The Fallacy of Enforcement Only Thinking

"Let's just enforce the laws we have."  "We don't need immigration reform. We already have immigration laws on the books. Just enforce them."

Those are the refrains we hear over and over again from those who oppose any immigration reform.  It is a mindset that assumes that immigration laws are static, and ought to be so. 

But in a democracy, laws are not static and unchanging.  Laws are meant to be changed over time, just as our society changes over time.  This is why the United States has a Congress.  Like all legislatures, Congress' job is to examine the laws, and decide in a deliberative fashion if new laws need to be passed, if old laws need to be adjusted, and if laws need to be eliminated.

Calling for enforcement only, therefore, cuts off a debate that we as a society need to have on a constant basis.  What are the purposes of our immigration laws? Are our immigration laws functioning in a way to achieve those purposes? Are our immigration law functioning in a manner that reflects our values?  Are there unintended consequences of our immigration laws that need to be adjusted?

All too often, opponents to immigration reform simply presume that our laws are functioning the way they are supposed to function.  They treat immigration laws as if they were criminal law, despite the fact that time and time again immigration practitioners are reminded that immigration laws are civil in nature and not criminal.  Defining immigration laws as civil law gives the government the hook it needs to downplay violation of basic constitutional rights.

But equating immigration law violations with criminal law violations gives those who oppose immigration reform the luxury of dehumanizing undocumented aliens. By calling them illegals, opponents can ignore the inhumane and cruel consequences of enforcement, and claim that "those illegals" deserve it for breaking the law in the first place. 

In that way, opponents of reform can ignore how enforcement causes the separation of families. They can ignore that some aliens who qualify for immigration relief are forced to withstand detentions that are longer than their original criminal sentences. 

For tho who don't have someone they know stuck in the system, enforcement only seems like an easy solution; but it's not a compassionate solution. It's a way to ignore the problems of the current system, and hide away in their own personal cocoon, content with the illusion of security. 

By:  William J. Kovatch, Jr. 

For an appointment call (703) 837-8832

(571) 551-6069 (ESP)

In Immigation Court, the Deck is Stacked Against Daniel Ramirez and Other Immigrants

Last week in Washington State, Immigration and Customs Enforcement (ICE) arrested and detained Daniel Ramirez.  Ramirez now sits in the Northwest Detention Center in Tacoma Washington awaiting his hearing in Immigration Court on whether he should be removed from the United States.

Ramirez was granted protection pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program.  DACA recipients essentially received a promise that the Government would not seek their removal for a certain period of time, and legal work authorization.  ICE seized Ramirez from his home despite the fact that his DACA protection had not expired.  Ramirez has no criminal convictions.

ICE contends that Ramirez admitted to "gang affiliation," and based on that persuaded U.S. Citizenship and Immigration Services (USCIS), the agency that grants and administers DACA, to revoke DACA protection.  Though his attorney, Ramirez denies gang membership.  He states that ICE has doctored records to make it appear as though he admitted gang affiliation, and that ICE has misconstrued statements he made during a custodial interrogation.  Moreover, ICE acted illegally and in direct contravention of the Constitution when it seized him, and questioned him aggressively without giving him an opportunity to consult with a lawyer.

Ramirez challenged his detention in the U.S. District Court for the Western District of Washington.  Friday, the court ruled that it would not order Ramirez be released, but that the Immigration Court must hold a hearing within one week on whether Ramirez should be released on bond.

The District Court's ruling is correct in that there is a procedure to seek Ramirez's release from detention while his removal case is pending before the Immigration Courts.  The Immigration Court should have the first shot of addressing whether Ramirez should be released on bond.  What is unusual, however, is that the District Court has given Ramirez permission to skip an appeal to the Board of Immigration Appeals (BIA) if bond is denied, and ask that the District Court hear his case on appeal.  This may be in recognition of the immense procedural hurdles that face Ramirez, indeed any alien, who seeks bond in Immigration Court while being detained for removal proceedings, faces.

When a person is detained, the Immigration Court can hold a hearing on whether to allow the person to be released on bond pending the resolution of his or her removal proceedings.  Because Ramirez has no criminal convictions, he may be released on bond.  He is not a mandatory detainee.

