Comprehensive immigration reform (“CIR”) is not coming any time soon. Despite having Democratic majorities in the House and Senate and President Barack Obama in the White House, Democrats were unable, or unwilling, to bring immigration. The most that Speaker Nancy Pelosi and Majority Leader Harry Reid were able to do was to push the DREAM ACT, a law designed to provide a path to citizenship for some children of undocumented aliens with strict education or military achievements by those children. As Democrats no longer control both the Senate and the House, Republicans have had the chance to push their immigration agenda.
Republicans have promised to revisit the 14th Amendment’s grant of U.S. citizenship to anyone born on U.S. soil. They are also moving to mandate corporate compliance with the E-verify system, despite its flawed approach to verifying identities. Republican congressman Peter King of New York, who now chairs the House Homeland Security Committee, has already conducted hearings on Muslim immigrants and their backgrounds.
President Obama has failed to lead on the immigration issue. Indeed, the deportation rate is actually higher under President Obama than it was under prior presidents, including George W. Bush. What accounts for this? I think President Obama knows deportation is a hot button issue and that he does not want Republicans to paint him as “soft on illegal immigration.” So the Department of Immigration and Custom Enforcement (“ICE”) is given quotas to meet, i.e., a certain number of monthly and annual deportations.
In a certain respect, the quotas are working. In the last fiscal year, ICE achieved 392,862 deportations. Although some reports indicate that ICE “cooked the books” in order to achieve the record high for deportations in a single year, the number remains startling. By my simple math, ICE deported approximately 1,500 people per business day.
Somewhat humerously, President Obama recently tried to placate some in the Hispanic community by chatting with Latino “leaders” like Ugly Betty and Eva Longoria. The blatant political nature of this “outreach” bordered on the insulting.
Our firm has seen a significant uptick in the number of calls and inquiries regarding new deportation cases. The St. Louis ICE office has been aggressive in tracking down the undocumented and in gathering criminal records for non-citizens. Deportation (or removal) proceedings are then initiated. The number of deportation cases we are handling is more than three times the number that we had in 2009.
How does this play out in the real world? A surprising number of removal cases involve situations where a non-citizen committed a crime, often many years ago. In many instances, the individual paid a hefty fee for a criminal defense attorney. The criminal defense attorney may have negotiated a plea that, on its face, appeared to be a good result for the immigrant – a plea to a lesser charge with a suspended sentence. This type of plea would have little or no effect on a U.S. citizen – in fact, in many instances, if the defendant were to successfully complete probation, his or her record would have been “wiped clean.”
But as many of our clients have learned, a conviction with a suspended sentence in state court frequently remains a conviction in immigration court. Because of this, if you are a non-citizen charged with a crime, consult with an experienced immigration attorney before you hire the criminal defense attorney. Many criminal defense attorneys are unfamiliar with the nuances of federal immigration law. We have heard from more than one client who had their defense attorney tell them there would be no immigration consequences to their plea only to later find themselves in deportation proceedings.
Our other strong suggestion is that any immigrant who is in this country and who has the opportunity to obtain an immigration benefit, that they do so at the earliest juncture. If an employer wants to sponsor you for lawful permanent resident status, do it as soon as possible. If you are a lawful permanent resident and have lived in the United States for more than five years (or 3 years if you are married to a U.S. citizen), apply for citizenship as soon as you feel you can pass the English and civics requirements.
In the deportation context, lawful permanent residents have significantly greater protections than non-LPRs. And, of course, citizens cannot be deported. An astonishingly high percentage – over 50% – of people that we represent in deportation proceedings could have been citizens long ago. But because neither they nor their parents ever applied for their green card or, later, for their citizenship, they find themselves in deportation proceedings and subject to mandatory detention, which means that they have to stay in jail while their removal proceedings go on for months and months. This is a very real and a preventable tragedy when it occurs.