The authors of this article shall elaborate on the details of some of the new programs and reforms emanating from President Obama’s executive orders regarding immigration so as to provide guidance and more information to potential clients and practitioners, both those within immigration law and other areas of law.
Expansion of the Provisional Waiver Program. To many in the field of immigration law, the expansion of the provisional waiver program is the real stand out of President Obama’s executive actions.1 It is a clear sign of the administration’s understanding and promotion of the value of family unity.
Under current law, undocumented immigrants who are the spouse and children of U.S. citizens and lawful permanent residents must leave the country and conduct an interview at a consular office abroad in order to obtain family-based immigrant visas.2 Unfortunately, depending on how long the individuals have been in the United States unlawfully, a departure could subject them to entrance bars of three or ten years.3 However, an individual could bypass the applicable bar if they could demonstrate that imposed absence from the United States would cause extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.4
There was one catch though: applying for this waiver would have to be done after a departure.5 In January 2013, the Department of Homeland Security (“DHS”) allowed statutorily eligible individuals to apply to the United States Citizenship and Immigration Services agency (“USCIS”) for waivers of the three and ten year bars prior to departing abroad for their consular interviews, with reassurance that they would be able to return to their families after a successful consular interview.6
Up until now, this provisional waiver applied solely to the spouses and minor children of U.S. citizens. With the new executive action, this program will be expanded to the spouses and children of lawful permanent residents and to the adult children of U.S. citizens and lawful permanent residents.7
In addition to this change, USCIS has also been directed to clarify the vague definition of “extreme hardship”
as it applies to the extreme hardship standard that must be met to apply for this waiver.8 No statute defines this phrase and federal courts have not been able to provide a substantial definition through case law.9
Providing a more descriptive and detailed definition would give muchneeded guidance to beneficiaries, families, and attorneys.
The Heavy Hitter: Deferred Action Expansions. The initial Deferred Action for Childhood Arrivals (“DACA”) program, established in 2012, allowed young unauthorized individuals who’d come here as children to get temporary protection from removal and work permits. 600,000 of the 1.2 million immigrants eligible for the original DACA program have benefited from the Obama administration’s 2012 executive action.10
The 2014 executive orders will expand on both the DACA benefits and list of beneficiaries.11 Deferred Action is a form of prosecutorial discretion by which an individual’s case will be deprioritized for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission. Deferred Action is legally available so long as it is granted on a caseby-case manner.12
The 2012 DACA program originally allowed for deferred action on a case-by-case basis for those under the age of 31 as of June 15, 2012, who entered the United States before June 5, 2007 as children under the age of 16, and who met specific educational and public safety criteria.13 DACA recipients would receive deferred action for a period of two years and would receive work authorization as well.14 On June 5, 2014, USCIS announced that DACA recipients could request renewals of their DACA status for an additional two years.15
The 2014 DACA-related executive actions included a removal of the age cap, extension of the DACA period and work authorization, and an adjustment of the date-of-entry requirement.16 The age cap was removed so as to make it so that all otherwise eligible immigrants who entered the United States by the requisite entry date before the age of 16 could apply.17 The DACA and accompanying work authorization period will now be for three-year increments and these changes will apply to all first-time applications as well as applications for renewal that are effective on November 24, 2014.18 The date-of-entry requirement has also been changed from June 15, 2007 to January 1, 2010. 19
The biggest expansion of Deferred Action is the expanding of the program and its benefits to undocumented parents of children who are either U.S. citizens or lawful permanent residents of the United States who have 1) continuously resided in the United States since before January 1, 2010, 2) are physically present in the United States as of the date of this memorandum, 3) and are not an enforcement priority under current policies of the Obama administration.20 All in all, the White House expects that about 4.3 million undocumented immigrants could be affected by these two deferred action programs.21
Secure Communities: Good Bye and Good Riddance to S-Comm. The Secure Communities program, unaffectionately nicknamed S-Comm by many immigration attorneys, students, and activists, has been discontinued by one of the latest executive action orders.22 The goal of the Secure Communities program was to identify and facilitate the removal of criminal immigrants in the custody of state and local law enforcement agencies.23 Under the program, Immigration and Customs Enforcement (“ICE”) would place requests for detention with state and local law enforcement agencies so as to hold an individual beyond the point at which they would otherwise be released.24
