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RMIAN Statement on 2016 Presidential Election

We believe that justice for immigrants means justice for all.

November 11, 2016

In the face of the election of a presidential candidate who has promised devastating

changes to our nation’s immigration policies, the Rocky Mountain Immigrant Advocacy

Network (RMIAN) stands more committed than ever to working for justice for all. RMIAN

will continue to fight tirelessly to advance the legal rights of our fellow Coloradans with

immigrant backgrounds, particularly children throughout the state and adults in

immigration detention. We stand in solidarity with immigrant communities throughout

Colorado and the United States. We stand for inclusion, equality, and justice and will fight

for due process and equal access to justice for all.

“RMIAN’s commitment to the dignity and rights of the most vulnerable immigrant

populations in Colorado, including children and detained adults, has never wavered,

regardless of the political climate. This election will only deepen that commitment,” said

Founding Board Member Hiroshi Motomura.

Although the RMIAN community staunchly opposes the anti-immigrant measures

advocated by the incoming administration, RMIAN is gratified by the resounding support of

Coloradans who reject an agenda of hatred. Community members from all walks of life

have stepped up in unprecedented numbers since the election to support RMIAN’s mission

of ensuring justice for immigrants, and fighting the hatred, racism, misogyny and

xenophobia it generated.

RMIAN Attorney Elizabeth Zambrana states, “We are working tirelessly to ensure

that our clients and immigrant communities everywhere are protected and prepared for

the challenges that lie ahead. RMIAN will educate current and former DACA clients, service

providers, community organizations and the general public to ensure that Colorado

communities receive accurate information about their rights and how to protect

themselves and others. We will use all legal tools at our disposal to secure the rights of the

most vulnerable, as we always have. We stand in solidarity with immigrant communities,

not only as legal allies, but as neighbors, friends and essential community members. ”

Apart from the harsh agenda the new administration has vowed to bring to

Washington in January, 2017, RMIAN already is responding to an immediate immigration

detention crisis. The number of individuals detained at the for-profit GEO Group

immigration detention center in Aurora has nearly doubled since the beginning of October.

RMIAN is struggling to stretch existing resources to serve a vastly larger number of

vulnerable asylum seekers housed there, including hundreds of Haitians who have fled

unspeakable hardship.

Please consider supporting RMIAN’s work during this extraordinarily difficult

time. You can help in the following ways:

1) If you are an attorney, contact RMIAN’s Pro Bono Coordinator Alex Gavern at

agavern@rmian.org to request a pro bono case for a detained asylum-seeker or for

a child who will face complex immigration proceedings alone because they cannot

afford a private attorney. The need for volunteer attorneys is enormous. RMIAN

will provide you with a screened referral, detailed memorandum, professional

liability insurance, and a mentor.

2) Voice your support for humane immigration policies that represent RMIAN’s values.

3) Support RMIAN financially so we can fulfill our values statement, “We believe that

justice for immigrants means justice for all.” Donations may be mailed directly to

RMIAN at 3489 West 72nd Avenue, Suite 211, Westminster, CO 80030 or via

RMIAN’s website www.rmian.org

For additional information about RMIAN and ways you can help, please see

www.rmian.org or contact Executive Director Mekela Goehring at mgoehring@rmian.org

or (720) 370-9102.

 

WHAT THE PRESIDENTIAL ELECTION MEANS FOR IMMIGRANTS AND ADVOCATES

Today marks one week since we learned that Donald Trump will become the 45th president of the United States. Most of us did not expect this result, and many of us feared it. Over the past year, Mr. Trump has said many hurtful and aggressive things against immigrants. He has talked about building a wall, banning Muslims, deporting millions of people, further limiting the already unworkable employment-based visa system, and cancelling DACA. As the Chair of the Colorado Chapter of the American Immigration Lawyers Association (AILA), I am concerned for the futures of my clients, their families, and their employers, but I also see the incredible talent and heart of the immigration lawyers and community activists I work with in Colorado and across the country. In this time of insecurity, this is my message of hope and unity.

To the immigrant community: Many of you already have an AILA member as your lawyer, but even if you do not, know that we advocate for all of you. For more than 70 years, AILA has worked with leaders from both parties to promote a fair and just immigration system, one that reflects the values on which our country was founded. We will continue to do this by working with any federal, state, or local government that is developing policies that affect you. AILA has more than 14,000 members, and the hundreds of members in the Colorado Chapter are prepared to stand up against any laws or policies that violate our fundamental principles of fairness and due process. We will oppose any rhetoric that denies the important role immigrants have played in building this great nation. Our shared prosperity relies on the innovation and creativity of immigrants from all over the world, from all walks of life, and from all faiths and cultural traditions.

