Citizen Orange

Why the Sequester is Good News for Immigrant Families

2013-03-01T16:40:08Z

[Image: Steve Pavey]

Hundreds of undocumented and mixed-status families were reunited this week after ICE released people from immigration prisons en masse, citing anticipated automatic budget cuts known as sequestration. In recent days, the White House has used its formidable political apparatus to play up the negative consequences of the sequester in an effort to maximize political damage to Republicans. Media reports told the story of drastic funding cuts to the Department of Homeland Security forcing the administration to release immigrants from prison. In reality, the sequester was likely an excuse, a convenient opportunity for the government to quiet growing criticism of Obama's longstanding policy of deporting record numbers of immigrants. Nevertheless, budget cuts to DHS mean that fewer fathers, mothers, husbands, and wives will be imprisoned and deported, which is good news for immigrant families.

The administration has stumbled from one public message to another regarding the prisoner releases this week. The initial message to the voting public was that immigrant prisoners were being released because of anticipated budget cuts, with the corollary that GOP hardliners were to blame for endangering public safety and national security. Representative Bob Goodlatte (R-VA) called the White House's bluff and claimed that the White House was recklessly releasing dangerous people. DHS clarified that all of those released were "low-priority" individuals according to ICE's prosecutorial discretion guidelines. But in conceding that none of the people released were a threat to public safety, the administration effectively admitted that they should not have been locked up in the first place. It was a week of spin masquerading as policy.

If the prison releases really were a direct result of DHS budget cuts, then long live the sequester! Military cuts, prison closures, family reunification--what's not to like?
If the budget cuts continue, the Tea Party may unwittingly help shrink the military/prison-industrial complex down to the size where we can drown it in the bathtub. There are likely to be many negative consequences of the sequester, including layoffs, cuts in services, and a general economic slowdown. But on balance, the budget cuts to DHS are overwhelmingly positive for the families who now have their breadwinners back. When government is oppressive, government should be limited.

Many who have been organizing against immigration detention suspect that the sequester was a convenient excuse, that the primary motivation for the releases was to quiet growing criticism of DHS's detention policies. As the White House is now emphasizing, the budget cuts are due to roll out over time, so there was no immediate crisis that would prompt drastic action. In addition, agencies have discretion over how to implement the 8% or so of cuts they will be required to make make to their budgets. Most strikingly, the sequester hadn't yet happened when ICE started releasing prisoners. What had happened, though, was a recent series of damaging disclosures about the administration's immigration detention policies. Internal ICE records obtained by the ACLU showed that ICE has been targeting supposed low-priority cases to fill its annual deportation quota. Data released by the Transactional Records Access Clearinghouse confirmed that ICE is ignoring its own directives on prioritizing resources. And organizers had kept up pressure on the administration by publicizing a steady stream cases of detention and deportation of people with low-priority cases.

Organizations around the country, including Families for Freedom, the National Day Laborer Network, Detention Watch Network, and 1Love Movement, have been pushing for immigration detention reforms for years. Starting last year, undocumented youth with the National Immigrant Youth Alliance secured the release of scores of detainees from Broward Transitional Center (BTC) in Florida by organizing public campaigns around individual cases. (Disclosure: I have acted in a consulting role in some of these cases.) BTC is designated as a facility for low-priority detainees, meaning that had DHS been following its prosecutorial discretion guidelines, the facility would have been empty. NIYA organizers infiltrated the prison last summer to organize from the inside, identifying other inmates whose cases were then taken on for deportation defense campaigns. These efforts triggered investigative news reports and a Congressional inquiry. There were rumors from detainees at BTC about an internal DHS investigation, with a possible site visit on February 20, just days before the releases began. On Sunday, February 24, ICE started to clear out BTC.

While the releases are a positive development, those released nationwide represent a small fraction of the approximately 30,000 people in ICE custody. Those who were released aren't safe from deportation. Most will have to go to immigration court and continue to check in periodically with ICE. Many people have been given ankle bracelets, which stigmatize the wearer, can take hours to charge, and limit the ability to travel and therefore to work. Some of those released are likely to be deported in the future. But overall, a person's chances of staying in the U.S. increase markedly upon release from immigration prison.

Adding to the confusion, on Tuesday, the AP reported on the resignation of Gary Mead, head of ICE Enforcement and Removal Operations. DHS quickly responded that Mead's resignation had been in the works for weeks and had nothing to do with the prisoner releases.

It is hard to tell whether the chaos of the past week represents skillful manipulation of competing groups or is a product of tensions between different bureaucratic factions. Or perhaps the administration is just careening from one crisis to the next. The underlying problem is that the Democrats have staked out untenable ground on immigration. They want to appear tough enough on undocumented immigrants to avoid political damage and to bring conservatives to the negotiating table for immigration reform, while also appearing benevolent to pro-immigrant voters ... whose families are being snatched up by the administration's deportation shock troops. It would be ridiculous except that the future of millions of families hangs in the balance. Politicians are accustomed to playing games with people's lives, but President Obama has set the bar at a new low with his fragmented, unprincipled immigration policy. He seems to be banking on widespread confusion over the "details" of who gets deported and why to help him muddle through the coming months of debate over immigration reform legislation.

To sum up, the White House hopes to get credit for releasing undocumented people it concedes shouldn't have been locked up in the first place while also using prisoner releases as a scare tactic to turn public opinion against the sequester. Despite the conflicting messages, the fact that DHS was ready to use any excuse to release hundreds--maybe thousands--of immigrant prisoners confirms that the most effective way to change unjust laws and policies is through sustained organizing against them.

Who Will Be Left Out of Immigration Reform?

2013-02-12T19:38:41Z

A theme emerging from immigrant rights advocacy groups as immigration reform legislation is being drafted this year is that any acceptable bill should "leave no one behind." Groups like presente.org and United We Dream are pushing for legalization for all of the estimated 11 million undocumented people in the U.S. Politicians have promoted comprehensive immigration reform (CIR) as a once-and-for-all solution to the problem of unauthorized migration in the U.S.

President Obama and a bipartisan Senate working group have each proposed a blueprint for reform. The proposed legalization would require undocumented people to register with the government, pass background checks, learn English, pay a fine, and go to the end of the line. By legalizing undocumented people, sealing the border, implementing measures to make sure visa holders leave the U.S. when they are supposed to, and better facilitating future immigration flows, CIR is supposed to do what the 1986 amnesty failed to accomplish: permanently solve the problem of unauthorized migration.

Some issues are still being discussed, such as whether legalization will create a path to eventual citizenship or instead create a long-term limbo status. But despite these divergent positions, a bipartisan consensus is forming around legalization for most of the 11 million. Unfortunately, a significant percentage of undocumented people are unlikely to benefit from legalization as it has been proposed.

Colorlines recently put up an infographic that elucidates this point. None of the current CIR proposals would fundamentally change the immigration system. Beneficiaries of reform will still be subject to most of the laws and regulations that now exist, the same legal regime that pushed 11 million people into the shadows. The reasons that millions would be excluded from legalization include:

Unreasonable fees and fines - A friend recently estimated that combined fees and fines will be around $2,000 per person, which seems about right to me. The closest recent parallel was a mini-legalization program ("245(i)") that required fees and fines to the government of just over $2,000 per person. Lawyers' fees could be that much or more. A family of four living on a subsistence income could be looking at $15,000 to $20,000 to legalize. Prohibitive cost could make legalization unattainable for millions of people.

Disproportionate punishment for criminal convictions - Current immigration laws severely penalize immigrants convicted of crimes, even misdemeanors like shoplifting, possession of small amounts of marijuana, use of false employment documents, and in some states, driving without a license. Many people who crossed the border again after being deported--including DREAM Act-eligible youth--were convicted of "felony reentry" and will likely be ineligible for legalization. A significant number of former permanent residents, including refugees who came to the U.S. at a young age, are now deportable after having been convicted of crimes. The immigration laws do not adequately consider proportionality or rehabilitation, deporting people with criminal convictions who came to the U.S. as children, have U.S. citizen children or spouses, or have served their time and reintegrated into their communities. Given that the criminal justice system disproportionately targets people of color and that most undocumented immigrants are not white, hundreds of thousands of people will be excluded from legalization because of prior criminal convictions.
English language requirement - The CIR blueprints include a requirement that applicants for legalization learn English. Colorlines estimates that this requirement alone could exclude between 3.6 and 5.8 million people from eligibility. It is not easy to learn a new language as an adult, especially for those who did not receive an adequate education in their native language. The existing infrastructure to teach, at a reasonable cost, English to adults who have little to no English proficiency is not adequate to handle the volume of applicants anticipated under any reform. It is not feasible for people who work 70-80 hours a week or more to attend regular ESL classes. There is an existing English-language requirement for naturalization which currently excludes many permanent residents from the benefits and protections of citizenship, a policy reminiscent of the Jim Crow literacy tests to vote. An additional English-language requirement would keep many undocumented people in the shadows.
Same-sex spouses - The Obama CIR blueprint would permit U.S. citizens to petition for residence for their same-sex non-citizen partners, which is currently not allowed under federal law. The Senate proposal would not.
Cut-off date for entry into the U.S. - Applicants for legalization will likely be required to prove presence in the U.S. before a specific date, probably between three and five years prior to passage of the bill. Colorlines estimates that 1.6 million people could be excluded from legalization if there is a requirement that applicants prove they have lived in the U.S. for at least five years. Even those who meet the presence requirement may have difficulty proving residence, especially the many undocumented people who do not have bank accounts, paystubs, and other incidents of documented life.
Institutional culture that prioritizes deportation - The top immigration policy priority of the Obama administration has been to deport as many people as possible. President Obama has set a new record for deportations each year in office and has now deported over 1.5 million people. DHS has claimed that appropriations for enforcement operations set by Congress drive deportation levels, but continues to request funding at current levels.

Bureaucratic incentives drive deportations, as enforcement agencies fight to maintain current levels of resources and personnel. The culture of each of the departments that handle immigration (Departments of Justice, State, and Homeland Security) is oriented towards punishing undocumented people and keeping new immigrants out. These institutional factors will not change overnight, and will likely lead to denial of many bona fide applications. The culture of "deport first, ask questions later" instills distrust in the undocumented community, and many people may decide the risks of applying for legalization outweigh the benefits.
Notarios and bad immigration attorneys - A widely-held assumption is that a network of nonprofit and pro bono attorneys exists to adequately provide low-income families with reliable, affordable immigration legal services. Having worked at nonprofit legal services organizations for five years, I know this is a myth. Despite the best intentions, too many nonprofit services organizations are overwhelmed and sometimes not accountable to their clients if something goes wrong. Some clients of nonprofits face legal bills in the thousands of dollars. This myth is promoted by the immigration courts, which circulate a list of "Free Legal Services Providers," 90% of which are not free and many of whom are not even nonprofits. This enables judges and ICE attorneys to tear families apart with a clear conscience and spares the government the expense of providing free attorneys to immigrants in removal proceedings.

However, the private immigration bar is even worse. While there are many dedicated, trustworthy immigration attorneys who view their work as a calling, there are many attorneys who see undocumented people as easily-exploitable clients lacking access to protections available to most citizens. Too many lawyers and non-attorney "notarios" openly cheat clients with little fear of repercussions. The immigration bar is largely self-regulated and does little to hold incompetent or unscrupulous attorneys to account.

