CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

256 SOUTH OCCIDENTAL BOULEVARD

LOS ANGELES, CA 90057
Telephone: (213) 388-8693
Facsimile: (213) 386-9484
www.centerforhumanrights.org


May xx, 2014

President Barack Obama
White House

Secretary Jeh Johnson
Department of Homeland Security

Attorney General Eric H. Holder
Department of Justice

Dear President Obama, DHS Secretary Johnson, and Attorney General Holder:

We are writing to set forth immediate steps the Administration could and should take to dramatically
reduce the adverse consequences of a large undocumented population on U.S. workers and
businesses, the human rights abuses suffered by these migrants, and the harsh and irrational
consequences caused by the Administrations policies of massive deportations, entanglement with
local police through the so-called Secure Communities program, and unparalleled criminalization
of persons who enter without inspection (so-called Operation Streamline).

Below we make a series of straightforward, rational, and cost-effective administrative proposals that
would better protect U.S. workers, better protect the fundamental human rights of immigrants, and
set the stage for eventual Congressional action to improve the current dysfunctional immigration
laws.

In a nutshell, your administrative policies over the past six years have (1) caused the deportation of
hundreds of thousands of immediate relatives of US citizens and lawful permanent residents, (2)
resulted in tens of thousands of criminal convictions of persons for no more than entry without
inspection (making it difficult to impossible for these migrants to ever legalize their status in the
future), (3) resulted in hundreds of thousands of migrants being fired from stable jobs (through
worksite enforcement that largely misses sweatshops) forcing them to turn to sweatshops and
unscrupulous employers to find work (less than 1% leave the US), (4) discouraged thousands of
immigrants from reporting serious crimes for fear of exposure to deportation, (5) incarcerated more
immigrants than ever before at enormous cost to the public and for no sound public safety reasons,
and (6) caused unnecessary and tragic deaths along the border. By now it should be clear that these
policies have done nothing to advance the goal of comprehensive immigration reform. Many of the
proposals below are in line with the same principles as your Administrations extension of Deferred
Action Status to certain youthful arrivals.

The following proposed administrative changes are within the power of the Administration to adopt,
would result in cost-savings to DHS, and would legalize either temporarily or permanently several
million immigrants, many of whom are already in the system with applications pending before
President Barack Obama
Secretary Jeh Johnson
Attorney General Eric H. Holder
April 14, 2014
Page 2 of 6


DHS.

1. Deferred Action Status (DAS): DAS should immediately be extended to the largest population
possible. The Administration should consider extending DAS to all immigrants who would be
eligible to apply for legalization under the Senate bill. If that approach is rejected, below we identify
sub-groups that are obvious candidates for DAS. Granting immigrants DAS and temporary
employment authorization would immediately benefit US workers (by removing the unfair incentive
of unscrupulous employers to hire undocumented migrants over equally or better qualified US
citizens) and the business community which often hires undocumented workers despite full
compliance with federal employer sanctions laws only to suffer sudden and costly losses of workers
as a result of ICE work site enforcement operations. Critically important is to grant these
immigrants advance parole (routinely granted to immigrants with DAS) so they may briefly travel
to visit family in their home countries. Hundreds of thousands of immigrants with already approved
visa petitions are currently blocked from obtaining lawful permanent resident status by the 1996 ten-
year bar (barring lawful resident status for ten years because of one years undocumented status in
the U.S.) but could adjust their status and become lawful permanent residents if granted advance
parole allowing them to briefly depart the U.S. and return lawfully.

