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The Presidential Field is Set, and We Need Real Comprehensive Immigration Reform

dreamstime_xs_69677827So, the presidential field is set.  Hillary Clinton is the presumptive nominee for the Democrats, and Donald Trump for the Republicans.  To say that our immigration system is broken is an understatement, and although the Obama Administration has made some efforts at reform (whatever you may think of them), Comprehensive Immigration Reform (“CIR”) remains an elusive goal.  And, absent something incredibly positive coming out of the Supreme Court in the case Texas v. United States, 15-674, we’ll likely not see anything significant come out of Washington on the immigration reform front until, at the very earliest, next January (but likely much much later, despite what we hear from one of the candidates).

And yet there are so many important issues to consider (some of which we’ve already been hearing too much about on the campaign trail, although not necessarily in a meaningful way), including, among others, the border wall and enforcement, mass deportation, the overwhelming need for CIR, and the list goes on.

What are the candidates saying on the campaign trail?  At a campaign stop recently in Los Angeles recently, Hilary Clinton said, “Immigration is at the center of this presidential campaign. In my first 100 days I will introduce legislation for comprehensive immigration reform … When he [Trump] talks about deporting 11 million immigrants, he’s talking about ripping apart families.”  She’s right about the latter.  We’ll see about the former.

And the Donald?  At a FOX News GOP debate in Detroit, he said the  following: “I’m not playing to anybody’s fantasies. I’m playing to the fact that our country is in trouble. We have a tremendous problem with crime. The border is a disaster. It’s like a piece of Swiss cheese, and we’re going to stop it. We’re going to … be stopping people from coming into our country illegally. We’re going to stop it.”  How?  By building a “beautiful” wall, no doubt.

What we really need here are creative and progressive ideas to effectuate CIR, to ensure that the U.S. economy continues to grow from the recent recession, and to also ensure that families stay united or are reunited.  Unfortunately, much of what we’re really hearing (from the Donald, anyway) is ridiculous and divisive rhetoric offering non-practical immigration policies, such as removing 11 to 13 million immigrants unlawfully living in the United States, or securing our Southern border with a bigger and more “beautiful” wall that Mexico will (no doubt not) pay for.

Let’s talk details. On the issue of border security and enforcement, quite frankly our U.S. – Mexican border is more secure today than it ever has been. By all accounts, spending on border patrol agents, infrastructure (i.e., the existing “wall”, among other things), and new and improved surveillance technologies to interdict unlawful crossings have grown exponentially; at the same time, unlawful border crossings are at their lowest level in decades. Consider the increase of staffing at the border: in 2014, U.S. Customs and Border Protection (“CBP”) had approximately 21,000 border patrol agents, a more than 500 percent increase from 1992 when there were only about 4,000 agents.

As well, enforcement under the Obama Administration is extremely high.  Federal criminal prosecutions of immigration-related offenses are at their highest point in history.  Since 1992, convictions for all immigration crimes (the vast majority of which are illegal entry and reentry crimes) rose from just 5 percent of all federal criminal convictions to 30 percent in 2014.  Immigration offenses in the first seven years of the Obama Administration totaled 555,974 convictions compared to 251,952 during all 8 years of the Bush administration.  President Obama, a Democrat, deported 2 million illegal aliens after just about five years in office.  It took George W. Bush, a Republican, eight years to reach that number.

I can also state from first-hand experience that Immigration and Customs Enforcement (“ICE”) continues to try to remove people from the United States who pose no threat to our communities, breaking apart families (many of which include U.S. citizen children, spouses and parents).  While the Obama Administration’s policies on the exercise of prosecutorial discretion have no doubt resulted in more fair outcomes for some, anecdotal evidence from my colleagues in the field suggest that prosecutorial discretion is not being exercised evenly (or some would say even fairly).

Hard is this may be to believe, there actually is widespread agreement across the country that Congress should pass CIR that allows unauthorized immigrants to remain in the country so that they may continue to contribute to our economy and the communities that they already reside in. Indeed, a May 2015 Pew Research Poll found that 72 percent of Americans say that undocumented immigrants should be allowed to stay in this country legally (assuming they meet certain requirements).

What about all the discussion about mass deportations?  It’s just not rational to believe that 11 to 13 million undocumented immigrants living in the United States, in our own communities, working and raising their families, are going to leave the United States, or that we frankly have the resources to remove them.  According to the American Action Forum, it would take 20 years and between $100 to $300 billion to arrest and remove the 11 to 13 million immigrants unlawfully living in the United States.  And this is just the cost to remove them back to their home countries.  This doesn’t even take into consideration the huge negative economic impact of removing these workers from the jobs and employers who depend on them every day.  Industries that depend on immigrant labor (e.g., our own dairy farmers in New York States) would falter badly.  Frankly, the effect of employers losing these workers would impact every part of our economy.

Is that how we want to spend our resources?  What we need is a path for these people to obtain a legal status.

Finally, our family- and employment-based immigration system needs reform.  Because our current immigration system is generally built around limited categories of temporary and permanent visas, many who want to come and contribute to our economy, or remain here after their schooling is done, are not able to do so.  I recently spent some time with a friend of mine, a co-founder of a local and very successful technology company, and he was echoing what many in his industry say: the United States loses out when talented immigrants (often who are schooled here) are prevented from using their skills here after graduation, prevented from starting and building businesses, and prevented from using their talents to strengthen our economy. These talented and U.S. educated entrepreneurs and workers take their skills elsewhere, benefitting other countries, to the ultimate detriment of our own.

