CLINIC supports the legislative advocacy efforts of the United States Conference of Catholic Bishops' Office of Migration and Refugee Services, including the priorities outlined below.
1. Comprehensive Immigration Reform
Broad reform, including an earned legalization program, remains the best way to achieve meaningful reform for the greatest number. The manner in which this reform is implemented will be vital to its success. CLINIC recommends that the following elements be included in immigration reform legislation to ensure that the program is implemented effectively:
- Confidentiality. Applicants for legalization should be extended confidentiality and not be subject to arrest and deportation if they fail to qualify for the program after making themselves known to the government. This would ensure maximum participation in the program and that those who do qualify are not discouraged or intimidated from applying.
- Reasonable Implementation Period. Sufficient time should be given between passage and implementation so that regulations, procedures, and infrastructure are in place. Deportations of prospective applicants should be suspended between these two dates.
- Derivative Benefits. Immediate family members should receive the same immigration benefits under legalization as the primary beneficiary.
- A Simple and Broad Registration Process. Such a process would bring forward eligible applicants for preliminary security screening.
- Generous Eligibility. The cut-off date (date by which eligible individuals must have entered the United States) should be as close to the date of implementation as possible. Additionally, individuals who achieve Registered Provisional Immigrant status should not be prohibited from applying for other forms of immigration relief.
- Generous Evidentiary Standards. For purposes of verifying an applicant’s eligibility for legalization, evidentiary standards should be based upon “preponderance of the evidence” and should include a wide range of proof, including attestation.
- Broad Humanitarian Waiver. A broad waiver of bars to admissibility, such as unlawful presence, fraud, and offenses related to unauthorized status, should be included in the legislation.
- Increased Resources for the Executive Office for Immigration Review (EOIR). In order to meet the need for qualified, competent legal services, rapid adjudication of applications for Board of Immigration Appeals (BIA) Recognition and Accreditation will be necessary. Funding for EOIR should be generously appropriated ahead of the program’s implementation.
- Funding for Legal Services.Funding for BIA recognized agencies should be authorized prior to implementation, to conduct public outreach and to build the capacity of legal services agencies.
- Funding to Assist Service Providers and Potential Applicants to Meet Program Requirements. Funds should be allocated to organizations that will assist immigrants to become eligible for the legalization program, including for providing civics and ESL instruction.
In addition, comprehensive immigration reform legislation must include changes to the Special Immigrant Religious Worker program. The program is set to expire on September 30, 2015. Eliminating the sunset provision and making it a permanent program would alleviate the need for USCIS to suspend processing of these religious worker cases between expiration of the current program and enactment of an extension, as has been done in the past, resulting in delays and confusion that harm Catholic dioceses and religious communities and those they serve.
Further, amending the statute to permit portability of religious worker employment authorization would allow religious workers more flexibility in seeking and beginning new employment. Religious workers should be permitted to begin working for a new employer upon the filing of a petition to change employer filed on the worker’s behalf. Under the current law, a religious worker can only begin working for the new employer after the petition has been approved. The time between filing and approval of the petition can be significant and often delays the employment start date. Portability would allow diocesesan and religious community sponsors to accept new hires/members without delay. It would save time and money (premium processing fees) for sponsors and religious workers and give them the flexibility that other foreign-born employees already have. Individuals in the H-1B specialty occupation status have the benefit of employment portability.
2. Extend Immigration and Nationality Act (INA) Section 245(i) and Repeal Bars to Admission After Unlawful Presence
Some relief for people who have no immigration status would also come from extending section 245(i) of the INA, which allows individuals who entered the United States without inspection, and who had a petition filed on their behalf on or before April 30, 2001, with an opportunity to complete their applications for permanent residence in this country instead of having to be separated from their families completing the process abroad. Additionally, CLINIC recommends repealing the bars to admission to the United States established in INA § 212(a)(9)(B) and (C). These sections of law bar individuals who depart the United States after accruing 180 days or more of unlawful presence in the United States or who have previous removal orders from re-entering this country for a period of three or ten years.
