Supreme Court Addresses Deportation Cases,
DHS Undergoes Leadership and Oversight Changes
By Jennifer Yau and Betsy Cooper
Migration Policy Institute
February 1, 2005
Policy Beat In Brief...
Supreme Court Rules on Deportations Complicated by Home Country Conditions
The Supreme Court's rulings on two cases have expanded rights for detainees ruled deportable by immigration authorities due to criminal convictions, but have also
made it easier for the US to remove such individuals despite conditions in their home countries. In Clark v. Martinez, the Court ruled on January 12 that aliens deemed inadmissible for permanent immigration to the US may not be detained longer than the time it would reasonably take authorities to remove them from the country, generally no longer than six months.
The 7-2 decision ruled in favor of two Cubans who had received humanitarian parole status after arriving as part of the 1980 "Mariel Boatlift," but were barred from permanent residency following convictions for crimes while in the US.
While both defendants completed their prison sentences in 2001, they remained in indefinite detention awaiting removal due to Cuba's refusal to repatriate deportable aliens from the US. Other countries that do not repatriate deportable aliens from the US include Cambodia, Vietnam, and, in some cases, China.
The decision is an extension of the 2001 case of Zadvydas v. Davis, in which the Supreme Court decided in favor of a legal permanent resident deemed deportable based on criminal charges, but whose lack of citizenship in any country led to his detention after his prison sentence ended. The more recent case extends such protection against indefinite detention to aliens deemed inadmissible for immigration.
In Jama v. Immigration and Customs Enforcement, the Supreme Court also ruled on January 12 that immigration officials were not required to have the consent of the receiving country before carrying out a deportation. The 5-4 decision ruled against a Somali native whose 1999 felony conviction made him ineligible for permanent residency and subject to deportation.
The ruling affects 3,568 Somalis nationwide who are now ruled deportable to their home country, where there has been no stable, functioning government since 1991.
- To view the ruling for Clark v. Martinez, click here.
- To view the ruling for Jama v. Immigration and Customs Enforcement, click here.
New DHS Secretary Nominee Selected
Federal appeals court judge Michael Chertoff is President Bush's new nominee for Secretary of the Department of Homeland Security (DHS). Chertoff served as the head of the Justice Department's Criminal Division during the months immediately following the September 11 attacks and helped to craft the administration's legal framework for the war on terrorism. Previously, he served as special counsel during the Senate Whitewater Hearings and as a US attorney in New Jersey.
Chertoff's nomination, announced January 11, is expected to be ratified quickly; he has been confirmed by the Senate three times, most recently in 2001 by a vote of 95-1.
Chertoff replaces former nominee Bernard Kerik, who withdrew from consideration after it was revealed he had hired an undocumented nanny. Current DHS Secretary Tom Ridge will remain in office until February 1.
The DHS Undersecretary for Border and Transportation Security, Asa Hutchinson, whose department oversees both the Customs and Border Protection (CBP) Bureau and the Immigration and Customs Enforcement (ICE) Bureau, has also announced his intentions to leave DHS after being bypassed twice for the secretary nomination.
- To read President Bush's speech nominating Michael Chertoff, click here.
New Legislative Session Brings Changes to Congressional Oversight of DHS and Leadership of Immigration Subcommittee
Congressional oversight of the Department of Homeland Security (DHS) has been significantly consolidated, coinciding with the change in leadership of a significant Congressional immigration committee.
On January 4, the House of Representatives passed a bill making permanent the House Select Committee on Homeland Security. The action addresses a remaining recommendation made by the 9/11 Commission by consolidating Congressional oversight for the Department of Homeland Security. However, the House Judiciary Committee, led by Republican James Sensenbrenner, will keep oversight of the Department's implementation and enforcement of immigration law.
Sensenbrenner led efforts to block passage of the Intelligence Reform Act of 2004, which President Bush signed into law in December, because of its weak immigration enforcement provisions. He reintroduced legislation on January 26 that aims to deny driver's licenses to illegal immigrants, increase the requirements for political asylum, and complete the border fence between California and Mexico.
The Senate, which, in 2004, had consolidated Congressional homeland security oversight into a reorganized Committee on Homeland Security and Government Affairs, published a report on January 11 setting out the new Committee's jurisdiction. The Committee will oversee 60 DHS programs, but will share authority over immigration and citizenship issues with the Judiciary and Foreign Relations Committees.
In related news, Republican Senator John Cornyn on January 12 assumed leadership of the Senate Judiciary Committee's Subcommittee on Immigration, Border Security, and Citizenship. Cornyn, who proposed a temporary guest-worker program similar to the one advocated by President Bush in the last Congress, replaces Republican Saxby Chambliss, the new chairman of the Senate Agriculture Committee.
Cornyn stated that, while immigration is a thorny issue, he expects reform legislation to advance, with the President taking the lead.
- For a detailed description of the Senate Committee on Homeland Security and Government Affairs' jurisdiction, click here.
- For the announcement of Cornyn's appointment, click here.
Mexican Immigrant Handbook Spurs Protest
The Mexican Foreign Ministry's production of a color comic book, The Guide for the Mexican Migrant, has sparked protests among immigration-control advocates.
The 32-page book, which offers safety-related instructions for border crossers, a legal rights primer, and practical advice for living in the United States, contains dramatic drawings of migrants running from or being caught by the US Border Patrol. It also advises of the risks of border water crossings, and warns readers to avoid using smugglers known as "coyotes" or resisting arrest by the Border Patrol.
