Virginia chooses not to arrest those with civil immigration violations

According to a Washington Post article, Virginia State Police have decided not to pursue the power for their state and local police officers to arrest people who have mere civil immigration violations.

Violating immigration provisions is just a civil violation, not a crime. Historically, local and state police have no power to arrest people who have mere civil immigration violations, just as they would not generally have power to arrest someone who has other types of civil violations.

Under a 1996 law, state and local police can enter an agreement under which they undergo training and receive the power to arrest immigration violators.

Critics, though, argue that arresting civil immigration violators would undermine the trust that police need to have with immigrants to enforce the laws. There is a danger that immigrants would be afraid to report crimes or cooperate with criminal investigations if they fear that they will be arrested for civil violations of the immigration laws.

"A number of the police we met with realized if they want immigrants to report crimes and be witnesses, they can't be in fear of being arrested," said Deborah Sanders, executive director of the Capital Area Immigrants' Rights Coalition

Passing a limited law allowing the police to arrest certain violators caused fear among immigrants:

"It created a huge problem for us when the law was first passed," said Col. Rick Rappoport, police chief in the city of Fairfax. Rumors swept through ethnic communities that anyone lacking proper documents could be picked up, prompting some immigrants to stop dealing with law enforcement authorities. A few even hid at home and hoarded food, police said.

It seems to be bad public policy to threaten immigrants who report crimes or are crime victims with deportation for mere civil violations. Otherwise, immigrants will be targets of crime because the criminals would be more likely to get away with the crime because the victim and witnesses might not be willing to report information to the police.

Immigrant Loses Appeal Based On Unwritten BIA Rule

In Ajose v. Gonzales, No. 03-4243 (7th Cir. May 18, 2005), the Seventh Circuit affirmed a ruling by the BIA (The Board of Immigration Appeals) to reject an immigrant's motion to reopen an appeal because the lawyer failed to file it within 90 days of a decision that he never received.

The BIA dismissed the immigrant's appeal because the lawyer did not file a brief by the deadline. It sent out a notice by regular mail. The BIA did not know that the lawyer's firm had dissolved and he moved to another address and one of his former colleagues who was staying at the same address would forward all mail addressed to him.

The attorney who moved, though, failed to call or write to the BIA to let the BIA know. The BIA has extensive rules and regulations, but there is no requirement to let them know of address changes. The Seventh Circuit, though, ruled that there is an inflexible unwritten rule that attorneys must inform the BIA whenever their address changes. In fact, there is also an inflexble unwritten rule that attorneys must inform the BIA before the address changes so that the BIA can make the change if a decision is issued on the same day the lawyer moves. Also, there is an unwritten requirement that any lawyer who moves should regularly call the BIA's number to check whether anything new happened in the case (just in case something gets lost in the mail).

Because it is the lawyer's fault for not complying with all these unwritten rules, the immigrant's motion to reopen was properly denied by the BIA, ignoring all of the merits and details contained in the motion to reopen.

The Seventh Circuit also ruled that in its opinion, the 30-day deadline to file a petition for review is inflexible and jurisdictional. If true, this means if a lawyer makes a mistake and misses the 30-day deadline even due to reasons out of its control, the immigrant is out of luck and loses the chance to file a petition for review. Let's hope that this rationale is not correct under extreme circumstances.

The ideal solution, though, would simply be to force Attorney General Gonzales to revise the regulations or for Congress to change the law so that there are exceptions to all these inflexible rules that cause immigrants to lose their appeals without any regard to the merit of their arguments.