with our current system and that we desperately need to fix it.  I hope you find it of interest:

As I think about the great migrations of people, I’m reminded of my own “gringa” migration from the heartland of Iowa to Washington, D.C. While my own journey was not nearly as harrowing an experience, it is that journey that led me to practice immigration law, to AILA, and to the work that I’m so passionate about.

I have been incredibly lucky to have several amazing people guiding me throughout my journey. My parents who taught me that everyone no matter their background deserves the chance to pursue their dreams. My wonderful husband Justin, whose constant love and support sustains me. Michelle Mendez, my friend and co-professor in the Catholic University immigration clinic who is the most selfless, passionate advocate that I know. The dedicated staff of Benach Ragland, and my partners who I deeply respect and admire; there is no one else I would rather work with in pursuit of our shared mission. Finally my mentor, the late great Michael Maggio: despite his busy immigration practice, he always found time to contribute to our field as a policy advocate, a pro bono champion and a mentor. I have strived to use Michael’s well-rounded approach to our work as a model in contributing through my own practice, especially as I’ve observed the developments in our field over the last few years.

We’re going to get a little serious now.

We are now faced with a humanitarian crisis at our borders.  CBP and ICE officers are using excessive force, inhumane detention conditions, and “no process” removals. We are faced with immigration courts fighting against insufficient resources, overcrowded dockets and cabined legal discretion. And we are faced with a renewed assault on our asylum system by Congress and the agencies themselves.

Yet, no actions are taken by those in power to fix our system. Instead we have a Congress that points fingers and strikes a pose in Capitol Hill hearings and an Administration which, on the back of an immigration reform-focused campaign, has taken to putting Band-Aids on gashes rather than treating the underlying wounds.

Until we have leaders who are going to work together to solve real problems that affect real people, American businesses, and separated families, it is up to us. It is for these reasons that this award is only the beginning of my journey.

Thank you so much for this honor and I hope you will join me in restoring due process and humanity in our immigration system.

Written by Dree Collopy, 2014 Joseph Minsky Young Lawyer Award Winner

 

Cities and Counties Stand Up for the Constitution

shutterstock_103176035Cities across the country have been following a federal policy that law enforcement officials increasingly describe as harmful to public safety and that courts now call unconstitutional.  I’m glad to know that Philadelphia is no longer one of them.

My mayor, Michael Nutter, signed an executive order last month preventing law enforcement officials from keeping people in jail on the basis of an Immigration and Customs Enforcement (ICE) detainer request, unless it’s accompanied by a judicial warrant and the person has been convicted of a violent felony.  These detainers request that state and local police hold people in jail, without a warrant or the guarantee of a prompt hearing before a judge.  States, counties and cities have spent millions of their own tax dollars complying with detainers that jail people who may (or may not) be deportable from the United States.  As an immigration attorney, I know first-hand the disastrous impact that reckless immigration enforcement practices can have on families and communities and I’m proud that my city and mayor have said no.

When issuing the order, Mayor Nutter cited the impact on public safety as one reason for his decision. “As a result of overly aggressive use of these detainers, there has been a negative impact on some immigrants who will not report crimes to the police, don’t want to be witnesses, and suffer accordingly.”  The University of Illinois at Chicago recently found that 44% of Latinos were less likely to call the police if they became the victim of a crime, when they live in jurisdictions where police are heavily involved in immigration enforcement.

Philadelphia is not the only place that’s saying no. More states and localities around the country, from  California (San Diego County and San Francisco just announced as well) to Connecticut, are refusing to honor these hold requests.  And the courts are agreeing with them.  In the last few months, three separate federal cases have confirmed that detainers are voluntary requests and that local law enforcement can be sued for violations of the Constitution if they choose to honor these ICE requests, including a case involving Lehigh County, Pennsylvania. And just recently, a federal judge held Clackamas County, Oregon liable for violating the Fourth Amendment for holding an individual solely on an ICE detainer without probable cause.

The Oregon decision sent shockwaves through counties all over the Northwest. Sheriff Joe Pelle of Boulder County, Colorado called the judge’s decision in this case a “game changer.” Law enforcement officials from counties in Oregon, Washington and Colorado immediately announced they would no longer continue business-as-usual with respect to these immigration holds—joining places like Philadelphia that have already said no.

