Obama's Immigration Enforcement Update: No, It's Not An Amnesty

Since President Obama was elected, his administration has detained and deported more persons than any administration before. According to Department of Homeland Security (“DHS”) Secretary Janet Napolitano, during fiscal year 2010 a record was set of more than 392,000 persons removed from the United States. DHS expanded its “Secure Communities” program that uses fingerprint information collected from state prisons and local jails. This program was increased from 14 jurisdictions in 2008 to more than 660 jurisdictions. By 2013, DHS predicts the Secure Communities program will cover all U.S. jurisdictions. In addition to expansion of the Secure Communities program, from January 2009 until October 2010, DHS audited more than 3,200 employers which was more than during the entire eight years under the previous Bush Administration.

Locally, this increased enforcement has had a major impact. When state and local law enforcement arrest and book someone into a jail for a violation of a local or state criminal offense, they generally fingerprint the person. After fingerprints are taken at the jail, the state and local authorities electronically submit the fingerprints to the Federal Bureau of Investigation (FBI). This data is then stored in the FBI's criminal databases. After running the fingerprints against those databases, the FBI sends the state and local authorities a record of the person's criminal history. With the Secure Communities program, once the FBI checks the fingerprints, the FBI automatically sends them to DHS, so that U.S. Immigration and Customs Enforcement (ICE) can determine if that person is also subject to removal (deportation). Even simple traffic stops can result in arrest by immigration authorities.

Typically, the immigration agent interviewing the person in jail decides whether or not to allow the person to pay an immigration bond and be released. Immigration bonds in Iowa are increasing and averaging $5,000 to $10,000. The person is expected to either pay the bond in cash or find an immigration bond bailsman willing to accept a lien on someone’s house or car to pay the bond in addition to the non-refundable bond fee, typically 10 – 25% cash.

Immigration agents encourage persons detained in jail to agree to sign documents voluntarily deporting themselves. This occurs even when the person may have valid defenses to removal/deportation.

The result of higher immigration bonds makes it harder and often impossible for the detained person to get out of detention/jail. If the person does not have the funds to pay the immigration bond, it takes a few weeks of waiting in detention/jail for the Immigration Court to hold a hearing to determine whether it will either set or reduce a bond. The Immigration Courts give highest priority to the cases where people are unable to bond out and are waiting in detention/jail. For people unable to bond out of detention, the person is expected to develop their defense and go to trial on their case within a few short weeks.

With the significant increase in enforcement, Immigration Courts are clogged with hearings and trials for people waiting in detention/jail. For people released on bond, hearings are often continued by the Immigration Court to accommodate the higher priority detained cases. Currently in the Omaha Immigration Court that covers Iowa and Nebraska, individual hearings/trials for people who are not in detention/jail are being scheduled out until 2015. In Bloomington Immigration Court that covers Minnesota and the Dakotas, individual hearings are being scheduled out until 2014.

On June 17, 2011, the Obama Administration announced that it would form a working group/committee to begin reviewing cases currently pending in immigration court. Cases that are considered low priority may be terminated or closed without further prosecution. The Obama Administration’s stated purpose is to more efficiently use resources to focus on higher priority cases such as individuals with criminal convictions, repeat violators of immigration law, recent illegal border entrants, and people they consider threats to public safety and national security.

On August 30, 2011, in a Frequently Asked Questions release, DHS said they will make the decision to close removal/deportations on a case-by-case basis. It will not automatically apply to people who would have qualified under the DREAM Act. While cases have been closed in other parts of the U.S., so far in the Omaha Immigration Court jurisdiction no cases have been reported to have been terminated. Omaha ICE District Counsel has indicated to the Iowa – Nebraska American Immigration Lawyers Association Chapter that they are moving ahead as usual at this time and have not closed any cases.

I have received a number of calls from people asking if this is an amnesty and how they can qualify. There is no application to complete or file. There is no appeal process. If, and only if their case is closed, they may be eligible to apply for a work permit. However, they must show economic necessity, which is difficult to show. People found at the border will not be allowed discretionary review of their cases. Even if the person does not have a criminal conviction, the working group may decide not to close their case. Further, the working group may not get a chance to review the case before the person is removed/deported. For this reason, DHS has warned people not to self-surrender because of a belief that they would be allowed to apply for a benefit as they run a serious risk of being removed/deported.

The new policy is not a law or regulation. It is an enforcement policy only and therefore can be changed at any moment. Further, with the November 2012 election looming, if Obama is not re-elected a new presidential administration can easily reverse all of the decisions to close cases made by the working group and re-institute removal/deportation proceedings again.

JoAnn Barten Bigelow is an Immigration Attorney practicing in Iowa. Please see her Iowa Immigration Site for more information.