Reform is Definitely Needed

Perhaps it is finally time for immigration reform. It is estimated that 200,000 marchers gathered in Washington, DC this past Sunday to call for comprehensive immigration legislation. Last Friday, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) wrote an op-ed piece in the Washington Post setting forth their vision of immigration reform as presented in a bill that they have jointly sponsored. A week earlier, in celebration of the 30th anniversary of the Refugee Act of 1980, the Refugee Act of 2010 was introduced in Congress by Senator Patrick Leahy (D-VT). Even President Obama was present at the demonstration in Washington, DC this weekend. In a videotaped message that aired on huge screens on the National Mall, the president affirmed that the immigration system was “broken” and that it resulted in families being torn apart, employers gaming the system and police officers struggling to keep communities safe. I certainly agree with his first point, but the solution I would support does not appear to be part of the immigration reform proposal now under consideration.

The Refugee Act of 2010 is a welcome piece of legislation. As I wrote in my blog post, Happy New Year?, detention clearly frustrates an asylum-seeker’s ability to file for protection. The Act addresses this concern, and a summary of the bill is printed below.

According to its sponsors, the Schumer-Graham bill on immigration reform has four “pillars”: requiring biometric Social Security cards to ensure that those present unlawfully in the U.S. cannot obtain jobs; fulfilling the commitment to strengthen the U.S. border and continue internal enforcement of immigration laws; creating a process for admitting temporary workers, both skilled and unskilled; and implementing a process for the legalization of those 11 million people who are already here without authorization. The bill does not appear to address the issues I have repeatedly written about in this blog, and outlined in my posts, Message to Congress and The Myth of the Aggravated Felon. In fact, the senators call for a “zero-tolerance policy” for those who commit felonies. As well, the issue of detention does not appear to be a primary concern in this reform legislation despite the ABA Report’s conclusion that alternatives to detention were warranted. See my posts, Bad News for the Government and Support Dignity not Detention. I again challenge immigration reformers to consider their position on these issues carefully, and examine the impact of the wholesale detention and removal of those who have been convicted of crimes. A colleague who recently wrote to Congress with his concerns set forth the issue very eloquently:

Restore Due Process, Judicial Review, and Basic Fairness to the Immigration System

The U.S. Constitution guarantees every person in the U.S. due process under the law—regardless of immigration status. Yet current law strips immigration judges and officials of the discretion they need to evaluate cases on an individual basis and grant relief to deserving immigrants and their families.

The Immigration and Nationality Act provides that a noncitizen is removable if he or she has been convicted of an aggravated felony; however, in recent years the definition of "aggravated" has been expanded so significantly that the Department of Homeland Security has unfairly initiated removal proceedings on the basis of convictions for misdemeanors and other minor offenses, such as shoplifting, that are not consistent with any common understanding of the term "aggravated felony." Moreover, these provisions have been applied to non-citizens retroactively to target lawful permanent residents who were convicted or plead “no contest” to misdemeanors or other minor infractions without any reason to believe that deportation was a potential consequence at the time.

Under the INA's aggravated felony provision, immigration judges and officials don’t have the discretion to consider the facts of a case, including the length of time the person has lived in the U.S., and the individual’s contributions to the community when ruling on whether to detain or deport an individual. The pursuit of lawful permanent residents and other noncitizens by DHS under the aggravated felony provision has resulted in the automatic removal of thousands of tax-paying individuals with extensive ties to the United States and disrupted the economic and social stability of immigrant communities across the nation.

The policies of mandatory detention and deportation are fundamentally contrary to traditional American notions of fairness and justice and must be ended. Restoring judicial and administrative discretion and revising the definition and application of “aggravated felonies” is crucial to restoring integrity to and the public’s faith in the immigration system.

Here is a summary of the Refugee Act of 2010:

The Refugee Protection Act of 2010

Increased Protections for Asylum Seekers:
 Eliminates the requirement that asylum applicants file their claim within one-year of
arrival.
 Protects particularly vulnerable asylum seekers by ensuring they can pursue a claim even
where their persecution was not socially visible.
 Ensures fair process by requiring an immigration judge to give notice and an opportunity
to respond when the judge requires corroborating evidence of the asylum claim.
 Gives an applicant the opportunity to explain and clarify inconsistencies in a claim.
 Enables minors who seek asylum to have an initial interview with an asylum officer in a
non-adversarial setting.
 Allows the Attorney General to appoint counsel where fair resolution or effective
adjudication of the proceedings would be served by appointment of counsel.
Reforms to the Expedited Removal Process:
 Requires the referral of asylum seekers to an asylum officer for a credible fear interview,
and, if credible fear is found, for an asylum interview.
 Authorizes the United States Commission on International Religious Freedom to conduct
a new study on the effects of expedited removal authority on asylum seekers.
Parole of Asylum Seekers:
 Codifies the current DHS policy that asylum seekers be considered for release (“parole”)
and requires DHS to issue regulations establishing criteria for parole.
 Establishes a nation-wide, secure “alternatives to detention” program.
 Requires changes in the immigration detention system to ensure asylum seekers and
others have access to counsel, medical care, religious practice, and visits from family.
Terrorism Bar to Admissibility:
 Modifies definitions in the statute to ensure that innocent asylum seekers and refugees are
not unfairly denied protection as a result of the material support and terrorism bars in the
law, while ensuring that those with legitimate ties to terrorist activity will continue to be
denied entry to the United States.
Protection for Refugees and Asylees:
 Eliminates the one-year waiting period for refugees and asylees to apply for a green card.
 Allows certain children and family members of refugees to be considered as derivative
applicants for refugee status. All such applicants must pass standard security checks.
 Authorizes the Secretary of State to designate certain groups as eligible for expedited
adjudication as refugees.
 Prevents newly resettled refugees from slipping into poverty by adjusting the per capita
refugee resettlement grant level annually for inflation and the cost of living.