This program was widely criticized by state and local law enforcement officials across the country and was rejected by a number of federal courts under Fourth Amendment grounds.25
S-Comm is being replaced by the Priority Enforcement Program (“PEP”).26 Under this new program, ICE will replace S-Comm’s detainer program with a new method, requests for notification. These will be requests that state or local law enforcement notify ICE of a pending release during the time that the person is otherwise in custody.27 However, even under PEP there will be instances where ICE can issue a request for detention instead of sending a request for notification.28 Specifically, this will be the case in special circumstances where the person is subject to a final order of removal or if there is sufficient probable cause to find that the person is a removable alien.29
Southern Border and Approaches. Illegal migration into the United States peaked in 2000 but recently there has been an unprecedented spike along the South Texas border.30 The majority of this migration came from Guatemala, Honduras, and El Salvador and consisted of mostly unaccompanied children and adults with children.31 The Obama Administration swiftly stemmed some of this immigration in May 2014 and used an executive action to further elaborate on the changes that would be made to Southern border security.32
This order commissioned three different Joint Task Forces to focus on new approaches to the immigration occurring through the Southern Border.33 This order is broken down into specific objectives, none of which include increasing training for border agents, especially with regards to questioning potential asylum applicants at the border.
A November 2014 complaint filed by many human rights organizations, including Chicago’s own National Immigrant Justice Center, was filed with the Department of Homeland Security’s Office of Civil Rights and Civil Liberties. Plaintiffs cited serious due process and civil rights violations; specifically, the complaint stated that border agents routinely intimidate and deport refugees.34 Also, the complaint alleges that agents ignore individuals with expressed fear of returning to their home countries instead of following U.S. immigration law and referring them to asylum officers for credible fear interviews.35 This practice is impacting migrants coming
into the Southern Border and, as is summarized in the complaint, denying individuals a credible fear interview, which is an interview given to those who believe they can qualify for asylee immigration benefits and/ or who have fear of persecution in their home country. Depending on the case at hand, this can be a potentially fatal decision for an individual. With the recent incidents of migration by unaccompanied minors, the gang and political violence terrorizing Central America, and the massacre of students and discovery of mass graves in Mexico, efforts should be made to protect our borders while also protecting refugees with credible fears of harm in their home countries.
The complete lack of a response-this complaint was filed a week before the immigration announcement on November 20th from the Obama administration is enough to show that there is still work to be done in terms of immigration reform.
Establishing Modified Civil Enforcement Policies for Deportation. In general, removal policies prioritize threats to national security, public safety, and border security. 36The vagueness of these classifications has proven troublesome for immigrants and nonimmigrants, attorneys, and government officials. With the new wave of orders comes guidance on what falls into the priority classifications. There are two main priority classifications for determining who should be removed under prosecutorial discretion.37
Priority 1 includes the aforementioned threats to national security, border security, and public safety.38 This specifically includes: aliens engaged in suspected terrorism; aliens attempting to unlawfully enter the United States; aliens convicted of offenses for which an element was active participation in a criminal street gang; aliens who are no younger than 16 and intentionally participated in illegal organized criminal gang activities; aliens convicted of a felony, as classified by the convicting jurisdiction (unless the offense is one for which an essential element is the alien’s immigration status); and aliens convicted of an aggravated felony as defined by INA Section 101(a)(43) at the time of the conviction.39
Priority 2 includes those convicted of certain misdemeanors and new immigration violators.40 Specifically, this classification includes: aliens convicted of three or more misdemeanor offenses (other than minor traffic offenses or state or local offenses for which the immigration status was an essential element of the crime); aliens convicted of significant misdemeanors, such as domestic violence, sexual abuse or exploitation, burglary, etc.; aliens who are apprehended within the U.S. after unlawfully entering or re-entering the U.S. who cannot establish that they have been continuously present within the U.S. since January 1, 2014; and aliens who, based on judgments, by immigration officials, have significantly abused the visa or visa waiver programs.41
Call for Action: A Conclusion. President Obama has been criticized and praised throughout his presidency for immigration-related actions or lack thereof. He has been mocked and nicknamed “the Deporter in Chief ” for his unprecedented deportation record. He has also been praised for his work on issuing DACA and, of course, this new wave of orders. This series of orders are certainly a step forward for activists, immigrants, nonimmigrants, and attorneys. However, this progress is just the tip of the comprehensive immigration reform iceberg.