3. Separate Federal Civil Immigration Enforcement from State and Local Criminal Law Enforcement
Through Secure Communities, the Criminal Alien Program, and the 287(g) Program, (named for the section of the Immigration and Nationality Act entitled “Performance of immigration officer functions by state officers and employees” that authorizes the program) local law enforcement agencies assist Immigration and Customs Enforcement (ICE) with duties that can range from helping to identify potentially removable non-citizens to issuing immigration detainers (or “holds”) and Notices to Appear (NTAs). Given the complexity of immigration law and the limited federal supervision of local law enforcement agencies, these programs can lead to the deprivation of individuals’ constitutional and civil rights. They also undermine community policing efforts by eroding trust between local law enforcement and immigrant communities. Immigration is a federal responsibility and the civil enforcement of immigration laws should be left to the federal government and not transferred to local law enforcement authorities whose critical role must be to maintain public safety in their communities. Congress should not penalize states or localities for limiting their engagement in civil immigration enforcement, which is a federal responsibility.
Congress also should protect funding for the U.S. Department of Justice to continue to investigate and challenge state- and local-level immigration-related policies and practices that violate federal laws and the Constitution. Legislation should be enacted that requires
transparent data collection and monitoring of the ICE ACCESS Programs and requiring that they be used solely as a post-conviction enforcement tool, in contrast to the Program’s current approach of investigating individuals at the time of arrest or booking. The Department of Homeland Security (DHS) has an Office for Civil Rights and Civil Liberties. However, that office does not have the authority to investigate these programs. Congress should grant this authority and continue to call for investigations of problematic enforcement programs by the DHS Office of the Inspector General and by the Government Accountability Office.
Finally, Congress should institute safeguards for families from the moment a detainer is issued, establishing protections for the children of individuals who are detained through these enforcement programs.
4. Reforms in the Immigration Detention System
Under current law, Immigration Judges lack jurisdiction to conduct bond hearings for a large number of individuals who have been placed in removal proceedings on criminal grounds. INA § 236(c) mandates the detention of long-time lawful permanent residents with minor misdemeanors and individuals who were never sentenced to serve a single day in jail. Immigration Judges must be permitted to use their discretion to make individualized assessments of the danger or flight risk of each and every individual detained by ICE. Providing bond hearings will ensure that only the most dangerous and high priority criminals are detained. Congress should restore the authority of Immigration Judges to exercise discretion to release people from detention based on the equities of each individual case.
ICE currently releases individuals from detention centers through its Intensive Supervision Appearance Program (ISAP), which requires individuals to wear an ankle monitor. This program should be recognized as an alternative form of detention which should be used solely for those who are mandatorily detained due to prior criminal history. For individuals who are not required to be detained, Congress should mandate funds to establish non-penal community-based release programs, such as the pilot program established by the USCCB.
There is currently no federal legislation that requires compliance with ICE’s standards for treatment of individuals in detention. To ensure that these standards are enforceable, Congress should enact legislation to require compliance with certain critical sections such as those relating to medical and mental health care, telephone and law library access, visitation, mail, legal orientation presentations, and transfers by statute.
5. Expand Funding for EOIR and Include the Recognition and Accreditation Program in Statute
CLINIC has advocated with the Executive Office for Immigration Review (EOIR) for years regarding federally-funded Legal Orientation Program (LOP) presentations and pro bono representation for detained immigrants. CLINIC piloted the federal LOP program and in the past has received LOP funding for its work in California and Texas, and has worked with Catholic partner agencies to secure funding in locations throughout the country. In 2010, CLINIC worked with EOIR to launch a program to provide legal orientation presentations to custodians of Unaccompanied Alien Children (UAC), to inform them of their responsibilities in ensuring the child's appearance at all immigration proceedings, and to protect children from mistreatment, exploitation, and trafficking.
