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Obama Administration Contemplating Ending For-Profit Immigration Detention Centers

In August, the Federal Government announced its decision to end the use of for-profit prisons to house federal inmates. According to a memo released by the Department of Justice, the Federal Bureau of Prisons and the DOJ based their decision primarily on the facts that the cost savings of private facilities are negligible, and such facilities failed to provide “the same level of correctional services, programs and resources.”

Immigration detention facilities house far more detainees than the private facilities the federal prison system has used. However, it remains in question what the implications of this decision will be on the federal practice of contracting with private corporations to house immigrant detainees. The Obama Administration has budgeted $2.1 billion for detention operations in 2017, a system that currently holds over 31,000 people in custody on any given day. Out of the ten largest immigration detention facilities in the United States, nine are operated by private companies, housing about two-thirds of all immigrant detainees.

Figures for how much of the detention operations budget flows to private companies have not been released by Immigration and Customs Enforcement (ICE). However, federal budget data analysis by Grassroots Leadership, an Austin, Texas based non-profit organization, has found that about $1 billion a year, or half the annual budget for detention operations, went to private companies.

In late August, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, ordered a review of ways to end the use of private detention facilities. While Secretary Johnson has not taken a side on this issue, his Homeland Security Advisory Council is expected to make a recommendation by the end of November on the results of DHS’s review.

 

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The “Crime of Violence” Category in Immigration Law may soon be Void for Vagueness

In a 2015 case called Lynch v. Dimaya, the 9th Circuit held that 18 USC § 16(b), the statute that defines “crime of violence” for immigration purposes, to be unconstitutionally vague. The Court labeled the statue’s definition, as incorporated into INA § 101(a)(43)(F), to be vague following the Supreme Court decision in Johnson v. United States (2015). There, the Armed Career Criminal Act’s residual clause definition for “violent felony,” namely its language “involves conduct that presents a serious potential risk of physical injury to another” had been labeled unconstitutionally vague.

Before Dimaya, the open nature of Subsection (F)’s “crime of violence” definition included many criminal convictions, and conviction with a term of imprisonment of at least one year for a crime of violence constitutes an “aggravated felony.” In the immigration context, designation of a conviction as such is often devastating to non-citizens, making their options for relief from removal few and far between. Essentially, by designating “crime of violence” as vague, the 9th Circuit narrowed the definition of which crimes can be considered aggravated felonies as crimes of violence.

The Supreme Court now seems poised to follow Johnson itself as the 9th Circuit did. Following government appeal, the Supreme Court granted a petition for writ of certiorari in Dimaya on September 29, 2016, to determine “[w]hether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague. Given this development, and the Supreme Court’s recent history in Johnson, immigration practitioners and non-citizen clients may very well soon witness the jurisprudence of “crime of violence” unconstitutional vagueness expanding to the entire nation.

 

 

 

 

 

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Immigration Programs Set to Expire at the End of the Month

Four immigration programs are set to expire on September 30th unless Congress chooses to reauthorize them in a spending bill for the new fiscal year. If the programs are not extended by Congress prior to September 30th, pending applications would be put on hold until the programs are reauthorized.

Conrad 30 Waiver Program

The Conrad 30 Waiver Program was created to address a severe shortage of qualified doctors in medically underserved communities across the United States. Under the program, J-1 medical doctors are able to waive the requirement that they return to their foreign residence for two years after the program’s end before applying for another immigrant or nonimmigrant visa. In turn, the J-1 medical doctors must agree to work fulltime for three years in a health care facility located in an area designated by the U.S. Department of Health and Human Services as a Health Professional Shortage Area, Medically Underserved Area, or Medically Underserved Population.

EB-5 Regional Center Investor Program

The EB-5 Regional Center Investor Program allows foreign entrepreneurs to apply for permanent residency if they make a substantial investment in a designated “Regional Center.” Regional Centers are economic development agencies located in targeted employment areas, which are designated and monitored by USCIS. Normally, EB-5 applicants would be required to make an investment in a commercial enterprise which would create at least ten permanent, fulltime jobs for U.S. workers. By investing in a Regional Center, however, the investor is able to meet these requirements indirectly through the aggregated efforts of the economic development agency.

H-2B Returning Worker Program

Under the H-2B Returning Workers Program, returning H-2B temporary, non-agricultural workers are exempt from the annual H-2B cap of 66,000 visas if they had already been counted against the cap during one of the previous three years.

Non-Minister Special Immigrant Religious Workers Program

The Non-Minister Special Immigrant Religious Workers Program, under the EB-4 immigrant visa category, allows non-minister religious workers to apply for permanent residence through their employment with a bona fide, non-profit religious organization in the United States. Special Immigrant Religious workers entering as ministers would be unaffected by the expiration.