These fundamental deficiencies will be exacerbated if millions of applications for legalization flood the system. Many people who would be eligible for legalization will not be able to navigate the system because it is in most cases too complicated and dangerous to do without an attorney and there are not enough reliable, affordable legal service providers.
Laws that penalize asylum-seekers and victims of trafficking - On paper, people who fled persecution in their home countries or have been trafficked into or within the U.S. have a path to lawful status under existing law. In practice, many are targeted by the government for imprisonment and deportation. This problem has not been sufficiently addressed so far in the CIR debate.

There has been little discussion about what will happen to undocumented people who don't qualify for legalization. The current proposals largely dodge this issue, simply saying that people with criminal records will be deported. The reality is more complicated.

If the current proposals become law, millions of undocumented people will be excluded from legalization. Will it be 2 million, 8 million, or somewhere in between? Harsher enforcement policies will push those who remain undocumented further into the shadows. The immigration agencies have the capacity and the incentive to continue to deport large numbers of people. Current deportation levels may not decrease much. In fact, they could temporarily increase if the Obama administration ramps up enforcement efforts in the wake of legalization. Factors that currently seal undocumented people inside the U.S. may not change, including rules that require long-term or permanent exclusion of those who leave the country. Many who know they may be permanently separated from parents, spouses, or children in the U.S. will decide they have no choice but to continue to live undocumented in the U.S.

The Deferred Action for Childhood Arrivals (DACA) program provides some insight into how CIR might be implemented. On one hand, the program has exceeded my initially-low expectations. Problems endemic to USCIS, including a prosecutorial mindset, traps set for unwary applicants, and lengthy processing times, have largely been resolved with regard to DACA applications I have filed for clients. This I attribute to a new institutional approach driven by political imperatives. The immigrant rights movement has also become stronger through DACA, first because qualifying undocumented youth are more secure from deportation to fight for change, and second because it affirmed the organizing power of the undocumented youth movement, which pushed Obama to create DACA under threat of losing the election last year.

On the other hand, the DACA program has had shortcomings. Initial estimates of eligible applicants ran from 800,000 up to 2 million. As of January 17, about 408,000 people had applied and only 154,000 applications had been approved. This means that five months after the program was launched, only between 8% and 20% of eligible applicants have benefitted from the program. This is likely due to many of the same problems listed above--high application fees, inadequate access to affordable legal services, lack of evidence to prove qualification, disqualification for minor criminal convictions--which will pose barriers to access to any immigration reform.

How can we avoid negative outcomes from immigration reform?

Address each of these issues in CIR legislation. Roll back the punitive laws that restrictionist groups have pushed through Congress over the past 20 years. Reduce existing barriers to permanent residence.
Decrease current deportation rates. Implement administrative relief like DACA on a wider scale.
Implement measures to change the institutional culture and bureaucratic incentives at the immigration agencies. Redirect funding within the agencies, orient training and performance incentives toward legalization instead of deportation, and hold officials accountable for ignoring agency priorities.
Include in reform legislation measures to improve the legal services infrastructure, including provisions to hold immigration attorneys accountable for fraud or malpractice and grant additional funding to nonprofit legal services organizations.
Acknowledge that no CIR bill will "fix" the immigration system, which is flawed by design. Take a page from highly successful restrictionist strategies and push for incremental improvements to the system. Understand that the immigrant rights struggle will be a long-term effort. Even people who qualify for legalization will be legally stigmatized for years to come, part of an underclass denied the rights and protections of citizenship.

I will support whatever bill or combination of bills, whether comprehensive or piecemeal, will legalize the largest number of people. No bill will be perfect, and compromise is necessary in order to pass legislation. However, the starting point from which Democrats are negotiating could leave out half of the undocumented people in the U.S. or more. This will not resolve the problems that CIR is meant to address. If flawed CIR legislation is a starting point for further reforms that will eventually include those who are initially excluded, it could be worth supporting. But not if CIR only perpetuates the status quo, or actually worsens the situation for millions of undocumented immigrants who then fall victim to a strengthened deportation juggernaut.

Summary of the Past 10 Years of Immigration Reform Legislation

2013-02-01T02:21:40Z

The National Employment Law Center has released a useful summary of immigration reform legislation since 2004, with the Immigration Reform and Control Act of 1986 (IRCA) included as a baseline. The most recent bills listed may give us an idea of the contours of the bills Congress is working on now.

One provision in several of the bills that I've been scratching my head about is the requirement to be employed at the time of application for legalization, when by definition, applicants are prohibited from working lawfully. This as much as anything else captures the public confusion about immigrants that has made it so difficult to improve the laws. How do you write a bill that reconciles the fear that immigrants are taking jobs with the fear that they are living off welfare?

Rep. Yvette Clarke (D-NY-9) Lists DREAM Act As Priority For 113th Congress

2013-01-08T15:23:39Z

I'm going to start publishing lawmaker's statements here on Citizen Orange more regularly. I use SCOUT from the Sunlight Foundation to follow what lawmakers say about the DREAM Act, and am going to start doing so for "immigration" more broadly.

Rep. Yvette Clarke, a Democrat congresswoman from New York's 9th district had this to say about what she thinks priorities should be for the 113th Congress:

It is my hope that we address immigration reform, specifically the enactment of the DREAM Act. This act, which provides legal status and a path to citizenship to undocumented immigrants who arrived in the United States as minors, will benefit every person in our society. This act will allow millions of young Americans to participate in our economy, our system of higher education, and the society more generally.

Rep. Yvette Clarke - U.S. Congress (4 January 2013)

A Chance At Drivers' Licenses in Illinois

2013-01-06T19:55:43Z

UPDATE: I just spoke with a member of the Immigrant Youth Justice League who has that I identify her only by her first name, Cindy. From what little I was able to speak to her, it sounds to me like she personifies what I think the story of this year is going to be as undocumented youth who have won some small measure of safety through the Deferred Action for Childhood Arrivals (DACA) program work to protect friends and family around them. Cindy is eligible for a regular driver's license after receiving deferred action under DACA, but her parents and other members of her community are not, and that's why she's in Springfield fighting for the passage of S.B. 957.

According to IYJL the bill just passed out of committee but there about 5 votes short in the House. Speaker Madigan, as far as I can tell has not yet publicly said whether he publicly supports or opposes the bill. Cindy said to keep pushing Speaker Madigan, and if you live in Illinois to contact your legislators. If your legislator already supports the bill, ask them to move other legislators.

ORIGINAL POST: It looks like it's going to come down to the wire, but there's a real chance that 250,000 undocumented immigrants in Illinois could be able to drive without fear coming out of this legislative session in Illinois.

This is bigger than Illinois. It could reverse a national trend that the pro-migrant movement has been on the losing side of for some time. Ever since Sept. 11, and the passage of the REAL ID Act, undocumented immigrants have been losing their access to drivers' licenses in state after state. As of now, only Washington state and New Mexico allow undocumented immigrants to access drivers' licenses.

Illinois, though, has found a way around the REAL ID act by offering drivers' licenses called "Temporary Visitor Driver's Licenses." They would be different than regular driver's licenses in that they wouldn't be able to be used to enter federal buildings, vote, or fly on a plane. But they would be able to be used for what driver's licenses should be used for, testing, identifying, and insuring, drivers.

It's not a perfect solution, of course, and I'm not sure there will ever be one until the federal government wakes up, and recognizes the millions of undocumented people in the U.S. as the fully contributing members of society that they are with a way to become citizens. Still it's a major step forward, and could go a long way in providing states with a way to allow undocumented immigrants to drive without the fear that they could be removed from their families and the homes they've built in the U.S. Oh yeah, and it will make the roads a lot safer for everyone else, too.

The driver's license bill in Illinois, S.B. 957 has already passed the Senate with an overwhelming majority 41-14, now it just needs to pass the House by Jan. 8. Over 1,700 people have already signed a petition I helped build for Presente.org demanding that Illinois Speaker Michael Madigan move the bill forward. Sign it, if you haven't yet, and if you have any other ideas for how to push the bill forward in Illinois or something like it in other states say so in the comments.

Happy 2013: Looking Back and Fighting Forward

2012-12-26T14:37:32Z

I'm here in the land of eternal spring, Guatemala, thankful for the privilege that gives me the means and the ability to cross borders to be home with my family, this holiday season. My gift, this year, to those reading this, is one of my favorite Christmas songs--The Kinks' "Father Christmas"--The punk rock they helped inspire clearly shining through.

There's a lot to reflect on, this year. I can't believe it's been two years since the Senate failed the DREAM Act. I didn't realize how raw the wound in me from that loss was, until I heard some of the same members of the Student Immigrant Movement featured in the post I wrote about it, back then, reflect on it during their DACA victory, this year.

It's been said that you have to lose yourself before you can find yourself. I've lost myself more times than I care to count, at this point, but, if the Universe wills it, I believe I'm slowly building a life on a strong foundation that will allow me to leave this world a little bit better than when I came into it, which is the most I could ever ask for.

One of the many ways I've lost myself over the last two years was by spending myself into credit card debt. I'm subscribed to the New Organizing Institute's "Tip of the Day" and about a year after the DREAM Act vote I received this in my inbox:

Don't put yourself in debt for any campaign. Sacrificing your basic financial security for a campaign is a false, dangerous test of commitment. I've seen too many great organizers leave the field because they racked up thousands of dollars on their personal credit cards. That's not just a loss to them, but to our whole movement.

Only the Universe knows where I'd be if I'd gotten that piece of advice a year earlier and followed it. I gained so much more fighting for the DREAM Act than I ever gave up in dollars. I went into it with my eyes wide open. I knew that two years ago would be our last chance to get a vote on the DREAM Act for a long time. I was right, and I'm proud of the fact that I gave all I had to it, and then some.

I can't deny that I've been weakened over the last two years by having to use a huge portion of what I earn every month to pay down credit card debt. There's a lot of folks I haven't been able to help because of it. The serendipitous part of all of this is that the migrant youth movement has grown far beyond needing my help, anymore. Their DACA victory proves it. Whatever small part I played in all of that, or maybe even none at all, its an organizer's dream to know that you're no longer needed.

I will always be a supporter (I'm proud to say I was elected to the board of the Student Immigrant Movement, this year), and will always offer whatever help I can when I am asked, but as I write this, happy to say I'm only a month or two away from finally being out of credit card debt, it feels like an entirely new world that I'm surfacing into.

The other important part of this story, of course, is Presente.org. A year and a half ago, Favianna Rodriguez took a chance on me and hired me to be a campaigner, there. Since then, under the leadership of Arturo Carmona, Ana Perez, and Roberto Lovato, I've been steadily growing, as has the organization. As the conversation surrounding immigration reform heats up this, year, I feel like I'm in a stronger position than I've ever been to push things in a pro-migrant direction. I don't know if there's enough gratitude in the world to express the thanks I feel for all of this.

The challenges, of course, are still daunting. Over 1000 people are still being deported a day. We've seen the horrific consequences consequences of not fighting back against ballooning enforcement through horrific tragedies in detention centers, and at the border. I'm in a better position than I've ever been to fight all of this, though, and I think that's true for the broader movement, too.

