Scott Whelan

Among the wide variety of seminar titles that populate the convention brochure, the title above caught my eye. For it’s a brave panel that suggests to streams of lawyers and judges flowing past that the system itself, the process to which we’ve dedicated our lives, is a flawed one that causes harm—not just occasionally, but in the normal course of operations.

Co-sponsored by the Arizona Foundation for Legal Services & Education and the Young Lawyers Division, the seminar was a look at immigration law on the ground.

The first half of the session focused on the ins and outs of T and U Visas—those that may aid undocumented immigrants who have been the victim of trafficking (T) or of other crimes (U).

Presenting on that was Scott Whelan, of the Department of Homeland Security, U.S. Customs and Immigration, who had flown out from Washington for the conference.

That was followed with some pointed conversation from attendees and the panel. The crux focused on local law enforcement—police and prosecutors—and their sometimes reluctance to sign a victim certification. That may occur for a variety of reasons, either a blanket disagreement with the visa use, or a misunderstanding of the certification’s legal import.

L to R: Nicol Green, Valerie Hink and Mary Day

As Whelan described it, local law enforcement often tells federal authorities that they won’t certify, because they do not want to grant a visa or any immigration benefit. But as the panel made clear, neither is the case—it is merely a certification that a person is cooperating and providing substantive assistance in a prosecution.

Panelist Mary Day, of Southern Arizona Legal Aid, noted another reason it may be difficult to get the certification: “Most police and prosecutors do not have a passion for immigration law. They have their own passions.”

Jennifer Castro

The great panel also included faculty Valerie Hink and Nicol Green.

Seminar chairs were Jennifer Castro and Leslie Ross, of the Foundation; Maricela Meza of Karp & Weiss PC; Sharon Ng of Stinson Morrison Hecker LLP; and Jennifer Rebholz of Burrell & Seletos.


Former Administration official Roxie Bacon, on Mar. 11, 2011

Roxie Bacon’s column on immigration reform, published in the February Arizona Attorney Magazine, continues to get response. (I wrote about Roxie and her column here and here. You can read her column here.)

In our upcoming issue, we will publish a few letters on the topic, almost all of which praise her insights. But I share with you now a letter that I received yesterday afternoon that goes in a decidedly different direction. It is from the General Counsel of the U.S. Department of Homeland Security.

Here is a PDF of the letter, followed by its text below.

Department of Homeland Security Letter to the Editor, 3-15-11

To the Editor:

It was disappointing to read Roxie Bacon’s essay about her year as a senior-level appointee at the Department of Homeland Security.

DHS General Counsel Ivan Fong

As both President Obama and Secretary Napolitano have repeatedly emphasized, comprehensive immigration reform is critical to both the long-term security and prosperity of this Nation. I empathize with Ms. Bacon’s sense of frustration with the process last year, but as she knows, fundamental legislative change requires hard work, perseverance, and bipartisan support from congress. There has been no “lack of visionary thinking and incisive analysis grounded on economic truths” in this Administration’s efforts to advance sensible immigration policy.

Similarly, this Administration remains committed to the DREAM Act. From President Obama and Secretary Napolitano’s extensive engagement on Capitol Hill, to the outreach efforts conducted by our Department leadership, every resource was employed to seek passage of this legislation that is important to our Nation’s future and emblematic of our ideals. In short, notwithstanding Congress’s failure to act, we remain committed to a sustained effort on both overall immigration reform and the DREAM Act.

Finally, as Ms. Bacon notes, after the earthquake in Haiti last year, DHS suspended all removals to Haiti. A year later, however, DHS was required, in light of binding Supreme Court precedent, to either release these aliens into U.S. communities or lift the moratorium as it applied to criminal aliens. Given the alternative of releasing violent offenders onto our streets or returning them to their country of origin, DHS chose to lift the moratorium on removals of certain Haitian nationals convicted of criminal offenses. The resumption of these removals, based on the need to protect public safety, can hardly be characterized as an abandonment of our efforts to assist Haiti. This is especially true in light of our ongoing commitment to the people of Haiti, as evidenced by the grant of temporary protected status to Haitians, the grant of humanitarian parole to orphans in Haiti, and other significant relief.

In the meantime, we will continue our work here in Washington, mindful that the important and difficult issues posed by immigration law and policy will not be solved overnight or even in one year.

Ivan K. Fong

General Counsel

U.S. Department of Homeland Security

Washington, DC