The LOP program has been extremely successful; however, it covers programs at only 24 detention facilities nationwide, and it educates detainees but does not fund any legal representation of detainees. CLINIC and its member agencies strongly support increased Congressional appropriations and report language specifically related to funding legal orientation presentations for custodians of children released from detention all across the country and at all facilities used by ICE to hold detainees for more than 72 hours. An EOIR evaluation of legal orientation presentations found that they increase the efficiency of the detention and court systems, saving both time and money for the government.
In addition, Congress should appropriate funds for a pro bono coordinator in each immigration court to coordinate pro bono representation. Similarly, Congress should appropriate funds for the coordination of pro bono representation before the Board of Immigration Appeals (BIA) and for vulnerable groups, including children.
By increasing funding for LOPs and pro bono coordination, Congress would increase the number of individuals who receive legal orientation, as well as saving the government resources. Pro bono coordination enhances efficiency, helps to protect the integrity of our justice system, and leads to increased representation in particularly meritorious cases.
The number of cases awaiting resolution before the Immigration Courts climbed to over 344,000 by the end of fiscal year 2013, according to data obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. The case backlog, which has risen 5.9% since September 2012, is now 85% higher than it was five years ago. Wait times have also lengthened. The average time these pending cases have been waiting in the Immigration Courts is now 562 days. Additional federal funding is required to increase the number of immigration court judges, courtrooms, and staff and reduce the unacceptable and still increasing backlogs in immigration courts.
Finally, BIA recognition and accreditation is the Department of Justice’s certification of charitable immigration agencies and staff. Such certification allows non-attorneys to practice immigration law before the Department of Homeland Security and the immigration courts. Regulations governing recognition and accreditation can be found at 8 CFR Section 292.2 , but the program is vulnerable because it is not established by statute. The recognition and accreditation program will be vital to establishing the capacity to serve millions of individuals in need of charitable legal services. Congress should pass a law codifying the program, preserving and protecting it.
6. Require appointed counsel for particularly vulnerable individuals in removal proceedings
Under federal law, persons in removal proceedings have a right to counsel at their own expense. Government-appointed counsel throughout the removal process would serve the government’s interest by promoting better prepared cases, more efficient proceedings, shorter detention periods, and correct legal decisions. At least one federal court has recognized that in certain cases government-funded representation should be required and the Departments of Justice and Homeland Security have established a nationwide policy for unrepresented immigration detainees who have serious mental disorders or conditions that render them incompetent to represent themselves in immigration proceedings. The INA’s “at no expense to the government” statute (§ 292) should be amended to include an exception for particularly vulnerable groups, including indigent minors and individuals who are mentally ill, impaired, or otherwise incompetent. In addition, legislation should create a government-funded program to coordinate pro bono representation for all indigent, unrepresented individuals.
7. Provide Asylees With Information About Services and Restore Supplemental Security Income (SSI) Eligibility
The National Asylee Information and Referral Line was a toll-free hotline initiated by the Office of Refugee Resettlement (ORR) in 2000 as a way to bring asylees into ORR programs and ensure access to resettlement services by this vulnerable population. The hotline served to link newly granted asylees with key benefits and services for which they are statutorily eligible, such as temporary cash and medical assistance, job placement assistance, and English language classes. Since asylees are not sponsored by refugee resettlement agencies, they typically are unaware of these time-limited benefits and services that help to facilitate early self-sufficiency and integration. The referral line provided a single, centralized, and multi-lingual source of accurate information and prompt referrals to local resettlement service providers. The same conditions that necessitated the creation of the asylee referral line 13 years ago still exist today. Over 11 years, the hotline served over 39,000 asylees (typically about 300 callers per month) in 18 languages, and provided tens of thousands of referrals to local service providers. Congress should appropriate funding for ORR to reinstate the hotline by contracting out its day-to-day operations.
