First, as many of our readers already know, a long-pending regulation has finally made it to the Federal Register. Soon, certain H-4 spouses will be able to work in the U.S. Other regulations have been published in the Federal Register to conform certain highly-technical legal nuances to “reality”. Additionally, we are pleased about the liberalization of the rules of evidence for EB-1(2), Outstanding Researcher and Professor cases. Also, in an attempt to conform an obsolete and highly-technical rule to reality, H-1B1 and E-3 extension filings will be afforded an additional 240 days of work authorization while the extension applications are pending with the USCIS. Also, there was a new policy promulgated with regard to the submission of medical reports to the USCIS. Medical reports from the Civil Surgeon will be valid for one year from being signed and for one year after submission.
As many of our readers are also aware, there has been a recent focus by President Obama on the issues of immigration enforcement, deportation (removals) and detention. A string of new reports and analyses have resulted in competing reports about the removal/deportation numbers. The question of whether current policies are indiscriminate and inhumane, or whether the Obama Administration is ignoring the law and “can’t be trusted” are dominating the politics around the immigration debate.
However, a debate focused exclusively on numbers obscures the simple fact that the deportation process has been transformed drastically over the last two decades. In the past, immigration court hearings were the standard procedure ensuring a basic level of due process, safeguarding against unlawful removals, and permitting noncitizens to pursue legal status if eligible. Today, the vast majority of deportations are happening outside the immigration court system and with almost no due process or access to attorneys. Currently, nearly 75 percent of all removal orders are happening through expedited removal, reinstatement of removal, and stipulated removals.
Two of these procedures, “expedited removal” and “reinstatement of removal”, allow immigration officers to serve as both prosecutor and judge-often investigating, charging and making a decision, all within the course of one day. These rapid deportation decisions often fail to take into account many critical factors, including whether the individual is eligible to apply for lawful status in the United States, whether he or she has long-standing ties here, or whether he or she has U.S. citizen family members. Generally, there is no opportunity to consult with counsel and there is no judicial oversight.
These procedures were implemented as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, when Congress established streamlined deportation procedures that allow the government to deport (or “remove”) certain noncitizens from the United States without a hearing before an immigration judge. The failure to provide a fair process to those facing expulsion from the United States and the lack of procedural safeguards deprives countless individuals of basic due process.
One of the hallmarks of the U.S. justice system is the right to have a day in court before an impartial decision-maker (commonly referred to as “due process”), yet the vast majority of immigrants who are removed never see the inside of a courtroom. The detention/removal process is the most recent pawn in the immigration reform chess game. It remains to be seen if President Obama’s hand is going to be forced by the Republicans.
If the President is forced to act without Congressional support on the immigration reform front then it also remains to be seen how truly “sweeping” the reform will actually turn out to be. For additional information about U.S. immigration and nationality law issues, Canadian immigration law issues or how the potential for immigration reform may impact you or the me