Important Developments in Immigration Policy


Written by Jorge Barón, Executive Director
Northwest Immigrant Rights Project

Alliance advocates at Northwest Immigrant Rights Project are pleased to share information about some significant developments in immigration policy, some of which are the direct result of work supported by the Alliance.

Franco-Gonzales v. Holder Class Action: Right to Appointed Counsel for Some Immigrant Detainees

Late last month, NWIRP advocates received word of a crucial victory in a case that has been pending for three years: the class action case known as Franco-Gonzales v. Holder, in which NWIRP has partnered with a number of organizations (including the ACLU of Southern California, Public Counsel, Mental Health Advocacy Services and the law firm Sullivan and Cromwell) to challenge the federal government’s failure to provide protections to individuals with serious mental disabilities facing deportation while in detention.

Earlier in the year, the federal judge overseeing the case had indicated at a hearing that she was prepared to issue a ruling on behalf of the plaintiffs. Then on Monday, April 22, the government made a pre-emptive announcement that it was going to be changing policies at the national level to provide additional protections to individuals with mental disabilities facing deportation. Among the protections the government announced was that they would plan to provide a qualified legal representative for those individuals.

The government’s announcement may well have been an effort to get ahead of the district court ruling and possibly try to convince the court that the case was now moot. Fortunately, the district court was not swayed and the judge issued an order the next day (April 23) granting the plaintiffs’ motion for a permanent injunction requiring the government to provide legal representation to individuals who are unable to represent themselves because of their mental disability and who are detained in the states of Arizona, California or Washington.

This ruling represents the first time that the federal government has been required to provide legal representation to a group of individuals in immigration court. While this is an important decision, it should be noted that there are aspects of the case that remain pending and so more work remains ahead. Nonetheless, the government’s pre-emptive announcement about the protections they intended to implement voluntarily seemed to be a good indication that it recognizes the need to change direction and to move forward on implementing the dictates of the court. NWIRP advocates are also hopeful that the changes the court has directed will eventually be applied nationwide.

Asylum Clock Litigation Settlement:

Just 10 days before the important victory in the Franco litigation, NWIRP and another group of partners had another exciting victory to announce. After nearly two years of litigation, the government had agreed to a settlement in what has been referred to as the “asylum clock” class action. As a way of quick background: individuals who are seeking asylum are entitled to obtain work authorization after their asylum applications have been pending for 180 days or more. However, the federal government had put in place certain policies and practices that unlawfully caused the “asylum clock” (the mechanism it uses to keep track of how long the case has been pending) to stop, effectively denying many individuals the ability to obtain work permits even if their cases continued to drag on for many years.

Under the settlement agreement, the government has agreed to implement a number of changes that will help ensure that current and future asylum seekers will not be deprived of the opportunity to work. The agreement applies nationally, so it will impact not only people here in Washington State but throughout the country. It should be noted that the agreement reached by the parties is subject to court approval and a fairness hearing has been scheduled for September.

Immigration Reform Debate Heats Up in Congress

At the same time that Alliance advocates at NWIRP are helping to change immigration policy through litigation, we are also closely monitoring efforts in Congress to reform our immigration system. On April 16, a bipartisan group of Senators known as the “Gang of 8” (Senators Schumer, McCain, Graham, Durbin, Bennett, Rubio and Flake) introduced the long-awaited immigration reform bill that they had been working on behind closed doors for several months. As expected, the bill (now numbered S. 744) is a compromise on many levels. There are some significant problems with the bill, ranging from its not including protections for LGBT families to its creating a very long and arduous process for legalizing undocumented immigrants. On the other hand, it does create an eventual path to citizenship for the undocumented and it includes some significant improvements to immigration policy. For more details on what the bill does and does not include, our colleagues at the National Immigration Law Center have created a useful summary here (from the National Immigration Law Center).

The bill is currently being considered by the Senate Judiciary Committee, which is undertaking the “mark up” process, which consists of their considering amendments to the legislation. The expectation is that the process will conclude before the Memorial Day recess and that the committee will be able to refer the bill to the full Senate before the end of the month. The hope is then that the bill will be taken up on the floor of the Senate during June. The prospects for the legislation in the House are less clear. If the bill is approved by the Senate (with at least some bipartisan support), it is likely that the critical decisions will end up being made by the House leadership. If they choose to bring the bill to the floor even if a majority of the Republicans in the House don’t support it, it is possible that legislation could pass before the end of summer. However, if they choose to let the legislation go through a full committee process in the House, the process could be dragged into the fall, and the closer we get to primaries in early 2014, the lower the chances of passage for any legislation seen as controversial. A very important time to stay tuned to developments.