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Proposed House Bill Would Revise H-1B Program

A recently proposed bipartisan bill would amend the H-1B program by requiring more employers to attest that they are unable to find qualified U.S. workers. The bill is specifically targeted at H-1B dependent employers, which employ more than 50 people and whose workforce is comprised of at least 15 percent H-1B workers. Currently, these H-1B dependent employers are required to file attestations stating that they are unable to find qualified U.S. workers, but they are exempt from these attestations if the H-1B worker holds a master’s degree or earns at least $60,000 annually. This exemption was created in 1998 to improve administrative efficiency, but the $60,000 threshold was not indexed for inflation and has not been increased in the past 18 years.

The current bill, proposed by Rep. Darrell Issa (R-Calif.), would raise the threshold from $60,000 to $100,000, and include an adjustment for inflation. Additionally, the proposed bill would eliminate the exemption for workers with master’s degree. While the bill has not been scheduled for a vote in the House, Rep. Issa’s office said that it may be attached to an omnibus spending package following the election in November.

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EOIR Docket Backlog Hits a New Record High

As of July 2016, the pending case backlog before the Executive Office for Immigration Review (EOIR) passed half a million, at a record high of 502, 976. The average wait time in 2016 before an immigrant can even appear in court is about 676 days, slightly under two years. This figure is more than double what an immigrant would have waited in 1998.

While there are many reasons for this huge back-up, three factors in particular are considered primary contributors to it. First, from 2008 to 2014, the dragnet program Secure Communities caused a significant uptick in the backlog as local police departments readily handed over countless arrested undocumented immigrants to the Department of Homeland Security (DHS), which in turn fed them into the court system. Then, following the massive influx of families and unaccompanied minors from Central America in the summer of 2014, the Department of Justice prioritized such cases ahead of those already on the docket. In this attempt to respond to the large group of new immigrants effectively, DOJ left many immigrants waiting in the wings much longer for their day in court. Finally, federal spending allocation toward the immigration court system rose only 74% between 2003 and 2015, whereas spending for U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) rose 105%. These budgeting priorities on enforcement over judicial support led to 200,000 cases being added to the total immigration court docket nationwide, while the number of immigration judges plateaued from 2011-2014 in parallel to a DOJ hiring freeze.

Now, Secure Communities is no more, the administrative fallout in the aftermath of the 2014 Central American migration boom has reduced, and DOJ is apparently on an immigration judge hiring spree to counteract the record backlog. Today in fact, an all-time high of 277 immigration judges are working nationwide, DOJ has 100 candidates going through the recruitment process, and it bears authorization to hire up to 374 more immigration judges. While this hiring effort by the government will hopefully help reduce the tremendous backlog, many more new immigration judges may be required, as Human Rights First estimates that it would take approximately 524 immigration judges to clear the system’s backlog within a year. Clearly, EOIR and DOJ have their work cut out for them.

 

 

 

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DHS Seeks Comments on Proposed International Entrepreneur Rule

The Department of Homeland Security is currently seeking comments on its proposed rule creating regulatory guidelines for the discretionary grant of parole to international entrepreneurs, in order to facilitate entrepreneurship, innovation, and job creation in the United States.

The proposed rule seeks to establish a framework for granting parole to entrepreneurs based on the creation of a startup entity in the United States. In order to receive parole under the rule, the entrepreneur would need to demonstrate that the United States would receive a significant public benefit from the creation of a new startup entity with significant potential for rapid growth and job creation. This potential for growth and job creation would have to be demonstrated by significant capital financing from U.S. investors with established records of successful investments, or grants or awards from Federal, State or local government entities. The grant of parole would then allow the applicant to oversee and grow the startup in the United States, maintaining an active and central role in its operations. Under the rule, entrepreneurs would be able to receive an initial 2-year grant of parole, with one additional 3-year extension available based on the initial success of the startup.

The full text of the proposed rule can be found here. DHS is accepting comments until October 10, 2016.

by SCwpadmin SCwpadmin 586 Comments

DHS Expands the Provisional Unlawful Presence Waiver of Inadmissibility

DHS last week published a long-awaited final rule expanding eligibility for the provision unlawful presence waiver to include family members of lawful permanent residents.

