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12/12/11 | LAC Issues Updated Practice Advisory on DHS’s Plan to Review Removal Cases for Prosecutorial Discretion

Washington, D.C.— The American Immigration Council’s Legal Action Center (LAC) is pleased to announce the release of an updated practice advisory: "DHS Review of Low Priority Cases for Prosecutorial Discretion." On August 18, 2011, the Department of Homeland Security (DHS) announced the establishment of a joint DHS-Department of Justice (DOJ) working group charged with reviewing the approximately 300,000 cases pending before the Executive Office for Immigration Review (EOIR) to identify candidates for administrative closure. Subsequently, on November 17, 2011, DHS issued three documents detailing how the agency will implement the review process, which includes the launch of two pilot projects. This practice advisory summarizes information that is known to date about the review and discusses some of the ambiguities and contradictions that the recent announcements have created.

For a complete list of all LAC Practice Advisories, please visit our website.

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For questions contact Brian Yourish at byourish@immcouncil.org or 202-507-7516.

 

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12/08/11 | The American Immigration Council's Top 11 for 2011

The American Immigration Council and its four programs had a busy year in 2011. We want to thank you for your support, readership, and feedback. We also want to ask you to consider supporting our work with a year-end gift. Your tax-deductible donation will help us continue our work which includes the following "Top 11 for 2011." 

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11/30/11 | LAC Issues Practice Advisory on Representing Clients with Mental Competency Issues

For Immediate Release

LAC Issues Practice Advisory on
Representing Clients with Mental Competency Issues

November 30, 2011

Washington, DC — The American Immigration Council’s Legal Action Center (LAC), in collaboration with The University of Houston Law Center Immigration Clinic, is pleased to announce the release of a new practice advisory: Representing Clients with Mental Competency Issues under Matter of M-A-M-.

Until recently, attorneys and immigration judges had limited guidance about safeguards that might be available to ensure a fair hearing in immigration court for noncitizens with mental competency issues. As a result, many such individuals have been ordered deported without access to counsel or any assessment of their abilities. Others have languished in jail indefinitely while immigration judges delayed proceedings in the hope that they would find representation or that their conditions would improve. Extended stays in detention centers, however, have instead caused people’s conditions to deteriorate, at times resulting in psychosis and catatonia. The lack of protections has even led to mistaken deportations of U.S. citizens.

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11/23/11 | The American Immigration Council Applauds the Department of Justice for Responding to Utah's Anti-Immigrant Law

Washington, D.C. – On Tuesday, the Department of Justice (DOJ) filed suit against the state of Utah to block the implementation of HB 497, which mandates that local police enforce immigration laws. Several provisions of the law have already been enjoined as a result of previous legal challenges from immigrant rights groups. The DOJ claims that HB 497 violates the Constitution, and the suit is consistent with its other challenges in Alabama, Arizona and South Carolina. Utah's HB 497 is similar to Arizona's SB1070, however Utah state legislators attempted to couple the enforcement bill with a state-level guest-worker program. The guest-worker program is not yet being challenged by DOJ, as it does not go into effect until 2013.  

The DOJ continues to appropriately exercise its obligation to preserve the federal government’s exclusive authority to regulate immigration and its responsibility to take a stand against laws that will result in profiling, discrimination and the violation of fundamental constitutional rights.  As noted by the Secretary of the Department of Homeland Security, these types of state immigration laws will overload the federal government with referrals and divert scarce resources from the agency’s highest priorities—national security and public safety.

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11/21/11 | New Asylum Clock Policies Provide No Significant Systemic Change

Washington D.C. - Last week, the Executive Office for Immigration Review (EOIR) issued new guidance addressing the “asylum clock.”  The asylum clock calculates a mandatory 180-day waiting period before an asylum applicant can receive work authorization.  Any delay caused by the asylum applicant will stop the clock and prolong the waiting period for work authorization.  However, delays are often incorrectly attributed to the applicant and asylum seekers are unjustly prevented from working for long periods of time. 

EOIR’s new guidance provides some much-needed clarity and addresses certain longstanding problems.  In particular, it clarifies that the asylum clock should not stop in the event of a delay caused by a government attorney or the court, and that immigration judges must indicate on the record the reason for postponing a case.

Unfortunately, EOIR fails to resolve more systemic problems through its new guidance including:

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11/17/11 | DHS Issues Awaited Guidance on Prioritizing Deportations, Law Enforcement Letter Praises Approach

Washington D.C. - Today, Immigration and Customs Enforcement’s (ICE) Principal Legal Advisor directed all ICE attorneys to begin a systematic review of immigration cases to determine whether pursuing deportation in each case is consistent with the Administration’s enforcement priorities. This directive follows last summer’s announcement that the Department of Homeland Security (DHS) plans to review 300,000 immigration cases to assess whether they fall within the enforcement priorities and suspend those cases which do not.  ICE also provided more detailed guidance to ICE attorneys regarding criteria for determining when it is appropriate to exercise prosecutorial discretion to close or dismiss a case.

These directives are important steps toward reforming the culture of immigration enforcement within the agency and aligning its resources with its enforcement priorities. They empower ICE attorneys to take into account the individual circumstances of each case when deciding whether it is appropriate to pursue removal.  Although DHS needs to refine its overly-broad definitions of criminality, this new guidance, if fully implemented, should mean that the government can focus its resources on deportations of those who pose a real threat to public safety. It should result in fewer deportations of low priority immigrants, such as DREAM Act students or individuals with strong family and community ties and more.  Importantly, prosecutorial discretion does not mean that a person is granted legal status in the United States; rather, a person whose case is dismissed or closed will remain in the status they were in prior to the initiation of deportation proceedings.