Detainers are fundamentally flawed. They are not making communities safer. They are expensive. That’s why states and localities are pushing back.  They’re making their own decisions about what’s best for their communities. As the president of the Oregon State Sheriffs’ Association Gary Bettencourt said, “We will no longer violate anybody’s constitutional rights, I can guarantee that.”

If AILA members and the public want to advocate against detainers, it’s plain to see we have plenty of company from law enforcement and the courts. Let’s work to get more cities and localities across the nation on board.

William Stock, AILA Second Vice President

The Sorry State of Our Detention System

shutterstock_122688160Saluja Thangaraja was tortured, beaten and held captive in Sri Lanka, her homeland. She was lucky and managed to escape before she was killed. When she arrived in the United States – the land of freedom she was seeking turned out to be the exact opposite: she was imprisoned in a federal detention center near San Diego for over four and a half years before a federal judge ordered her release.

She is not alone. Immigration detention is in overdrive. In the past two decades federal immigration detention has grown dramatically with over 400,000 people locked up each year, about five times the number detained twenty years ago, costing American taxpayers $2 billion annually.  These are not people serving criminal jail terms.  Instead they are people facing possible deportation—a civil process that is not supposed to be punitive.  Conditions in institutional detention facilities are marked by severe deficiencies—at least 141 people died while in detention in the last decade.

Many are detained unnecessarily without any opportunity to appear before a judge.  Thousands are held for months despite the fact that they have families and jobs and pose no threat to public safety.  Locking up individuals facing civil immigration charges should be a last resort, used only when other means of supervision are not feasible. There are effective alternatives to jail detention, such as bond, supervised release, or electronic monitoring, that the Department of Homeland Security (DHS) should be using.  But DHS overwhelmingly prefers detention over smarter alternatives.

As a nation founded on liberty, due process and fairness, we should be striving to minimize detention except where justified and absolutely necessary.

Now a chorus of legislators are calling for immediate reform, including Representative Adam Smith (D-WA) who introduced a bill this month to improve detention conditions. He joins Senator Richard Blumenthal (D-CT) and more than sixty House members who are calling upon DHS to reduce the use of detention or provide impartial custody hearings before judges.

Recently, AILA joined calls for reform by filing two briefs requesting that Attorney General Holder make good on his promise of fairness and sensible immigration enforcement by adopting a comprehensive, rational immigration detention policy.

He should do two things. First, establish a national policy to provide hearings before immigration judges for everyone detained six months or more.  Overwhelmingly courts around the nation are ruling that no one can be detained for a prolonged period without a hearing before an immigration judge.  Our Constitution requires such hearings—often called bond hearings—to protect a detainee’s rights.  The 3rd, 6th, and 9th Circuit U.S. Courts of Appeals and a federal district court in Massachusetts agree.  But despite those decisions, the Department of Justice has yet to implement a national rule that would provide bond hearings to people who have been detained over 6 months—the presumptive period that the Supreme Court has deemed is too long.  With courts already deciding in favor of such a rule, there is no reason to wait.

Such a rule would ensure that Warren Joseph, an immigrant from Trinidad and Tobago, who honorably served in combat roles in U.S. Army, would not have spent more than 3 years in detention because he illegally purchased a handgun – a minor offense for which he served no jail time. During the years he was detained, he never got a hearing on whether his detention was justified. We need a national rule for bond hearings because without one, our system deprives thousands of their freedom without any chance to plead their case.  This is inexcusable and unconstitutional.

A second problem is a federal policy that requires immigration officers to use jail detention on certain individuals even though alternatives to detention would be just as effective and cheaper.  Many of these individuals do not pose any threat to public safety and would be ideal candidates for alternatives to detention with families, jobs, and strong ties in their communities.  Again, the Attorney General has the authority to clarify what the law requires and, in so doing, greatly improve national policy to ensure public safety, reunite families, and save taxpayers money in the bargain.

