Clogging the Immigration Courts

The February 27, 2017 issue of The New York Times carried an article titled He’s a Local Pillar: Now He Could be Deported. A careful read of this news account will help you to better understand the flaws in the Trump Administration strategy of going after everyone in the US because they are “law breakers.” It also points out why real immigration reform is needed, not just political pandering and scapegoating.

Since I don’t have all of the facts and am making assumptions based on the news story my comments should not be considered as straight legal advice on how this poor family can get out from this catastrophe.

According to the story, Juan Carlos Hernandez is 38 years old from Mexico and manages a popular Mexican restaurant in West Frankport, Illinois. He has lived in the US since the mid-1990s having entered the country illegally. He is married to a US citizen (his wife was recently naturalized) and has three US citizen children. He is the manager of a Mexican restaurant 1990 in the town and by all accounts has been a model citizen and a pillar of the community. The only negative in his background is that he has two convictions for driving under the influence (DUI) from 9 years ago.

While in a technical sense Juan Carlos is here unlawfully and could be deported, since he now has a lawyer he should be able to avoid actual “deportation.” His effort to stay will be long, scary and expensive, and it will be particularly burdensome on the US government.

Here are two reasons why even though his life has been turned upside down he should be able to prevail. First because he is married to a US citizen, while technically deportable he should be eligible for permanent residency – in his case it will have to be an immigrant visa since he entered the country illegally and therefore never had any status in the U.S. The only reason why he might be unable to get permanent residency is if he had a record of serious serious crimes or there was something else in his background standing in his way. The second reason is that because he has been in the US for more than 10 years and has close family ties with US citizens (his wife and children appear to be US citizens) and might be able to prove the requisite level of hardship to them if he is deported he could be eligible to seek what is called “cancellation of removal.” This “cancellation” would result in the proceedings being terminated and he would be granted permanent residency.

It is very likely that his US citizen wife petitioned for him to get status and that is how ICE located him in the first place. If she had petitioned for him when she was a permanent resident there would have been a wait of more than two years before he could even get an interview for an immigrant visa. His case was further complicated by changes made in the 1996 immigration laws which made it very risky for someone like him to leave the country to be interviewed for an immigrant visa. This is because when Juan Carlos entered the country without a visa he began to accumulate “unlawful presence” and the law penalized him by making him ineligible to return without first getting a waiver. The Obama Administration created a procedural reform which would enable someone like Juan Carlos to seek the waiver before leaving to be interviewed for his visa. It doesn’t seem likely that the Trump Administration will honor that waiver.

So now that ICE has arrested him, Juan Carlos has few choices if he wants to stay with his family in the US. Let’s not forget that he is the only one in his family who is not a US citizen. If he leaves he will not be able to come back for some time, because he will have to wait in Mexico before he will be able to get his permanent residency. Meanwhile, it is unsure if that restaurant in West Frankport, Illinois will keep his job open or what will happen to his kids and wife while he languishes either in detention or in Mexico trying to come back.

I am not the first to make this point. An article by Julia Preston of the New York Times in December, 2016 described the staggering backlogs in immigration courts. In Denver, Colorado the delay between arrest and hearing was more than 18 months. In San Francisco it is even longer. The immigration courts already have more than 520,000 cases waiting to be heard and all of this new enforcement effort yields are additional cases. So who benefits from this practice? Probably the private prison operators who operate the “detention centers” and immigration lawyers who will have to be hired to represent these people.

Can or Will DHS Deport All of the Undocumented in the US?

Recently there has been much discussion in the media about how the White House has issued directives to beef up immigration enforcement and that the measure will target huge numbers of persons who might be in this country illegally including those who have only been charged with a crime for removal.

Setting aside what it means to be in the US “illegally”, it is important to identify who is subject to removal. Any non-citizen who is in the US without permission, who has entered the US with a visa and that visa (or permission to remain) has expired or if they have committed one of a number of enumerated offenses in the statute is subject to removal. The list of offenses is contained in the immigration statute, commonly referred to as the deportability provisions of the Immigration and Nationality Act. It is not helpful to consider these “violations” as crimes for under US law these are not treated as such. In fact if they were to be characterized or treated as crimes the defendants would be entitled to many more protections including legal counsel at government expense.

Under existing law while the government may remove someone who is deportable they can only go after categories of people listed by Congress in the statute. In other words, if a person is otherwise not deportable the government cannot get a removal order against someone who has been charged but not convicted of a crime. The reason for this is that the immigration statute requires that when the government is pursuing a case against someone for criminal activity, a criminal charge standing alone which has not resulted in a conviction may not be used to support the deportation order.

An immigration officer is like the beat cop who cannot on her own create their own reasons for locking someone up, there must be a clear defined basis found in the statute. Deportability grounds while numerous must clearly define the persons who are subject to them.

This takes us to the confusion about something called “prosecutorial” discretion – which refers to the broad discretion that a police (or immigration) officer’s or immigration officer to not go after every possible law breaker (or immigration violator). To do otherwise would cause the officer to waste vast amounts of resources pursuing cases which required inordinate amount of precious resources. So in applying the law the officer has to make a decision about where the government’s already strained resources will be applied most effectively. You may have experienced this while driving – would you expect a highway patrol officer to go after the person driving at 65 in a 55mph zone or the burglary call at the next exit? Hardly – just as the police officer has to make a discretionary determination about how he exercises her authority, the immigration officer has to make similar choices.

The commonly held view is that there are 10-11 million undocumented people in the US. Within that group are people who have been in this country, some for decades, others who have been waiting for permanent residency because they are married to or are children of US citizens or permanent residents. Still others have other ways that they might eventually get to become permanent residency. Like past Administrations, the Obama Administration made a decision that some of these people would be placed on a lower priority for deportation – in short that they would go after others who were easier deportation targets. Understand as well that an immigration officer cannot on their own deport that person, the Constitution requires that the person have a chance to show why they should not be deported because of one of the fore-mentioned reasons. And that process is very time consuming.

So when you hear someone say that DHS officers are going to go after everyone in the US who is here in an illegal status, they are either being dishonest or are suggesting that they not be smart about how they are prioritizing their limited resources. If they say that they are going to deport everyone the process could be phenomenally expensive and take decades to complete with limited results.