Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

Obama--Still The Deportation President

Much has been written in the last two days about the Obama Administration's release of its FY 2013 official "removal statistics."  Some have noted that the number of removals (this means displacement of people to foreign countries that they may have had no contact with for decades) went down by 10% from FY2012's record level. Yet, Obama's ICE still deported 369,000 men, women and children (yes children) in the 12 months of 2013. That is 30,750 people a month, 1,111 people a day, 42 people every hour, or almost one person, every 90 seconds, of every day, all year long.  This "lower" number of deportations is a higher number of people deported in one year than President Bush ever deported in one year in his entire presidency.  Let's not kid ourselves. Obama's ICE is a people deportation machine. Every part of that machine is well-oiled to either convince people to accept deportation by deceptive means (e.g. you have no relief), force them to accept it (by detention in remote hell-holes like the Stewart Detention Facility in Lumpkin, Georgia), or giving the Border Patrol summary removal authority at the border and airports.

A deep dive into these numbers reveals some startling facts.  About 40% of those removed in FY 2013 were not the "gang-bangers" Obama said he was focused on removing from the US. In fact, this 40% had NO criminal background whatsoever, and many of those considered "criminals" by ICE are actually only guilty of simple traffic offenses, euphemistically referred to as DWH, Driving while Hispanic, or even civil immigration status violations.  MANY of this 40% have lived in the United States for years, (the average is for over a decade), and most have U.S. Citizen children or spouses in the United States. Not to put too fine a point on it, but since July 1, 2010 and September 31, 2012, Obama's ICE removed 204,810 PARENTS of U.S. Citizen CHILDREN. There is anticipated long-term socio, psycho, and economic damage from ripping these children from their parent's arms. Are we not better than this?  Is this leadership?

Finally, an analysis of Obama as the Deportation President (a real legacy that will dog him through history) is how aggressive on immigration enforcement Obama has been since he took office.  He has now deported more than 2,000,000 people in just 5 years in office, something President Bush took 8 years to do.  Criminal prosecutions of immigration-related offenses (typically reentry after deportation--most people usually try to come back to their children) are at their highest point in history, up 468% since 2003, putting enormous strain on an already underfunded federal court system. And, Obama's ICE detains more than 430,000 people a year solely for immigration purposes, IN REAL JAILS (and for-profit private prisons with a mandatory daily number of 34,000 people), at a taxpayer cost of about $2,000,000,000 ($2 Billion) a year!

Obama's real legacy is one of destroying immigrant families, exacerbating an already broken immigration system, and in failing to lead out on an immigration reform package that will help our families AND our economy.  There is still time for him to recover, but that time is running out fast.  Let's pray he is successful before he destroys more families.

A letter mailed to Congressman Tom Price by my fiancé, Kieran Claffey, an Irish Immigrant and U.S. Citizen - a different perspective on immigration reform

85-C Mill Street, Suite 300
Roswell, GA 30075

Dear Congressman Price:

I am writing on behalf of the 50,000 undocumented Irish in the USA, (a figure produced by recent Irish government estimates).  Please remember that figure – it appears again in this letter.  The Irish did not come here with their hand held out, as Paul Ryan recently highlighted in his campaign for immigration reform, in which he displayed a poster from the Irish 1850’s immigrant ships, depicting the truth that a man could be the sum of his efforts in America, a land that rewarded hard work, indifferent to nobility or class system.  The 50,000 undocumented Irish work hard and earn their way, as we have always done and contribute to the richness of America.  I am one of 40 million Irish American voters that are asking for your help.

Not many people know this, but there were 50,000 Irish men who died in the US civil war; 35,000 with the north and 15,000 with the confederate army and many more who bled the ground for this country, going back to the American war of independence.  In the famous NY city skyscraper photograph of the steelworkers from the 1930’s, the majority of the men sitting on that steel beam were Irish immigrants.  We have earned our voice, producing great Irish American leaders such as the Scots Irish Hibernian, Andrew Jackson, John Kennedy and Ronald Reagan, to name a few. 