During the next few months, there will be many questions and few answers. While we wait to see what changes the next administration will make, I offer these practical suggestions:

  •   remain calm – do not make any important decisions based on fear;
  •   do not believe anyone who calls you claiming to be from ICE;
  •   beware of “notarios” or other “immigration experts” trying to benefit from the current uncertainty – only

    a licensed lawyer can give legal advice;

  •   if you have a lawyer, keep in touch and make sure he or she has your current contact information;
  •   if you have DACA, there is currently no change to the program, but you should consult with a reputable

    immigration lawyer before making any future decisions.

    To immigration advocates: We have faced challenges before, so we know the invaluable and unlimited resources at our disposal: the talents, ingenuity, passion, and persistence of over 14,000 AILA members and the community organizations and elected leaders with whom we collaborate. Looking forward, we must continue to support one another as we always have, coming together to share stories and inspiration, and taking every opportunity to advocate for fair and just treatment for all immigrants. Together we must promote this message of unity and perseverance to the federal immigration agencies, to Congress, to the courts, and to the public at large.

    Whatever challenges we might face in the next four years, AILA Colorado will continue to live our mission: to promote justice and advocate for fair and reasonable immigration law and policy.

    Sincerely,
    Katharine Speer Chair, AILA Colorado

Expansion of the Provisional Unlawful Presence Waiver

Today, July 29, 2016, the Department of Homeland Security (DHS) will publish in the Federal Register a final rule expanding eligibility for the provisional unlawful presence waiver, filed on Form I-601A.  The new rule will take effect on August 29, 2016.

Since its launch in March 2013, many immigrants have utilized this waiver to minimize the time that they are separated from friends, family, work, and their community because they are able to apply for the waiver and receive approval before traveling abroad for consular processing.  For certain applications, the process that often results in many months of separation now can be completed in less than two weeks.  Additionally, because the waiver is discretionary, immigrants benefit from the knowledge that DHS has determined that they warrant a positive exercise of discretion before they leave the country, making their journey and application process far less risky.

Until the passage of this new rule, however, the provisional waiver was only available to immigrants who were the spouses, children, and parents of certain U.S. citizens, otherwise known as “immediate relatives.”  The waiver was further limited because the applicant had to prove that a U.S. citizen spouse or parent would experience extreme hardship upon denial of the immigrant’s admission to the United States; in other words, hardship to a spouse or parent who was a lawful permanent resident (“LPR” or “green card” holder) was not taken into consideration.

Beginning August 29, 2016, the rule will be expanded to include all individuals who are statutorily eligible for the unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or LPR spouse or parent.  The expanded group of individuals includes the beneficiaries of family-sponsored and employment-based immigrant visa petitions, and Diversity Visa selectees, so long as they have a qualifying relative under the statute for purposes of the extreme hardship determination (a U.S. citizen or LPR spouse or parent).  Some additional changes were made to the regulation, including the elimination of a denial based on a “reason to believe” that another ground of inadmissibility exists.

DHS comments associated with the publishing of the final rule make it clear that this expansion is a benefit to the entire nation: it encourages the efficient use of government resources by streamlining a process that has previously been fraught with problems, it encourages eligible immigrant visa applicants to proceed forward with their visa processing and therefore integrate more quickly and fully into their U.S. community, and, most importantly, it minimizes the time that U.S. citizens and lawful permanent residents are separated from their loved ones.  DHS estimates that approximately 100,000 individuals will become eligible under the new rule during the rule’s 10-year period of analysis.  The expansion is a welcome addition to our immigration system, and comes at a time when change is desperately needed.

Will DAPA Be Obama’s Departing Legacy?

In mid-January of this year, the U.S. Supreme Court announced that it had granted cert to in United States v. Texas, meaning that it would consider the legal challenges, originally lodged by the state of Texas and many others, to President Obama’s November 2014 Executive Actions, including the Deferred Action for Parents of Americans (“DAPA”) which would provide work authorization and protection from deportation to about 5 million undocumented immigrants.  The specific issues in that case are (1) if a state has a right to sue the federal government if they are voluntarily providing a subsidy to aliens who would benefit from the deferred action program; (2) if the guidance in Obama’s Executive Action provisions are lawful; (3) if that guidance was subject to notice-and-comment procedures; and (4) if that guidance violates the Take Care clause of the US Constitution (Article II, Section 3).  The fourth issue was added by the Supreme Court itself, suggesting the likelihood of a broad and detailed decision affecting far more than immigration law and reaching out into presidential power generally. A decision will likely be issued by the end of June 2016.