I don't know if 2013 is going to be our lucky year, but I know we have the power to make it the beginning of many better ones. Let's keep up the fire.

Happy Thanksgiving 2012

2012-11-23T06:39:06Z

I thought I'd share a little bit of Bob Marley this holiday weekend. I can't think of a better musician to express both the gratitude that has become the core of this U.S. holiday, along with the solemnity of the violence from whence it came. There is certainly good in spending time with family to give thanks for what we have in our lives. The way migrants to the U.S. of different cultures cheerfully co-opt this holiday with their own flavors shows the potential power and universality of the Thanksgiving holiday.

As is true with so much, though, it is impossible to separate Thanksgiving from the dark history it comes from, particularly what it represents for our indigenous herman@s. I believe that reality shouldn't take away from the thanks we express this holiday or the time we spend with family, it should enhance it.

If you haven't taken time to express gratitude for what you have in your life, yet, please do so. Particularly for those of you in the Americas, take some time to learn about the people who first inhabited the land you're standing on if you don't know enough already. A friend of mine forwarded a piece written by Dennis Zotigh on what Thanksgiving means for American Indians which I recommend reading.

If you're reading, drop a comment on what you're thankful for and what this holiday means for you.

AP's Argument That "Illegal" Is More Accurate than "Undocumented" Doesn't Hold Water

2012-09-26T03:29:00Z

I sent the following email yesterday to Margaret Sullivan, the Public Editor of the New York Times.

Dear Ms. Sullivan,

I write with respect to your piece today addressing Jose Antonio Vargas's recent request to the AP and the New York Times to stop using the term "illegal immigrant." Thank you for discussing this important issue. I am an immigration attorney based in Philadelphia, Pennsylvania. You cited Mr. Corbett, the associate managing editor for standards at The Times, as stating:

[I]n referring in general terms to the issue of people living in the United States without legal papers, we do think the phrases "illegal immigrants" and "illegal immigration" are accurate, factual and as neutral as we can manage under the circumstances. It is, in fact, illegal to enter, live or work in this country without valid documents.

I wanted to respond to this comment with a few points. First, the terms "illegal immigrant" and "illegal alien" are not defined in the Immigration and Nationality Act and are generally disfavored by immigration judges and the members of the Board of Immigration Appeals, who make decisions about whether someone is to be removed from the U.S. or not. According to applicable law, the terms are no more accurate than "undocumented" or "unauthorized." "Alien" is the most accurate legal descriptor of a non-citizen. I've attached and copied below a blog post I wrote for change.org a few years ago that explains this in more detail, with citations to applicable law (change.org recently removed the blog posts from that time period from its site, so the post is no longer available online.)

Second, the term illegal immigrant is not accurate because it usually assumes a person's immigration status when that status has not yet been determined by a court of law. It has been documented that the Department of Homeland Security routinely attempts to deport U.S. citizens, and sometimes succeeds. People born in a foreign country can sometimes derive citizenship when their parents naturalize, and this can be used as a defense against deportation. Such a person might not know he or she was a U.S. citizen. The government bears the burden at the outset of removal proceedings to demonstrate that a person is not a U.S. citizen. Too often, the government gets it wrong. In many other cases, an immigrant can assert a defense against deportation in immigration court and either gain or confirm lawful status. The clearest parallel here is when a journalist refers to an individual suspected of or charged with a crime as a "criminal" or "felon," which I understand is disfavored.

Third, there are many types of immigration status ranging from U.S. citizen to no lawful status, and it is not always clear where an individual falls within that spectrum. For instance, immigrants brought to the U.S. as children can apply for deferred action for childhood arrivals under the policy announced by President Obama on June 15, 2012. The government claims that this type of deferred action is not a lawful status, but it looks very much like lawful status to me. It confers a two-year protection against deportation which is renewable indefinitely and, in most cases, also grants permission to lawfully work in the U.S. With a work permit, deferred action beneficiaries can obtain a Social Security Number and, in most states, a driver's license. In some cases, they will be able to leave and reenter the U.S. through lawful channels.

Is someone who has been granted deferred action for childhood arrivals an "illegal immigrant" or even "undocumented?" It is hard to say. I think the question of whether deferred action is a lawful status with the procedural protections that confers will eventually have to be decided by the federal courts. There is a panoply of other types of status. The immigration laws are confusing even (or especially) to government officials and immigration judges, whose decisions are often overturned on appeal. Yet I often see all foreign-born people lumped into a single catch-all category in the press.

There are other reasons not to use the term "illegal immigrant," but my point here is that the argument that the term is used because it is more accurate than the terms favored by immigrants and advocates is baseless.

Regards,

David Bennion

Here is the post I originally published on change.org's Immigrant Rights blog:

"Illegal Immigrant" Is the Real Euphemism

2009-07-02 07:00:00 UTC

Is Senator Chuck Schumer taking his talking points on immigration from far-right anti-immigrant websites?

Last week, Schumer (NY-D) gave reporters an indication of the administration's rhetorical strategy as Congress prepares to draft immigration reform legislation. From the Washington Post:

Schumer said legislation should secure control of the nation's borders within a year and require that an estimated 12 million illegal immigrants register with the government and "submit to a rigorous process to convert to legal status" or face immediate deportation. Rejecting the euphemism "undocumented workers," he said: "Illegal immigration is wrong -- plain and simple."

McClatchy described Schumer's comments in similar terms:

Schumer said Democrats no longer can afford to use soft, euphemistic language about illegal immigration.

"When we use phrases like 'undocumented workers,' we convey a message to the American people that their government is not serious about combating illegal immigration, which the American people overwhelmingly oppose."

So either Senator Schumer himself used the word "euphemism" to describe the phrase "undocumented workers," or two media outlets did in describing his comments. Regardless, his message is clear. According to Senator Schumer, "undocumented" is a misleading term, and he intends to be straight with the public by using accurate language.

But Senators and their speechwriters rarely construct their own arguments from scratch. So where did this meme come from?

The top result in a google search for "undocumented" and "euphemism" right now is a blog post about Schumer's recent remarks. But the second and third results go to far right-wing nativist websites VDare and 24Ahead (formerly Lonewacko). From 24Ahead:

Is "undocumented immigrant" a euphemism?

Yes, it's just a politically-correct way of saying the legally correct term: "illegal alien". They're "aliens" - people who are citizens of some other country - and they're here illegally.

The post goes on to quote a thinly-sourced portion of the nativist site illegalaliens.us (scroll to the bottom) which argues that "illegal alien" is a more accurate term than "undocumented" or "out of status," but doesn't bother to cite to any case, statute, or legal document.

I've often seen in comment threads on immigration stories or blog posts the assertion that the terms "undocumented" or even "illegal immigrant" are politically correct euphemisms for the legally correct term: "illegal alien." This is the meme that Schumer picked up on last week.

Unfortunately for Schumer and the nativists, the meme is wrong. "Illegal alien" and "illegal immigrant" are not recognized terms of immigration law.

"Alien" is a legal term defined in the Immigration and Nationality Act and used in immigration court and Board of Immigration Appeals (BIA) decisions day in and day out. "Illegal alien" and "illegal immigrant" are not.

Conservative legislators wrote federal legislation in the 1980s and 1990s that uses the term "illegal alien," but most of these laws are not immigration laws, they deal with eligibility for public benefits and reimbursement of states by the federal government for incarcerating immigrants. And this was part of an effort to give credibility to the term.

The term "illegal alien" itself makes two brief appearances in the INA: in Sections 280 and 286, both dealing with accounting arrangements among the federal agencies. The term, though, is not defined in the INA and is not part of the terminology used by immigration judges and lawyers to communicate with each other about a person's immigration status during the course of removal proceedings (now there's a euphemism for you: "removal").

"Illegal alien" is an incoherent term from the standpoint of immigration law. It assumes the thing that is to be proven: status under the immigration laws. Immigration judges, the BIA, and even ICE attorneys don't use it because it is meaningless in the context of immigration proceedings.

The point of having a legal process to determine immigration status is to exhaust claims and defenses in an adversarial setting. A person who crossed the border or overstayed a visa might have a valid asylum claim, could qualify for discretionary cancellation of removal, might have a current family-based or employer-sponsored petition, may have been the victim of a serious crime in the U.S., might have had grandparents who immigrated back when immigration from within the Western Hemisphere was much less restricted, might have been the victim of domestic violence, or could even be a citizen through their parents without having realized it. In removal proceedings, an immigration judge must review all allegations made by the government and claims for relief made by the respondent before coming to a decision as to whether or not the respondent should be deported under applicable immigration laws.

Using the term "illegal alien" waves away that whole legal process and assumes a predetermined result: guilty, lawbreaker, criminal. That is why restrictionists favor the term, not because it is legally accurate.

Immigration restrictionists know that language matters, which is why they have pushed so hard to discredit accurate descriptors and inject their preferred terminology into the discourse on immigration.

Representative of this effort is the site referenced above, Illegalaliens.us. In addition to "undocumented," the site lists other supposed euphemisms for illegal aliens, including "foreign students," "residents," and "Mexicans." The site also lists "possible euphemisms" such as "Hispanics," "Latinos," and "Spanish speakers."

It may come as a surprise to the millions of Spanish-speaking U.S. citizens, myself included, to learn that we are actually illegal aliens, or to the millions of Latin@ citizens living in the U.S. Likewise, the 100 million Mexicans in Mexico may not realize that they are living euphemistic lives south of the border.

Deborah Howell, former ombudsman for the Washington Post, got snowed on this issue by a State Department officer who even told her that "he was not speaking for the State Department" when giving her his legal analysis.

On terminology, Chip Beck, a State Department officer and former U.S. consul, believes it's important to use "illegal alien." Beck, who said he was not speaking for the State Department, said, "Foreign nationals who come across the border without papers or who overstay their visa are deemed 'illegal aliens.' Those are the legally correct terms."

Beck may deem them to be "illegal aliens," but the legally correct term is "alien." He continued:

"The correct terminology is not derogatory but carries precise meanings under law." He sent a copy of the federal law [ed.: looks like a broken link from the problematic USCIS website] that says: "The term 'alien' means any person not a citizen or national of the United States."

So let's be precise, then. "Illegal alien" is a nonsense term in the context of U.S. immigration law. It is not defined anywhere in the INA. It's no more accurate than the terms I prefer: "undocumented" or "unauthorized," [ed.: link fixed] which also appear in the INA. In my experience, you are much more likely to hear the terms "entered without inspection" or "out of status" come out of the mouth of an immigration judge than "illegal alien."

Now somebody just needs to let Chuck Schumer know he should be getting his immigration analysis from the Sanctuary or AILA, not from Lonewacko and Steve Sailer.

Encouraging Signs on Deferred Action for Childhood Arrivals

2012-08-16T16:34:25Z

I'm writing now to provide my assessment of the government's Deferred Action for Childhood Arrivals process (DACA) as it unfolds. Back in June, I wrote about my doubts about DACA based on the Obama administration's record of empty promises to the immigrant community. While we still don't know for sure how this program is going to play out--no one has a work permit in their hand yet--developments since June 15 have been encouraging.