In recent history the Irish nation has been treated poorly by the immigration system, considering our contribution to the establishment, growth and moral fortitude of America.   Since 1965 Ireland has been shut out, with only 1/1000th of 1% of green card admissions.  Have we not earned our voice in America; earned it the hard way?  Yet we continue to be given the bare minimum.  We have 50,000 of our people struggling in America, struggling in the shadows of American life.  There is an opportunity for Ireland to receive e-visas in the upcoming legislation, the immigration reform bill (Bill No. S. 744) and there are proposals to eliminate the e-visas from the legislation; visas which would be of great benefit to Ireland.  

Ireland is suffering a dilapidating economic downturn.  Recent engineering and science graduates are unable to find employment in Ireland and are emigrating to Canada, Australia, New Zealand and the UK; countries who want them and who are welcoming their eclectic skill set.  Why should Canada, Australia, New Zealand and the UK benefit from highly educated Irish college graduates and not us; not us in America with our strong ancestral bond to Ireland?  

We badly need them here!  I know; I work in the oil and gas industry in Georgia and we are starved for technical people.  We need science and engineering graduates in the US to develop our economy and to compete with the rising Asian countries who are surpassing us in engineering and science.   We (as Americans) are looking a gift horse in the mouth!  Why?

Immigration reform is not just a Latino issue; it is also an Irish issue and it is also a reflection of how we want to be as a nation.  Do we want to reward hard work and labor or do we want to simply ignore these immigrants who are toiling so very hard for this country?  Irish people cannot go home to bury their parents; missing funerals for fear of being deported, a point I believe the Taoiseach Enda Kenny recently made to speaker of the house John Boehner.   Please work to provide e-visas for the benefit of both the USA and Ireland and throw your shoulder into supporting some form of immigration reform for the betterment of America, regardless of bi-partisan politics.  Do the right thing!  I know people who know what it is truly like to live in the shadows in America; we are not looking for amnesty; just a drop of milk of human kindness and an acknowledgment of the dignity of the human spirit. 

Our ancestors, many of them Scots Irish, were immigrants at one point, but the system did not force them into the shadows. This is happening in 2013!  Whose plight is worse?  What would your ancestors do when given your choice, the choice that lays ahead of you?  Please remove this burden and pass some form of immigration reform, which secures our borders and recognizes the contribution given by the people who pick our fruit, build our houses and mind our children! 

Is mise le meas – With respect,
Mr. Kieran J. Claffey
Mechanical Engineer – Oil & Gas Industry,
Atlanta - Clan na nGael Cumann Luthchleas Gael (Atlanta - Gaelic Athletic Association)
US Citizen
Irish Immigrant to the State of Georgia

Due Process is Overdue for Detainees

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. – Preamble of the U.S. Constitution

The United States Constitution, as we all know, is the foundation of our great nation. It defines who we are as a collective people as well as articulates the rights and responsibilities that we all share. Our Constitution was and remains a masterpiece.  Drafted by our forward-thinking forefathers, it has helped our Nation advance in ways no one could have imagined then, and has influenced the creation of constitutions of many other nations since.  While we take for granted these freedoms generally, immigration lawyers have the unique privilege of being constantly reminded.  Every client we help enter or remain in the United States has a story, and every story boils down to freedom.

In a casual conversation last week with a close friend (who happens to be an immigrant himself), he mentioned to me in passing that he believed the Constitution only applied to those individuals who are lawfully present in the United States.  He stated that if the government wished to seize property, what would stop it from seizing property owned by undocumented individuals in the U.S.? When I questioned his statement he was surprised when I informed him that the undocumented were also included as “People” in “We the People…” and were afforded the same Constitutional rights as the rest of Americans.

As surprised as he was, I was astonished that he didn’t know this himself, especially given how frequently we discussed immigration issues.  Upon further reflection I realized it was not so farfetched for my friend to reach this conclusion. After all, he must have been listening when I talked to him about my experiences defending immigrants. My stories translated in his mind as follows:

Translation #1: Locked doors = No Due Process

When my friend hears me complain about having to wait outside of Immigration Court because the doors are locked to visitors until my particular hearing is in session - he translated that to “closed hearings”.  

