IT IS hard to believe that we will be greeting a new year in less than three weeks. If you are like me, you are in the midst of Christmas-related hustle and bustle, trying to prepare for the holidays and the end of 2011. While it is the season of celebrating and being grateful for what we have, including our families and friends, it is also a season of reflection. Was year 2011 a good year? If I were to venture a guess, I’d say most people would view this year as difficult one, considering the economic problems, “occupy” movements throughout major cities, and political intrigues related to the next year’s presidential election.
But amidst the bleak future, I wish to stress that there is always hope, especially when it comes to developments in immigration law. While a comprehensive immigration reform still remains to be an elusive possibility, there are reasons to be hopeful, especially as we are on the threshold of the New Year. I specifically want to draw your attention to two developments.
First, last Monday the Supreme Court decided to consider whether the controversial Arizona law passed last year violates the US Constitution by encroaching upon the powers held exclusively by the federal government and is in direct conflict with the federal immigration policies and objectives. By way of background, the Arizona law, referred commonly as SB1070, was signed into law in April 2010 by Governor Brewer. SB1070 was to serve as a comprehensive effort to deal with the disproportionate outcome of illegal immigration in Arizona. Among others, SB1070 specifically empowered local police officers to determine the immigration status of individuals they detained during routine traffic stops or questioned if there was a ‘reasonable suspicion” of their undocumented status in the United States.
The recent development in the legal saga following the enactment of SB1070 was the April 11, 2011 decision by the Court of Appeals for the Ninth Circuit, which upheld a temporary injunction against four problematic sections of SB1070 entered the US District Judge Susan Bolton. Specifically, the Ninth Circuit halted enforcement of the following provisions: (1) requiring police officers to make reasonable determination of immigration status of individuals stopped, detained, or arrested when a reasonable suspicion existed such individuals were in the United States illegally; (2) punishing foreigners for not carrying immigration papers; (3) preventing unauthorized aliens for applying for or performing work; and (4) permitting warrantless arrests of foreigners believed to have committed an offense rendering them removable from the United States.
On December 12, 2011, the Supreme Court agreed to consider the controversial Arizona law and its apparent conflict with the US Constitution. This is especially timely because several other states like Alabama, South Carolina, and Utah, have enacted laws similar to the one in Arizona. It will be exciting to see how the Supreme Court tackles this particular immigration-related issue. Many hope, of course, that the controversial Arizona law will be struck down because of its apparent conflict with the US Constitution.
The second reason for hope is the policy advanced by the Department of Homeland Security (DHS) to eliminate low priority cases from immigration court proceedings and instead target cases involving public safety and national and border security. This is commonly referred to as prosecutorial discretion.
A few words of caution first. Despite the fact that there have been several memoranda and documents issued by the DHS attempting to set out guidelines and procedures on how prosecutorial discretion is to be applied, confusion and lack of consistency persist in the meantime. Furthermore, it is important to stress that prosecutorial discretion does not equal immigration amnesty. Caution is still recommended, especially for individuals who are not yet in removal proceedings and who seek to voluntarily turn themselves into immigration authorities.
However, I have observed that requests for prosecutorial discretion in removal proceedings have increased and have been, in most cases, welcomed by immigration judges. While the kinks of the prosecutorial discretion are yet to be worked out, it is a very positive development in immigration law. Prosecutorial discretion can be a particularly valuable tool in cases with many positive equities but limited immigration relief in court.
In conclusion, despite the problems around us, there are reasons to be optimistic about the future. We should not lose hope, especially as it relates to immigration laws. I truly believe that 2012 will be better for immigrants than 2011.
During this holiday season, it is my pleasure, on behalf of Wilner & O’Reilly, to extend to all our warmest wishes of health, happiness, success, and hope. We thank you for your continued support. We are blessed to help our clients realize their immigration dreams and hope to help many more. Should you require assistance, please do not hesitate to contact us.
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Kelly O’Reilly is a nationally known immigration expert and former immigration officer. He is a highly sought after speaker on immigration and employment compliance issues. Mr. O’Reilly serves as the current chair of the Riverside County Bar Association Immigration section and is a partner in the full-service immigration firm of Wilner & O’Reilly where he provides free consultations. Mr. O’Reilly can be contacted at (562)207-6789 or he welcomes email inquiries at [email protected].