Among the obvious sub-groups of immigrants with special equities and long-term residence here
who should be granted DAS are the following:

(a) Immigrants residing in the U.S. with already approved family and work-related visa petitions
who are unable to receive permanent resident status only because of visa backlogs or because of
the zero tolerance 1996 bars to legalization (e.g. people who many years ago made a single
false claim to citizenship or those who have simply lived in the US without authorization for
more than one year). Neither the backlogs nor the 1996 bars have caused these immigrants with
approved visa petitions to self-deport. Instead they simply remain here in undocumented status
unable to take advantage of their approved visa petitions. These immigrants are already in the
USCIS system. DHS knows who they are, where they live, their social security numbers,
criminal histories, etc. Since they are already in the system, are not going to leave the country,
are highly unlikely to be apprehended, and have largely played by the rules, granting this
population Deferred Action Status would be rational policy. Granting those blocked from
legalizing their status by the 1996 10-year bar advance parole (routinely granted to people
with DAS) so they can briefly visit their home countries and return lawfully would allow
hundreds of thousands of these immigrants to adjust their status and promptly become lawful
resident aliens with no change in federal law.

(b) Parents of US citizens. The parents of US citizen children are unable to petition for lawful
permanent resident status until the child turns 21 years of age. Even then, 99.99% of these
immigrants face a 10-year bar for being here for one year or longer in undocumented status (even
if crime free). Under the 1996 amendments, there is NO waiver of the bar for parents who have
raised US citizen children here for 21 years, even though there is a waiver available for someone
who has had a two-week-old marriage arranged over the Internet. Like the other groups
described above, these immigrant have largely been here for many years, are unlikely to self-
deport, and may but are unlikely to be apprehended and removed unless they commit crimes.
President Barack Obama
Secretary Jeh Johnson
Attorney General Eric H. Holder
April 14, 2014
Page 3 of 6


Without employment authorization, the vast majority of these immigrants are working for
employers who prefer undocumented workers over equally qualified US workers.

(c) Immigrants with administratively closed cases. Under the ICE Morton memo, several thousand
immigrants with special equities have had their removal cases administratively closed but have
not been granted temporary employment authorization. They are in the system, ICE knows
who they are, where they live, their social security numbers, etc. Releasing them indefinitely
without employment authorization forces the vast majority of these immigrants to work in
violation of federal law and encourages their employers to exploit them and prefer them over US
workers. They should be granted Deferred Action Status now.

(d) Immigrants with pending employment-related claims. Sound policy suggests that workers with
employment-related claims, which often impact on US workers and working conditions, should
not fear removal if they come forward to bring illegal employment practices to the attention of
the authorities. These immigrants whether involved in pending labor disputes, union drives, or
with pending labor complaints should be granted Deferred Action Status to encourage workplace
compliance with federal and state labor, health and safety, and anti-discrimination laws.

(e) Unaccompanied abused and abandoned minors. Under present policy all unaccompanied minors
apprehended by DHS are placed in removal proceedings. Absent any mandate that these minors
be provided counsel at government expense, as in other civil matters involving children, the
majority of these children face adversarial removal hearings without any type of advocate
representing their interests. The number of unaccompanied children arriving to the U.S., having
fled violence and trauma in their home countries, has increased to historic levels. Until such time
that the "best interests of the child" principle can be upheld with respect to this group of children,
DHS should cease to subject them to the harsh rigors of removal proceedings. To do so would
benefit the already overburdened and backlogged immigration courts and allow these children to
seek administrative remedies outside the time constraining context of removal proceedings.

(f) Expand the DACA program to all immigrants who entered before the age of 16, regardless of
their age today and update DACA continuous residence cut off to June 15, 2013. The rational for
these adjustments are the same as those that prompted approval of the DACA program in the first
place. These changes would improve arbitrary cut-off dates selected in the initial DACA
program. In addition, without a change in federal law the Administration could and should allow
all DACA recipients to enroll in the armed services. Numerous House GOP members have
voiced support for allowing DACAs to enlist, including Reps. Pete King, Paul Ryan, and Buck
McKeon.

