Deportation Loophole Lets Thousands Live and Work in US Indefinitely

John has been slated for deportation -- for the last 20 years. The U.S. government renews his work permit annually. He has a driver’s license, and has started a family and set down roots here, a place he calls home.

But he does not have a green card, or permanent U.S. residency, because the U.S. government says John, who has lived here for about 30 years, is ineligible to call this country his home. 

John lives in an indefinite legal limbo, with the threat of arrest by immigration agents ever-present. But he hasn’t been expelled because his removal is on hold.

And his attorney, Jerard González of New Jersey, says his client sees it as preferable to the alternative – permanent expulsion.

“It’s better than being in Russia or Lebanon,” said González, a former federal immigration prosecutor. “He’s here with his wife.”

Hundreds, perhaps thousands, of deportations are delayed every year.

Delayed deportations – known by various names, including “deferred action” – have been part and parcel of U.S. immigration policy for decades, routinely granted under both Democrat and Republican administrations. A work permit and the ability to obtain a driver’s license – two essential things that otherwise are off-limits to undocumented immigrants -- often are part of the deal.

This loophole in immigration law has allowed tens of thousands of foreign nationals --whom the United States has rejected for permanent legal residency, commonly referred to as a “green card”-- stay in the country for years.  Sometimes, like in John's case, the delay is so long that immigrants marry, have children here, buy homes, and even start businesses.

The loophole has benefited immigrants such as José Humberto and Hilda Jauregui of Peru, whose deportation immigration authorities agreed to suspend for a year on humanitarian grounds -- they are the guardians and caretakers of their granddaughter, a 17-year-old U.S. citizen who has leukemia.

And it has helped others with far more controversial cases, such as people whom the U.S. government slated for deportation on grounds that they were involved in terrorism.

Most immigrants trapped in the deportation web never get a delay. Rather, the delay often is granted to those who can afford top attorneys, or those who get the support of, say, members of Congress or the Senate, or who become the subject of a media campaign.

Although González supports the system of delaying deportations in certain cases, he says he has been troubled by some of the people he has seen dodge deportation.

An example, he said, is a Northern Ireland man who served jail time because of activities linked to his membership in the outlawed paramilitary group Irish Republican Army, or IRA.

“I thought about the disparity,” González said. “He gets to stay, but the others are gone – deported -- because they didn’t have the pull, didn’t have the political connections.”

How many have benefited is hard to discern. The power to put a deportation on hold is a tool available to, and used by, a variety of agencies and courts with a say on immigration matters, and the practice is marred by inconsistency, gaping holes in data, and cases that languish in suspension for years.

"Deferred action" is part of a parallel immigration universe that has not been part of the national debate, and about which everyday Americans know little, if anything.

From The Shadows to Official Policy

Now, the issue of deferred deportation is moving to the front burner, on the heels of the recent announcement by the Obama Administration that it is suspending removals while it makes a top priority removing immigrants who are criminals or who pose a threat to national security.

Some 300,000 deportation cases that are pending will be reviewed case by case, administration officials say. Low priority deportation cases – those involving undocumented immigrants brought here by their parents, relatives of U.S. citizens, and those with relatives who served in the U.S. military – will be put on hold and perhaps closed.

How it will work, exactly, is still unclear.

The announcement drew the ire of activists and groups who favor strict immigration enforcement. They said the Obama Administration is sidestepping immigration laws and unilaterally granting amnesty.

House Judiciary Committee Chairman Lamar Smith, R-Texas, said the shift is the administration's "plan to grant backdoor amnesty to illegal immigrants."

House Republicans plan to hold hearings within a month challenging the new Obama Administration deportation policy.

Smith introduced a bill called the Hinder the Administration’s Legalization Temptation (HALT) Act, which prevents deferring deportations until January, 2013, the end of Obama’s first term.

"The Obama administration should enforce immigration laws, not look for ways to ignore them,” Smith said in a statement. “The Obama administration should not pick and choose which laws to enforce."

But Rep. Zoe Lofgren, the ranking Democrat on the House immigration subcommittee, said the outrage over deferred deportations ignores the fact that “Deferred action has been a tool used by every president.”

Those who defend delaying deportations view the practice as a necessary antidote to a broken immigration system.

“By and large the [new deportation] priorities are accurate,” Lofgren said. “The resources should be targeted at people who endanger society, and not people who have longstanding ties to the United States and relatives of Americans.”

“How guilty is the six-month-old kid who came here [illegally]?” Lofgren asked. “They did what they were supposed to, they obeyed their parents.”