As a member of AILA’s Amicus Committee, filing these briefs are part and parcel of our efforts to bring common sense to our broken immigration system. The examples I use are just two of the names and stories that make up the true human cost of the status quo. Mr. Holder needs to seize this opportunity, take action against injustice and stand up for our Constitution.

Written by Stephen Manning, Member,  AILA Amicus Committee

Want more information? AILA’s Quicktake with Stephen is available to view for a quick rundown. A more in-depth discussion of the issue is offered in this longer animated video that Stephen developed.

The Agents of [Operation] S.H.I.E.L.D.

Photographs of the Byron G. Rogers Federal Building and U. S. Courthouse in Denver, Colorado. Carol  M. Highsmith, Llibrary of Congress

Photograph of the Byron G. Rogers Federal Building and U. S. Courthouse in Denver, Colorado. Carol M. Highsmith, Library of Congress

The Federal Protective Service has a heavy responsibility.  Their mission is to keep federal properties safe and secure for employees, officials and visitors, alike.  One such property is the newly renovated Byron G. Rodgers Federal Building in downtown Denver.  Among other tenants in this otherwise public building, sits the Denver Immigration Court where the fates of many immigrants and their families are determined.

Last week, under the banner of “Operation Shield” more than a dozen armed FPS personnel descended on the building’s entrance lobby.   The operation sought to restrict public access to numerous federal offices housed in that building, temporarily detaining and subjecting unsuspecting visitors to full criminal background investigations if they could not—or would not—produce valid US-government issued ID.

Predictably, immigrants, their family members, even witnesses and attorneys seeking to attend court proceedings were caught in this flash op.  Many immigrants—even those who are in the process of legalizing their status—rely on passports or foreign-issued identity documents until their case is resolved.  No matter that all visitors to the building pass through an almost airport-level of security screening, ensuring no weapons or other hazardous materials can be brought within.   No matter that immigration officials have already conducted background checks in conjunction with the applications of immigrants attending hearing.

Was this bristling display of law enforcement prowess calibrated to respond to a credible threat of terrorism?  No.  Was there a security breach, concerns about a potential insider attack, or a bomb threat?  Nope.  Was the operation hoping to detect “unauthorized persons” or potentially disruptive or dangerous activities?  Hardly.

What it did accomplish was to draw the attention and ire of many, including attorneys with the Colorado Chapter of the American Immigration Lawyers Association, who in response filed a federal lawsuit requesting a temporary restraining order to stop these intimidating practices. The lawsuit requests a federal judge to intervene and issue an injunction to immediately stop the abuse.  Today, the government has agreed to end these practices while a review of security measures takes place.

“Homeland Security” cannot be magic words that make us forget we have a Constitution.  Overbearing and intimidating practices such as these have no place in a country built on liberty and access to justice.

Written by Laura Lichter, AILA Immediate Past President and Member, AILA Colorado Chapter

Governor O’Malley Moves Baltimore City Away from Secure Communities

shutterstock_176840825At a time when Federal stalemate and local hostility prevents us from giving practical help to the 11 million souls in our midst without a country, I am proud to live and practice law in a state led by a governor who practices what his faith preaches.

Governor Martin O’Malley took a strong stand on behalf of the undocumented when he advocated and signed into law in Maryland a bill guaranteeing in-state tuition for undocumented students.  Now he has come forward again, and announced an end to the use of the ironically-named “Secure Communities” program at the Baltimore City Jail.

If I were to criticize Governor O’Malley at all in this context, it would be for taking so long to take this step in the first instance. This program is anything but secure for communities.  It separates children from their parents, forcing state and local governments to step in and spend time and resources doing the parents’ work at the expense of other families.  It has led to the deportation of individuals who offer no threat to our national interest at all, and who have violated little more than traffic laws.  Even worse, it has led to the under-reporting of far more serious, even violent, crimes, from fear of being accidentally caught in a deportation system whose own resources are so overwhelmed that it can no longer adequately discriminate between those who deserve mercy and those who do not.

