There is some good news for the nation’s refugee population: in connection with ongoing litigation, the government is carefully reviewing its policy permitting the detention of refugees who fail to apply for lawful permanent resident (green card) status after being physically present in the United States for one year. Earlier this month, the NGO Human Rights Watch issued a report criticizing this unique form of immigration detention, in which an “alien could be held indefinitely without charges and not even as part of a removal proceeding.”
The requirement that refugees successfully obtain their green cards after one year of physical presence in the US comes from Section 209(a) of the Immigration and Nationality Act. This section provides that any refugee “who...has been physically present in the United States for at least one year, and... who has not acquired permanent resident status, shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States.” Ever since a 2001 memo, the government has interpreted this confusing statutory language to mean that detention is mandatory for all resettled refugees who have failed to present themselves to obtain permanent resident status one year after arrival (so-called “unadjusted refugees”).
In practice, Immigration and Customs Enforcement, the agency responsible for enforcing the immigration laws, is unlikely to jail unadjusted refugees unless they have first come to the attention of immigration authorities because of a criminal arrest or conviction. But it is hard to ignore the fact that the law, as it is currently written and interpreted by DHS, permits the detention of all resettled refugees who fail to obtain their green cards after one year of physical presence in the US. This is a broad and severe interpretation of ambiguous statutory language, which could easily be read as merely requiring that refugees who have been physically present in the US for one year appear for inspection and examination in connection with their green card applications, with no detention required - an alternative reading which was once endorsed by the legacy Immigration and Naturalization Service (INS).
As pointed out by the Immigration Policy Center, the interpretation of Section 209(a) mandating the detention of those refugees who fail to adjust after being physically present for a year in the US runs counter to immigration regulations, which prohibit refugees from applying for adjustment of status until one year has passed since their admission in refugee status. See 8 C.F.R. § 209.1. The Immigration Policy Center points out the unfairness in this situation by explaining, “In essence, ICE detains refugees for not doing what the law bars them from doing.”
One week ago, the country of Haiti was hit by a terrible earthquake, devastating the already poverty-stricken and under-resourced country. Please consider making a contribution to the Red Cross to aid the relief effort on behalf of needy Haitians. For our purposes today, I will not go into great detail into the United States' culpability for many of Haiti's problems, but I would like to point out that we have had major military and other incursions into Haiti's since at least 1915. For this reason, and the arguably negative impact we have had on Haiti's development, I think it is particularly important that we offer Haitians in the United States a chance to remain here, and not be forced to return there until conditions can improve. To that end, the Department of Homeland Security has finally granted Temporary Protected Status ("TPS") to Haitians who have been in the United States since at least January 12, 2010. Though, importantly warnings have been issued to Haitians NOT to come to the United States now without authorization. Additionally, the United States has stopped deporting people back to Haiti, and most recently have announced that Haitian orphans who are in need of care may be granted humanitarian parole to enter the United States while they await the completion of their immigration process. These are tremendous steps that are really required for many reasons, not the least of which is the current horrid conditions in Haiti.
Today I had a final hearing for a man who was granted cancellation of removal as a permanent resident (“green card” holder). This is great, I am extremely happy for him, his wife, and four children. However, he was detained for the last two months while we filed the required paperwork, had him fingerprinted, etc. The government didn’t contest the grant of relief, so I won’t brag about my terrific lawyering skills (I will save that for later), but instead I am writing to talk about this type of relief and the problems that it creates, as well as some potential remedies.
Last week, U.S. Citizenship and Immigration Services (USCIS) issued guidance on the vaccination requirements for foreign nationals applying for adjustment of status in the United States. This document clarifies the new approach utilized by the Centers for Disease Control in determining which vaccines are required as part of the mandatory immigrant medical examination.
As same-sex couples and their advocates continue to fight for equal rights, they should not forget those with foreign spouses, or the plight of foreign same-sex couples wishing to come to the United States together as spouses. When a United States citizen wants to marry a foreigner, or when a foreign couple want to come to the United States for school, work, or any other purpose, they have a huge hurdle to jump, because the immigration authorities use the federal definition of marriage, which is between one man and one woman. At least, that’s how it is today... but change is still in the air, and when that change comes, immigrants and their United States spouses can benefit as long as the immigration aspects of the equal rights struggle are not overlooked.