Individuals who are unlawfully present in the United States for more than 180 days trigger a three-year bar on reentering the country once they depart, or a ten-year bar if unlawfully present more than one year.  The unlawful presence waiver allows  individuals who are otherwise eligible to apply for an immigrant visa to waive this unlawful presence ground of inadmissibility if a qualifying family member will suffer extreme hardship in their absence. In 2013, USCIS created the “provisional” waiver, which allows individuals to apply for the waiver before departing the United States, avoiding lengthy separations from family members in the United States while the waiver is adjudicated. Until now, however, only U.S. citizen spouses or parents could serve as qualifying relatives for the purpose of the provisional waiver. Under the new rule, lawful permanent resident spouses and parents may also serve as qualifying family members for a provisional waiver. USCIS will begin accepting provisional unlawful presence waivers based on extreme hardship to LPR spouses and parents when the rule goes into effect on August 29, 2016.

by SCwpadmin SCwpadmin 409 Comments

US – Mexico to Reevaluate Migration Crisis Response

The United States and Mexico make Commitments to Reevaluate the Strategy of Deterrence and Detention in Response to the Central American Migration Crisis

In early July, the United Nations refugee agency held a summit in Costa Rica on the Central American refugee crisis. The Summit gathered representatives from refugees’ countries of origin, transit and asylum countries, and NGO’s, addressed responses to the crisis and called for greater awareness and action regarding this issue affecting scores of migrants from the Northern Triangle region of Guatemala, Honduras, and El Salvador.

At the end of the two-day meeting, participating nations offered commitments to a circulated document draft. Of particular note, the primary asylum countries, the United States and Mexico, have agreed to ensure the “timely identification and documentation, in particular at border areas, of persons in need of international protection” and to “implement, where possible, alternatives to detention.” The U.S., Mexico, and other contributors also agreed to set up a monitoring system on migrant displacement patterns.

These new commitments to reevaluating responses to the crisis come in the wake of the U.S. and Mexico largely pursuing strategies of deterrence, including the mass detention of migrant women and children, since the surges in Central American migration flows in 2014 and 2015. Following the pushback against such heavy-handed tactics by NGO’s, these latest steps by Mexico and the U.S. may signal the beginnings of a new strategy toward the plight of Central American migrants, and bode well given the UNHCR’s efforts to financially back closer monitoring of the situation in the region, as well as the planned migrants and refugees summit of the U.N. General Assembly on September 19, and a parallel summit organized by President Obama on September 20.

 

 

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Friday Feels: Casa de Paz

If you need a some inspiration heading into this weekend, you need to read this recent feature in Westword magazine. The article highlights the amazing work being done by Sarah Jackson, founder of Casa de Paz, a nonprofit that provides housing, meals, visits, and transportation to families affected by immigrant detention. We should also add that Sarah Jackson was recently honored by the Rocky Mountain Immigrant Advocacy Network (RMIAN) for her work to support immigrants.

Below is an excerpt from the article, to read the full piece, click here.

“The experience that had the biggest impact on Jackson, though, was meeting a man named Abel on the Mexican side of the border. Abel had grown up in the United States, and as far as he was concerned, Mexico was a foreign country. He only spoke English, and he hadn’t known that he was undocumented until he went to get a driver’s license at the age of sixteen.

“So they were deporting him ‘back home,’ but his home was the United States, because his parents brought him here when he was a child,” Jackson says.”

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Alcohol Incidents May Affect Visa Eligibility

Under U.S. immigration law certain medical, mental health and substance abuse issues are grounds of inadmissibility into the United States. As such, individuals who have certain diseases or who suffer from addiction to certain substances, including alcohol, may be denied a visa to enter the U.S. for any type of temporary stay, whether for work or pleasure. The U.S. Department of State recently announced that visa applicants who have been convicted of Driving Under the Influence (DUI) or Driving While Intoxicated (DWI or DWAI) during the five years prior to the visa application will be required to have a medical exam by a designated physician to determine if the individual suffers from a disease or addiction that renders him/her ineligible for the visa. Similarly, visa applicants who have had two such alcohol incidents within the 10 years prior to a visa application will be required to undergo the same exam process.

Furthermore, based on the new policy, the U.S. Department of State has begun to revoke visas of certain individuals who have already obtained them and may currently be in the U.S., with the result that such individuals would have to apply again for a visa in the event they depart the U.S., despite the current expiration date on their visa. At the very least, individuals who have a DUI or related alcohol conviction in their past should expect to be delayed abroad when applying for a visa at a U.S. Consulate. They should also be aware that they may be determined ineligible for the visa in which case their visa application would be denied. Please note that this rule has no effect on individuals who are lawfully present in the United States and do not depart the United States. Individuals who must travel internationally and have a DUI or related conviction in their past should seek counsel with an immigration attorney to understand the gravity of their situation and whether there are options such as a waiver of inadmissibility.

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