But, rather than focus on criticism, it is more appropriate, especially at this time of year, to focus on praise.  As Christians celebrate Easter, and Jews observe Passover, it’s worth noting that both faiths support the struggle for freedom, and the good to be found in sheltering those among us who are strangers and sojourners.   In ending the “Secure Communities” program in Baltimore, Governor O’Malley has honored his faith as a Catholic, and upheld his belief in America as a promised land for everyone.

Written by Cynthia Rosenberg, Chair, AILA D.C. Chapter

The Long-Awaited and Vitally Important PREA Rule is Imminent

shutterstock_172161761We heard today that the long-awaited and vitally important Prison Rape Elimination Act (PREA) final regulations will likely be issued next week by the Department of Homeland Security (DHS).

The importance of these regulations cannot be overstated. The PREA Commission found that immigrant detainees are particularly vulnerable to abuse which is why implementation of these regulations is so important.  No one should be subjected to sexual assault or any form of abuse while in government custody.

I’m encouraged, and I know that my fellow AILA members are as well, that the rule’s release is imminent.  It has been nearly two full years since we submitted testimony to the House of Representatives calling for DHS to apply PREA regulations to immigration detention facilities.

The immigrants held in these detention centers have waited far too long for this protection.  It is incredibly important that DHS now moves as quickly as possible to ensure that the new rule covers all facilities – including local jails that contract with Immigration and Customs Enforcement (ICE).  Those local jails hold about half of all ICE detainees on any given day so it is imperative that they also be covered by these regulations.

I know that when it is released, AILA staff will be reviewing the final rule.  It is my sincere hope that the changes to detention policy will lessen the fear of abuse that too many immigrant detainees face.

More next week!

Written by AILA President, Doug Stump

GOP’s Principles on Immigration Reform: A Welcome Sign, So Let’s Steer Forward

shutterstock_153955259House GOP leaders on Thursday released their standards for immigration reform.  With these principles, they renewed their position that reform of our broken system can only be attained “through a step-by-step, common-sense approach that starts with securing our country’s borders, enforcing our laws, and implementing robust enforcement measures.”  They made clear that they will not go to a conference with the Senate’s immigration bill.

Sen. Charles E. Schumer (D-NY) noted that “While these standards are certainly not everything we would agree with, they leave a real possibility that Democrats and Republicans, in both the House and Senate, can in some way come together and pass immigration reform that both sides can accept. It is a long, hard road but the door is open.”

Sen. Patrick Leahy (D-VT) tweeted that “Today’s House #GOP #immigration proposal falls short of the bipartisan #CIR we passed last year in the Senate…but I welcome any movement that leads to Congress finally fixing our broken immigration system.”

The first priority towards reform according to the GOP principles is the “fundamental duty of any government to secure its borders”, and so these principles prioritize securing and verifying the security of our Borders before tackling other aspects of our system.  Although this concept of “securing borders” is not new to the GOP rhetoric, one wonders if members of the House GOP have read the statistics that show deportations were at a record high in 2012 with 409,849 total deportations – the highest they’ve ever been.

Furthermore, at its peak, U.S. Border Patrol data show that apprehensions of undocumented immigrants nationwide and along the Southwest border routinely topped 1 million.  In 2004, the Border Patrol counted nearly 1.2 million apprehensions along the Southwestern border.  In 2012, the Border Patrol apprehended 364,768 individuals nationwide, 98 percent of whom were caught on the Southwestern border.  If these figures are not enough to signal a secure border, since FY 2001, the U.S. Border Patrol has steadily increased its number of agents from 9,821 agents nationwide to more than double today at 21,395 agents.

House Republicans make it clear that reform will include a “zero tolerance” for those who cross the border illegally or overstay their visas in the future, irrespective of the driving forces to do so, yet hopefully with a more robust legal immigration system and reduction in backlogs, the need for many to cross without documentation or overstay a visa will be minimal at best.  The principles also call for a robust visa tracking system and further require the full implementation a workable electronic employment verification system.

For a party that has long cherished and respected family values, it seems the principles frown at immigration through family members and “pure luck” – presumably referring to our current Diversity Visa Program.  It is true that at the crux of any developed Country is its ability to remain competitive in this global economy and attracting the brightest talent is a key component of this competitiveness.