The 2008 Supplemental Security Income (SSI) Extension for Elderly and Disabled Refugees Act expired in 2011, leaving an estimated 5,600 elderly and disabled asylees and refugees without crucial benefits. The law provided a temporary extension of the seven-year limit on SSI benefits imposed by welfare reform laws for elderly and disabled non-citizen asylees and refugees who are pursuing naturalization. Once they are citizens, they are no longer subject to the time limit on SSI. However, many vulnerable individuals are unable to meet the English language requirements for naturalization and do not qualify for a disability waiver. The loss of SSI is a major hardship for these individuals, who are unable to work due to advanced age or disability. They fled persecution, violence, or even torture and were offered protection by the U.S. government. A permanent extension of the program would fulfill the United States’ promise of protection to this group of asylees and refugees, and prevent them from falling into extreme poverty.
8. Waive the English Language Requirement for Naturalization Applicants Aged Sixty and Over
Congress should extend the waiver of the English language requirement for naturalization applicants (8 CFR 312.1(b)) to cover all elderly citizenship applicants who are aged 60 and over (regardless of the number of years of lawful permanent residence). This change would allow most elderly or disabled refugees who are losing SSI, as well as other vulnerable elders, to meet the naturalization testing requirements by taking the history/civics test in their native language. Further, it would provide the elderly with an option to learn U.S. history and civics in their native language, improving their ability to become informed and engaged U.S. citizens.
9. Expand the Mandate of and Increase Funding to USCIS’s Office of Citizenship
Citizenship and immigrant integration is a high priority for CLINIC’s network. In particular, Congress should expand the Office of Citizenship’s mandate to allow it to actively promote naturalization, rather than just provide information about the test and the process. Congress must also continue to fund the Office to direct its national citizenship program. This program should continue to provide free citizenship information and educational materials. Funding should continue to be appropriated that would allow the Office of Citizenship the flexibility to provide grants to charitable networks and immigration programs as part of a coordinated national citizenship program. The national citizenship program supports ESL and citizenship classes; outreach regarding citizenship services, the naturalization process, and the rights and responsibilities of citizenship; naturalization application assistance; and training and technical assistance to charitable organizations that provide ESL-citizenship classes and naturalization legal assistance.
10. Advocate for a Technical Amendment to the Child Status Protection Act (CSPA)
The CSPA does much to protect children to prevent them from aging out of eligibility to adjust status to permanent resident by adjusting their age based on a calculation of how long the petition on their behalf has been pending. However, a Board of Immigration Appeals decision states that the Act does not protect the children of permanent residents who naturalize and become U.S. citizens. The children are automatically converted to the first family-based (F1) preference category – whether or not that category has a longer backlog than the category they were part of before their parents naturalized. These children are, in effect, being punished as an unintended consequence of their parents achieving U.S. citizenship. For example, the backlog for individuals from Mexico is mere months for the F2A category, and 10 years for the F1 category. A technical correction to the CSPA can alleviate this burden. In fact, the CSPA already includes a provision to ensure that children from the Philippines are not penalized when their parents naturalize. They are permitted to opt out of the automatic conversion to the first family-based preference category and permitted to choose the preference category which results in the shortest waiting time for a current priority date. Congress should act to extend this opt-out provision to anyone whose conversion to the F1 category would result in a longer wait for adjustment of status.
11. Identify and Advocate for Legislative Solutions That Will Lead to Greater Federal Funding For USCIS
CLINIC’s member agencies have identified USCIS processing times and repeated fee increases as systemic problems in need of reform. Two issues worthy of additional exploration are outlined here. USCIS does not have automatic access to revenue that exceeds its annual budget. Instead, Congress and the Office of Management and Budget (OMB) are required to approve USCIS’s access to such revenue. By eliminating this requirement, USCIS could more readily access revenue (from unanticipated filing surges) that exceeds its budget.
In addition, impending fee increases often lead to surges in application filings, which ultimately result in processing delays. Congress should authorize regular, annual appropriations for USCIS to support application processing costs, including the costs of processing of humanitarian applications/petitions for which the agency charges no fees (asylum and refugee services, U-visa applications, military naturalization applications, etc.). Such an appropriation would eliminate the need for the surcharge on all other USCIS applications/petitions and help to offset the cost of application/petition filings when the agency raises fees. It would also allow USCIS to decrease the cost of filing the N-400 Application for Naturalization, which would encourage more individuals to apply.