The Deportation System Has Lacked Transparency

The system of deferred deportations long has been a largely opaque one, with the delays granted by different agencies using different criteria and employing different terms for the action (or lack thereof). Comprehensive data is hard to come by, making it difficult to assess the whole practice of suspending deportations.

DHS data for one category, “deferred action,” shows that an average of slightly over 600 people a year have received this reprieve under the Obama Administration.  An average of more than 750 people a year got it in former President George Bush’s last term.

Another category, “cancellation of removal,” shows that nearly 10 years ago, the U.S. cancelled deportation proceedings for roughly 24,000 immigrants, according to the DHS Office of Immigration Statistics.

That number increased for several years after that – to 29,000 in 2003, and peaked at 32,700 in 2004. But deportation cancellations dropped sharply in 2007, from nearly 30,000 in 2006 to just shy of 15,000.

The drop continued steadily under the Obama Administration –which has presided over more deportations than any other-- with 8,100 cancellations of deportation cases in 2010.

The longer a person stays in the United States illegally, ironically, the better the chance of getting deportation rescinded.

To qualify for cancellation of deportation, for example, immigration laws require an undocumented immigrant to have lived in the United States no less than 10 years.

Laws also require that the immigrant have no record of problems with police, and that deportation would pose “exceptional and extremely unusual hardship” to a spouse, parent or child who is a U.S. citizen or legal immigrant.

Those who defend delaying deportations say they’re important in a system that is rife with flaws, and in which many immigrants do not get a fair shot to make their case because of a lack of legal counsel.

Proving extreme hardship, for example, said González, the attorney, is difficult.

“It’s the highest standard,” he said.

Groups on different sides of the immigration debate say the way the U.S. has managed deferred deportations has been problematic.

The gaps in the data that is available to the public doesn’t sit well with Lofgren.

The congresswoman said she ran into roadblocks when she tried to find out why deferred action approvals had declined under the Obama Administration.

“I couldn’t get an answer,” Lofgren said of her attempts to get more information. “It’s down, and I have a problem with that.”

There long has been no formal national procedure for handling deferred action requests, said a July memorandum by the Office of the U.S. Citizenship and Immigration Services Ombudsman, repeating concerns it had raised in 2007 about the USCIS’s system of delaying deportation.

“Stakeholders lack information regarding the number and nature of deferred action requests submitted each year,” the memorandum said, “and they are not provided with any information on the number of cases approved and denied, or the reasons underlying USCIS’ decisions.”

“Currently, there are no official, national standard operating procedures for how to process a deferred action request,” it said. “Tracking submissions and releasing the data to the public would improve management of the deferred action process and provide transparency to the public.”

A Valid Reprieve, or Back-Door Amnesty?

Proponents of strict immigration enforcement said deferred deportations undermine respect for immigration laws.

“There’s clearly a need for flexibility in any area of law that people are enforcing,” said Mark Krikorian, executive director of the Center for Immigration Studies, which favors strict immigration policies. “The law is a blunt instrument, providing for a little wiggle room is just prudent."

“The problem is when that wiggle room, the loophole, becomes the policy,” Krikorian said. “These various means of avoiding deportation is the policy itself.”

The USCIS ombudsman memo described deferred action as a reprieve that is meant to be granted for one or two years.

Deportations have been delayed for caretakers on whom an ill U.S. citizen or permanent resident depends, for people who have been the victims of spousal battery or human trafficking, and people like Haitians, whose homeland was devastated by an earthquake, leaving the already struggling country unable – it was argued – to absorb deportees.

The reprieve given to groups such as the Haitians is called Temporary Protected Status, or TPS.

“It’s not amnesty,” said former immigration commissioner Doris Meissner, who served during the Clinton Administration, and who authored guidelines on delaying deportations. “It’s a case by case review.”

“People are not getting any kind of legal status other than to have enforcement action be suspended temporarily,” said Meissner, a senior fellow at the Migration Policy Institute. “All this does is stop the clock for the moment, but you’re nonetheless in a limbo situation.”

But deferred deportations, critics argue, stretch out too long – allowing many people the United States says are ineligible to live here to build lives here. Critics say it’s a way to game the immigration system.

For many groups, for example, they say, TPS hardly has turned out to be temporary.

“The Liberians had TPS year after year,” Krikorian said, “their kids were born here, graduated college, and got married in this supposed ‘temporary status.”

Hurricane Mitch, he said, occurred in 1998, “but Hondurans still have TPS.”