Translation #2: Lengthy detentions = No Due Process

When I express my frustrations after winning a case for a detainee, only to learn that even though he is now a lawful permanent resident he has to remain in jail because the government attorney that prosecuted him opted to appeal his case (for the 2nd time), resulting in his detention for over one year – he translates this as “justice delayed is justice denied”. (This particular detainee has yet to meet his toddler son, born shortly before his father's detention)

Translation #3: No Bail = No Due Process

When I file two identical motions requesting bond be set for my clients with the same Judge, a week apart, and one gets granted and the other does not, and there is no explanation for the inconsistencies, he translates that as the actions of an “impartial arbitrator”. 

On paper, the 14th Amendment to the U.S. Constitution safeguards us all from the arbitrary denial of life, liberty, or property without due process of law.  It holds that no States shall deny anyone equal protection of the laws.  While it was clear to me that our Constitution belongs to us all, I now understand why it was not clear to my friend. My experiences defending immigration detainees in the real world painted a completely different picture.

A reminder to my friend, and to the rest of us: The Constitution belongs to ALL of us, regardless of the color of your skin, the language you speak, the religion you follow, or whether you happen to carry a U.S. Passport.  Any erosion of our Constitutional rights is an erosion of the essence of who we are as a Nation. We are all obligated to keep one another in check, to make sure that even when the winds of change blow, we hold strong to the core values that make America great.

Why Is My DACA Case Pending So Long?

The American Immigration Lawyers Association ("AILA"), is conducting a survey of long pending DACA cases, some pending over one year, and many thousands pending longer that 8 months. The survey has discovered some common elements in long pending cases:
  • The requestor had a criminal history -- numerous cases involved drinking and driving related incidents, juvenile adjudications, gang issues, and drug and theft offenses;
  • The requestor attended an online school or was homeschooled;
  • The requestor had previously been in removal proceedings or was in removal proceedings at the time of the DACA request;
  • The requestor had another petition or an application for other relief pending;
  • The requestor departed the United States for a considerable period of time either during or prior to the continuous residence period; or
  • The requestor provided a small amount of evidence to support either continuous residence during the relevant period or physical presence on June 15, 2012.
As AILA notes, if you have a long-pending DACA case, check to see whether it may fall into one of the above categories. While not always true, these factors may lead to longer processing times. These findings are preliminary, and may not reflect USCIS policy decisions or adjudication trends. USCIS is NOT a model of efficiency, and many of these long pending cases are at its Nebraska Service Center. Reach out to your attorney to see if an individual inquiry on your case is warranted.

Believing and Being an Immigration Lawyer

           Belief is a powerful, motivating force.  A force that can literally compel action, both for good or evil.  For me, knowledge of and belief in a power greater than myself motivates virtually all that I do.   I believe that we have a responsibility as human beings to be kind to others, to assist when able, to lift when necessary, and to reach out when required.  As lawyers, and particularly as immigration lawyers, I believe that the need for the actions of assisting, lifting and reaching out are even more acute.

            We live in a time of great political turmoil.  Regardless of which of the major political parties with which you affiliate, we can all acknowledge that not enough is being done, not only by the government, but by society in general, to lift the lives of our fellow citizens. Part of the reason we see this failing by government and by ourselves is that many people demonize “the others,” seeking to blame “the others” for the problems with which they themselves have to deal.  As a result, the topic of “Immigration” has become a great political lightening rod, a catalyst for debate on the evils versus the good of “the others.”  The debate on immigration reform has sharpened the line between those who are distrustful, and perhaps even afraid ofnew immigrants, and those who believe that immigration is good for our society and our country.

            What I have observed over that last several years is that most of us love the individual immigrant;  the one who has benefited us with scientific discoveries, or has helped in our yards, or with our children.  Concerns seem to come when more than one of these favored immigrants congregates with others and creates an impact on the local community.   Is this not the very definition of fear?  Being afraid of what is new, being concerned with change to who we are as a country?

            Fortunately, we are a country that always seems to overcome these bouts of xenophobia, with an increased tolerance of, and perhaps even a greater affection for immigrants.  We honor and revere those immigrants who came before during those times of great waves of immigration, but as a society we typically fail to recognize at the time it happens, the net benefits that come to America with those who seek to share with us in this great American Experiment. 