Don't read this post if you are looking for detailed guidance on how to apply for DACA. The most comprehensive guidance is on the USCIS.gov (U.S. Citizenship and Immigration Services) website:

FAQ
Form I-821D, with related forms and instructions
(if the links are dead, do an internet search for "Form I-821D" or "deferred action for childhood arrivals USCIS").

If you have specific questions about the application process, read the FAQ or consult with an immigration attorney. If you have ever been arrested or had any contact with the criminal justice or immigration systems (including being stopped at the border, even if you were a child), consult with an attorney. The government will likely end up deporting some applicants who have criminal convictions that disqualify them for DACA.

On August 3, USCIS issued additional guidance about the process, which they clarified again over the past week in the FAQ. Here are some highlights:

School enrollment: USCIS has taken an expansive view of what constitutes current enrollment in school. In some cases, enrollment in GED classes, adult high school classes, or even ESL programs will qualify. However, if an applicant is granted deferred action but fails to complete his or her program or make measurable progress toward completion in the two years of DACA status, the status may not be renewed.
Risk to family: USCIS has stated that, even if an applicant is referred to immigration court because he or she meets the criteria for priority enforcement action, the applicant's family members will be left alone.
Criminal convictions: USCIS took marijuana possession and shoplifting out of the "significant misdemeanor" category (although convictions for those crimes could still disqualify a person from DACA if the crime is punishable by more than one year in prison). This will allow tens of thousands of undocumented youth to avoid deportation for minor crimes that citizens only get a slap on the wrist for. Unexpectedly, expunged adult convictions will not automatically disqualify an applicant from DACA, even if they would have been disqualifying crimes before expungement. In general, the range of crimes that disqualify a person from DACA is narrower than in the rest of the immigration system. Hopefully this represents a turning point in how the government treats non-citizens with minor criminal convictions, which would be a step towards securing basic human rights for all non-citizens who have been convicted of crimes.
Favorable discretion: DHS can grant DACA to anyone even if they have disqualifying ~~arrests~~ convictions. This comes directly from the FAQ currently on the USCIS website:

"Notwithstanding the above [guidance regarding criminal convictions], the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion."

DHS should be pushed to exercise favorable discretion in compelling cases of people who have "significant misdemeanor" or felony convictions, including DUIs.
Negative discretion: By the same token, if DHS denies DACA to someone who meets all the criteria, DHS should be pressured to change its decision. The more that DHS claims that these decisions are completely discretionary and unreviewable, the more certain we can be that these cases exist more in the realm of politics than of law. That means anything is possible if you embarrass the politicians enough.
Suing the government: Advocates and organizers should also look for cases that DHS is denying with an eye to potential lawsuits against the government. The more the government moves immigration policy from the courts to the discretion of the government, the more deferred action looks like a substantive benefit that should trigger due process protections.
Fee waivers: Unfortunately, the administration caved to the GOP's footstamping about the cost of the program and made it extremely difficult to waive the filing fee. This will be a burden on many low-income families and discourage some people from applying.
Fraud: Still up in the air is what parameters USCIS will use to identify cases where an applicant committed fraud or misrepresented information to the government. If USCIS approaches DACA cases in the same way they treat other cases of undocumented applicants for immigration benefits, we can anticipate that they will wrongly deny a large number of cases. USCIS currently interprets fraud and misrepresentation very broadly. If instead, they apply existing laws correctly, this shouldn't be much of a problem.
Prosecutorial discretion: USCIS confirmed in its FAQ on DACA that the broad prosecutorial discretion policy announced in the Morton Memo of June 17, 2012, and subsequent guidance is still in place. However, what we have seen since June 15 is that ICE and CBP are still ignoring the prosecutorial discretion guidelines in the vast majority of non-DACA cases. Where there is any question about DACA eligibility relating to criminal issues, ICE has often taken a hard line and tried to deport those people. I still do not trust ICE or CBP to properly apply the DACA guidelines, and the government should be held accountable for any failure on this point.

Though there is still a lot that we don't know about the program, and though this president has not yet shown that he can be trusted on immigration policy, I encourage everyone who is eligible for DACA to apply. The more people who apply, the more will come out of the shadows. Friends, neighbors, coworkers, and relatives may learn about someone's status for the first time. The need to "pass" as a citizen will diminish. This will grow the movement and change public perceptions about undocumented people. On an individual level, DACA approval will provide tangible benefits, including a social security number, work permit, and in many cases, a driver's license.

One problem I see so far is that too many attorneys are charging too much for DACA applications. I have heard that in Philadelphia, where I live and work, some attorneys have settled on legal fees of $1500 for a basic DACA case. Keep in mind that every applicant, except for the few who will qualify under the limited fee exemption guidelines, must pay the government filing fee of $465. Even many nonprofits are charging a few hundred dollars for legal fees.

While private attorneys should be able to charge reasonable fees for their services, no one should be paying $1500 for a straightforward DACA case. I believe a reasonable legal fee for a basic DACA application not involving complicating issues (such as a motion to reopen or significant research on criminal issues) is $500-800. Some attorneys and nonprofits will charge less than that or hold pro bono sessions. If there's anything that advocacy groups can do to push private attorneys on this issue, it would help a lot of people afford legal services for DACA.

In short, signs of how the program is being rolled out are so far encouraging, though some problems in implementation are likely to appear as we move forward. DACA represents an important step towards equality and justice for undocumented people in the U.S. Those who are eligible for DACA should apply. Anyone who isn't sure whether they qualify or not should consult with a reliable immigration attorney.

If the government later decides to penalize those who were granted deferred action, whether a Democrat or a Republican is in the White House, it will galvanize the community like nothing before. I dare them to try ...

DREAMer Fire: How Undocumented Youth Hacked The Political System

2012-06-19T10:00:00Z

NOTE: What follows is the limited perspective of one person, a pro-migrant chapringo ally, on the immediate story of what led to President Obama's promise to stop the deportations of 1 million people, last week. Most of the people who could tell this story better than me are already working furiously on next steps. I've written this out because it's a story that needs to be told to better determine next steps, but if I'm missing anything or telling it wrong, please help me tell it right in the comments or through your own posts, which I will happily link to. What follows is a draft that I will continue to modify in an effort to make it better.

"We can exist now in the eyes of the country."

Julio Salgado - Los Angeles Times(16 June 2012)

Wow. I don't think it's possible to overstate the significance of the "Remarks by the President on Immigration," delivered last week. President Obama just promised to "lift the shadow of deportation" for what some estimates suggest is anywhere between 800,000 and 1.4 million young people and also allow them to "apply for work authorization." The internet exploded with the news.

The mainstream media conversation quickly devolved into vapid statements about political process and discussion of the even more inane actions of an incompetent reporter. Beneath that empty noise, a much more interesting conversation is taking place. A movement, led by undocumented immigrants, found a way to bend the will of the most powerful person on Earth and is now furiously debating where to go from here: celebration? implementation? escalation? My co-blogger David Bennion has already doused some of the euphoria with some hard legal analysis of how this is going to play out.

Nowhere, though, have I seen even a basic recounting of what brought us here. From everything I've read, it's as if the President just woke up by himself one day, last week, and all of the sudden decided to "do the right thing, period." Everyone who has followed this closely knows that's not how it happened, but not everyone in the country, much less the world has been following this closely. So, before I even get into the next steps I think it's extremely important that we all try to tell the story of how we got here. What follows is my feeble attempt.

The Fox And The Wolf: The Story So Far

The story of how a subset of unauthorized migrants who used to be fearful and invisible grew to be undocumented, unfraid, and most importantly well-organized enough to move the most powerful person on the planet, last week, is an epic story that continues on. I'm not sure if even the greatest artists, musicians, writers, and filmmakers, could do the story justice working at the peak of their powers. I'm not going to even attempt to recount that entire story, myself, but I will try and tell the most recent iteration of it.

This most recent iteration of the story starring undocumented youth, or DREAMers as they've come to be known, begins with the specter of the 2012 presidential elections looming. Up until just recently, it looked as if pro-migrant voters were going to be faced with a horrific choice: between a Republican who favored an immigration strategy of forcing us out of the country by making us suffer more than we already were, and a Democrat who said he was on our side but was essentially carrying out the same strategy to the tune of over a million deportations. It looked like pro-migrant voters, at the Presidential level, at least, were facing another choice between a growling wolf and a smiling fox: different strategies of oppression, effectually the same outcome.

That choice between bad and worse began to change only recently. If there is just one factor that led to that change it was the reality of an electoral map where Latin@ voters, among the most affected voters by harshness towards migrants, are going to play an outsized role in key states needed to win the Presidency. But demographics, alone, aren't enough to spur action. The issues important to pro-migrant voters, Latin@s chief among them, had to be defined and dramatized.

Cuban Latin@s or Mexican?: Keeping Republicans Competing For Pro-Migrant Voters

A key turning point in this drama was a speech up-and-coming Republican Senator Marco Rubio delivered before the Hispanic Leadership Network in Florida back in late January. Masterfully delivered, even if empty of substance, it marked a return towards Republicans competing for pro-migrant voters at the federal level. That speech was followed up in March with a promise from Sen. Rubio to introduce actual legislation to help undocumented youth, legislation we're all still waiting to see.

Still, even without an actual bill from Sen. Rubio the threat for Democrats was real. After Democrats deported over one million people, Sen. Rubio's move threatened to draw a stark contrast between Democrats' pro-migrant words and their anti-migrant actions. That contrast could have been what was needed to peel off just enough pro-migrant voters to help a Republican take the presidency in November. For evidence that this threat was real one need look no further than the White House's attempts to undermine to Sen. Rubio's proposal.

Now, it's easy to get caught up in palace intrigue and view the actions of Sen. Rubio and the White House in a vacuum, but any student of change knows that none of the above could have happened without pro-migrant power moving these politicans. There is no truth in politics only power. Thousands of words more should be devoted to how pro-migrant power was built and continues to be built in Florida, words I'm not qualified to write since I haven't spent any significant amount of time, there. I wouldn't be surprised, though, if when the ink dries on the history of the pro-migrant movement the state of Florida ends up being the pan on which the tortilla of a more just world for migrants was browned.

One way to understand the significance of Florida is through Rep. Ileana Ros-Lehtinen, the only remaining Republican co-sponsor of the DREAM Act in Congress. As a proud Latin American leftist I find Rep. Ros-Lehtinen's stance on almost every other issue, particularly foreign policy related, abhorrent. Still, anyone who wants to get anything done in a two-party system knows it's almost impossible to get anything done through just one party. There are a lot of conservatives doing admirable pro-migrant work, but Florida is the only state in the country where that still translates into public support at the federal level for the most basic and popular pro-migrant piece of federal legislation: the DREAM Act. Why is that?

The work I'm most familiar with from afar that has kept this last cornerstone of bipartisanship alive is led by the Florida Immigrant Coalition (FLIC) led by María Rodriguez. I know FLIC because it incubated Students Working for Equal Rights (SWER) one of the founding organizations of the national immigrant youth movement. The leaders of SWER would go on to be a key part of making a national immigrant youth organization, the United We Dream Network, a reality, and they would also end up embarking on a 1,500 mile walk from Miami to Washington, D.C., that would come to be known as the Trail of Dreams.

