Immigration News: January, 2005 - Volume 12

Border, Sanctions, TPS

Border. The Border Patrol reported 1,159,802 apprehensions on the Mexico-US border in FY04, up from 931,557 in FY03 and 955,310 in FY02. Each person apprehended was fingerprinted, enabling the Border Patrol to ascertain that 741,115 individuals were apprehended in FY04; 638,480 in FY03; and 693,798 in FY02. In FY04, 36 percent of those apprehended had been previously apprehended, 32 percent in FY03 and 27 percent in FY02. About 52 percent of FY04 apprehensions were in Arizona.

The number of unauthorized foreigners as estimated by the Urban Institute rose from 3.5 million in 1990 to 9.8 million in 2003. Two-thirds of the unauthorized are in six states: California, Texas, Florida, Illinois, New York and New Jersey. The foreign-born US population was 34 million in March 2004, including 10.5 million born in Mexico.

The Department of Homeland Security's US-VISIT (Visitor and Immigrant Status Indicator Technology) program requires that all foreign visitors be photographed and fingerprinted in order to identify foreign visitors and weed out terrorists. In its first year of limited operation, the US-VISIT program found that 280 of the 10 million people scanned were guilty of criminal or immigration violations. Most Canadian and Mexican visitors are exempt from US-VISIT, including the 6.8 million Mexicans who use border-crossing cards or laser visas to enter the US and stay near the border for up to 30 days.

In May 2003, the bodies of 19 migrants were found in a sweltering trailer truck in Victoria, Texas. During the trial of three defendants in December 2004, the federal prosecutor said that recruiters, guides and drivers "treated people [migrants] worse than cattle on the way to the slaughterhouse." The truck driver, to be tried separately, faces the death penalty.

In June 2004, Border Patrol agents set off panic and controversy by patrolling and making arrests hundreds of miles from the U.S.-Mexico border in southern California cities. The ACLU filed a Freedom of Information Act request with the U.S. Customs and Border Protection agency, seeking information on who authorized the sweeps and the names of those who talked to agents. In July 2004, DHS said that agents had broken department policy by not clearing this type of operation with Washington headquarters.

Saying that it had to verify their identities, US Customs and Border Protection officers in December 2004 fingerprinted and photographed dozens of US citizens who attended a religious conference in Toronto when they returned. CBP was accused of religious profiling by the Council on American-Islamic Relations. The Justice Department's Inspector General said that there is not yet a unified system that gives Justice, DHS, and State access to the government's expanding fingerprint database.

Sanctions. DHS's Immigration and Customs Enforcement (ICE) is responsible for the enforcement of immigration laws inside the US. ICE has stepped up efforts to locate and remove the 400,000 foreigners ordered deported by immigration judges, but allowed to remain in the US while the decision is appealed. The final decision is made by the Executive Office for Immigration Review in the Department of Justice, which usually upholds the immigration judge and orders the foreigner removed. These EOIR letters are known as "run letters" because the recipients frequently flee after receiving word that their appeals were denied.

ICE also enforces employer sanctions laws, but has been reducing its enforcement efforts: in FY03, 124 employers were fined, down from 909 in FY95. Between 1999 and 2003, some 11,714 US employers were investigated for immigration violations, and 692 were fined for hiring unauthorized workers. The number of ICE hours devoted to worksite enforcement fell from 471,210 in 1999 to 177,975 in 2003. Since 1986, fewer than 25 employers have been fined over $75,000 for hiring unauthorized workers.

Two highly publicized efforts to enforce sanctions, in the Vidalia onion industry and in Midwest meatpacking, were stopped after complaints by employers and their Congressional supporters. After Southern Denial raids led to the apprehension of unauthorized workers in southeastern Georgia onion fields in May 1998, Senator Paul Coverdell (R-GA) asserted that "extreme enforcement tactics against Vidalia area onion growers...[are interfering with] honest farmers who are simply trying to get their products from the field to the marketplace." Enforcement was halted.

Operation Vanguard, which involved subpoenaing hiring documentation from employers to check for discrepancies such as invalid Social Security numbers and then asking workers with discrepancies to clear them up before the INS visits the work place, was stopped in 1999 after complaints from meatpacking firms, the Hispanic community and the Social Security Administration, which refused to continue checking SSNs. During Vanguard, the INS subpoenaed and checked hiring documents for 24,000 workers employed by 40 meatpacking plants. Discrepancies were found in the documentation of 4,762 workers, most of whom quit before the INS arrived to check employees- only 34 were arrested.

