Deportations to Haiti Resume

In light of the earthquake in Japan, this post revisits another earthquake ravaged nation and its ongoing relationship to U.S. Immigration Policy.

One of the poorest countries in the world, Haiti was struck by a catastrophic quake on January 12, 2010.  In the days after the disaster, the U.S. Government announced it was halting deportations to the country. In January of 2011, the U.S. Government resumed deportations to Haiti.  DHS plans to deport some 700 persons back to the country this year.

Immigration advocates and those facing deportation to Haiti have pleaded for a halt to the deportations, citing “inhumane conditions” in Haiti.  A cholera epidemic reportedly has killed more than 4,000 people since October. One of the 26 detainees sent to Haiti in the first wave of the resumed deportations was Wildrick Guerrier.  Upon his return, he suffered choleralike symptoms and later died.  Before being deported, he had participated in a hunger strike and stated that deportation to Haiti amounted to a death sentence.

U.S. Immigrations and Customs Enforcement is currently seeking feedback on its resumed deportation policy.  The new draft policy was posted on March 7, 2011.  The document, which is the first written policy issued regarding the resumption of deportations to Haiti, comes three months after DHS announced its plan to resume deportations and more than six weeks after deportations actually began.

Read an article regrading the deportations here.
Read an article regarding the earthquake here.
Read the draft policy here.

Long Awaited DHS Report Released

Prince William County filed suit against the Department of Homeland Security ("DHS") on Tuesday over its refusal to provide information regarding Carlos Martinelly-Montano, an illegal immigrant charged with killing a nun in a alcohol related car crash last August.


DHS claimed that it could not release the information requested due to Immigration and Customs Enforcement privacy policies.


On Friday, however, DHS released a report of ICE's Inquiry into the matter to Judicial Watch, a conservative watchdog group, who along with others, also sued the DHS under the Freedom of Information Act.  The report indicates that Mr. Martinelly-Montano had been released by immigration authorities while awaiting deportation because he had demonstrated that he was not a flight risk.


View the Report here.
Read Washington Post Article here.
Read Washington Examiner Blog Post here.

Secure Communities Opt Out Confusion Continues - Arlington Unable to Opt Out

The county of Arlington, Virginia has been unsuccessful in its attempt to remove itself from the Secure Communities program.  The program shares information gathered for criminal background checks with Immigration and Customs Enforcement (ICE).  Arlington attempted to opt out of participating, citing concerns about the program's impact on trust in the police.  Indeed many opponents of the program say it will deter undocumented persons from reaching out to police if they are victims of or witnesses to crime.


ICE previously laid out steps for opting out of the program which began with meetings like the one Arlington recently had with ICE representatives. But at the meeting, County Manager Barbara Donnellan said she was informed the county cannot be removed from Secure Communities because the state of Virginia agreed to participate in the program.  After the meeting, Arlington appears to be giving up on its push to remove itself from the program.


The continuing confusion surround the ability of localities to opt out appears to stem from statements from Secure Communities officials indicating that the program was optional.  However, these statements were later contradicted by Janet Napolitano, the Homeland Security Secretary, and other officials, who stated that participation in the program is mandatory.

Read more about the controversy in the New York Times and about Arlington's efforts here.

Secure Communities Program

The Department of Homeland Security's (DHS) Secure Communities Program is yet another immigration issue stirring up controversy and new coverage in recent weeks.

The program was started under the Bush administration and has been rapidly expanded under the Obama Administration with the goal of modernizing the criminal alien enforcement process by identifying criminal aliens with enhanced biometric technology used by local law enforcement.  In plain language, the program takes fingerprints gathered by local law enforcement during the booking process and checks them against FBI criminal history records and DHS's immigration records.  Where matches are found, Immigration and Customs Enfocement (ICE) is notified and determines whether further action is necessary.  DHS claims the program will increase the agency's ability to efficiently and accurately identify high priority criminal aliens for removal.

The program is being rolled out in phases, with new localities being added frequently.  Currently, 100% of Virginia's local jurisdictions have implemented the Secure Communities Program.  DHS plans to have the program fully implemented nationwide by 2013.  Unlike the 287(g) powers recently requested by Governor McDonnell,  the Secure Communities program does not give local law enforcement any immigration enforcement powers.

As might be expected, not everyone is a fan of the Secure Communities program.  Some argue that it has the potential for misuse by local police, who may be more likely to find a pretext to arrest those they suspect of being undocumented in hopes that a fingerprint scan will result in ICE instituting removal action.  Others argue that immigrant communities may become hesitant to seek aid from or cooperate with local law enforcement due to their involvement with ICE, leading to communities that are actually less secure.

As a result of these concerns, some localities have attempted to opt out of the Secure Communities Program. While ICE appears to concede that the program is voluntary, it appears that no one, including ICE, knows exactly how a locality may opt out.

Find out more about the program and the opposition below:

ICE Secure Communities Fact Sheet
National Immigration Forum Fact Sheet
ICE's "Setting the Record Straight" Memo Responding to Opposition
Opt Out Controversy Article

ICE Announces Civil Enforcement Priorities

In a memo released June 30, 2010, Immigration and Customs Enforcement (better known as ICE) formally announced its priority system for enforcing civil immigration laws.

The memo, penned by ICE Assistant Secretary John Morton, notes that ICE only has sufficient resources to remove about 400,000 aliens (less than 4% of the estimated illegal alien population) per year.  As a result, ICE now has a priority system for allocating its resources.

According to the memo, the following three categories represent ICE's civil enforcement priorities, with (1) being the top priority and (2) & (3) constituting equal but lesser priorities:

(1) Aliens who pose a danger to national security or a risk to public safety;

• This category includes:
• Aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
• Aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders;
• Where aliens convicted of crimes are concerned, the memo instructs ICE personnel to refer to the new Secure Communities Program offense levels, with Level 1 & 2 offenders receiving principal attention.
• The Levels are as follows:
• Level I : aliens convicted of"aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as "felonies";
• Level 2: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly referred to as "misdemeanors"; and
• Level 3: aliens convicted of crimes punishable by less than one year.
• Aliens not younger than 16 years of age who participate in organized criminal gangs;
• Aliens subject to outstanding criminal warrants; and
• Aliens who otherwise pose a serious risk to public safety.

(2) Recent illegal entrants; and
(3) Aliens who are fugitives or otherwise obstruct immigration controls.

The priority system set out in the memo suggests that the number of removal actions against "criminal aliens" may soon be on the rise.  Additionally, the new policy makes it all the more important that attorneys understand the immigration consequences of criminal convictions for their clients.

Click here to read the memo in full.