The Trail was among the first in an escalating series of national coming out actions by undocumented youth that would for the first time in the history of the planet, as far as I can tell, result in unauthorized migrants firmly taking the reigns of their own destinies in their adopted countries. I'm proud to say that the organization I now work for, Presente.org, played a key role in supporting the Trail of Dreams, but the credit, of course, goes to the DREAMers who talked it and walked it: Gaby Pacheco, Carlos Roa, Felipe Sousa-Rodriguez, and Juan Sousa-Rodriguez (Felipe and Juan just got married to each other!). If there's one thing FLIC and SWER did (and probably many others who I do not know--please help me in the comments if you do) to lay the foundation for what happened last week it's that they turned and kept the Cuban exile community in Florida pro-migrant.

This isn't as easy as some who see Latin@s as a monolithic bloc might think. As long as Cubans continue to be the beneficiaries of a Cold War-era immigration policy of amnesty as soon as they touch U.S. soil, Cuban Americans have no significant personal interest in changing U.S. immigration policy. Pro-migrant forces in Florida, though, have succeeded in telling a story that brings Cuban Latin@s in. The racism and fear of a declining White America has also justly pushed Cuban Latin@s towards us.

One illustration of this is a message/joke I heard about during the attempt to enact an Arizona-like anti-migrant law in Florida was a radio ad of Latin@ origin saying something like "You might be Cuban in Miami, but everywhere else in Florida we're all Mexican." It's a jab at the racism all Latin@s would suffer from under a "Let Me See Your Papers" law in Florida, at the same time that the humor helps bring all Latin@s, regardless of immigration status, together. If anyone can help me substantiate this please do so in the comments.

It is from this pro-migrant foundation, built by the trabajo de hormiga (ant work) of pro-migrant organizers, that Tea Party darling Sen. Rubio emerged. While he leaned pro-migrant early in his State House career, he campaigned for U.S. Senate on an anti-migrant platform, speaking against "amnesty" and praising Arizona's anti-migrant law. There's not a day since he first began to run for U.S. Senate that he hasn't been pressured by DREAMers and their allies to come back to the pro-migrant light. The pro-migrant stances of the older Cuban Latin@ political elite, and his move onto the national political stage made him ripe for that move.

Once again, I'm proud to say that Presente.org, led by pro-migrant strategist extraordinaire, Roberto Lovato, and Felipe Sousa-Rodriguez of the Trail of Dreams played a small part in pushing him back in the pro-migrant direction through the "No Somos Rubios" (We are not blonde) campaign. In partnership, and building of the groundwork of FLIC and SWER as well as others, we went big when he spoke at the Hispanic Leadership Network conference, getting DREAMers in to dramatize his speech, staging a protest outside, and flying a banner around saying "Hey Marco: No Somos Rubios!"

Say what you want about Sen. Rubio, but he's a saavy politician. Watching his well delivered speech at the conference I felt like we got parried in a sword fight. At the moment, it felt like we got outmaneuvered by a political enemy, but in retrospect we just set the national stage for him to move back towards becoming a tepid pro-migrant ally. What little Sen. Rubio has moved in the pro-migrant direction was the first pebble in a landslide that might result in over a million undocumented people getting work permits.

Hustlers and Hackers: Staring Down The President

Only undocumented migrants could take a small shift from a Republican Senator in Florida, and turn it into the promise of relief for hundreds of thousands of people from the President of the United States. I'm aware of the complex racial history of the term "hustler," but I tend to see "hustling" as a generally positive example of resistance of the oppressed. Coupled with the sacred place I hold for migrants, or "the strangers among us," in my own Catholic cosmovision, I hope people feel the love I intend to convey when I say undocumented youth hustled to turn that small turn of events into the promise of a huge victory.

It isn't just that undocumented youth hustled, though, it's that they found a way hack a dicrepit political system and infuse urgency into a dying democracy. The term "hacker," coopted by Silicon Valley millionaries, brings to mind a young bespectled white dude pounding away at his keyboard, but I also think it aptly applies to a generation of undocumented youth who have found a way to use new mediums of communication to supercharge their movement (Here's some of my best writing on how migrant youth achieved that). If moving the President of the United States without the right to vote isn't hacking the political system, I don't know what is.

I think the story of how migrant youth stared down the President begins after the DREAM Act was filibusted in the Senate in 2010. First, there was a strategic decision by the entire pro-migrant movement then, I think, to focus on administrative relief rather than legislative action, but it wasn't until Sen. Rubio moved that pro-migrant forces had the leverage to make that real.

Perhaps more significant, though, is that in the wake of that crushing defeat the national migrant youth movement made what I thought was a mistake, and in some ways still do: it split. The National Immigrant Youth Alliance (NIYA) split off of the United We Dream Network (UWD). Leaders of both organizations will say the split was political, and it's fair to say NIYA is definitely more militant than UWD.

In my view, though, the split wasn't political, it was personal. I think the psychological stress of being young and in an intense political fight (that is without even mentioning the racism, homophobia, and nativism many migrant youth have to confront, daily) just broke relationships almost beyond the point of any kind of repair. I know I'm still recovering emotionally, spiritually, and financially from giving whole self multiple times over towards trying to move Senators Olympia Snowe and Susan Collins in Maine to vote for the DREAM Act. I can't imagine what it was like to go through that as someone affected.

It was actually a talented pro-migrant organizer in Maine, Ben Chin of the Maine People's Alliance, who pointed out the example of the Student Nonviolent Coordinating Committee (SNCC) when they were going through something similar to this. If I remember the story correctly (again help me verify and specify this in the comments), there was a time within SNCC when the fighting got intense and the way they overcame it was the respected elder and organizer extraordinaire, Ella Baker, came in and just sat through days of these young people shouting at each other. She would just listen for most of the day and at the end of the day she would say something summing up a lot of what had happened. It took I don't know how many days like this to keep SNCC together.

I think that's what migrant youth leaders needed in the wake of the DREAM Act loss in 2010, and in many ways still need. But in the hypercharged era of facebook and twitter it wasn't meant to be. Instead, most of that shouting took place under the glare of the public social media spotlight. Many times that shouting has devolved into bitter humor and ugly name calling, the inhumanity magnified through an unfeeling computer screen. It was depressing and still is depressing to witness.

I'll be the first to admit my surprise that out of the ashes of that ugliness a stronger migrant youth movement has emerged, at least for the moment. There was about a year where everyone, myself included, was kind of all over the place, but over the last six months NIYA and UWD have effectively been complimentary to each other, even if they're still not communicating very well.

When Sen. Rubio came out with rumblings of a plan to help undocumented youth, it was NIYA's quick public support of it that made the threat of pro-migrant defection from Democrats real. UWD, meanwhile, was able to play a more inside game, deftly playing Sen. Rubio off the White House. I'm sure there were lots of people involved in all of this (again add or take away from this in the comments) but for me if there's a single figure who deserves praise for maneuvering through all of this, it's Gaby Pacheco at the United We Dream Network.

It's difficult for me to think of another human being on this planet that embodies the Spirit of Love more than Gaby. I have only anger for those that toss ugly invectives at Gaby, particularly people within the movement. Perhaps one day the universe will give me the same gift of Love that Gaby has for people like that. Forget the hate of nativists and people within the movement directed at Gaby, though, for a moment, Gaby was the very public face negotiating between some of the greatest powers on the planet to ensure DREAMers were brought towards justice.

People can argue about whether people creating pressure outside, or moving things on the inside deserve most of the credit for the promise of a million people getting relief, but Gaby played all of those roles and everything in between. I know from hearing many different sides of the conversation that she was the target of negativity from all sides. I think, though, from my limited viewpoint that she more than anyone else effectively found the sweet spot where Sen. Rubio's movement made the White House ripe for movement.

Pulling The Lever: From Negotiation To A Promise

Once the Sen. Rubio lever was in place to move the White House, people had to find a way to pull it, which is no easy task in an election year. The entire Non-Profit Industrial Complex (NPIC) essentially functions to keep people quiet during an election year. One of the best way to keep the left quiet is with "shut up and elect a Democrat" money.

The migrant youth movement has built the infrastructure and has the moral authority to operate outside of that system, but you can bet that it was only a matter of months, maybe even weeks, before allies left migrant youth out to dry until after the elections.

Though the work started way before this, UWD started the latest round of momentum going with the Right to DREAM campaign, doing actions outside of Obama campaign offices where possible, and leveraging the full power of the pro-migrant NPIC to start the push in the media. If UWD deserves most of the credit for succesfully playing Sen. Rubio off the President, then this is where NIYA played its crucial role in the wake of the Right to Dream campaign.

With many bridges burnt, very few ties to the pro-migrant NPIC, and extensive experience carrying out the tactic of undocumented youth civil disobedience, NIYA worked with the Campaign for American DREAM (CAD) to stage a civil disobedience and subsequent hunger in a Colorado Obama campaign office and amplify it. Colorado, of course is a key swing state for Obama in the 2012 elections. Images of undocumented youth getting arrested there could have been devastating for Obama's re-election prospects.

Compared with the Right to DREAM, the media surrounding CAD and NIYA's actions was predictably sparse, partly because of the need to keep civil disobedience quiet until right before it happens, but also partly because NIYA has sworn off some of the pro-migrant NPICs media power and the compromises that come with it. The reaction in the Colorado office, though, was amazing. The Obama campaign just shut down the office, paralyzing at least one element of his re-election efforts in a lynchpin state.

NIYA then escalated and in a weeks time they had almost five other Obama campaign offices "undoccupied" as they called it in California, Georgia, Ohio, and Michigan. NIYA, unencumbered by any of the power structures the Obama campaign could have used to stop this from spreading, and using its smaller but highly radicalized base was going to give, and probably still will give, the Obama campaign huge headaches during its re-election efforts. There was one straw, though, that I think finally compelled President Obama to act

How Do You Define American?: Mainstream Media Power

I think most everyone and anyone who even somewhat follows immigration in this country knows Jose Antonio Vargas, the Pulitizer Prize winning reporter who came out as undocumented last year. Jose's story is pretty well-known, at this point. I'm sure for him his coming out just seemed like a natural progression of events, but at least for me, deep in the pro-migrant movement, his coming out after the DREAM Act loss felt like a gift from the universe.

The pro-migrant movement is pretty good at getting into a select few mainstream newspapers, but I don't think we've ever consistently influenced media outlets with the millions strong reach of network television. I was almost part of getting Harvard DREAMer Eric Balderas on CBS's morning show, but even if we had succeeded at that it would have been a flash in the pan.

Jose Antonio Vargas, on the contrary, is a mainstream media sensation because of his great story, of course, but also because he was a part of it for so long and understands how to speak in the mainstream media conversation. I have no doubt that for the vast majority of Americans, Jose Antonio Vargas is the first undocumented person they're getting to know that isn't a made up projection of all of their fears.

As UWD stepped up its Right To Dream campaign, as NIYA led the "undoccupations," Jose Antonio Vargas came in with the knockout punch that was getting DREAMers on the front-page of TIME Magazine a publication that reaches 20 million people. I could be wrong, but I believe that is the single largest audience that undocumented people have ever reached with stories they define themselves.

If Obama follows through on the implementation of his promise, and that's an enormous if, Jose Antonio Vargas will have been instrumental in the reification of a new kind of American, an Undocumented American. It's a term I've heard used before, but Obama's latest promise has a chance to make that identity real for a million people.