(g) Parents of immigrants granted DACA status. By definition this group has lived continuously in
the U.S. for many years (probably most over 20 years). They have raised children here. Their
children have now been granted temporary status. This group is highly unlikely to voluntarily
depart the U.S. and be separated from their children and probably over 90% will never be
apprehended or deported (other than if they commit crimes). Most are likely eligible to seek
stays of removal proceedings under ICEs so-called Morton memo. However, that memo does
not grant recipients temporary employment authorization. As stated above, without employment
President Barack Obama
Secretary Jeh Johnson
Attorney General Eric H. Holder
April 14, 2014
Page 4 of 6


authorization, the vast majority of these immigrants work for employers who prefer
undocumented workers over equally qualified US workers.

While extending DAS to the largest number of immigrants possible would do the most to protect
U.S. workers, reduce job exploitation, and increase tax payments, we believe the sub-groups
identified above are among the most obvious groups to consider for an extension of the Executive
use of Deferred Action Status.

2. Amend regulations to permit USCIS to adjudicate adjustment of status applications for
immigrants with removal orders: There are tens of thousands of immigrants living in the U.S. with
approved visa petitions who qualify for adjustment of status to become permanent residents but have
final orders of removal issued by Immigration Judges and are blocked by current law to have their
cases reopened before the Immigration Judges (because of deadlines to reopen cases) who under
current regulations are the sole authority to adjudicate adjustment applications. Simply amend the
regulations so that USCIS may adjudicate applications for adjustment of status by these immigrants
(who largely already have approved work-related or family-based visa petitions but remain here
indefinitely in undocumented status). Far less desirable and efficient, but alternatively consider
amending the regulations to encourage ICE attorneys to move to reopen completed removal cases so
that qualifying immigrants can have Immigration Judges adjust their status.

3. Expand grandfathering regulations under INA 245i: Under INA 245i as interpreted in
current regulations immigrants who had a petition filed for them on or before April 30, 2001,
may adjust their status in the U.S. based upon the pre-April 2001 petitions or based upon new
applications filed after April 2001. This protection is critically important since the absurd 1996
3- and 10-year bars (and related bars) went into effect requiring that immigrants with approved
visa petitions that are not eligible to adjust their status within the U.S. and must return to their
home countries to obtain lawful resident status must remain in their home countries for ten years.
These bars have not caused immigrants ineligible to obtain permanent resident status to leave the
U.S. but instead has mushroomed the undocumented population living in the U.S. While a
legislative fix is likely necessary to reinstate 245i, your Administration could expand the
regulations (8 CFR 245.10(a) that define who is grand-fathered under 245i (which allows certain
immigrants to obtain permanent resident status in the U.S. and thereby get around the 3- and 10-
year bars) to include, for example, principal immigrants whose spouses are grandfathered under
current regulations, and immigrants substituted on an Application for Alien Employment
Certification filed on or before April 30, 2001 (since the I-140 Approval Notice is issued in the
name of the substituted immigrant and bears the priority date on or before April 30, 2001).

4. Limit detention by encouraging the use of appearance bonds and OR: Detentions under this
Administration have skyrocketed with thousands of immigrants detained for removal proceedings
even though they are likely to appear if released on bond or under appropriate reporting conditions.
This practice is extremely costly (though supported by the private corporations that profit from the
detention policy) and separates family members for months or years while an immigrants
deportability is being evaluated by an over-worked and backlogged immigration Judge system.
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President Barack Obama
Secretary Jeh Johnson
Attorney General Eric H. Holder
April 14, 2014
Page 5 of 6


