Trespassing law may turn more illegal immigrants into citizens
Published: May 17, 2010 at 7:02 am
Arizona’s new immigration law may have been aimed at deporting as many illegal immigrants as possible, but an ironic side effect will allow more undocumented residents to apply for temporary work visas and permanent U.S. citizenship, according to research by the Arizona Capitol Times.
The new law will add to a processing backlog that already has caused federal authorities to release an increasing number of illegal immigrants back into the U.S. to await deportation hearings. And if nationwide figures can be applied to Arizona, one in four of those who are released from federal custody fail to appear in court.
The arrest-and-release policy is a little-known part of federal immigration law that allows illegal immigrants to challenge deportation and obtain legal residency, and a driver’s license, as long as they meet certain conditions. If more illegal immigrants are apprehended and processed through the federal system – which is expected to happen after Arizona’s immigration law takes effect on July 29 – then an even greater number would qualify for legal status.
“In a sense, it’s like there’s some incentive to get caught,” said Tucson immigration attorney Maurice Goldman. “Theoretically, more people would end up in front of immigration judges, which means more would get released.”
Right now, federal immigration courts are backed up so severely that it can take as many as five years to schedule trials for illegal immigrants who challenge deportation, and the U.S. Immigration and Customs Enforcement (ICE) facilities are so overloaded that thousands of illegal immigrants are released back into Arizona each year to live and work while waiting for a deportation hearing.
More than 5,100 illegal immigrants who were processed through federal immigration courts in Arizona were released from custody on bond in 2009, and the vast majority were eligible for work authorization documents, although precise figures were not available.
In some cases, illegal immigrants may be granted some form of relief, including permanent citizenship, after they’ve been turned over to ICE.
Last year, federal judges granted legal residency to 29,000 illegal immigrants nationwide. In Arizona, more than 3,600 immigration hearings were initiated by an application for relief, and more than 900 illegal immigrants were granted temporary residency or permanent citizenship.
The ~Arizona Capitol Times~ research for this special report included dozens of interviews with immigration attorneys, state lawmakers and officials at several federal immigration agencies, as well as documents obtained through public records requests to ICE and the Executive Office for Immigration Review, the official name of the federal immigration court system.
Several important immigration statistics were not available because ICE and the federal courts said they don’t keep track of the number of illegal immigrants apprehended each year in Arizona by federal, state or local law enforcement agencies. Nor do they track the number of illegal immigrants who accept “voluntary departure” and agree to forego an immigration hearing.
Gaps in federal records and the unknown effects of the state’s immigration law make it impossible to pinpoint how many more illegal immigrants will be granted relief or released on bond as a result of the passage of Sen. Russell Pearce’s S1070, which was signed into law on April 23. But several immigration attorneys who practice in Arizona said both figures likely will skyrocket.
“I call SB1070, ‘Russell Pearce’s guest-worker program.’ You’ll have so many people who will be eligible (for release) and employment authorization documents,” said Kevin Gibbons, an immigration attorney who ran unsuccessfully against Pearce for the District 18 Senate seat in 2008.
Pearce said the law he drafted is a good one, even though it will result in legal residency for more illegal immigrants. Most illegal immigrants will leave the state without further provocation for fear of being arrested, he said.
“It will save us hundreds of millions of dollars. That’s good for the taxpayer,” he said. “The benefits so outweigh (the work permits).”
Federal immigration proceedings often do not happen quickly. When an illegal immigrant is picked up and ICE takes custody of the person, a background check determines whether the immigrant will be deported or sent to court for a deportation hearing. Deportation occurs quickly – usually within 24 hours – if the person had been deported previously, or if he or she has committed an aggravated felony, such as rape or drug trafficking.
Illegal immigrants with clean records are usually transported to one of the two ICE facilities in central Arizona – a federal detention center is in Florence, and a private facility is in Eloy – to await a hearing before an immigration judge. Once removal proceedings begin, illegal immigrants can petition for relief and become eligible for a release from detention, work documents and even a driver’s license.