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11/09/11 | Lawsuits Filed Against Department of Homeland Security Seek Greater Transparency

Washington, D.C.—The American Immigration Council’s Legal Action Center (LAC) this week filed two lawsuits against the Department of Homeland Security (DHS) to compel the release of records relating to noncitizens’ access to counsel before U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP). The LAC pursued disclosure of these records, as well as records from U.S. Immigration and Customs Enforcement (ICE), through Freedom of Information Act (FOIA) requests filed last March. To date, USCIS has failed to turn over any documents, and CBP has turned over only a few excerpts from its practice manuals. ICE has informed the LAC that it conducted a search for records, but that it is “unable to locate or identify any responsive records.” The LAC has filed an administrative appeal of ICE’s determination and will pursue litigation if necessary.

These FOIA requests were prompted by the results of a survey conducted by the LAC and the American Immigration Lawyers Association that revealed widespread restrictions on access to counsel before USCIS, ICE and CBP. Such limitations include bars on attorney presence at CBP inspections, limitations on the ability to consult with attorneys in ICE detention facilities and during questioning by ICE, and restrictions on attorneys’ ability to participate in interviews before USCIS. The survey also highlighted significant variations in policies and practices in DHS offices throughout the country.

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11/09/11 | AILA-AIC Survey Reveals ICE Officials' Sporadic Exercise of Prosecutorial Discretion

Washington, DC – The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) released a new survey today finding that Immigration and Customs Enforcement (ICE) officers and attorneys across the country are applying different standards on prosecutorial discretion despite the issuance of national policy memoranda this summer. The report, which includes inform ation about all 28 ICE offices nationwide, shows that most ICE offices have not even implemented the two headquarters’ memos. These discrepancies reflect a need for ICE and Department of Homeland Security (DHS) leadership to issue additional guidance to its rank and file.

“We felt that ICE’s June 2011 memoranda about the use of prosecutorial discretion in certain types of immigration cases were clear and straightforward,” said AILA President Eleanor Pelta. “But,” Pelta continued, “these survey results show that ICE agents and attorneys are not willing to use the discretion they are responsible for implementing without further guidance. They are asking for more, and the agency’s leadership should help them get it,” said Pelta.

According to Benjamin Johnson, Executive Director of the American Immigration Council, "the June 2011 memo lays out a basic premise in law enforcement: the proper exercise of discretion is an integral part of any law enforcement effort to focus its resources effectively. If, as this survey reveals, many local immigration officials are unwilling to accept this basic premise, then the challenge for DHS and ICE is to back the memo up with the leadership, training and support necessary to make sure that these policies are actually being implemented."

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11/04/11 | DOJ Responds Forcefully to Civil Rights Disaster in Alabama, What Will DHS Do?

Washington D.C. – This week, the Department of Justice (DOJ) announced that it was filing suit in South Carolina to block Act No. 69 (formerly SB 20), South Carolina’s new anti-immigrant law—modeled on Arizona’s SB1070. DOJ argues—like it did in Utah and Alabama—that the law is unconstitutional and interferes with the federal government’s ability to set and enforce immigration policy and is likely to result in civil rights violations. Following the legal challenge, the DOJ Civil Rights Division also sent a letter to Alabama’s public schools reminding them of their duty to provide public education to all children in the state regardless of immigration status. 

The DOJ is challenging state legislatures that pass immigration enforcement laws that interfere with the federal government’s role in enforcing immigration laws and setting priorities. The DOJ’s effort on this case reflects their commitment to protecting constitutional principles and individual rights, a commitment that should extend to pursing vigorous challenges in other states that have passed similar laws, including Utah, Georgia, and Indiana.

The Department of Homeland Security (DHS) also has a strong role to play and should respond to the civil rights crisis taking place in the states and make good on Secretary Napolitano’s assurance that her agency will not be complicit in enforcing Alabama’s new law through federal immigration enforcement actions. 

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09/29/11 | Alabama’s Dangerous New Anti-Immigrant Law

Washington D.C. - Yesterday, Judge Sharon Blackburn failed to enjoin major portions of Alabama’s extreme anti-immigrant law, HB 56, leaving many dangerous sections open to implementation. Local police, for example, are required to act as federal immigration enforcement agents by demanding proof of legal status from anyone who appears to be foreign. Other provisions—that go further than Arizona’s law—insist public school administrators check the legal status of students and their parents and create confusing and burdensome new restrictions on contracts between the state government and immigrants and between private citizens and immigrants. It’s unclear how far the restrictions on contracts will go, but at a minimum they will limit access to housing and utilities for anyone who cannot produce the proper documentation.

Although supporters claim the law will solve the state’s economic problems and reduce crime, HB 56 will inflict greater economic damage to Alabama, costing the state millions to implement and defend. And the crime argument simply doesn't hold water. Since 1990, Alabama’s unauthorized population has risen from five thousand to 120 thousand.  Yet the violent crime rate in the state has fallen by more than a third. Restrictive immigration laws have proven to reduce, not maximize, law enforcement effectiveness.

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