FAIR Legislative Update November 14, 2011
U.S. Citizenship and Immigration Services (USCIS) issued a policy memo on November 7 to assist Immigration and Customs Enforcement (ICE) in implementing the Obama Administration’s backdoor amnesty program. This backdoor amnesty program began earlier this year when ICE announced through the Morton memos that it would selectively enforce immigration laws and Homeland Security Secretary Janet Napolitano announced she was establishing a new interagency working group dedicated to administratively closing pending and future deportation cases.
The stated goal of the newly released memo is to ensure that USCIS’s practice of directing people to appear in immigration court, through what are called “notices to appear” or NTAs, complements ICE’s goal of administratively closing cases it does not consider a priority. (See USCIS Policy Memo at pg. 1; see also Mar. 2 Morton memo for the list of priorities) Thus, the USCIS memo creates new guidelines USCIS officials must consider when issuing a notice to appear to initiate removal proceedings against an alien. The new guidelines explain when USCIS personnel can unilaterally issue NTAs, and when USCIS must refer a case to ICE for ICE to determine whether an NTA will be issued. According to the memo, USCIS will issue an NTA when:
- USCIS denies a request for an alien spouse to become a full legal permanent resident by removing what is called the “conditional” status of the green card (and an “egregious public safety crime” is not involved) (USCIS memo at § II.A);
- USCIS denies a request by an alien who has invested in the EB-5 visa program to remove conditions of status (and an “egregious public safety crime” is not involved) (Id. at § II.B);
- USCIS terminates or denies certain asylum or refugee benefits (Id. at §§ II.C, II.D, and II.E);
- Fraud is formally part of an alien’s case record (and no criminal investigation resulting in criminal prosecution results) (Id. at § III).
For the vast majority of other circumstances where issuing an NTA would be considered, the memo provides that the USCIS must either: (1) refer the case to ICE; or (2) include ICE and its priorities in the NTA decision-making process.
Remarkably, under the new USCIS memo, the agency has relinquished its authority to unilaterally deny benefits to individuals in what are called “public safety cases.” The memo provides that USCIS officials must refer to ICE almost all cases involving criminal offenses, whether they are “egregious public safety cases” or “non-egregious public safety cases.” (See Id. at § 4 and § 4.A.1(a-j) for entire list) With respect to egregious public safety cases, USCIS must refer the case to ICE prior to making such a determination. However, if the alien is inadmissible or removable for a non-egregious public safety criminal offense, USCIS must adjudicate the alien’s petition or request before referring it to ICE.
Once USCIS refers a case to ICE, ICE has the sole authority to determine whether to institute removal proceedings by issuing an NTA. (Id. at § 4) USCIS is prohibited from issuing an NTA if ICE declines to do so, and if ICE declines to deport an alien whose request for benefits may still be approved, USCIS must consult with ICE prior to adjudicating the case.
The new USCIS memo reflects how the Obama Administration is consolidating all decisions regarding immigration enforcement at the highest levels within the Department of Homeland Security. In June, ICE announced through the Morton Memos that it would not enforce immigration laws against illegal aliens who do not have serious criminal convictions. In August, Homeland Security Secretary Janet Napolitano announced that Homeland Security and the Department of Justice would work together to administratively close deportation cases. Two weeks ago, news broke that Homeland Security had ordered the Border Patrol to stop random inspections at transportation hubs along our nation’s borders. (See FAIR Legislative Update, Oct. 31, 2011) Now, USCIS the administrative arm of our immigration system—is itself relinquishing its authority to initiate removal proceedings and handing that authority to ICE. Stay tuned to FAIR for more updates on Obama’s backdoor amnesty program…
Senators Jim DeMint (R-SC), Jeff Sessions (R-AL), and David Vitter (R-LA) introduced a bill Thursday that would prohibit federal funding for Department of Justice (DOJ) lawsuits seeking to invalidate state immigration enforcement laws. The bill provides that the federal government may not use taxpayer dollars to participate in any lawsuit seeking to overturn, enjoin, or otherwise invalidate existing state immigration enforcement laws. It then goes on to list the specific state laws the DOJ may not challenge, including: Oklahoma HB 1804; Missouri HB 390; Arizona SB 1070; Utah HB 497; Indiana SB 590 and HB 1402; Alabama HB 56; South Carolina S 20; and Georgia HB 87. (See Description of state immigration laws here.)
This legislation comes shortly after President Obama’s Justice Department sued South Carolina in an attempt to prevent its enforcement legislation from taking effect. (See FAIR Legislative Update, Nov. 7, 2011) U.S. Attorney General, Eric Holder, defended the DOJ’s lawsuits while appearing before the Senate Judiciary Committee last week. “In recent months, the department has challenged immigration related laws in several states that directly conflict with the enforcement of federal immigration policies,” he testified. “Not only would these laws divert critical law enforcement resources from the most serious public safety threats, they can lead to potentially discriminatory practices and undermine the vital trust between local jurisdictions and the communities that they serve.”
South Carolina Sen. Jim DeMint vowed to fight for his State’s legislation. In a joint statement with Senators Sessions and Vitter, he said: “It’s absurd that the Obama Administration, which has failed to enforce the nation’s immigration laws, is now stopping South Carolina, Alabama and Arizona from taking commonsense steps to protect citizens and uphold the law…South Carolina has a duty uphold the law and to protect our citizens from criminals who are in the country illegally.” (See Press Release, Nov. 4, 2011)
On Thursday, the U.S. Senate passed via a voice vote H.R. 398, a bill sponsored by House Immigration Subcommittee Ranking Member Zoe Lofgren (D-CA). H.R. 398 would amend the Immigration and Nationality Act to ease rules under which aliens who marry members of the U.S. military may become legal permanent residents.
Under current law, when a citizen marries a foreign national, the alien spouse is granted lawful permanent residence on a conditional basis for the first two years. (INA § 216(a)(1)) The government removes this conditional status only after it determines that the marriage is legitimate—a process that includes an interview during the 90-day period leading up to the two-year anniversary of obtaining (conditional) LPR status. (INA § 216(c)). H.R. 398 suspends the 90-day period in which the citizen and spouse must complete the interview to remove the alien’s conditional status if the citizen (or the alien spouse) is a member of the U.S. military serving abroad. (H.R. 398 at § 1(a))
The House passed H.R. 398 nearly unanimously on August 1. (See Voting Record) President Obama is expected to sign the bill into law.