A robust legal immigration system that includes visas and green cards for individuals seeking to contribute to not only the economic but social fabric of our nation is important, yet let’s not forget that these talented individuals have also left family behind.  Extended family such as parents, siblings, nieces, nephews, and grandparents are part of what fosters the entrepreneurial spirit, the researching drive, and the thrill at discovery that leads to excellence in many fields.  To say that family is not part of the success of a developed country is to fall short on the American dream.

It is promising to find the House principles recognize the committed spirit of the DREAMers, the young and talented aspiring Americans who are ingrained not only in our social fabric, but are a key part of our economic growth and development.

At the end of the line, we find those who have endured years of agony in taking steps to reunite with family and loved ones, who have lived in fear of deportation, abuse, and indifference; the 11 million individuals who have contributed to our economy and our neighborhoods.  Individuals, who despite living outside the “rule of law” have also risked it all in search of a better life, and along the way have contributed and improved our great Country.

To them, these principles offer a way to live legally and without fear in the U.S. if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families.   The principles recognize what these individuals are already doing and remove the yoke of fear and insecurity.  Without a defined roadmap to full integration however, we will have to wait for further details to see the prospects of these individual becoming full-fledged Americans.

What this all means is yet to be seen.  These principles will serve as the House’s foundation for the immigration bills to be introduced, and as we all know, “the devil is in the details”.  The announcement from House leadership is encouraging following President Obama’s call to make this a “year of action” and pass immigration reform.

The balancing act will come when the parties sit down and hammer out the details of a series of bills addressing each aspect in these principles.  Critical to this balance is the understanding that our system must be completely revamped if not in one full sweep then with concise bills that address all areas of our system.  The American people are ready for it, the DREAMers are ready for it, the 11 million are ready for it, so let’s steer these principles forward for the future of our Country.

Written by Annaluisa Padilla, AILA Treasurer

Justin Bieber’s Immigration Story: An Opportunity to Engage

shutterstock_161450657How should we respond to the Justin Bieber story; as an organization, as leaders of that organization, and as individual members?  The first reaction would probably be to not respond at all.  It’s irrelevant, it’s beneath us, it’s a fluff piece with no relevance to us as either attorneys or as an organization of immigration practitioners and advocates.

But perhaps we are missing an important opportunity to engage people who don’t always bring up the issue of immigration reform, or think about things like detention rules, ICE holds, prosecutorial discretion and other issues that are the daily reality of our own professional lives and many of our clients’ personal lives.  And even more than using this as an opportunity to discuss immigration law and equal justice, it is a rare opportunity to ask people with whom we engage why they feel the way they do about our nation’s policies on immigration.  We can also ask why it took a young white pop-star from Canada to get so many people to think about it.

Quite a few people, both attorneys and non-attorneys, have asked me about this story because of the immigration component.  The same is probably true for many of us.  Here is one way to approach it when someone else brings it up:  Start with the immigration facts, including his specific status as an O-1 visa holder and the potential consequences of his recent run-ins with the law.  But then present them with a parallel story: strip away the celebrity coating and look at the facts of what Bieber did, applying them to other aliens, and see what we come up with.  Let’s say someone from another country, maybe Mexico, is living in the U.S.  Justino is mid-20s, only speaks his native language, works as a gardener.  Ask the person you’re engaging to create a picture of Justino in his head.  Perhaps Justino makes the local paper because he was also arrested, driving without a license, under the influence of both alcohol and marijuana.  He was with a group (gang?) of friends who were racing down a residential street, and these menacing hooligans even blocked off the street to prevent anyone from messing up their plans to tear up and down the block at twice the speed limit.  When police showed up, he cursed and yelled at them and resisted arrest.  What is the reaction at the local diner the next morning when someone points out that news story?  Would the expectation be that Justino got a low bond and walked out of court, or would such a suggestion be met with disbelief and outrage?

This lesson in disparities is an important one, but it doesn’t need to be the limit of how far we are willing to tread into the world of paparazzi and twitter A-listers.  But we can do even more than point out inconsistent application of immigration law or use this as just a lesson in equal justice.  We can also engage the person asking us questions about why it is that they asked the questions in the first place; why now?  We can talk about how this one story of a Canadian popstar has caused so many people to examine issues that they never raised before, even though they knew that thousands of aliens are deported every year.