Getting DREAMers on the front-page of TIME Magazine which was the final straw that forced the President to act.

That, finally, is one Chapringo ally's story of the immediate actions that led to the President's announcement, Friday

What's Next?: We Decide

My co-blogger David Bennion and Maegan Ortiz at Vivir Latino have already injected some healthy realism into the euphoria of Friday's announcement. It is not my aim to contradict them in anyway. I just haven't written about all this in a long time and now seemed like a perfect opportunity to try and capture a lot of this. Even writing this out now I've noticed that a lot of these stories and pictures live in walled and proprietary spaces like facebook, making them very hard to find for people in the future.

The beautiful thing about social media and a blog like this, is that people can add or take away from this story, and that's what I ask that people do. Where we go from hear will become clearer in the weeks and month's ahead, but key to deciding that is telling the story of how we got here.

Many have rightly lost faith in the President to carry out any pro-migrant policy, at this point, and his hand will have to continue to be forced. I will make one prediction though, that is cause for great celebration for this movement, no matter what people say. If I'm wrong, I'll self-deport back to Guatemala.

Migrant youth at the margins will continue to suffer just as they currently are, but I think Obama's announcement on Friday means all of the politically connected undocumented youth who are already leading this fight will now get access to work permits and drivers licenses, the tangible impact of which cannot be overstated. You want to take about how to use power to make change? That's raw power, right there.

The fight isn't over, of course. I continue to look towards a day where, at the very least, I'm attending DREAMer citizenship ceremonies. It's important to remember, though, that the fight never really is over, which is why it's so important to celebrate victories like last weeks announcement, even if just for a few days. My way of celebrating is through finally telling some of this story, and I hope you'll do the same and help me tell it better. It is through holding onto and remember the elation I felt upon hearing Obama's announcement, that I will be able to continue the fight.

OTHER STORIES:

The only mainstream media story I've read that comes even close to describing what happened was written by Julia Preston and Helene Cooper at the New York Times.

I'll continue to update this with other stories as I find them. Undocumented youth, of course, are telling their own stories at lighting speed using their own social media accounts and web spaces.

Third Time's the Charm? Doubts about Obama's Deferred Action Policy

2012-06-16T02:53:31Z

[Undocumented activists occupy Obama campaign office in Oakland, CA / Image: Krsna Avila]

Department of Homeland Security (DHS) Secretary Janet Napolitano today issued instructions to federal immigration agencies not to deport undocumented youth who meet certain criteria. The criteria are based on the provisions of the proposed DREAM Act. President Obama announced the policy change at the White House soon afterward.

The new policy, if implemented, would provide temporary relief to many undocumented youth in the United States. Undocumented organizers who fought for their rights and their communities deserve the credit for today's policy change.

But I worry that this announcement, like those before it, is intended to improve poll numbers more than to benefit undocumented families. I am skeptical because DHS is institutionally oriented towards deporting people and because this administration has made deportations its number one immigration policy priority. Serious questions about the new policy remain unanswered.

Update 6/22/12: Click through for a Spanish translation of this post.

Here are some pros and cons of the new policy guidance:

Pros:

It allows people to apply affirmatively, not just after they have been caught up in the deportation process. This will potentially benefit a much greater number of people than previous guidance.

Work permits are available. Many, though not all, of applicants granted deferred action will be eligible for work permits.

A two year period of deferred action will be granted to successful applicants.

The policy affects all three immigration agencies. Today's policy memo follows a series of similar memos over the past two years which have done little to stem the tide of record deportations under this president. Previous guidance on exercising prosecutorial discretion in line with enforcement priorities was directed only to Immigration and Customs Enforcement (ICE), which ignored the guidance. Today's memo comes from Secretary Napolitano and is directed to all three agencies: Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and ICE. Hopefully the policy will be applied more comprehensively across the agencies than the prosecutorial discretion policy has been.

USCIS will have more control over the process. The majority of applications will be reviewed by USCIS, which adjudicates applications for immigration benefits and is not formally tasked with immigration enforcement.

Cons:

This is not an executive order. The policy does not grant Deferred Enforced Departure (DED) or Temporary Protected Status (TPS), which are designated by the President by executive order on humanitarian grounds. Even though the President decides who does or doesn't qualify for TPS and DED, these statuses carry certain due process protections. Applications can be appealed in immigration court if initially denied. TPS or DED status cannot be terminated without cause. In contrast, the policy announced today only grants deferred action. There is no right to appeal a denial. While applicants can ask for supervisory review of an initial denial, that supervisory decision will be final.

DHS can deny any application in its discretion even if the applicant meets the eligibility criteria. We will likely see many of the same due process problems that we have seen with the prosecutorial discretion policy, which led to a grant rate of 1.5%. There will be no impartial adjudicator, no right to meaningful review of faulty decisions, and no formalized way to present and evaluate evidence or legal arguments.

The provisions dealing with criminal convictions will allow DHS to wrongly deny applications. The "significant misdemeanor" is a new concept in immigration law unique to this policy. Some convictions will not clearly fall inside or outside the "significant misdemeanor" category, and USCIS officers lack the guidance and expertise to navigate those waters. In its prosecutorial discretion review, DHS has treated any arrest as equivalent to a conviction. This policy turns the presumption of innocence on its head, denying undocumented people the protections afforded citizens in the criminal justice system. Since the policy announced today is based solely on the discretion of DHS, the risk is high that DHS will continue to treat any contact with the criminal justice system as fatal to an application, regardless of whether there was a conviction.

Deferred action, once granted, can be terminated at any time without justification or review.

Many people will be deported simply for applying for deferred action. USCIS will refer some denied cases to ICE for initiation of removal proceedings. Since there is no right to appeal an erroneous decision by USCIS under the new policy, mistakes may go uncorrected and lead to the deportation of qualified applicants.

Immigration enforcement officers are likely to ignore the new policy. Applications for deferred action will be adjudicated only by USCIS officers and ICE attorneys. ICE enforcement officers and Border Patrol officers have been instructed to follow the policy guidelines. But ICE and Border Patrol officers ignored prior instructions to follow the prosecutorial discretion guidelines and faced no consequences. The proposed remedy when ICE or Border Patrol officers violate the new guidelines is to call the Law Enforcement Support Center hotline or complain to the ICE Office of the Public Advocate. Many people who are wrongly targeted by ICE or Border Patrol will not be in a position to do either of those things, and their cases will never come to the attention of the public or those who are tasked with monitoring implementation of this policy. DHS's internal monitoring procedures are opaque and ineffective, so even when complaints are made, they are not likely to produce results.

We have been down this road before. First, ICE deportation officers were supposed to prioritize enforcement based on the Morton Memo, but they didn't. Then ICE attorneys were instructed to use prosecutorial discretion for cases in immigration court, but they didn't do that, either. President Obama must expect us to believe that the third time is the charm.

As written, the policy will leave out many people who should be included. Since the administration has insulated the policy from review by any court, there is no mechanism for holding DHS accountable. President Obama has given us little reason to take him at his word that this policy will be implemented as proposed.

SPANISH TRANSLATION

(Thanks to Santiago Garcia for the translation!)

La secretaria del Departamento de seguridad interna (DHS) Janet Napolitano dio hoy instrucciones a las agencias de inmigración federal de no deportar a jóvenes indocumentados que cumplen ciertos criterios. Los criterios se basaran en las disposiciones de la propuesta DREAM Act. Poco después el Presidente Obama anunció el cambio de política en la casa blanca.

La nueva política, si se aplica, dará alivio temporal a muchos jóvenes indocumentados en los Estados Unidos. Los organizadores indocumentados que lucharon por sus derechos y sus comunidades merecen el crédito por el cambio de política que se dio hoy.

Pero este anuncio me preocupa, como veces anteriores, está destinada a mejorar los números de encuesta de voto más que beneficiar a familias indocumentadas. Soy escéptico porque DHS está institucionalmente orientado a deportar gente y porque esta administración ha hecho las deportaciones su prioridad numero uno en las políticas de inmigración. Aun quedan preguntas serias sin ninguna respuesta sobre esta nueva política.

Éstas son algunas ventajas y desventajas de la nueva orientación de la política:

Ventajas:

Permite a las personas aplicar afirmativamente, no sólo después de que han caído en el proceso de deportación. Esto beneficiará potencialmente a un mayor número de personas que propuestas anteriores.

Permisos de trabajo están disponibles. Muchos, aunque no todos, los solicitantes que han conseguido acción diferida será elegible para permisos de trabajo.

Se concederá un período de dos años de acción diferida a los candidatos.

La Directiva afecta a las tres agencias de inmigración. El memorándum de política de hoy sigue una serie de notas similares en los últimos dos años que han hecho poco para detener la ola de deportaciones récord bajo este Presidente. Propuestas anteriores de ejercer discreción fiscal en acuerdo con las prioridades de ejecución fue dirigido sólo a inmigración (ICE), que ignoró la propuesta. El memo de hoy viene de la Secretaria Napolitano y está dirigido a todas las tres agencias: aduanas y protección fronteriza (CBP), ciudadanía de Estados Unidos y servicios de inmigración (USCIS) y ICE. Esperemos que la política se aplicará más compresivamente a través de las agencias, y no como sucedió con discreción fiscal.

USCIS tendrá más control sobre el proceso. La mayoría de las aplicaciones serán revisadas por USCIS, que resuelve las solicitudes de beneficios de inmigración y no se encarga de aplicar políticas de inmigración.

Desventajas:

Esto no es una orden ejecutiva. La política de no dar salida forzada diferida (DED) o temporal Protected Status (TPS), que son designados por el Presidente por orden ejecutiva por motivos humanitarios. Aunque es el Presidente quien decide quien cumple y quien no cumple los requisitos para el TPS y DED, estos estatutos llevan ciertas garantías de proceso. Las aplicaciones pueden ser presentadas ante el Tribunal de inmigración si inicialmente han sido negadas. Estatuaos de TPS o DED no se puede terminar sin causa. Al contrario, la directiva anunciada hoy sólo concede acción diferida. No hay ningún derecho a apelar una denegación. Mientras que los solicitantes pueden pedir revisión de supervisión de un rechazo inicial, esa decisión de supervisión será inapelable.

DHS puede negar cualquier aplicación a su discreción, incluso si el solicitante cumple los criterios de elegibilidad. Es probable que veremos muchos de los mismos problemas de proceso que hemos visto con la política de discreción de enjuiciamiento, que condujo a una subvención de 1,5%. No habrá ningún árbitro, sin derecho a una revisión significativa de decisiones defectuosas y no hay manera formal para presentar y evaluar pruebas o argumentos jurídicos.

Las provisiones relacionadas con condenas penales permitirá a DHS negar erróneamente las aplicaciones. El "delito de significancia" es un nuevo concepto en exclusiva a esta política de la ley de inmigración. Algunas condenas no claramente caerá dentro o fuera de la categoría 'delito de significancia', y oficiales del USCIS tienen la orientación y los conocimientos para poder determinar. En su revisión de discreción fiscal, DHS ha tratado cualquier arresto igual a una sentencia condenatoria. Esta directiva activa la presunción de inocencia en su cabeza, negando las protecciones que ofrece a los ciudadanos en el sistema de Justicia Penal de las personas indocumentadas. Dado que la política anunciada hoy se basa exclusivamente en la discreción del DHS, el riesgo es alto que DHS seguirá tratando cualquier contacto con el sistema de Justicia Penal como fatal para una aplicación, independientemente de si hubo una condena.