            I believe, and so remain optimistic that soon, as a country, we will come to the realization that immigration is not the cause of our myriad problems, but rather, one of the important solutions.  I believe we will soon come to our senses as a country and understand that by fixing our immigration system, both by adjusting the legal aspects that merit reform, and by forgiving those who have forged a future in this country through their hard labor, we will resume our path forward.  More importantly, we will do so without demonizing millions of people for choosing to improve their lives.  These same people who entered into and lived in the United States with the tacit approval of the government, should, in fact, pay a price for disobeying the law, but with the understanding that they have and will contribute to this country.

            I believe that we as immigration lawyers have a very specific obligation to help shape the public debate, clear up misunderstandings, and clarify for the American people the realities of our immigration system.  This must be done not only through the media, but through reaching to our neighbors, and our friends.  The voices of the anti-immigration movement, like all other negative cries, are easily heard and believed.  Compare it to negative political advertising—scare tactics.  These are used because they work.  It is much harder to get a positive message across.  Yet, I believe that such a positive message is one most Americans yearn to hear and understand.  We have the obligation to spread that positive message.

            I also believe we have an affirmative and very substantial obligation to assist the immigrant.  We have to reach out; we have to assist, we have to lift up our clients.   How we act on behalf of a client, how hard we try, how bold we are in their defense is the lesson that our client will pay forward as she becomes part of the great American Experiment. 

            Ultimately, I believe that being an Immigration Lawyer is more than a career choice, or an area of law to practice. I believe it is a calling, one that each of us who are immigration lawyers has chosen.  One that actually changes lives and affects the courses of life of millions of Americans for generations to come.    I believe that service to our fellow man, as immigration lawyers, is simply service to our own belief in the greater powers to which we each individually answer. 


Detained by Immigration? What You Need to Know

While talks of immigration reform continue there is little spoken of the marked increased number of detained foreign nationals by ICE- the Department of Homeland Security’s (DHS)
enforcement arm.   Congress’ expansion of the immigration detention system has created a profitable market for both private prison corporations and local governments.  

In fiscal year 2013 almost 244 state and county jails were contracted to house immigrant detainees on behalf of ICE (nearly 70 percent of the detained immigrant population).  Private correctional corporations have gotten in on this boom as well.  These corporations have built facilities strictly to house immigration detainees. Currently, ICE utilizes seven Contract Detention Facilities (CDF). 

Considering this reality below is a summary provided by ICE regarding ICE detainers.

Q: What is an immigration detainer?

A: An immigration detainer is a notice that DHS issues to federal, state and local law enforcement agencies (LEAs) to inform the LEA that ICE intends to assume custody of an individual in custody. An immigration detainer serves three key functions: 1) to notify an LEA that ICE intends to assume custody of an alien in the LEA's custody once the alien is no longer subject to the LEA's detention; 2) to request information from an LEA about an alien'simpending release so ICE may assume custody before the alien is released from the LEA's custody; and 3) to request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) to provide ICE time to assume custody.
Q: What happens if ICE does not assume custody of the individual after 48 hours?hours? 
A: If ICE does not assume custody after 48 hours (excluding weekends and holidays), the local law enforcement agency (LEA) is required to release the individual. The LEA may not lawfully hold an individual beyond the 48-hour period.
Q: What if the detainee believes that he or she has been held beyond the 48 hours, or has a complaint? 
A: The Notice to the Detainee advises individuals that if ICE does not take them into custody during the 48 hours, they should contact the LEA or entity that is holding them to inquire about their release from state or local custody. If the individual has a complaint regarding the detainer or violations of civil rights or civil liberties connected to DHS activities he or she should contact the ICE Joint Intake Center at 1-877-2INTAKE (877-246-8253).  If the detainee has an attorney the attorney should pursue all further action to ensure the release of the detainee beyond the 48 hr. window. 
For the full ICE- Question and Answer factsheet on detainers, go to link below:

ICE is only going to increase the number of detained foreign nationals.  If someone is detained, depending on the circumstances they may still have legal options available to them to stop the removal process, qualify for legal permanent residency or other forms of relief.  The government is not necessarily going to provide you with a step-by-step of what legal recourse a detainee may have available. It’s up to the detainee, his friends or family to figure that out.  

The best way to make an informed decision is to speak to a qualified attorney who can evaluate the circumstance and provide legal counsel to determine what next steps they need to pursue.  Contact Kuck Immigration Partners at 866-286-6200.