That may seem like the same thing as raising the equal justice issue, but there’s a subtle difference.  One approach points a finger at the system, deriding “them”, the authorities and enforcers and politicians, for allowing disparate treatment based on things that shouldn’t matter as much as they do.  The second approach holds up a mirror and challenges each person to ask what his or her role is in that inequality.

So why not take this opportunity to challenge individual people we come in contact with daily, especially when they ask us about the Bieber story, and what may happen to him, and why it may be different than how others are treated.  In addition to pointing out the issue of equal justice, let’s also ask those individuals why they are bringing up questions about the system now, but never thought to bring them up before.  When they heard stats on the news about the number of deportations, why didn’t they ask who those people were, or how they got in that situation, or if they were given a chance to stay or not, and how that’s decided, and by whom.  Ultimately, what does this tell us about the harm of not bothering to try to learn about people and, as a result, dismissing them or falling back on stereotypes.

It’s easy to focus on the power of AILA as representative of more than thirteen thousand attorneys, with our unique access to national leadership within the Beltway.  But this organization is made up of so many individuals who interact with people every day, including clients, family members, colleagues in other areas of the law and friends.  These people ask us, as individual immigration attorneys and advocates, about immigration issues because of our individual expertise and experience.  That is an incredible opportunity for us to extend the work of our organization beyond the Beltway and into the communities, right into local coffee houses and dining rooms.

If the vehicle for that discussion starts with someone asking us about Justin Bieber, so be it.  That is still a unique opportunity for all of us, from the new AILA member to the Chapter Officer to members of the national Executive Committee and our organization’s employees.  We can shoot for the hearts and minds of individuals spread out in every corner of the country, where the discussions taking place are as important, if not more important, than those taking place on Pennsylvania Avenue and the halls of Congress.

Let’s use not just our collective power, but also our individual power to inform, challenge and inspire every person with whom we interact, using the opportunities that present themselves.  Yes, even the Justin Bieber story.

Written by Andrew Nietor, AILA San Diego Chapter Secretary

Representative Goodlatte and Immigration Reform

shutterstock_86506957 (1)In an interview with Telemundo’s Jose Diaz Balart that will air this weekend, House Judiciary Committee Chairman Bob Goodlatte (R-VA) discussed prospects for immigration reform.  What he reportedly said made me cautiously hopeful. But it also showed me that we all have some work to do to get to smart reform.

According to a transcript of the interview, he talked about the progress that the committee had made last year by passing four bills out of committee.  Now, none of those four bills was anything that I’d want to see become law in their current forms, and at least one of the bills is quite troubling.  A couple of the others have some elements worth using, but need more work.

He didn’t share much about the principles that Speaker Boehner says are forthcoming from House, but he did say that they hoped those principles might galvanize support for immigration reform.  He emphasized the need for interior enforcement and the fact that a large proportion of immigrants who are here unlawfully are actually overstays.  That all seemed reasonable.

I am heartened that he was talking about achieving a legal status “for people who are not lawfully here.”  It is important for any immigration reform to recognize that legality, not mass deportations, is the answer for most of the people here without status.  And he is right that they should be “able to live here, work here, travel to and from their home country.  Be able to– own a business, pay their taxes.”

But stopping there would be a mistake.  The problems that some European and Middle Eastern countries have faced by having people present with no hope of ultimate integration—essentially  a permanent second-class status—have created undue pain for those countries.  Unless we fix the legal immigration system, and make sure that the people whose statuses are regularized now can participate fully in a robust legal immigration system, with an opportunity for naturalization for those who seek it, we will not have lasting reform.

I’m an immigration attorney and after decades in practice, I want change.  I would love to see the day when our system is more than just a cracked and broken set of policies.  I would embrace a new, straightforward immigration system that was clear with lines for people to get into without putting them into decades of limbo.  I want our businesses to get the best and the brightest as employees, and be able to keep them on.  I am eager for the entrepreneurs to feel welcome here in the U.S. and use their talents to drive our economy.  I dearly wish for a day when families are no longer torn apart but instead valued for what they are: the cornerstone of our nation.

