On March 29, ICE arrested five people when they showed up for scheduled appointments before the U.S. Citizenship and Iimmigration Services. These appointments are normally the first step (and it’s required) in legalizing one’s status. If it sounds crazy that Immigration and Customs Enforcement (ICE) would arrest people who are trying to get right with the law, that’s because it is.
The takeaway here is twofold:
1. This is not new. It did happen before under George W. Bush, and yes, even under Barack Obama. But while it varied from office to office, it was the exception, not the rule. Now, however, it may no longer be the exception.
2. This means one has to be extremely careful in taking that first step. ICE is going to make an already difficult process even more difficult.
The people arrested all had final orders of removal. In order to have a shot at vacating (canceling) those orders, they have to have an immigrant petition approved, which is what they were trying to do. They’re not out of the woods yet: They still have to get their cases reopened and apply for the green card.
I wrote before about how there are serious problems with “rigorous enforcement” of the immigration law. This is a prime example: ICE could allow these people to attempt legalization of status before detaining them. The law allows them to. But because they are called on to enforce the law rigorously, they go after the low-hanging fruit. That includes people who serve themselves up by showing up for a required appointment. The fact that these folks had no criminal record (extensive family and business ties to the United States, including infant children) is of no import.
So while the practice itself is not new, the fact that this might be the new normal is new. And it’s obnoxious. It takes the wind out of the argument that people should do things legally. How can an agency establish a requirement but then detain you if you follow it? The only other option is to slink back into the shadows. It’s a classic Catch-22.
I believe the practice may be unlawful: an agency arguably should not be able to establish such blatantly conflicting rules. Moreover, U.S. citizens in these situations are denied consortium of their family members for simply doing the right thing.
Immigration lawyers now have to advise clients assuming detention at any stage. We already have heard verified reports of ICE picking up people at their report dates. ICE sometimes sends out “call-in letters” where the sole purpose is to have the person show up to get detained. It’s hard to say what’s next; we cannot even say this practice is limited to those with orders of removal.
Therefore, it is even more important now for the prior removal order—and entire immigration history—to be analyzed and attacked before a person shows up to any appointment with USCIS, ICE, or Customs and Border Protection. Detention does not necessarily have to mean deportation. A detention plan needs to be in place: Who will care for your children? What happens to your job? Who else in the family is at risk? Federal court litigation to order release must be considered and perhaps prepared in advance. It may be best to move to a different state where, if the person is detained, the laws and procedures provide better protection against deportation. Some people might have viable secondary forms of relief such as asylum.
As usual, every case is different. But what’s not different is the tone of this administration: We’ll get you wherever we can.
ICE must answer for this nonsensical practice. It cannot be dismissed by saying “Well, they had orders of removal.” That just shows ignorance of the law. Law that allows these people to legalize their status, even if the removal orders were lawful. If every law was this rigorously enforced, every speeding ticket would result in loss of license; every mistake on your tax return would mean jail time. And punishment would come before trial.
Due process is under attack by this administration. It has called for rigorous enforcement, vitiated any concept of prioritization of deportation, attempted to ban refugees and Muslims, expand detention of immigrant families. And this is a concern for us all.
Hassan Ahmad is an immigration lawyer practicing in Northern Virginia. He tweets at @HMAesq.