Confusion and Frustration Over Obama’s Deportation Policy

A protest in favor of the DREAM ActThe Obama administration’s latest immigration move—classifying young undocumented immigrants as low-priority for deportation—has caused celebration in some circles, consternation in others and a whole lot of confusion for undocumented individuals who have been desperate for a resolution of their situations.

The other day, a gay man asked me if it’s now okay to apply for a green card for his partner.  Yesterday, an immigration attorney friend told me that she was approached by an undocumented immigrant who wanted to know if he should turn himself in to immigration authorities and benefit from this new policy.

The simple answer to both is “no.” Yet this is not evident for most people whose eyes glaze over the labyrinthine U.S. immigration system and whose anxiety and despair cloud better judgment.

Melissa Crow, Director of the Legal Action Center at the American Immigration Council, stressed during a briefing last Monday that “DHS has also been clear that last week’s announcements do not impact individuals who are not currently in removal proceedings. Thus, ‘DREAM’ students and others unlawfully present in the United States, but not in removal proceedings should not actively seek out the immigration authorities.  Since there are no guarantees that an individual removal case will be administratively closed, anyone who seeks to be placed in removal proceedings could end up being deported.”

It is also remains unclear how this new policy will play out in practice.

How long will it take to process 300,000 cases? How many ICE lawyers are assigned to these cases? Who will sit in the working group tasked to develop the criteria that determines who gets to stay? Who are the government agents who will determine the fate of 300,000 people and their families? How will their personal sentiments towards immigrants influence their decisions?

Things would be a whole lot simpler and less confusing if the Obama administration granted a categorical reprieve and path to citizenship for certain groups of undocumented immigrants such as DREAMers, highly-skilled persons and foreign-born gay partners and spouses—those whom some conservatives deem a bit more acceptable and “worthy” than the great unwashed laborers who only produce our food, clean our homes and care for our children.

But this would not fly in Washington. So for now and the foreseeable future, we continue to slog through our morass of an confusing and broken immigration system.

Originally posted on Feet in 2 Worlds, August 25, 2011.

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Obama Administration Signals DREAMer Reprieve

dream act activistOn Thursday Department of Homeland Security Secretary Janet Napolitano sent a letter to 22 Senators and White House Intergovernmental Affairs Director Cecila Muñoz issued a statement, both in essence saying that undocumented children and youth as well as others not deemed to be serious criminal threats will not be deported.

Napolitano’s letter announced that the Obama Administration has established a new process for handling deportation cases of DREAM Act-eligible students and other individuals.

The process calls for a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group to develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on the “Morton Memo” which explains how ICE personnel should use their time, energy and resources in deporting undocumented immigrants and lists the “positive factors” that should be taken into consideration when deciding who should be deported.

These factors favor individuals who have lived in the U.S. since childhood, minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will also develop a process for reviewing the 300,000 cases pending before immigration and federal courts that meet these specific criteria.

Cases scheduled for a hearing within the next couple of months and all 300,000 pending cases will be reviewed individually by ICE attorneys. These cases will be closed except in extraordinary circumstances, where the reviewing attorney must get the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will also be reviewed on a case-by-case basis.

Muñoz’s statement explained that this new strategy was developed

“to make sure we use those resources [that Congress gives the Executive Branch] in a way that puts public safety and national security first. If you were running a law enforcement agency anywhere in the world, you would target those who pose the greatest harm before those who do not. Our immigration enforcement work is focused the same way.”

This is welcome news. If the new process is fully and properly implemented, then DREAMers and other individuals whose cases meet the criteria outlined in the Morton Memo will no longer fear separation from their loved ones and adopted country.

Many questions remain however. Aside from work authorization, what other immigration benefits will be afforded to those whose cases have been dismissed? Will undocumented students be eligible for federal student loans?  What about the the millions of others who are not in deportation proceedings?

Comprehensive immigration reform would once and for all solve the many problems that beset our immigration system. But this is nonetheless a step in the right direction.

Originally posted on Feet in 2 Worlds, August 19, 2011. Reposted on WNYC, It’s a Free Country.

The Morton Memo on Immigration Enforcement: What About Gay Families?

John Morton, Director of Immigration and Customs Enforcement (ICE), released a memo to employees of his agency to clarify how ICE personnel should use their time, energy and resources in deporting undocumented immigrants and more importantly, who among undocumented immigrants should be deported.

The memo augers well for some immigrants, particularly those who were brought to the United States as children. These are kids, teenagers and young women and men who know no other home and consider themselves American. Morton includes among “positive” factors which “should prompt particular care and consideration” minors and elderly individuals as well as individuals present in the United States since childhood.

As the foreign-born half of a gay binational couple, I can’t help but wonder how the memo would affect me, my spouse and thousands of other legally married or partnered couples like us.

Gay rights advocates have been quick to express their concern. Although ICE representatives are encouraged to consider whether an individual has a spouse who is a U.S. citizen or permanent resident, it is not clear whether this applies to lesbians and gays. Immigration status is a federal matter, and legal gay marriages and civil unions are not recognized by the U.S. government thanks to the Defense of Marriage Act (DOMA).

Rachel Tiven, executive director of Immigration equality argues:

“While ICE has taken a significant step in recognizing that tearing families apart should not be a government priority, it must be explicit that lesbian and gay families are protected, too.”

She adds, “Given the absence of any LGBT family recognition at the federal level, the decision not to explicitly include our spouses and partners in the ICE memo is striking.”

The Morton memo nonetheless leaves me cautiously optimistic, since it has additional criteria that can be read as benefiting gay immigrants and their families. ICE personnel, for instance, are advised to take into account whether a person has a child or is the main caretaker of an ill spouse.

Fact is however, ICE employees are all too human and “prosecutorial discretion” can easily be influenced by a person’s background, political and religious beliefs, and deep-seated biases. Those who believe that all people should be treated equally and fairly will most likely execute the memo’s guidelines mindful of gay families. Those who are prejudiced against gays can choose to judge harshly.

This can be the case not only with lesbians and gays but with immigrants in general. Racism and nativism can surface alongside homophobia.

While the Morton memo is a step forward, it is merely an exhortation, not by any means an enforceable regulation or law. The disclaimer at the end makes it very clear that ICE personnel still can and will deport undocumented immigrants.

Until LGBT-inclusive comprehensive immigration reform is passed, what is needed is an executive order that halts the deportation of foreign-born spouses and recognizes gay marriage and domestic partnerships for immigration purposes. Ultimate resolution of the plight of gay binational couples can only come through federal legislation such as the Uniting American Families Act or the Reuniting Families Act which seek to treat LGBT families equally and fairly. Or through repeal of the patently unfair and discriminatory Defense of Marriage Act.

Originally posted on Feet in 2 Worlds, June 23, 2011.