Month: October 2011

With U.S. presidential election coming up next year, the issue of immigration reform, which was President Obama’s campaign promise to Latinos and other immigrant voters, never came to fruition. It is sad that while immigration policy has not changed to reform the broken system, more than one million individuals were deported to their homeland in the last three years.  

Need a Dancing Partner

In one of the public speeches of President Obama, he mentioned that he needs a ‘dancing partner’ to effect immigration reform. The US Congress is currently comprised of a lot of conservative Republicans who oppose any form of immigration amnesty and will obviously not pass any immigration reform law. In fact the most compassionate immigration bill, which is the federal DREAM Act that will provide undocumented students an opportunity to legalize their stay, is still awaiting passage. Unable to find its dancing partner, the Obama Administration acted alone and used the power of the executive branch to come out with what it calls “prosecutorial discretion”.

Prosecutorial Discretion

“Prosecutorial discretion” is the authority of a law enforcement agency or officer charged with enforcing a law to decide whether – and to what degree – to enforce the law in a particular case.  In immigration law, the Immigration and Customs Enforcement (ICE) or prosecutors may exercise their discretion in deciding to file deportation cases, enforce a deportation order or grant a deferred action. This exercise of discretion depends on the guidelines that were set by a policy memorandum.

It is a fact that there is an increase in the deportation of individuals who are without legal status. Most of those who were deported have been long time residents of the United States and do not have any criminal records. Families being forcibly torn apart became a common heartbreaking story in the immigrant community. Realizing the inhumane impact of deportation on those who have not done harm to society, Obama created a distinction between deportees who are low in priority and those who are high in priority.

Morton Memorandum

To guide the Department of Homeland Security’s Immigration and Customs Enforcement, a June 17, 2011 memorandum from the ICE Director John Morton was released. In this memorandum, guidelines were established for ICE in deciding when an individual may be removed from the country and when he should be spared from deportation.

Two months thereafter, in August 2011, President Obama reiterated this policy. Low priority deportees facing removal proceedings will have their cases administratively closed. They will also be granted employment authorizations. High priority cases or those who have done harm to society and are threats to public security shall receive high priority treatment by ensuring their deportation to their homeland.

Actual Implementation

Excited with the announcement of President Obama, thousands of individuals in deportation hearings became hopeful that their cases would be dismissed and that they would be receiving authorizations for employment. Five months after the initial pronouncement of ICE Director John Morton, despite the policy guidelines and the pronouncement in August 2011, majority of requests for prosecutorial discretion have yielded negative results. The review of 300,000 removal cases remains to be implemented in a pilot program that will take place in two jurisdictions.

In the meantime, ICE continues to remove or deport individuals despite discretionary factors that would warrant a closure of their cases. One ICE agent, when presented with the request for prosecutorial discretion, declined favorable exercise of such and said that he is” just doing his job”.  A young Filipino who migrated to the U.S. when he was 15 years and has been in the U.S. for 16 years is being deported because of his parent’s prior denied political asylum case. Formal requests to take into account compassionate factors were ignored.  

In a conference conducted by the American Immigration Council, several law practitioners expressed the same disappointment with the lack of responsiveness to what is being touted as current administration policy.  A recent survey last month of the American Immigration Council showed that while there were cases granted on the basis of prosecutorial discretion, statistically, there were much more cases that were declined.

No Positive Impact

The recent policy of the Obama Administration to grant prosecutorial discretion against illegal aliens who are no threat to US society is a welcome development in the immigrant community. But the true measure of any given policy can only be based on how well such policy is implemented. Without proper implementation of the full length, breadth and spirit of the policy, the help and succor that the immigrant community was hoping for cannot be realized.     

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

In the last three years, more than one million people were deported under the Obama administration. This year alone, there were 368,920 removals. While President Obama promised immigration reform before being elected, the irony of deporting more immigrants than the past administration becomes really alarming.

Tears fell on a mother’s face as her son was walking along the court’s hallway with handcuffs on his wrists and metal chains on his legs. Her son, Roddy, is a green card holder.  He arrived in the United States when he was 18 years old as a derivative child on her mother’s petition.