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5. Limiting Operation Streamline: Despite declining illegal crossings on the US Mexico border
(which likely at best account for only 45% of the undocumented population in the US), criminal
prosecutions and summary deportations have skyrocketed over the past six years. Under Operation
Streamline tens of thousands of immigrants have been prosecuted in the federal courts for entry
without inspection, many after brief visits home because a parent or other close relative was
seriously ill or dying. These prosecutions effectively end or make extremely difficult immigrants
ability to legalize their status in the future, result in felony charges upon a second attempted entry,
clog the federal courts with tens of thousands of mostly misdemeanor cases, leave fewer
enforcement resources available to address major drug and smuggling cases, and are associated with
major costs (detention, marshals, judges, prosecutors and court-appointed defense counsel).
Operation Streamline is also used to summarily deport through expedited removal orders
thousands of immigrants apprehended near the border. These orders block future legal immigration.
As happened for decades before Operation Streamline took effect, most first time entrants should be
granted voluntary departure with warnings that a second apprehension may result in formal
deportation which would block their future legalization. Criminal prosecutions should stop other
than for smugglers, immigrants with past serious criminal convictions who seek to re-enter illegally,
and traffickers. Also of note, while Mexicans and Central Americans make up no more than 45% of
the undocumented population, they make up 99% of those facing criminal charges.

6. Limiting the Secures Communities and INA 287(g) programs: Terminate the Secure
Communities (S-Comm) program. S-Comm (local police reporting arrests of undocumented
immigrants to ICE) results in fear of the police, discourages undocumented immigrants, immigrants
with visa petitions pending and lawful immigrants with undocumented family members from
reporting violent crimes or cooperating with criminal investigations, and frequently channels people
into the deportation system despite the insignificance of their alleged crimes. For the same reasons,
reliance on 287(g) programs should be reduced or eliminated. The practice of placing immigration
holds on immigrants in local custody should also be amended so no hold lasts more than 24-48
hours, the time ICE would have to hold a detainee before bringing him or her before an immigration
judge.

7. Reduce border deaths: Inform immigrants apprehended along the border who cooperate in
prosecutions of violent smugglers and traffickers about the availability of U and T visas. Inform
abused and abandoned unaccompanied minors apprehended along the border of the availability of
SIJ visas. Place rescue beacons throughout the border region. Restrict the use of lethal force used by
the Border Patrol to circumstances in which objective facts indicate Border Patrol lives or the lives
of others are in imminent danger. Prohibit the use of high-speed Border Patrol chases when a
number of immigrants are passengers in vehicles used by smugglers. Numerous unnecessary deaths
have been caused by these high-speed Border Patrol chases after the past several years. Technology
can be used to track the smugglers vehicle without engaging in dangerous high-speed chases.

8. Allocate greater resources to timely compliance with FOIA requests. In order to properly defend
President Barack Obama
Secretary Jeh Johnson
Attorney General Eric H. Holder
April 14, 2014
Page 6 of 6


themselves in removal proceedings or successfully present visa petitions, immigrants often need
copies of their immigration records and seek these under the Freedom of Information Act (FOIA).
ICE and CIS are backlogged in responding to FOIA requests and allocating greater resources to
reasonably timely responding to FOIA requests would significantly reduce the filing of petitions
with inaccurate information, avoid the filing of petitions for which immigrants do not even qualify
(for some reason disclosed in the FOIA response), and facilitate the progress of removal proceedings
(often delayed while immigrants attempt to obtain copies of their immigration records).

We urge you to consider adopting these proposals immediately. Adoption of these recommendations
would allow as many as two million immigrants to become eligible to obtain lawful permanent
resident status under current laws while providing temporary protection to thousands of others with
special equities, many already in the DHS system. Thank you for your consideration.


Sincerely,

Peter A. Schey
President, Center for Human Rights and Constitutional Law

Community Organizations Leaders:

Academics:

Faith-based leaders:

Business leaders:


ccs: Alejandro Mayorkas, Deputy Secretary, Department of Homeland Security
Thomas S. Winkowski, Principal Deputy Assistant Secretary, ICE
Stevan E. Bunnell, General Counsel, Department of Homeland Security
Peter S. Vincent, Principal Legal Advisor, ICE
Stevan E. Bunnell, General Counsel, USCIS
Stuart F. Delery, Assistant Attorney General
Denis McDonough, White House Chief of Staff
Rob Nabors, White House Deputy Chief of Staff
Alyssa Mastromonaco, White House Deputy Chief of Staff
Cecilia Munoz, Director, White House Domestic Policy Council