Archives for June 2012

Some Thoughts on Arizona v. United States

June 26, 2012 by Matthew

On June 25, 2012, the U.S. Supreme Court decided Arizona v. United States. The decision struck down 3 out of 4 provisions of Arizona’s SB 1070. The 3 provisions that were struck down involved:

1. A requirement that non-citizens carry identification and subjected them to criminal penalties for failure to comply.

2. A penalty for non-citizens that work without authorization to work in the United States.

3. Authorization of state and local police to make warrantless arrests of individuals who were believed to be removable.

These provisions were struck down because they deemed to be “preempted” by federal law. Certain areas of law, like immigration, are deemed to be the sole responsibility of the federal government, so that the states may not legislate them.

The fourth provision involved authorization of the police to request papers of individuals that they believe to be undocumented. This has been referred to as the “show me your papers” provision.” Arizona Governor Jan Brewer has been claiming victory because this provision was not struck down. I don’t view the Supreme Court’s decision as a victory for Governor Brewer. The Supreme Court’s decision did not expressly uphold this provision. The decision merely concluded that it was too early to determine whether this provision is proper because to do so would require a factual determination as to how the provision is applied. To me, this is not a victory for the State of Arizona. The Supreme Court merely left the battle for another day.

If there was any debate as to who won this battle, it was settled after the Supreme Court’s decision when the Department of Homeland Security announced that it was cancelling Arizona’s participation in the 287(g) program. 287(g) refers to a provision in the Immigration and Nationality Act that provides that the federal government can literally deputize state and local law enforcement officials to enforce immigration laws. One of the benefits of 287(g) is that state participants have access to federal immigration databases. By kicking Arizona out of 287(g), it no longer has direct access to the federal government’s immigration databases. As a result, when Arizona law enforcement officials arrest a suspected undocumented alien, they do not have the ability to check the federal immigration database on their own. Instead, they must call the Immigration and Custom Enforcement and will be at their whim.

Will Romney Burst the DREAMers Bubble?

June 21, 2012 by Matthew

President Obama’s new policy to spare from deportation certain undocumented non-citizens that came to the United States when they were young is not a permanent solution. He is only offering them something called deferred action. Deferred action is an act of prosecutorial discretion. It is not a formal immigration benefit like adjustment of status or naturalization. It is simply a decision that the Government will not deport someone. Because it is not a formal immigration benefit, it can be taken away at any time.

The election in November could have a tremendous impact upon these individuals. This is because Mitt Romney does not appear to support President Obama’s policy. In discussing whether or not he would continue President Obama’s policy, if elected, Mr. Romney has been quoted as saying, “I will put in place my own long-term solution that will replace and supersede the president’s temporary measure.” However, he has not stated any details about what this long-term solution would be.

Mr. Romney’s campaign website has a page on immigration. His website indicates that he will take a “strong stand against illegal immigration.” It further explains that he will “secure the border,” “turn off the magnets” that attract undocumented alients, “enforce the law,” and “oppose amnesty.” Based upon Mr. Romney’s website, it would appear that if he is elected president, anyone who applies for deferred action under President Obama’s plan will face deportation. While Mr. Romney has yet to actually state this, it’s hard to read what his campaign website says about immigration and not believe that he will not only discontinue President Obama’s policy, but seek to deport the people who have applied for deferred action pursuant to his policy. I still stand by my view that anyone not already in removal proceedings or facing deportation should wait until after the election to apply for deferred action under President Obama’s new policy.

Motion to Reopen Granted by the Board!

June 21, 2012 by Matthew

Today, I received an order from the Board of Immigration Appeals (BIA) granting a motion to reopen that I filed on behalf of one of my clients. My client had been ordered deported in 2006. He lost his asylum case. He was found to have suffered past persecution, but was denied because the Immigration Judge found that he could internally relocate in his country and be safe.

My client came to me after he had received a notice to surrender to the Immigration Customs Enforcement (ICE) for his deportation. When he consulted with me, I remembered that a few weeks earlier, the BIA had rendered a precedent decision called Matter of L-S-, 25 I. & N. Dec. 705 (BIA 2012). In Matter of L-S-, the Board held that individuals who suffer past persecution, but are denied asylum, may be considered for humanitarian asylum, if they can show “other serious harm.” When I met with my client for the first time, it occurred to me that he could seek reopening of his case based upon this new decision. Interestingly, my client has consulted with several other immigration attorneys in New York City and none of them had thought to do this. The best idea that one of them could come up with was filing a request for deferred action and this immigration lawyer charged him $200 for a consultation!

I filed the motion to reopen and went with my client to the surrender with ICE. I convinced his deportation officer not to detain him and put him on supervised release pending the outcome of the motion to reopen. Now that the motion to reopen has been granted, my client will be back before the Immigration Judge, and hopefully, will eventually receive humanitarian asylum. His case had been over for almost six years and now he might be able to stay in the United States forever.