Dear ICE, at least play fair.

Saturday, December 25th, 2010
By: Jonathan MontagJ.D.

A few times I have written about what appeared to me to be an Immigration and Customs Enforcement policy of taking aliens out of the United States without the aliens availing themselves of their right to see an immigration judge by providing false information about the consequences staying and fighting a case as opposed to leaving. I learned of this through speaking to many aliens and family members of aliens who experienced this. This modus operandi was confirmed by a December 6, 2010, Washington Post article. Reporter Andrew Becker wrote:

Officials quietly directed immigration officers to bypass backlogged immigration courts and time-consuming deportation hearings whenever possible, internal e-mails and interviews show. Instead, officials told immigration officers to encourage eligible foreign nationals to accept a quick pass to their countries without a negative mark on their immigration record, ICE employees said.

The option, known as voluntary return, may have allowed hundreds of immigrants – who typically would have gone before an immigration judge to contest deportation for offenses such as drunken driving, domestic violence and misdemeanor assault – to leave the country. A voluntary return doesn’t bar a foreigner from applying for legal residence or traveling to the United States in the future.

Once the agency closed the books for fiscal 2010 and the record was broken, agents say they were told to stop widely offering the voluntary return option and revert to business as usual.

Without these efforts and the more than 25,000 deportations that came with them, the agency would not have topped last year’s record level of 389,834, current and former ICE employees and officials said.

It is nice when hunches are confirmed. Unfortunately, the perniciousness of the policy must not be understated. Mr. Becker is dead wrong in his observations about the consequences of the policy – that it does not bar a foreigner from applying for legal residence or traveling to the United States in the future. Word for the wise – be cautious when journalists write things without attribution – they are often not experts in what they are writing about and often say things that are not so. Think how many times a week when you read in the newspaper about something you really know about, how what the newspaper says is at least partially wrong.

In this case, forcing an alien to take a “voluntary return” is often fatal to applying for legal residence or traveling to the United States in the future. Here’s why.

First, there is a law commonly referred to as the “3 and 10 year bars” found at INA § 212(a)(9)(B). If a person is in the United States illegally for more than 180 days and departs, he or she cannot return to the United States for three years. If a person is in the United States illegally for a year or more and departs, he or she cannot return to the United States for ten years. When ICE officers encounter someone at a bus stop and throw him or her over the border – after getting them, of course, to sign a waiver of their interest in seeing an immigration judge – the alien triggers the bars and cannot return to the United States if he or she has a means to do so. By “has a means” I mean that a person has to have a way to get a visa. A person can apply for a visitor’s visa, but if the person has been in the United States illegally for any substantial period of time, the person will most likely not get a visa both because of skepticism by the consular officer issuing the visa that the person will adhere to its terms (INA § 221(g)) or because the officer will suspect an “immigrant intent,” i.e., that the person wants to live in the United States – which is a forbidden desire to most (but not all, but certainly for visitor visas) people applying for temporary (non-permanent resident) visas (INA § 214(b)). If a person has the means, he or she then faces the 3 and 10 year bars. For a person seeking to immigrate through a spouse or adult child or a legal parent, even if a visa is actually available, the 3 and 10 year bars create a huge obstacle. A waiver is available for those with a permanent resident or U.S. citizen spouse or parent (and not child), but the waiver requires a showing of extreme hardship to the spouse or parent, which is not easy and is time consuming to obtain. Had the person not been tossed out of the country and was eligible to get his or her permanent residence in the United States, there would be no more 3 and 10 year issue.

Second, some forms of relief are only available in the immigration court. For example, for aliens who have been here for more than ten years and have a parent, a spouse, or a child who is a citizen or resident and the relative will suffer exceptional and extremely unusual hardship, an immigration judge can grant permanent residence through relief called Cancellation of Removal for Certain Nonpermanent Residents. (INA § 240A(b)(1)). If the alien signs away his or her right to see an immigration judge and departs, he or she loses the opportunity to see receive this relief, even if he or she sneaks back. In some cases, coercion to sign and go leaves a desperate family that could have remained together through Cancellation. Other relief for victims of domestic violence is also lost upon departure. (INA § 240A(b)(2)).

Third, regarding sneaking back, if an alien signs and goes and then sneaks back, he or she is ineligible for all relief in the United States and is barred from getting any benefit in the future until he or she leaves again and stays out for ten years – with no opportunity for a waiver. The State Department lingo for this is “the permanent bar,” because ten years is such a long time it is like permanent, I suppose. After the ten years, not only must a visa be available, but advance permission to come back – a waiver – is required.

Seeing all that is lost my signing and going, it has to be that in most cases none of this is explained to the alien before he or she signs away his or her right to see an immigration judge. Threats of prolonged detention with no prospect of relief is often the information the alien receives. “You can stay in detention for six months and fight your case and pay a lawyer a lot of money and then get deported anyway or you can just go now and not be considered deported.”) This is deplorable because the advice is wrong – aliens can seek release from an immigration judge which will most often an immigration judge will grant if there is some prima facie eligibility for relief. It is also extremely improper, if not downright illegal, because ICE officers have no business dispensing legal advice. Telling someone they may as well sign and go rather than see a judge is unambiguously legal advice.

Congress was unwilling to assist a limited class of aliens – those that came as youngsters and are willing to join the uniformed services or attend college through the DREAM Act. The present administration is hell-bent on showing it is tough on immigration by trying to break all records in deportation numbers. The administration should be equally hell-bent on insuring that aliens detained by ICE are afforded all their rights, provided accurate information or no information as opposed to wrong information, and allowed their day in court. If the government cannot do good things for these people, at least it should not do bad things. Posted December 25, 2010.



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