Acción diferida, una vez concedida, puede terminar en cualquier momento sin justificación o revisión.

Muchas personas serán deportadas simplemente por solicitar acción diferida. USCIS hará referencia a algunos casos que han sido negados a ICE para la iniciación de un procedimiento de salida. Como no existe el derecho a apelar una decisión errónea por USCIS bajo la nueva política, errores pueden nunca ser corregidos y pueden terminar en la deportación de los solicitantes calificados.

Encargados de inmigración tienden a ignorar la nueva política. Aplicaciones de acción diferida serán adjudicadas por funcionarios de USCIS y abogados de ICE. Encargados de ICE y oficiales de la patrulla fronteriza han recibido instrucciones de seguir las reglas de la política. Pero oficiales de la patrulla fronteriza y ICE han ignorado instrucciones previas a seguir las directrices fiscales de discreción y no han enfrentan consecuencia alguna. El remedio propuesto para cuando agentes de ICE o patrulla fronteriza violan las nuevas reglas es llamar a la línea de centro de soporte de aplicación de ley (Enforcement Support Center Hotline) o quejarse a la Oficina de la defensora pública de ICE. Desafortunadamente mucha gente que es atacada por ICE o la patrulla fronteriza no estará en posición de hacer cualquiera de esas cosas, y sus casos nunca llegarán a la atención del público o aquellos que tienen la tarea de supervisar la aplicación de esta política. Los procedimientos de control internos del DHS son opacas y inefectivas, por lo que incluso cuando se hacen las denuncias, es probable que no produzcan resultados.

Ya hemos pasado por esto antes. En primer lugar, oficiales de deportación de ICE debían haber dado prioridad a la aplicación basada en el Morton Memo, pero no lo hicieron. Abogados de ICE fueron instruidos usar el criterio fiscal para los casos en la corte de inmigración, pero no hicieron eso, tampoco. El Presidente Obama debe esperar para hacernos creer que la tercera es la vencida.

Como está escrito, esta política no incluirá a muchas personas que deberían ser incluidas. Dado que la administración ha aislado la política de revisión por cualquier tribunal, no existe ningún mecanismo para responsabilizar a DHS. El Presidente Obama nos ha dado muy pocas razones para volver a creer en su palabra de que esta política se aplicará como es propuesta.

Prosecutorial Discretion Has Failed

2012-06-08T14:23:04Z

Responding to ICE's release of data on prosecutorial discretion as of May 29, 2012, American Immigration Lawyers Association president Eleanor Pelta categorically stated ""The prosecutorial discretion initiative has failed."

Only 1.5% of cases in deportation proceedings under review have been closed so far (4,403 of 288,361). And "closed" is not entirely accurate, any case administratively closed"under the prosecutorial discretion review is technically still pending and can be reopened by ICE at any time for any reason. Of the cases administratively closed, Pelta said, "even those were granted only a temporary reprieve, keeping their lives completely in limbo. That's a very low rate-far less than the percentage that succeed in obtaining relief in court."

In its info release, ICE claimed the number of cases identified for administrative closure pending background checks is 9%. But that excludes cases of immigrants who are currently in civil immigration detention. The true number of cases identified for closure is only 7%. And ICE claimed in April that 9% of cases had been identified for closure. When will these cases "identified for closure" actually be closed?

So far only .07% of all detained cases reviewed by ICE have been closed (40 out of 56,180). This represents a policy of categorically denying detained cases even though many thousands of those detained cases clearly fit the prosecutorial discretion guidelines outlined in the Morton Memo. This policy has real-world consequences: Dylan and Francisco were eligible under the prosecutorial discretion guidelines but were deported anyway just within the last 10 days.

Regardless, a 9% closure rate is unacceptable. It might not even cover the number of Dream-eligible youth in proceedings, much less all the people who fit the Morton Memo guidelines. In addition, the administration backtracked on its promise to grant work permits to people whose cases are administratively closed, leaving them with no status, no ability to legally work, and no driver's licenses or social security numbers.

ICE attempted to justify its failure to facilitate work permits by asserting that 40% of people with cases closed under the program received work permits. However, those work permits would have been granted anyway since they are based on an underlying application for relief like asylum or cancellation of removal. The White House simply lied when it promised last August that work permits would be part of the deal.

Many in the immigrant rights community were skeptical of the program from the start. Any policy that vests complete authority with a president with the worst track record on immigration in modern history was destined to fail.

By the administration's calculus, however, the program has been a success. The program was announced in a series of press releases last year designed to maximize impact in the Spanish-language press. Along with the administration's highly-publicized battle with Arizona over anti-immigrant state laws (while ICE continues to deport every immigrant racially profiled by Arizona authorities), the prosecutorial discretion announcements helped President Obama cement his reputation as a defender of immigrants.

It's time for progressives and the press to hold President Obama accountable for his stealth crusade against immigrant families. No one can undeport the million people the president has deported or reunite those broken families, but he could take a step in the right direction by issuing an executive order to stop the current policy of deporting Dream Act-eligible youth.

Undocumented and Undeportable

2012-04-15T20:27:26Z

The Obama administration has criticized the GOP's "attrition through enforcement" immigration policy framework while adopting it in practice. Undocumented activists have reduced their reliance on politicians and the advocacy community by strategically creating a quasi-legal status for people who publicly identify themselves as undocumented.

Attrition Through Enforcement

Immigration restrictionists have promoted an "attrition through enforcement" policy as a purportedly more humane alternative to mass incarceration and deportation. Instead of identifying, arresting, imprisoning, and deporting every undocumented immigrant in the U.S., the objective of attrition through enforcement is to make life in the U.S. so miserable for undocumented immigrants that they leave on their own. An aggressive campaign to deport all 11 million undocumented immigrants estimated to live in the U.S. would be logistically and fiscally unworkable and would necessitate massive human rights violations.

Imagine armies of tens of thousands of immigration enforcement agents scouring the country for people unable to produce papers, internment camps set up to house millions of immigrants awaiting deportation, and millions of U.S. citizen children left parentless overnight. This would be the administration's current enforcement policy implemented on a much larger scale, causing severe economic and social disruption that would extend far beyond the immigrant community.

Restrictionists understand that the domestic and international public backlash from such a campaign would undermine their long-term goal of reducing overall immigration to the U.S. Restrictionists know it is impossible to fully enforce the laws they wrote and shepherded through Congress. Attrition through enforcement aims instead to drive out immigrants by creating a climate of fear and by steadily eroding basic rights. The concept is as pragmatic as it is reprehensible.

The most visible manifestations of attrition through enforcement are state anti-immigrant laws like those passed in Arizona, Georgia, and Alabama. However, policies that promote attrition through enforcement have been embraced on the federal level by the Obama administration, including militarization of the border, the racial profiling Secure Communities program, "silent raid" employer audits, and the annual 400,000 deportation quota handed down to Immigration and Customs Enforcement (ICE) by the White House. Republican presidential candidate Mitt Romney endorsed the idea of creating such hostile conditions that immigrants "self deport." Democrats criticized Romney but not President Obama, who is actively implementing attrition through enforcement policies.

Who Is Undocumented?

There is a wide spectrum of immigration statuses, from undocumented on one end to U.S. citizen on the other. Public misconceptions about immigration law abound. For example, undocumented people cannot simply fill out a form and take a test to apply for citizenship. The vast majority have no way to apply for legal status of any kind, much less citizenship, and had no way to enter lawfully or maintain lawful status through existing channels. There is no "line" for them to get into, and in most cases, there never was.

There are variations of status even within the category of "undocumented." Undocumented people who have previously been deported or have felony convictions have very limited defenses against deportation. Some undocumented immigrants are eligible to gain lawful status through U.S. citizen immediate family members, though this process is not automatic and excludes those who crossed the border--which describes the vast majority of undocumented Mexicans and Central Americans. A small number of undocumented people can gain legal status after winning "cancellation of removal" in immigration court. Nationwide, grants of "cancellation" are statutorily limited to 4,000 each year, equivalent to 1% of total annual deportations and 0.036% of the total undocumented population. Some undocumented victims of serious crimes or domestic violence have a path to lawful status. Some people the government claims are undocumented are actually U.S. citizens but don't know it or can't meet the government's unreasonable standard of proof.

The laws of immigration and citizenship are shifting, complex, and poorly understood. Often it is not easy to ascertain who is or is not undocumented. Is someone with Temporary Protected Status or a work permit undocumented? What about deferred action status or withholding of removal? This sprawling and incoherent legal regime could work in favor of undocumented immigrants if the Obama administration weren't intent on pushing deportation levels to historic highs. Regardless, it is possible to create new forms of status within the existing system without wholesale legislative reform.

"The more public we are, the safer we are."

By any metric, Democrats have not been reliable allies to undocumented immigrants, and Barack Obama has been the most anti-immigrant president in the last 50 years. Broad legalization or legal recognition of basic human rights of undocumented immigrants are not going to happen in the near term. In the meantime, a paradigm is emerging to compete with attrition through enforcement: "undocumented and undeportable."

Through determined activism and organizing over the last few years, some undocumented youth have carved out a safe space for themselves. Those who are public about their undocumented status and connected to the growing support network of undocumented youth and allies have become de facto undeportable. Rooted in a pragmatic understanding of current political realities, "undocumented and undeportable" is the immigrant community's answer to attrition through enforcement.

In light of six years of failure of citizen-led advocacy groups to pass the DREAM Act, undocumented youth began in 2007 to lobby independently for the bill. In collaboration with allies and advocates, undocumented organizers began systematically stopping deportations of their peers in 2009 in "Education Not Deportation" cases that reached a certain threshold of public support and media coverage. In 2010, four activists, three of them undocumented, completed a trek from Florida to Washington, D.C.--the Trail of Dreams--to raise awareness of the challenges faced by the undocumented community and to promote the DREAM Act. ICE left them alone despite--or because of--increasing news coverage as they made their way north.

Later that year, undocumented activists affiliated with the DreamIsComing project committed civil disobedience actions in congressional offices in Arizona and Washington, D.C. For the first time, undocumented people intentionally risked deportation and permanent exile from the U.S. by being arrested to protest unjust laws. Afraid of alienating Latino voters, the White House directed ICE to stay away from undocumented youth arrested in public civil disobedience actions.

Due largely to a series of actions targeting Senator Harry Reid, including a civil disobedience action in his D.C. office, he brought the DREAM Act up for a vote separate from comprehensive reform legislation to secure the Latino vote in his tough 2010 re-election campaign. The strategy paid off for Reid, and, to a lesser extent, for undocumented activists, as the DREAM Act came closer to passing than ever before.

At each of these connected points of escalation, undocumented youth moved away from the false safety of quietly passing as citizens. They took control over advocacy efforts previously directed by citizen allies. The risks were greater, but so were the rewards.

