Thread: U.S. targets loophole on deportation

http://www.azcentral.com/arizonarepubli ... r0905.html

U.S. targets loophole on deportation
But attorneys say rights should be wider, not cut

Susan Carroll
Republic Tucson Bureau
Sept. 5, 2006 12:00 AM

Top Department of Homeland Security officials want Congress to close a loophole that they say leads to the release of scores of undocumented immigrants into the interior of the United States.

An 18-year-old court order requires that all undocumented immigrants from El Salvador appear before a judge before deportation, while people from other countries typically are removed without a hearing. Homeland Security Secretary Michael Chertoff said the injunction, issued while El Salvador was involved in a bloody civil war, has resulted in a logjam of cases that increase detention time and take up valuable space in federal prisons.

"The civil war is gone. There is a democratically elected government now," Chertoff said. "We need to be free of this court order."

But immigration lawyers warn that the proposed legislation, sponsored by Rep. Henry Bonilla, R-Texas, and backed by the Bush administration, goes beyond simply lifting the requirement that Salvadorans appear before a judge. It would, in effect, change how the government handles accusations of constitutional rights violations in immigration cases, said Lynn Marcus, director of the University of Arizona Immigration Law Clinic.

"It's not just that they're trying to undo an order," Marcus said. "The bill goes far beyond that. It may read innocuously, but . . . it so stacks the deck against people whose rights are being violated."

There are thousands of Salvadorans in Arizona, many undocumented. There are enough to justify opening a Salvadoran consulate in Nogales, but no one knows for certain how many.

At the center of the debate is the federal government's catch-and-release policy, a poorly kept secret that has long embarrassed immigration officials. The vast majority of the nearly 1.2 million Border Patrol arrests last year involved Mexicans, who typically are simply returned to the border within a few hours of their arrest.

The Border Patrol has more trouble dealing with "OTMs" (Other Than Mexicans), who have to be at least temporarily housed in federal detention centers while the government arranges for a return to their home countries.

But with a shortage of space, immigration officials for years have simply given scores of undocumented immigrants from countries including El Salvador, Brazil and Honduras a notice to appear for an immigration hearing and then release them.

About 70 percent of the roughly 155,000 OTMs arrested last year were released into the U.S. interior. Salvadorans are second only to Mexicans for arrests along the Southwestern border, according to Homeland Security statistics.

Homeland Security officials say they've recently made progress on reducing the number of undocumented immigrants released after they're arrested, keeping roughly half in custody in January. Immigration officials reported that during the second week of August, they detained 99 percent of OTMs, but they would not provide statistics for any other recent timeframes to show whether that was a trend or an anomaly.

Chertoff recently extended a controversial policy known as "expedited removal" along the entire Southwestern border. Under the policy, non-Mexicans picked up shortly after crossing the border and within 100 miles of the international line are now returned to their home countries without a court hearing, unless they express some fear of return or claim asylum.

Expedited removal, used on all OTMs except Salvadorans, has helped reduce the number of undocumented immigrants released into the U.S. interior, Homeland Security officials said. Still, Chertoff said the court order remains an obstacle to ending catch-and-release and called for Congress to "cut the ties that bind us."

But immigration lawyers say the only thing stopping Homeland Security from ending catch-and-release is the detention space available. The federal government is not required to catch and release anyone or give anyone a notice to appear as long as they have a place to hold them, attorneys said.

The Salvadoran consul in Nogales, Leocadio José Joaquín Chacón, was unavailable for comment.

The injunction was issued in the 1980s after attorneys sued on behalf of Salvadoran clients who said they were pressured to waive their right to hearing and return home. They also reported having limited access to legal representation, typically a major factor in the success of immigration cases.

"The injunction was issued so people with valid asylum claims have the opportunity to have those claims heard and not be coerced or otherwise pressured to waive their rights," said Linton Joaquin, executive director of the Los Angeles-based National Immigration Law Center.

He said the court order is not outdated or unnecessary, saying the protections for El Salvadorans should be extended to people from other countries.

The civil war in El Salvador ended in 1992 with the signing of a peace treaty, capping 11 years of fighting.

"It's not the question of whether there's a civil war," he said. "It's a question of whether there are people with good-faith asylum claims. Some of those claims are different than they were in the civil war. Some of them are still political persecution, . . . but some of them are based on persecution by gangs. Some of them are domestic violence that they can't get protection from."

Immigration officials referred phone calls to the Justice Department's Office of Immigration Litigation, where a spokesman declined to comment.

The federal government has filed a motion to have the injunction lifted, but a judge has not yet ruled on it. In the meantime, Homeland Security officials are asking Congress for legislation that would override the court order, commonly known as the "Orantes injunction."

Bonilla's bill would also change the timetables for immigration-related injunctions, not just affect El Salvadorans, attorneys said. Bonilla's spokeswoman did not return phone calls.

Marcus said that Bonilla's bill would shorten the timelines for getting injunctions, making them impossible to get in more complex cases.

She also said the legislation would give more power to the government to quickly appeal injunctions, putting people whose rights were violated at a disadvantage in the system.

"It sounds OK to members of Congress who aren't lawyers, but they would make it basically impossible to enjoin illegal conduct by the government," Marcus said.

She criticized Homeland Security for not letting the appeal play out in court.

"Tell it to the judge," Marcus said. "We have procedures in this country. We have a forum in which the government can speak. If they can't make out a decent case to the court, then they have no right to be running off to Congress crying about it."

An 18-year-old court order requires that all undocumented immigrants from El Salvador appear before a judge before deportation, while people from other countries typically are removed without a hearing. Homeland Security Secretary Michael Chertoff said the injunction, issued while El Salvador was involved in a bloody civil war, has resulted in a logjam of cases that increase detention time and take up valuable space in federal prisons.

The republicans can't even get something as simple as this through the Congress. As a matter of fact, they haven't even tried, even with DHS asking for it.

"It's a question of whether there are people with good-faith asylum claims. Some of those claims are different than they were in the civil war. Some of them are still political persecution, . . . but some of them are based on persecution by gangs. Some of them are domestic violence that they can't get protection from."

There is million stories and most of them are shams. And please don't tell me you got to come all the way to the U.S. to get away from an abusive spouse. Sheez..