Federal judges then determine whether to hold illegal immigrants in ICE custody or release them, either with a bond or on their own recognizance. Bond amounts typically range between $3,000 and $5,000, though it can be higher if the immigrant has a criminal record.
However, because of overcrowding at the federal facilities in Arizona, which combine to hold only about 1,900 people, ICE often releases immigrants on bond without waiting for a judge.
“Up until four or five months ago, what (ICE) was doing was sending (immigrants) to Florence or Eloy and they would get put in front of a judge,” Goldman, the Tucson immigration attorney, said. “Recently, ICE has been releasing people on bond without sending them up there.”
ICE spokesman Vincent Picard confirmed that his agency has been releasing more illegal immigrants on bond to avoid adding to the backlog in federal court and the overcrowding at ICE facilities. He said the ICE facilities in Arizona also hold illegal immigrants apprehended in California, Utah, Nevada and other nearby states with overcrowded federal facilities.
According to federal court records, 4,610 illegal immigrants who were released from federal custody failed to appear in court in 2009. That number represents 22 percent of all illegal immigrants who were released on bond and were expected to appear in court last year. Figures for those released by federal courts in Arizona were not available.
Many of the illegal immigrants who are given temporary residency while awaiting a hearing also qualify to apply for permanent residency. Often, that is done by applying for one of the forms of relief outlined in federal law, the most common of which is called “cancellation of removal.”
The standard for cancellation of removal is high, Goldman said. Immigrants must prove they have lived in the U.S. for at least 10 consecutive years, demonstrate “good moral character,” pass a criminal background check showing no felony convictions, and establish that deportation would result in an “exceptional and extremely unusual hardship” to a spouse, parent or child who is a citizen or legal permanent resident.
Phoenix immigration attorney David Asser said he believes many of the illegal immigrants who live in the state would qualify for cancellation of removal.
“There are a lot of people, I think, who would qualify for this form of relief, but they haven’t been picked up (by ICE) yet,” he said. “People who come through my door have been here a long time and have U.S.-citizen kids, or even grandkids. They qualify to at least apply for this category of relief.”
Illegal immigrants who are released on bond may receive temporary work visas that are valid for one year. In many cases, the one-year visas are extended several times due to the backlog in federal immigration courts, which have been overcrowded for years because there are only five immigration judges in the state – three in Phoenix and two in Tucson.
Already, final hearings in cases are being scheduled for 2013 and beyond. During that time, the immigrants released from custody are able to stay in the country and work legally.
Gibbons, the immigration attorney from Mesa, said he has a case already scheduled for February 2014. But that’s only for a final determination hearing, and doesn’t account for the time it takes to present evidence to the judge and conduct initial hearings.
“I’m (scheduled) out four years, but I didn’t tell you how long that case has been going to that point. I may have a year, year-and-a-half in (the case) already,” he said.
The delays in the system will only get worse if local law enforcement officers begin rounding up illegal immigrants and turning them over to ICE to begin deportation proceedings, said Asser, the attorney from Phoenix.
“If you’re putting in an extra 1,000 people, it may take five years,” he said. “If you’re talking about the entire illegal population of Phoenix, it may be 2035. Who knows?”
Pearce said the log jam in the immigration courts is the fault of immigration attorneys.
“They tie up the system and play games. They fabricate issues or exaggerate issues,” he said. “It’s a system designed by attorneys to benefit the system, and they clog the system.”
But Gibbons defended the system, saying Pearce and other politicians concerned about the court backlog should fight for more money for the courts.
“They don’t take the money into account. They don’t realize that funding drives everything,” he said.
As it stands now, the system will continue to be slow-moving. The federal government has given no indication so far that it plans to spend more money on immigration courts or enforcement efforts along Arizona’s border with Mexico.
All the while, many of those detained under the nation’s toughest illegal-immigration-enforcement law would be living with their families and working in the state just as legally as those who crafted the law.