In September, 2009, DHS Secretary Janet Napolitano announced a two-year suspension of deportation for widows of U.S. citizens who had died before green card petitions for their spouses were approved.

Advocates for the widows had argued that the U.S. was cruel and unfair in trying to deport people who had tried to do the right thing, but had not been able to complete the legalization process because of tragic circumstances.

It become known as the “widow’s penalty.”

In her announcement, Napolitano said: “Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues.”

She added that she hoped the two-year reprieve would give the widows – many of whom had lost court appeals -- a chance to try to find a means to obtain legal status. She also urged Congress to consider changing the law that called for deporting the widows.

It worked. A month later, Congress passed legislation ending the widow's penalty.

Suspending Deportations Was Called Critical for Northern Ireland Peace Process

Delayed deportation became a bargaining chip for about a dozen Northern Ireland men who were undocumented in the United States and who had been denied permanent residency after the disclosure that they had served time in British prisons for such things as killings of Northern Ireland police and weapons smuggling for the outlawed paramilitary group the Irish Republican Army, or IRA.

The Clinton Administration said it was suspending their deportation to help the peace process between those who supported British rule in Northern Ireland, and those, like the IRA, and its political arm, Sinn Fein, who opposed it.

Many of the men overstayed visas or entered illegally, and had not disclosed their convictions on immigration applications. They argued that their convictions were not for crimes, as they saw it, but for political issues.

Many of them have married U.S. citizen women and – with work permits that are renewed while they’re in legal limbo – have obtained jobs, driver’s licenses, and even started businesses.

“They’ve been in limbo for 20 years,” said Bruce Morrison, a former congressman who chaired the House immigration subcommittee. “They prefer limbo to leaving."

“They’re married, they’re working, they’re paying taxes, but they’re deportable,” said Morrison, who has a long record of helping Irish immigrants. “These people are in what is essentially in a parole status.”

Their status was met with discomfort by the Bush Administration, Morrison said. But the delayed deportation status continued.

“They got work authorization and travel authorization under the Bush Administration,” Morrison said. “The Bush Administration considered it to be Clinton’s issue, they never sent them [the men] a note” documenting the extension of the status.

“They didn’t want to have it scrutinized. It’s clear they didn’t want any piece of paper showing up on their watch saying they gave deferred action to terrorists.”

Morrison says such discretion in enforcing law is crucial. And the benefits that accompany permission to work while deportation is held at bay, he said, is practical.

“You have no rights,” Morrison said. “You have the right to work, because it doesn’t make sense to have people starve, and we don’t give them welfare.”

“There’s nothing pernicious about this,” he said. “These people were not a threat to anyone in the United States.”

Jerard González, the former immigration prosecutor, disagrees that former IRA members should get a reprieve from deportation.

González handled cases involving former IRA members when he was a federal prosecutor working on immigration cases.

He recalls pursuing the deportation of a man who served time in a Northern Ireland prison in the 1980s for acting as an armed lookout for an Irish Republican Army splinter group in the shooting of a police officer.

The man also was convicted on charges of conspiring to shoot another officer.

The man remains in the United States, where he owns homes and a business while he fights deportation.

Irish-American lobby groups rallied around him, launching email and telephone campaigns targeting political leaders, and got the support of several members of Congress.

“If the goal of our enforcement policies are to remove criminals, here’s a convicted terrorist,” González said.

“I thought about the disparity,” González said. “He gets to stay, but the others are gone – deported -- because they didn’t have the pull, didn’t have the political connections.”

With the Loophole Front and Center, a Battle Looms

Meissner sees the new deportation policy as a pragmatic first step toward some sort of immigration reform.

"They're taking something that's been done piecemeal, and making it more focused, more strategic, by putting their resources where they are best used," she said."High priority cases will move the courts more quickly, there won't be as large a backlog."

Meissner says that the heated differences over how to handle enforcement and deportations underscore "why Congress needs to act on immigration."

Stacked next to the estimated 11 million undocumented people in the United States, Meissner said, the 300,000 people whose deportations will be reviewed "is a small proportion," and hardly address the larger issue of illegal immigration.

"No one can rectify [the system's flaws] but Congress," she said.

That said, she noted that immigration is a much complex matter than when she was immigration commissioner.

"We're dealing with a much more sizable number of unauthorized immigrants," she said, "who have been here a long time, they are in mixed-status households, they're invested in various ways in their communities. They have roots now."

Source Elizabeth Llorente

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