Realizing that organizers were not going to be placated by sporadic relief in isolated END cases and under pressure from immigrant rights advocacy groups, the administration expanded the scope of discretionary relief to the broader undocumented community. (In practice, however, this "prosecutorial discretion" relief has been much more limited than the administration and its proxies have claimed.)

Once some form of protection from deportation is achieved, the status quo is altered and institutional incentives shift. Affected groups become better able to advocate for continued protection. Temporary Protected Status, once granted, is rarely revoked. The Obama administration will face fierce public opposition if it attempts to detain and deport the public undocumented activists who have emerged as leaders of the immigrant rights movement. This will be true even under a Romney administration.

The courage of these activists is inspiring and contagious. Undocumented youth have explicitly adopted the LGBT movement's tactic of "coming out" to educate the public and build support. Seeing activists publicly identify themselves as undocumented encourages others to come out of the shadows themselves. Coming out creates a virtuous cycle, strengthening the network and making those who are already public safer.

Most stories of undocumented immigrants, when told, are sympathetically received by the public. ICE selectively releases negative information to mislead the public about undocumented immigrants and to justify its enforcement actions. The more the public understands that the stories they read in the paper--both about immigrants struggling to succeed and human rights violations by ICE--are not the exception but the rule, the more they will support changes in the law to benefit undocumented people. The immigrant experience appeals to Americans' conception of a good and fair society, and there are 11 million compelling stories to be told.

While the achievements of undocumented activists are undeniable, the term "undocumented and undeportable" has its limitations. Anyone who can't prove lawful immigration status can be deported. ICE deports as many people as it can, regardless of whether they fall within the government's stated enforcement priorities. The protection afforded publicly undocumented people by the immigrant rights network may not be permanent. Once a person is public about their status, it is hard to go back into hiding.

However, "undocumented and undeportable" reflects the bold, unapologetic nature of the undocumented rights movement. And at least for now, organizers are right when they say, "The more public we are, the safer we are."

PR as Policy

The Obama administration's fragmented immigration policy attempts to incorporate both the attrition through enforcement and undocumented and undeportable paradigms. The approach rests on the false dichotomy of "good immigrants" and "bad immigrants." In the absence of a coherent legal regime, the administration uses the criminal justice system as a substitute for principled immigration policy. Those with any contact with the criminal justice system are "bad immigrants" and should be deported, notwithstanding President Obama's implicit acknowledgement in other contexts of systemic racial imbalances in the criminal system. Those without criminal convictions or prior contact with the immigration system are "good immigrants" who merit protection from deportation in the government's sole discretion.

This attempt to satisfy every political constituency has instead made everyone unhappy. Despite extensive Spanish-language media coverage of the system-wide prosecutorial discretion review of immigration court cases, only 1% of all cases have been closed under the program. ICE continues to deport the vast majority of DREAM-eligible youth it encounters, notwithstanding claims to the contrary coming from the administration and its spokespersons in the Democratic Party.

The administration has stumbled from one crisis to the next, hoping to keep public attention focused on the pending Arizona litigation and praying Univision continues to obscure the administration's attrition through enforcement policies. With one hand, DHS deports undocumented youth; with the other, it stops deportations in cases with media coverage. ICE's response to civil disobedience actions has become increasingly absurd. In November, the Montgomery Advertiser reported that ICE had told the police in Montgomery, Alabama, that 13 undocumented participants in a civil disobedience action there were all legal residents. (The online version of that article has since been scrubbed, but is referenced here.)

Given the continued failure of citizen-led advocacy groups, Democrats in Congress, and national Spanish-language media to accurately inform voters about current immigration policy, it again falls to undocumented activists themselves to hold President Obama accountable for his actions.

Undocumented people shouldn't need to rely on citizen allies to protect them. Undeportable people don't have to.

Towards Better Organizer-Attorney Collaboration on Deportation Defense

2012-01-23T01:15:43Z

In deportation defense work, immigrant rights organizers can work most effectively to stop a deportation when they collaborate with a reliable immigration attorney. Viewed from another perspective, an attorney can often better serve his or her client with the help of organizers. However, complications can arise with this type of collaborative work.

In recent years, collaboration between organizers and attorneys has most commonly involved Education Not Deportation (END) campaigns to stop the deportation of undocumented youth. END cases were rare before the summer of 2009. Now the federal government routinely agrees not to deport undocumented youth who would qualify for the DREAM Act, were it to be enacted, and who reach a certain threshold of visibility and public support. (The government routinely deports tens of thousands of DREAM-eligible youth who remain invisible to the public--and even some who have strong public support.)

I have worked on several END cases since 2009 as an immigration attorney. In my experience, an END case has the best chance of success when an attorney works closely with organizers and the client's existing support network. Attorneys have access to and relationships with immigration officials that organizers and family members usually lack. Organizers have the trust of the community and are not afraid to directly challenge the government. Organizers, attorneys, and others worked together on the early END cases and created the existing END model. Organizers and attorneys are better able to stop deportations when they work together.

Unfortunately, this does not always happen. Communication between the attorney and organizers sometimes breaks down, to the detriment of the client. Attorneys sometimes have a limited view of what is possible in a given jurisdiction, failing to acknowledge successes in similar cases elsewhere. Attorneys can be too cautious, apprehensive of damaging delicate relationships with Immigration and Customs Enforcement (ICE) attorneys or deportation officers. Out of habit, attorneys can shut supporters and organizers out of the case, foregoing the collaborative model for a "what I say goes" approach. It's worth taking a closer look at how and why these problems arise, and what can be done to address them.

An attorney's primary professional obligation is to zealously represent a client and protect the client's interests. Immigration attorneys are accustomed to managing every aspect of a deportation defense case and can be wary of outside influence, even--or sometimes especially--from close family members. Activists working without compensation may be overstretched and not able to consistently work on an individual case. (The same concerns can be raised about attorneys, especially when work is done on a pro bono basis.) Activists may have broader political objectives that can diverge from the interests of the client. Ideally, an attorney stands in the place of the client and acts as the client would if the client had the expertise and resources to represent himself.

In practice, however, legal representation typically falls far short of this ideal. At the extreme, some immigration attorneys openly cheat their clients with little fear of reprisal. Tahir Mella is the most egregious offender in Philadelphia, where I practice. Prosecution of immigration attorneys, or even censure by disciplinary authorities, is rare.

More common than outright thievery is neglectful or substandard representation. Immigrant clients and their families often have limited means, may not speak English, and are generally excluded from the protections offered to citizens by the criminal justice and civil law systems. They are actively targeted by law enforcement at all levels of government. They cannot work or travel without fear of imprisonment and exile.

In this environment, it is easy for even competent and well-meaning immigration attorneys to let some cases slip through the cracks. I wish I were blameless in this regard, but I am not. I wish attorneys employed by nonprofits were exempt from this criticism, but they are not. Attorneys rarely face meaningful consequences when a case goes wrong due to poor representation. I have never heard of an immigration attorney being sued by a client for malpractice. I have, however, had clients tell me of immigration attorneys who have sued or threatened to sue them. Sadly, the only people less trusted by the immigrant community than immigration lawyers are immigration officials and judges.

END cases provide lawyers with the opportunity to use the latent strength of the undocumented community to help our clients. Some best practices for working with organizers on public or quasi-public deportation defense campaigns are:

Maintain open communication with organizers and family members. Be available when they call or email. Join conference calls, even after normal business hours

Share filings and other case documents with organizers, and solicit feedback from them about legal strategies.

Embrace humility. I have had my share of disagreements about case strategy with organizers, and have been proved wrong by events more often than not. I have applied tactics and practices I've learned from END cases to other casework. Remember that, on an END case, the attorney is only one member of a team.

Keep an open mind. The immigration bar never imagined that deportations for an entire class of people could be stopped by nothing more than public support. We cannot anticipate what lies ahead as the immigrant rights movement grows stronger.

Step out of your comfort zone. Don't let fear of damaging relationships with ICE or judges drive decisions. Hear organizers out when they propose novel or aggressive strategies. By the same token, use your legal expertise to inform and strengthen the organizing approach.

Attorneys benefit from working on END cases, too, this is not charity work. Aside from the satisfaction of helping undocumented Americans stay with their families, there are tangible benefits to END work, including media attention and a higher profile in the immigrant community.

We attorneys work in an unjust legal system situated within a fundamentally anti-immigrant society. It is easy enough to fool ourselves into believing we are representing a client's best interests when sometimes we are not. Unlike our clients, we are protected by and benefit from this system. If we take seriously our obligation to zealously represent our clients, we must become better informed about the needs of our clients and the challenges they face. Undocumented activists and organizers often have a better understanding of our clients' struggles than we do and can inform our legal work to help us provide better representation. They have built a national network to win cases that would otherwise be hopeless. We do our clients a disservice when we fail to recognize these realities.

Chuck Schumer A Pro-Migrant Hero? More Like A Zero

2012-01-19T20:00:00Z

Sen. Chuck Schumer (D-NY) was listed as a "hero" for immigration reform by the pro-migrant political action committee, Immigrants' List.

I greatly value the work that Immigrants' List does, and encourage folks to donate to them. We need more pro-migrant PACs like Immigrants' List, and we need more money for them if we ever hope to have a pro-migrant impact. Of the ten heroes Immigrants' List cites, I agree with their selection of the other nine heroes. Sen. Chuck Schumer (D-NY), however, has to be one of the worst pro-migrant politicians in the country. That is to be distinguished, of course, from some of the worst nativists in the country, like Sen. Jeff Sessions (R-AL) and Kansas Secretary of State Kris Kobach. Why is Sen. Schumer a zero, or maybe even worse than that? Sen. Schumer was supposed to lead on passing immigration reform through the Senate, and had one of the best chances to do so in my lifetime, when Democrats had 60 Senators, a super-majority, in Congress following the 2008 elections. In his new leadership position, what was the first principle of immigration reform that Sen. Schumer laid out? "Illegal immigration is wrong," Schumer said. He further elaborated on this first principle of comprehensive immigration reform in his statement:

The first of these seven principles is that illegal immigration is wrong--plain and simple. When we use phrases like "undocumented workers," we convey a message to the American people that their Government is not serious about combating illegal immigration, which the American people overwhelmingly oppose.
Chuck Schumer (24 June 2009)

In other words, the first formal step that Schumer took to advocate for immigration reform, was to cede and adopt the language of the nativist movement, whose goals are to terrorize migrant currently in this country and limit future immigration, authorized and unauthorized, as much as humanly possible.

I wish for the sake of migrant communities that Sen. Schumer's mistakes were only rhetorical. Sen. Schumer was one of the chief opponents of bringing up the DREAM Act for a vote, pushing for a failed all-or-nothing strategy of comprehensive immigration reform that only brought us more deportations and more enforcement.

It isn't just that, though, as I myself have been seduced by the CIR strategy before, it's the fact that while Schumer was opposing bringing up the DREAM Act for a vote, he brought up a $600 million border security bill that passed!

Sen. Schumer is one of the people chiefly responsible for squandering a historic opportunity to end some of the worst violence of a newly globalized world. It isn't just that he failed to act, though, it's that he ceded rhetorical ground to the nativists and even enacted some of their enforcement-first, enforcement-forever policy for them. Sen. Schumer has been a disaster for migrant communities and he'll have to do something pretty incredible before the pro-migrant movement considers him a hero.