It is well-established that the odds of prevailing in court are far better for an individual who has the assistance of an attorney. On the other hand, the government is under no obligation to provide legal counsel to the indigent in immigration court proceedings. While there has been a call for pro bono and legal aid volunteers across the United States, the numbers are still dismal. It is also the opinion of the authors that more immigration court reform is necessary. Courtrooms are understaffed both in terms of judges and legal workers, overstretched by their caseloads, and forced to reduce trials to, in some cases, a duration of mere minutes. The system both can be and should be better. It is easy to take a small victory and confuse it for winning the war. As scholars and participants in the legal system, we look forward to seeing how the battle for true comprehensive immigration reform plays out both in Illinois and on a national scale.
1 Expansion of the Provisional Waiver Program, November 20, 2014, Memorandum from the Secretary of the Department of Homeland Security.
2 Immigration and Nationality Act (INA) § 212(a)(9)(B)(i), 9 U.S.C. § 1182(a)(9)(B)(i).
3 INA § 212(a)(9)(B)(i), 9 U.S.C. § 182(a)(9)(B)(i).
4 INA § 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).
5 Expansion of the Provisional Waiver Program, November 20, 2014, Memorandum from the Secretary of the Department of Homeland Security.
6 See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, Fed. Reg. 78-2, 551 (Jan. 3, 2013).
7 Expansion of the Provisional Waiver Program, November 20, 2014, Memorandum from the Secretary of the Department of Homeland Security.
9 See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, Fed. Reg. 78-2, 551 (Jan. 3, 2013).
10 Obama’s Huge New Immigration Plan, Explained, Vox, November 21, 2014. http://www.vox.com/2014/11/20/7250255/immigration-reform-obama-executive-action
11 Obama’s Huge New Immigration Plan, Explained, Vox, November 21, 2014.
12 Obama’s Huge New Immigration Plan, Explained, Vox.
18 Obama’s Huge New Immigration Plan, Explained, Vox.
21 Obama’sHugeNewImmigrationPlan, Explained, Vox, November21, 2014. http://www.vox.com/2014/11/20/7250255/immigrationreform-obama-executive-action.
22 Secure Communities, November 20, 2014, Memorandum from the Secretary of the Department of Homeland Security.
25 Secure Communities, November 20, 2014.
30 Southern Border and Approaches Campaign, November 20, 2014, Memorandum from the Secretary of the Department of Homeland Security.
33 Southern Border and Approaches Campaign, November 20, 2014.
34 Border Patrol Unlawfully Deporting Potential Asylum Seekers, Al Jazeera English, November 21, 2014, http://america.aljazeera.com/opinions/2014/11/border-patrol-agentsunlawfuldeportationasylumseekers.html
36 Policies for the Apprehension, Detention, and Removal of Undocumented Witnesses, November 20, 2014, Memorandum from the Secretary of the Department of Homeland Security. abused the visa or visa waiver programs.
41 Policies for the Apprehension, Detention, and Removal of Undocumented Witnesses, November 20, 2014.
Mahdis Azimi currently works with Schaffer Family Law, Ltd. She received her Bachelor of Arts from the University of Illinois-Chicago and her Juris Doctor from Loyola University Chicago School of Law. Her personal and professional interests include the areas of family law, family based immigration, and asylum & refugee law.
David N. Schaffer is a Fellow of both the American and International Academies of Matrimonial Lawyers, and concentrates in domestic and international matrimonial and child custody cases. He received his B.A. in Psychology from the University of Illinois and J.D. from Indiana University School of Law, Bloomington, Indiana. His firm is located in Naperville.