Upon Roddy’s arrival in the United States, he was enrolled in high school. Her parents, just like many new immigrants, pre-occupied themselves with work. Roddy was left in the home most of the time while her parents were busy trying to make ends meet.

Roddy’s mother works two jobs. Three years after Roddy’s arrival, he got caught in illegal use of methampethamines and drug trafficking. These offenses were committed ten years ago in 2001 and Roddy served  three months of jail time as a result of his drug convictions. After 2003, Roddy was finally rehabilitated. He finished his associate degree and maintained a decent job at a retail store. Roddy has a one year old child and a U.S. citizen fiancé.

In his desire to become a U.S. citizen, like everyone else in his family, Roddy applied for naturalization at the U.S. Citizenship and Immigration Services (USCIS). He casually asked for a day of leave from work and appeared at his naturalization interview. Anticipating a favorable approval of his citizenship application, Roddy never expected that he would instead be taken into custody by the agents of the Immigration and Customs Enforcement (ICE). What happened was that the USCIS officer found out about Roddy’s 2001 criminal convictions for drug offenses. Despite having served sentences and having been rehabilitated, US immigration law provides “mandatory detention” for immigrants with certain drug convictions and other aggravated felonies.

Roddy appeared before an immigration judge, seeking leniency and compassion. The law is clear, he was told, that he remain in jail until he is finally returned to the Philippines.

Roddy’s mother is not blaming his son. She has not been sleeping since his son was arrested and blames herself for her son’s fate. According to her, if ten years ago, she had paid more attention to her son and not been caught up with working and making ends meet, Roddy would probably not have been gotten into trouble. She said that his son was raised well in the Philippines and never had any infractions with the law until he arrived in California where he hanged out with the wrong friends.

There are so many questions in the mind of Roddy and his family. Her mother asks why, if his son was rehabilitated and is reformed to be a good citizen, would he now be deported and separated from his family?

At the beginning of this year, all of Roddy’s siblings got their visas and also migrated to the US. Roddy will be by himself in the Philippines if he is deported.  The irony of this is that Roddy was the the only child who was able to migrate with his parents while his three older siblings aged out and were left behind awaiting for their petitions. Now that his three siblings finally arrived in the U.S. reuniting their family, Roddy is now being deported. The mother is experiencing pain and is left with the dilemma of whether she will give up her life in the U.S. and voluntarily return to the Philippines with his son. This is where a mother’s undying love of a child becomes apparent.

Applying for Citizenship

With the approval of dual citizenship law in the Philippines, immigrants now have more reasons to apply for U.S. citizenship in order to enjoy the benefits of both nationalities. One of the aspirations of an immigrant in attaining the American dream is to become integrated into the mainstream US society and be productive citizens of their adopted country. Immigrants also hope to derive benefits in order that they may exercise the right to vote, obtain federal and state entitlements, ease of travel and other political benefits.  A significant number of immigrants also apply for US citizenship to expedite processing of petitions for their spouse, minor children and parents.

While there are good reasons to apply for citizenship, immigrants with past criminal convictions or immigration violations must be cautious about applying for US citizenship. Legal and immigration consequences of one’s past actions or violations of the law may still have serious effects and may result in removal or deportation. Just like the case of Roddy, despite the passage of many years of being reformed, immigration law’s restrictive enforcement rules had caught up with him.

Another way for the ICE to arrest immigrants with past criminal cases or immigration violations is through the ports of entry. This happens when green card holders re-enter the United States after a trip abroad. These green card holders with previous convictions, after having traveled back and forth numerous times, are now (for the first time and to their surprise) being identified by the Department of Homeland Security’s computer database and being deferred for further inspection.

That fact that an individual has traveled successfully in the past, notwithstanding a criminal record, does not mean that the next time the previous conviction record will not come to light. If the arriving greencard holder with a conviction requiring mandatory detention is identified, the arriving passenger may be arrested just like Roddy. If one has had a prior criminal conviction he/she should be sufficiently aware of these possibilities.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)