I believe that this interview is a thawing of Mr. Goodlatte’s views on immigration and I feel cautiously hopeful that he is committed to really trying to pass meaningful legislation. I, for one, stand ready to help.

Shutdown and Shut Out?

It has now been two weeks since the government shut down.  During that time, the media has spent a lot of time on closed national parks and Tea Party politicians storming barricades at the World War II Memorial–a recent addition to the National Mall, whose barricades are less daunting than those stormed in Normandy, France in 1943.  Yet the day-to-day machinery of the government has also closed in much less visually melodramatic ways.  The unsexy administration of justice has ground to a halt and hundreds of thousands of American businesses, employers, families and individuals await the resolution of the budget/health care impasse so that they can get on with their lives and their work.

As an immigration lawyer, my focus tends to run to the agencies that administer the immigration laws.  In fact, most of them are operating.  Customs and Border Protection, which guards the airports and the borders is unaffected by the shutdown.  U.S. Citizenship & Immigration Service, the decider of applications for status in the U.S., is open for business, due to the fact that it is funded by the immigrant applicants themselves and not the federal budget.  Immigration & Customs Enforcement, responsible for overseeing the removal of individuals from the U.S. and representing the government before the U.S. immigration courts, is also operating if not quite at full steam.  The deportation and investigation officers remain busy identifying those subject to removal, detaining them and removing them from the U.S.  However, the lawyers for the government who appear before the courts are furloughed and the courts they appear in front of are also offline.

The Executive Office for Immigration Review (EOIR), the nation’s immigration courts, has received the brunt of the “funding hiatus,” as the voice mail messages of the furloughed employees say.  The immigration courts are largely shuttered. In courts around the country, that would normally hear thousands of cases a week, operations are suspended.  Courts continue to hear detained cases, but the vast majority of cases are not detained and those cases are not being resolved, adding to the court’s already notorious backlog.  When cases are not heard, people’s lives are upended.  Individuals are waiting for asylum hearings that may allow them to bring their family from danger abroad.  Many long-term residents look forward to having their day in court where they can remove the specter of removal which has haunted them for, in some cases, years.  For example, I have a client whose hearing was cancelled last week.  Now twenty years old, she has resided in the U.S. since she was three.  The government and the judge agree that she should receive her residence, yet a number of factors, none of them her doing, have conspired to leave this case in limbo.  Hurricane Sandy cancelled one hearing, the Congressional quota on visas in her category cancelled another and the budget/health care impasse has cancelled a third.  No one can say when she will get her hearing and she and her family will continue to wait while they figure out what will become of their lives.  The old axiom of “justice delayed is justice denied” has rarely been more true.

Yet, detention and removals continue.  Congress has mandated that 30,000 detention beds remain full.  Thus, ICE stacks up bodies in for-profit detention centers without regard for dangerousness or flight risk. The costs of detaining so many immigrants gets little attention and, as we face a budget showdown, it is amazing that no one in Congress has scrutinized the gross amounts of money paid to for-profit prisons to detain the non-dangerous.  One does not need to be a cynic to believe that the lavish contributions of the for profit prison industry to Congressional campaign put the kibosh on such inquiries.  The shutdown of the immigration courts while the removal machine goes on with barely a hiccup is a grotesque parody of the government’s love affair with enforcement while paying only grudging lip service to the administration of justice.

However, immigrants and their families will continue to dream. They, unlike Congress, will rise daily and do their jobs growing our food, caring for our children, and cleaning our cities.  In this shutdown, they will have little relief from the specter of sudden arrest, detention and removal, but also little hope that they will get a fair chance to prove why they deserve to remain.  That knowledge rarely diminishes the immigrant spirit.  Five hundred and twenty one years ago, intrepid explorers left Spain for the unknown and landed on this continent, forever changing the course of the world.  Every day, idealistic and entrepreneurial immigrants leave their homes and families in an effort to achieve the American dream, a process that goes on undaunted, no matter how much political dysfunction undermines those values.

By Andres Benach, Member, AILA Amicus Committee