Registration. Between November 2002 and April 2003, males from 25 mostly Arab and Muslim countries were required to register with immigration authorities if they were in the US and not US citizens. The intent of the registration program was to identify suspected terrorists but, at most, six of the 83,000 registrants may have had a link to terrorism (those who did not register and later found could be charged with a crime and deported).

However, 13,000 unauthorized foreigners among the 83,000 who registered are being deported, which is sending ripples through largely Middle Eastern communities across the US. The DHS, which inherited the program, ended it after concluding that it was not a productive use of limited resources.

Some 370,000 foreigners have been ordered deported, but may still be in the US, and DHS has 18 fugitive squads operating around the US to locate and remove them. They apprehend about 35 fugitives a day, but another 70 foreigners a day are ordered deported, and the so-called absconder population is growing.

Just after 9/11/01, there were 6,000 absconders from Muslim and Middle Eastern countries, but after a year of intense searches, only 40 percent were resolved, with DHS concluding that they had left the US or managed to legalize their status. Absconders leave a thin paper trail, and only about 10 percent of their names are in the FBI's National Crime Information Center database, which would allow state and local police to identify them if they were stopped for other violations.

USCIS. Most non-US citizens who are hired present green cards (immigration visas) and drivers' licenses to prove their identity and right to work in the US. The Basic Pilot program allows employers to verify the workers' green cards by checking a federal database at no cost. Some 16,000 US employers participated in Basic Pilot in December 2004. It is administered by the U.S. Citizenship and Immigration Services, which reports that 90 percent of the queries result in an answer to the employer within 10 seconds.

Since December 1, 2004, all US employers have been permitted to participate; employer participation is sometimes required to settle charges that employers hired unauthorized workers.

TPS. The US grants Temporary Protected Status to nationals of foreign countries who cannot return home because of civil wars or natural disasters. While in the US, those with TPS are allowed to work. In 1998, Hondurans and Nicaraguans were granted TPS after Hurricane Mitch devastated parts of those countries, and in 2001 Salvadorans received TPS after two earthquakes. DHS announced in November 2004 that TPS for 82,000 Hondurans and 4,300 Nicaraguans would be extended 18 months because their countries "remain unable . . . to handle adequately the return" of citizens, and said that TPS for the 300,000 Salvadorans would likely be renewed when it is scheduled to expire in March 2005.

A total of 390,000 people from Honduras, Nicaragua, Burundi, El Salvador, Liberia, Montserrat, Nicaragua, Sierra Leone, Somalia and Sudan had TPS in Fall 2004.

The backlog of applications for immigration benefits such as naturalization, immigrant visas and work permits reached an all-time high of 6.2 million in 2004. The average time to process a citizenship application was 13 months in December 2004.

The Diversity Visa (Green Card) Lottery was established in 1996 to diversify migration to the U.S. Nationals of countries that sent fewer than 50,000 immigrants during the previous five years are eligible to apply for one of 50,000 immigrant visa if they have a high school education or its equivalent; if they win a visa, their family members also get green cards. Nationals of all countries except Russia, Great Britain, China, India, Pakistan, South Korea, Philippines, Vietnam, Colombia, Dominican Republic, El Salvador, Haiti, Jamaica and Mexico can apply on line at www.dvlottery.state.gov/ between November 5, 2004 and January 7, 2005.

The US Supreme Court in November 2004 ruled unanimously that legal immigrants cannot be deported because they are convicted of drunk driving. The Clinton administration first made the argument that drunken driving felonies should be considered deportable crimes, and the Bush administration continued the policy. The Supreme Court decision, saying that drunk driving is not a "crime of violence," opens the way for some of those deported for drunk driving to return.

Unions representing 35,000 DHS employees complained in November 2004 about nondisclosure agreements that new employees have been required to sign since May 2004 prohibiting them from giving the public "sensitive but unclassified" information and allowing the government to "conduct inspections at any time or place" to ensure that the agreement is obeyed. The unions say the agreement violates the Constitution's fourth amendment, since DHS could presumably search employees' homes at any time.