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)

Trump Emphasizes Enforcement Priorities; Prosecutorial Discretion Remains Intact

U.S. President Donald Trump did not appear to curb the authority of immigration officials to engage in prosecutorial discretion when he signed an executive order on immigration policy and internal security on January 25, 2017.  This observation was supported by morning proceedings before the Arlington Immigration Court on January 26, 2017.  An attorney for U.S. Immigration and Customs Enforcement (“ICE”) stated in open court that her agency had received no instructions not to accept applications for prosecutorial discretion.  Accordingly, in a number of cases, Immigration Judge Thomas Snow granted continuances to permit immigration attorneys to submit prosecutorial discretion requests to ICE on behalf of their clients.

The process of exercising prosecutorial discretion to administratively close removal cases pending in Immigration Court which were not high enforcement priorities was first instituted by President Barrack Obama in 2011.  President Obama noted the limited resources available to enforce U.S. immigration law, and instructed immigration authorities to concentrate those resources on certain priority cases.  Those priorities included aliens with a criminal history, who pose a threat to public safety or national security, and who recently violated immigration law by entering without inspection by a Customs authority. 

In a memorandum dated June 17, 2011, ICE Director John Morton formalized the policy of exercising prosecutorial discretion.  Morton listed numerous factors for immigration authorities to weigh, including the length of the alien’s presence in the United States, the circumstances of the alien’s arrival, the alien’s ties to the United States, such as education, family members and contributions to the community, and other humanitarian concerns such as the health of the alien or the alien’s U.S. relatives.  By exercising prosecutorial discretion in appropriate cases, ICE would agree to administratively close a pending removal case, essentially permitting an alien who was present in the United States in violation of immigration law to remain.

President Trump's executive order is entitled "Enhancing Public Safety in the Interior of the United States."  In the opening paragraph, President Trump emphasizes the importance of enforcing U.S. immigration law in the interior of the country, to safeguard national security and public safety.  The President outlines his enforcement priorities to include alien who: (a)  Have been convicted of any criminal offense; (b)  Have been charged with any criminal offense, where such charge has not been resolved;  (c)  Have committed acts that constitute a chargeable criminal offense; (d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e)  Have abused any program related to receipt of public benefits; (f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security. These priorities are similar to those of the Obama Administration.

The President did not specifically mention prosecutorial discretion or the June 17, 2011 memorandum in his executive order.  However, the outlining of enforcement priorities lends credence to the conclusion that the ability of immigration authorities to exercise prosecutorial discretion remains in effect.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832

(571) 551-6069 (ESP)

Ignorance of Immigration Law Abounds, Particularly with GOP Lawmakers

 When I read this article from ABC News on the plight of migrant children who cross the southern border from Central America, I was struck by the quote from Senator Jeff Sessions of Alabama. "It cannot be that every young person from Central America is entitled to asylum or entry into this country," he is quoted as saying. 

The quote, I believe, betrays the true thought process behind many Republican lawmakers and their tea party supporters on immigration issues. Sure, the stylish thing for conservatives to say is that they support immigration, just not illegal immigration. Except that hidden in Sessions' statement is a criticism of the legal programs and processes that exist in U.S. immigration law. 

Let's start with asylum. This is a program to give protection to people who fear persecution, such as the threat of serious violence, in their home country. On one hand, it is difficult to obtain asylum. But on the other, if a foreign born person proves that he or she qualifies for asylum, U.S. law mandates that the Federal Government grant protection and a pathway that could lead to permanent residency and eventually citizenship. 

Yet asylum, despite it being a legal program, is one of the key targets of conservatives' criticism. Indeed, some conservatives complain about the number of green cards the Obama Administration has handed out. Seemingly lost in the criticism is that the green card process is the process to become a legal permanent resident. 

What also seems to escape conservative critics is that there is a legal process for determining eligibility for legal immigration programs. This is a country of laws. Our Constitution requires Due Process. The Government cannot simply pick up a person near the border because they look Hispanic and automatically ship them back to Central America. Let's not forget how many citizens of this country are of Hispanic origin. Fortunately, this isn't like the film caricatures of Nazi German where the Gestapo get to demand to see the "papers" of everyone. Citizens are not required to carry proof of citizenship. 

But the immigration courts of this country are clogged. There are not enough judges and government attorneys to handle the cases already in court. No one seems to be willing to spend the money to create more courts, hire more judges and hire more attorneys. The result is that cases tend to remain pending for years. 

Even then, there are more programs available than simply asylum. I hesitate to list them here, for fear that if GOP lawmakers really did understand the breadth of immigration law would be motivated to repeal those programs. 

Probably most alarming in statements like that of Sessions is the callousness that it betrays. Central American countries such as El Salvador, Honduras, Guatemala and Nicaragua are plagued by gang violence. Yet, many in the United States like to turn a blind eye to that violence and deny the role of this country in creating a situation that the Central Americans governments are unable to manage on their own. 

We as a society are judged by how we protect the vulnerable. An immigration system without compassion erodes our humanity and condemns the helpless to situations they had no role in creating. 

By: William J. Kovatch, Jr.
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