S. 744: Border Security, Economic Opportunity, and Immigration Modernization Act, the comprehensive immigration reform bill, sponsored and endorsed by a bi-partisan group of senators [Democrats: Schumer (NY), Bennet (CO) & Durbin (IL); Republicans: Flake (AZ), Graham (NC), McCain (AZ), Menendez (NJ) & Rubio (FL)], was introduced in the Senate on April 16, 2013 and passed on June 27, 2013.

The bill promised bright futures for the undocumented and their families.  However, it remains unpassed and furiously debated in the House of Representatives where it seems doomed to stagnate.  Country-wide protests, including a much-talked-about fast at the Capitol, led by retired labor leader, Eliseo Medina, fell on deaf ears.  Until now, there is still no reform in sight.  Immigration reform advocates continue to hope for better news in 2014.

Need some talking points on immigration reform?  See this quick reference guide provided by American Immigration Lawyers Association (AILA).

The Obama immigration reaches record highs in immigration enforcement statistics.  Despite the Morton Memo, which encourages Immigration and Customs Enforcement (ICE) personnel to practice prosecutorial discretion (the authority of an agency charged with enforcing a law to decide what degree to enforce the law with respect to a particular individual), by utilizing scarce government resources in selectively prosecuting 1) those that pose a clear risk to national security; 2) serious felons, repeat offenders and those with lengthy criminal records; 3) known gang members and individuals that pose a risk to public safety; and 4) those with egregious record of immigration violations, including illegal re-entry and immigration fraud, the Obama administration has deported more immigrants than any administration in U.S. history.

In fiscal year 2013, the administration prosecuted 97,384 illegal re-entries, a 22.6% jump from five years ago, when Bush was in office and a 1420% increase from 20 years ago when Clinton was in office.  Largely driven by the “bed mandate,” a policy that requires Homeland Security officials to keep an average of 34,000 detainees per day, immigration personnel are now detaining large numbers of immigrants, even those who do not fall within the priority list, such as non-violent offenders or those with families in the country.

Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) were able to apply for provisional unlawful presence waivers before they leave the United States for their immigrant visa interviews at a U.S. embassy or consulate abroad. The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

This was touted as great news for immigrants and their families when the waiver was initially instituted.  However, it has become more of a real hurdle for most applicants with the ridiculously high numbers of denials, especially those focusing on a so-called loophole that serves as justification for the denials.   The loophole allows immigration officials to deny a provisional unlawful presence waiver application if USCIS has a “reason to believe” that the alien will be inadmissible on grounds other than unlawful presence. Commenters argued that Department of Homeland Security (DHS) should not deny a provisional unlawful presence waiver simply because DHS has reason to believe that the applicant was convicted of a crime, especially since some crimes are not automatic bars to admission to the United States in a lawful immigration status and, upon further review, would not be considered convictions or criminal offenses for immigration purposes.

In fact, as of September 2013, out of the 23,949 submitted applications, a mere 3,497 were approved.  The rest were either denied (2,292), rejected for incomplete or ineligible submissions (17,996) or were administratively closed.  The top reason for denial is for “reason to believe,” followed by failure to establish extreme hardship.

In June 15, 2012, the Obama administration passed a memorandum, Deferred Action for Childhood Arrivals or DACA, which defers removal proceedings and allows an individual to obtain employment authorization if they meet certain criteria, such as:

  • Under age 31 as of June 15, 2012;

  • Came to the United States before turning 16 years old;

  • Have continuously resided in the United States since June 15, 2007; physically present on June 15, 2012, and at the time of making your request;

  • In school or have completed high school, GED or are in the armed forces; and

  • Have not been convicted of a serious crime and do not otherwise pose a threat to national security or public safety.

In addition to these federal benefits, some states have actually enacted legislation to provide these so-called DREAMers, such as issuance of a state driver’s license (CA & MI) and providing in-state tuition rates (MD, IL & TX).  Some of these immigrants have begun paying taxes and have increasingly contributed to the boost in city coffers.  Future DREAMers will only contribute positively financially as approximately 426,330 immigrants between the ages of 5 and 14 might meet the requirements of the deferred action initiative at some point in the future if the initiative remains in place.

United States v. Windsor, (Docket No. 12-307), is a landmark case in which the United States Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment.

On July 1st 2013, a few days after June 26th’s historic decision, Secretary of Homeland Security Janet Napolitano issued the following statement: “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Despite this directive and two federal judges ruling DOMA as unconstitutional, immigration adjudicators still continues to deny same-sex marriage immigration petitions reject the green card applications as part of its commitment to enforcing DOMA.  Immigrant advocates suggest holding applications in abeyance instead of outright denials, until DOMA is fully struck down or repealed.  Still, there is no shortage of happy couples that have gotten their applications approved, especially those living in states where same-sex marriage is legal.

Featured image courtesy of Michael Fleshman.

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Mercedes Cano © 2020 All rights reserved. Primitive Inside.

Mercedes Cano © 2020 All rights reserved. Primitive Inside.