But a bond proceeding is not the same as a habeas corpus proceeding.  Through a habeas corpus proceeding, a court decides whether the Government is holding a person unlawfully.  A bond proceeding is simply a determination of whether a person should be released while further proceedings are pending, and if so the amount of a bond to be posted to secure his or her attendance at a later hearing.

The difference between these two proceedings shows the limits that the Immigration Courts have.  Despite the name, Immigration Courts as not part of the judiciary.  They are part of the Executive Branch.  Because of this, Immigration Courts lack powers of equity.  They cannot rule that an action of the Executive Branch is unconstitutional.  They cannot hold a person in contempt.  They cannot issue injunctions.  The powers of the Immigration Courts are strictly limited to what powers Congress has granted by statute.

The Immigration Courts are part of the Department of Justice.  They cannot hold an action of the Department of Homeland Security to be invalid.  In some instances, when the Department of Homeland Security has denied an application for immigration benefits, the Immigration Courts can hold a new hearing on the same application.  Thus, Immigration Courts can hear an application for asylum after it has been denied by USCIS, or review a petition to remove conditions on permanent residency, if initially denied by USCIS.  But without statutory authority, it cannot review other actions by the Department of Homeland Security.

This means that whether or not ICE violated the Constitution in arresting Ramirez and interrogating him without a lawyer present is not the deciding factor in the bond proceeding before the Immigration Court.  The questions before the Immigration Court will be whether Ramirez is a danger to the community, whether he is a risk of not appearing for his removal hearings, and whether there is any form of relief from removal available to him.  The constitutional violations could come into play if the Immigration Judge believes that the evidence obtained in violation of the Constitution should be suppressed in considering the bond motion.  But the constitutional arguments are not much more helpful in a bond proceeding.

For Ramirez, the key issues appear to be whether his so-called gang affiliation renders him a danger to the public, and whether there is relief from removal available to him.  In this regard, the reason he was able to stay in the United States before his arrest was the fact that he was granted protection pursuant to DACA.  DACA was not created by statute.  In fact, the President only created DACA when Congress failed to pass the DREAM Act, which would have given legal status to certain undocumented aliens who were brought to this country when they were children.  It is entirely a creature of executive discretion, not statute.  Because the Immigration Court lacks the ability to review every action of the Department of Homeland Security, the Immigration Court lacks the power to decide if DACA protection was rescinded illegally by USCIS.  This could be the issue that sinks Ramirez's request for bond.

But even assuming the Immigration Court were to grant Ramirez bond, that would not be the end of the case.  If bond is granted, the Government has the right to appeal it to the BIA, another arm of the Department of Justice.  If the Government appeals a bond determination, Ramirez would remain detained pending the outcome of the BIA appeal.  Even then, the Government has one more avenue of appeal, this time to the U.S. Court of Appeals for the judicial circuit where the Immigration Court lies.  In this instance, that is the 9th Circuit.

With all of these procedural barriers, it is difficult for an alien in detention to be released on bond, unless the Department of Homeland Security consents.  If the Immigration Judge denies bond, the prospect that a detained alien could be waiting in detention, which in just like being held in jail in all but name, for months and spending money on appeals while still waiting for a full hearing on the issue of removal itself is so daunting, that many aliens simply give up at this point, and agree to be returned to their home country.

It is perhaps because of this great disadvantage to alien detainees that the U.S. District Court gave Ramirez the ability to waive appeal to the BIA, and return to the District Court should he be denied bond.  The U.S. District Court, as part of the judiciary, does have equitable powers, and can entertain an argument that Ramirez's detention is unlawful because of the constitutional violations.  For this reason, the Ramirez case will continue to be an important case to watch when it comes to the potential of reigning in ICE enforcement raids.  This may well be the case that provides immigration law practitioners the tools needed to defend our clients' constitutional rights more effectively.