Supporters laud the book as a practical measure containing frank safety tips for intending migrants, and point out the yellow disclaimer stating the book does not promote undocumented migration — a fact frequently reiterated throughout the text.
However, critics believe the book is a "how-to" guide for would-be border crossers, citing as evidence that the book does not describe the steps for legally attaining a US visa.
Cap for Non-Agricultural Seasonal Foreign Workers Reached in Record Time
The limit of 66,000 H-2B visas, used by employers to hire seasonal workers for non-agricultural jobs, was reached on January 3, just three months into fiscal year (FY) 2005. Hotels, landscaping businesses, and ski resorts have expressed concern about their ability to hire foreign workers for the rest of the year. Employers must prove to the Department of Labor that the visas are for positions US workers will not fill.
In contrast to the current year, the visa cap was not reached until six months after the start of FY 2004, and was not reached at all in FY 2003. Experts believe that the rise in applications is partly due to increased enforcement of laws that prevent businesses from hiring undocumented workers.
The 66,000 cap has not changed since 1990. Efforts in the last congressional session to increase the cap failed.
New System Streamlines Employer-Based Immigration Processing
Beginning in March 2005, employers seeking to obtain permanent legal residence for foreign workers will face shortened processing times with the new Program Electronic Review Management (PERM) system. The Department of Labor published the PERM regulations on December 27, over two years after they were first released for comment.
Most petitions for employment-based immigration must receive a Department of Labor certification proving that the foreign worker is performing a job that cannot be filled by Americans, and that the employment of an alien will not harm US working conditions.
The PERM program, which will allow employers to file petitions electronically, could shorten the typical processing time for a "labor certification" from several years to 45 to 60 days. In addition, fewer government agencies will be involved and fewer documents will be required.
- Click here to view a copy of the PERM regulations.
Appellate Court decisions. The First US Circuit Court of Appeals has decided that foreigners who marry US citizens are eligible for green cards immediately, even if they have been placed in removal proceedings. The case, Succar vs. Ashcroft, ruled in favor of Wissam Succar, a Lebanese native whose application for asylum was rejected by the Board of Immigration Appeals, but whose marriage to a US citizen while the asylum case was pending allowed him to file for permanent residency.
The 11th US Circuit Court of Appeals ruled to revoke the citizenship of an immigrant who committed a crime before taking the citizenship oath but was not convicted until afterwards. The court held in United States of America v. Lionel Jean-Baptiste that the Haitian-born defendant's drug-trafficking activities before obtaining citizenship made him ineligible for naturalization because of the "good moral character" requirement.
Tsunami relief measures. The Department of Homeland Security (DHS) has announced that deportations of individuals from Sri Lanka or the Maldives will be automatically delayed for 90 days due to massive infrastructure damages suffered by the two countries in the December 26 tsunami. Non-criminal aliens from other affected countries can request a similar stay of removal.
Processing of certain immigration applications, extensions for non-immigrant visas or parole periods, and changes of non-immigrant status will also be considered.
When appropriate, beneficiaries of these measures may also be eligible for employment authorizations, allowing them to financially support themselves or send remittances home.
Temporary Protected Status. At least 47,000 people from the Central American countries of Honduras and Nicaragua received renewal for temporary protected status (TPS) visas during a two-month application period that ended on January 3. TPS was first granted in 1999 after Hurricane Mitch left many parts of those countries uninhabitable.
The government also announced, on January 6, the availability of TPS extensions for citizens of the Central American country of El Salvador, which was hit by a series of devastating earthquakes in 2001. A total of 248,000 TPS holders are eligible for this extension.
Border apprehensions. The US Customs and Border Patrol reported 1.15 million apprehensions of illegal border crossers in fiscal year (FY) 2004 — more than 3,100 a day — representing a 24 percent increase over FY 2003.
Since the beginning of FY 2005, the number of apprehensions along the Arizona-Mexico border has surpassed that of California, New Mexico, and Texas combined.
The US Border Patrol reported 97,731 apprehensions in Arizona from September 30 to December 29, 2004, more than half of the total 186,713 apprehensions along the Mexican border. There have also been 171 deaths reported along the border in Arizona.
Office of Inspector General Reports. A recent Department of Homeland Security's (DHS) Office of Inspector General study concludes aliens using passports stolen from visa waiver countries face little chance of being caught.
The report found that between February 10, 1998, and February 12, 2003, 176 entrants used stolen passports from France, Spain, Germany, Portugal, Belgium, and Italy. It is not known whether any of these entrants posed a terrorist threat.
The Department of Justice's (DOJ) Office of Inspector General issued a report highlighting the inability of law enforcement, immigration, and intelligence agencies to create a unified fingerprint identification system to screen foreign visitors, in accordance with Congressional pressure following the September 11 attacks. The integration failure among the Justice, State, and Homeland Security departments has resulted in incomplete databases for security checks.
US-China temporary visas. The US and China have doubled the maximum time allowed under temporary business and pleasure visas granted to each others' citizens. The reciprocal agreement increased the time period from six to 12 months.
- To view a US Customs and Border Protection (CBP) press release highlighting the agency's activities in FY 2004, click here.
- To view the DHS report on stolen passports, click here.
- To view the DOJ report on identification databases, click here.
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