This needs to stop.  We need real solutions to this problem from serious candidates.  Whether or not you believe border enforcement is a priority (and it is), securing our borders does not need to be a prerequisite for CIR.  We can do it concurrently.  We just need to do it.

Can’t We Just Deport Justin Bieber?

Justin Bieber?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????OK, so my apologies ahead of time to those of you who have children who like Justin Bieber or enjoy his music.  My children are still (mercifully) way too young to know who he is or the shenanigans he gets himself involved in.

What I did not know until his recent arrest in Miami is that the young Mr. Bieber is not a U.S. citizen; rather, I am informed that Mr. Bieber is in the United States as a nonimmigrant (perhaps in an O-1 nonimmigrant status, which status is reserved for foreign nationals of extraordinary ability).  In Mr. Bieber’s case, the standard for an O-1 nonimmigrant is actually a lower standard; that is, instead of proving to U.S. Citizenship and Immigration Services (“USCIS”) that he’s an alien of extraordinary ability, because he’s an “artist or entertainer” (so they say), the standard is showing that he’s an alien of “distinction.”  But I digress.

My understanding is that Mr. Bieber and R&B singer Khalil Sharieff were arrested on January 23 while drag-racing in Miami Beach.  According to news reports, Mr. Bieber was charged with driving under the influence (“DUI”), resisting arrest and using an expired driver’s license.  He has pleaded not guilty to all charges.

Some news outlets also reported that Mr. Bieber initially resisted arrest, cursed at police officers, and also told police that he had consumed alcohol, pot and prescription drugs (this all according to the police).  His next appearance in court is May 5.

Of course, the arrest (and related arrogance) of a young pop star consumed the media for days, if not weeks.  What was more interesting to me, however, is when some media outlets started reporting that people were calling for Mr. Bieber to be deported (actually, officially called “removed”) from the United States.

For example, a petition was lodged with the White House to have Mr. Bieber deported.  The petition was created the day of his arrest, and it urged the White House to revoke Mr. Bieber’s permission to be in the country.

We the people of the United States feel that we are being wrongly represented in the world of pop culture. We would like to see the dangerous, reckless, destructive, and drug abusing, Justin Bieber deported and his green card revoked. He is not only threatening the safety of our people but he is also a terrible influence on our nation’s youth. We the people would like to remove Justin Bieber from our society.

First off, as noted above, I don’t believe that Mr. Bieber has a “green card”.  But apart from that, over 100,000 people have signed on to the petition.  Even Sen. Mark Warner, a Democrat from Virginia, is on board. “As a dad with three daughters, is there someplace I can sign?” he asked with a laugh, when prodded by the hosts of Chesapeake-based FM99’s “Rumble in the Morning.”  The White House is obligated to respond to petitions that reach more than 100,000 names.  Still waiting on their response at this point.

OK, so this all got me thinking.  Could Justin Bieber actually be removed from the United States as a result of this incident?

Immigration consequences attach to foreign nationals who have been “convicted” of certain crimes, as well as sometimes even to foreign nationals who admit to committing certain crimes for which they were not convicted, or whom the government has “reason to believe” are involved in certain criminal activities.  Because Mr. Bieber (I presume) is lawfully in the United States, he would be subject to the grounds of deportability under section 237 of the Immigration and Nationality Act (INA), as amended, and possibly even the bars to a finding of good moral character at under section 101(f) of the INA.

I’ve had an opportunity to review Mr. Bieber’s Complaint / Arrest Affidavit (and I must admit, it makes for some very interesting reading if you don’t mind the “f” bomb).

Mr. Bieber was charged with violating section 316.193 of Florida Statutes, which generally relates to DUI offices.  This section of law includes several subsections, and it’s not clear from the Complaint / Arrest Affidavit under which subsection he was charged.  Nevertheless, as no one was hurt or (thankfully) killed in the incident, it seems reasonable to conclude that he was charged under a subsection that would not result in his being convicted of, e.g., an aggravated felony (for immigration purposes)[1] or a crime involving moral turpitude.[2]  The other two charges likely do not have negative immigration consequences as well.  So, he appears safe, as far as these charges go anyway.

However, if the young Mr. Bieber did admit to police that he abused drugs, this could be a big problem for him.  The INA that provides that “[a]ny alien who is, or at any time after admission has been, a drug abuser or addict is deportable.”

Of course, I don’t wish any ill-will on Mr. Bieber, but if all this was the case, my children might not ever ask me whether they can see him at the Times Union Center or SPAC as they’re growing up!


[1] The term “aggravated felony” is defined at section 101(a)(43) of the INA, and now includes some 50 different offenses. While some of these offenses, such as murder, rape, and kidnapping, would sound like aggravated felonies to the layperson, a good number of the offenses in the definition do not readily appear heinous enough to be termed “aggravated felonies,” and based upon case law, some DUI violations can be considered aggravated felonies.

[2]  The Board of Immigration Appeals (“BIA”) defines a Crime Involving Moral Turpitude as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”

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