If the Supreme Court decides against Texas Attorney General Ken Paxton and his coalition of 26 states, the Executive Actions could very well be carried out before the end of the year, and any new president will be forced to honor the policies as they stand when he or she comes into office (whether future changes can be made is a different matter, however). Indeed, the White House has stated publically that they intend to begin enrolling immigrants as soon as possible, and immigrants are likely to make haste in submitting their applications, given the political volatility of the program. Democratic presidential candidates have stated their intention to continue with the program while GOP candidates, predictably, have not.

The outcome of the case has undoubtedly been affected by Justice Antonin Scalia’s sudden passing on February 13, 2016.  The conservative judge was almost certain to come down on the side of Attorney General Paxton.  While his missing vote is helpful to the immigrant cause, his absence could result in an equally divided court. A 4-4 tie verdict from the Supreme Court results in an automatic affirmation of the lower court’s ruling.  In this case, the lower court favored the state challenge by a 2-1 split.  While there may be an additional recourse in under those circumstances – a formal request for a re-hearing after a 9th justice has been appointed – the political machinations surrounding a quickly approaching presidential election are certain to slow down or halt any Supreme Court appointments, and any hope for DAPA as President Obama intended it become speculative at best.  Indeed, a week ago Senate Republicans have sworn that they will not hold any confirmation hearings for a Supreme Court nominee selected by President Obama.  Of course, if five Supreme Court justices decide in the President’s favor and issue a positive decision this June, the DAPA program could likely become Obama’s departing legacy – and one of which he should be very proud.

Ignoring Alternatives & Increasing Detention of Families

Although the number of families being detained on the U.S.-Mexico border has dropped, the government is moving forward with plans to increase its capacity to detain families, with plans to open a new facility to house 2,400 women and children in Dilley, Texas, next month. Many of the women and children who would be housed in this facility are fleeing domestic abuse or gang violence. While Immigration and Customs Enforcement has the option of releasing individuals on bond or providing an ankle monitor, detention is clearly the preferred solution. Detention is not only an expense that falls on the shoulders of tax-payers; it also exposes detainees to the risk of sexual abuse. In fact, a complaint from earlier this month alleges recent sexual abuse in the Karnes City, Texas, facility, and other centers were previously closed after numerous allegations of abuse. Meanwhile, an alternative program from 2004 known as ISAP (Intensive Supervision Appearance Program) has proven to be widely successful, with 93% of participants showing up to their scheduled hearings on their own accord.

Bond determinations are made based on an assessment of an immigrant’s potential danger to the community and the risk that they will not attend their removal proceedings, but instead going into hiding. In many of these cases, women and children have come to this country seeking protection and have turned themselves in at the border. They have very few resources. The chance that they will post a bond and not attend future court hearings is highly unlikely. A denial of bond, or a very high bond, should be reserved for individuals with a criminal history who have already proven that they pose a danger to society, or that they are likely to not show up for a scheduled hearing.

Expense and risk are not the only issues that cause concern to many; detention in these remote facilities means less access to paid or pro bono legal services. Although detainees at the Artesia center are provided a list of pro bono services, the services listed are hours away and the detainees often have no means of contacting them. If they elect to hire private counsel, they will have to look elsewhere as well, as the nearest immigration attorney is approximately an hour away from the facility. Volunteer attorneys who have traveled to Artesia to offer pro bono services note that there is not even a business center in the town of Artesia where an attorney can make photocopies or send faxes.

In response to the proposed development of the Dilley facility, several prominent Democratic senators recently wrote a letter to the Secretary of Homeland Security. In that letter, found at http://www.leahy.senate.gov/download/101614-to-johnson-re-dilley-detention-center, the senators wrote:

“The administration’s practice of opposing bond in all of these cases, even those cases in which credible fear has been established and where there is no evidence of danger to the community or risk of flight, furthers the injustice for those families detained and unnecessarily increases the demand for bed space. Concerns over flight risk can be ameliorated through Alternatives to Detention (ATD), which help ensure the appearance of asylum seekers in immigration proceedings and are more cost effective.”

From the outside, it certainly seems that inexpensive and humane alternatives are low on the administration’s priority list, and one can’t help but wonder why – or wonder what priorities are more important. Several Democratic senators, at least, are left wondering.

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