By:  William J. Kovatch, Jr.
For an appointment call (703) 837-8832
(571) 551-6069 (ESP)

ICE's War Against the Latino Community

When word of the nationwide enforcement raids by ICE began to break about a week ago, I wanted to be able to say that this is not the time to get hysterical. I wanted to say that these occasional raids are common, and certainly happened under the Obama Administration. But as I read more and more news accounts, I cannot say that. Instead, what I am seeing is a coordinated attack on the Latino community in a modern-day which hunt to find anyone ICE can seek to remove from the United States. I see the utter demise of any sense of humanity or dignity in this nation's immigration enforcement policy. I see the Constitution being torn to shreds. 

Let's start with the change in policy itself. Under the Obama Administration, ICE was instructed to concentrate its enforcement resources on priority cases involving dangerous criminal aliens. Undocumented aliens who were here just earning money to feed their families, and who had not had brushes with the law, were given leniency. 

In his first week in office, President Trump signed three executive orders on immigration policy. In one order, the President outlined the new enforcement priorities, which included aliens who had committed acts that constitute a crime but who have not been convicted. To some degree, this seemed innocuous enough. The Immigration and Nationality Act does have a similar basis of inadmissibility. 

In a closed-door session with lawmakers, however, ICE leadership let it be known that it viewed Trump's executive order as removing the shackles imposed by the Obama Administration. Now the reference to aliens who had committed acts that constituted a crime but who had not been convicted was being interpreted to mean that any of the aliens present in the United States without valid legal status was considered a priority for enforcement. That is, instead of the two to three million Trump  believed were criminal aliens he wanted to focus on, ICE considered all eleven million undocumented aliens as fair game for removal. 

It should be noted that in this very meeting where ICE announced its interpretation of the Trump policy, certain Latino congressional representatives were turned away. That's right. Latino congressional representatives were denied the right to hear from ICE itself the new enforcement priorities that would affect their Latino constituents and their families. 

What's worse is that ICE's enforcement activities have shown an utter disregard for morality and human decency, as ICE has practically declared war on the Latino community. Let's explore just a few examples. 

In Arizona, a woman who had been reporting into ICE annually for ten years was taken into custody during her annual check-in. Within 48 hours she was removed because a decade before she used a phony Social Security number to find work. She had no history of any violent crimes. 

In Washington State, a man who had been granted protection and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals program (DACA) was taken into custody during a raid on his home targeting his father. ICE ignored the DACA protection, claiming the man had known gang affiliations. ICE's evidence of this?  A tattoo which translates into English as "peace."

In Virginia, ICE waited outside a church hypothermia shelter to stop Latino males as they left the shelter in the morning. One of the Latino males stopped was a permanent resident who is in this country legally. Obviously, ICE's marching orders were to stop all Latino males with the hope of finding one or two who would be removable. 

But the piece de resistance?  In Texas, ICE waited outside a courtroom as a woman obtained a protective order against her abusive partner. Once she left the courtroom, ICE arrested her. In all likelihood, the tip to ICE on where the woman would be was given by the abuser. 

What conclusions, then, are the Latino community supposed to take from ICE's recent actions?  First, ICE has no interest in being transparent and telling Latino political leaders what it's enforcement priorities are. Second, don't bother venturing out to seek any legal protection or to accept help from others with charitable intentions. Are you homeless and need shelter for the night?  ICE will be waiting outside the door to take you into custody in the morning. Are you an abused woman?  If you seek help in the courts, the moment you step outside of the courtroom, ICE will be there to perpetuate the abuse.  Are you a Latino male?  ICE will presume gang affiliation, especially if you have any tattoos. 

The point is that ICE's indiscriminate attacks on the Latino community must be resisted. ICE knows that due to language barriers, many Latinos present here don't know their rights.  ICE knows that many Latinos will not resistente the assertion of authority. This has to change. 

Know your rights, and understand that ICE had to act within the constraints of the Constitution. Don't open the door to ICE unless they show you a judge-issued warrant. Don't answer any questions posed by ICE. Demand your right to see a lawyer. Don't sign any papers without consulting a lawyer first. Insist on a hearing. Only by fighting back within the bounds of the legal system can we push back against ICE's assault on the Latino community. 

By: William J. Kovatch, Jr. 

For an appointment call (703) 837-8832

(571) 551-6069 (español)