Wednesday, January 30, 2013

50% of President Obama's Immigration Reform Proposal Involves Enforcement

The President held an immigration reform pep rally yesterday, where he rolled out his vision of what a new law should look like.  After the speech the White House released a fact sheet that summarizes this vision, breaking it down into four parts.  I couldn't help but notice that 50% of the President's vision relates to immigration enforcement.

From the Fact Sheet:
  • Continuing to Strengthen Border Security: President Obama has doubled the number of Border Patrol agents since 2004 and today border security is stronger than it has ever been.  But there is more work to do.   The President’s proposal gives law enforcement the tools they need to make our communities safer from crime.  And by enhancing our infrastructure and technology, the President’s proposal continues to strengthen our ability to remove criminals and apprehend and prosecute national security threats.
  • Cracking Down on Employers Hiring Undocumented Workers: Our businesses should only employ people legally authorized to work in the United States.  Businesses that knowingly employ undocumented workers are exploiting the system to gain an advantage over businesses that play by the rules.  The President’s proposal is designed to stop these unfair hiring practices and hold these companies accountable.  At the same time, this proposal gives employers who want to play by the rules a reliable way to verify that their employees are here legally.
These were the first two points that were stressed.  The other two points include earned citizenship (with penalties), and streamlining legal immigration.

There are some things in the President's plan that I find unsettling.  Specifically, it includes administrative "streamlined" removal for individuals considered to be a threat to public safety, which may result in completely arbitrary determinations being made by the agency effectively bypassing any right to a hearing before a judge.  It further embraces mandatory detention and a summary removal process, which potentially could be applied to lawful permanent residents convicted of crimes that may or may not have any immigration consequences.  The plan also refers to the E-verify system, which has proved to be innefective at best.  Same-sex couples have not been mentioned in the plan, although that is next on the list.

As for earned citizenship, the political reality is that an automatic pathway to citizenship is a poison pill that will doom reform because the GOP will only support legislation that requires lawbreakers to legalize incrementally.

As most of you are aware the bulk of my practice is deportation defense. Ask any one of my clients whether they care if immigration reform includes an immediate pathway to citizenship and they will tell you that they just don't want to be separated from their families, that they are afforded the ability to work in this country legally, that they can obtain a driver's license and social security number, and that they have the ability to leave the country periodically to visit family without penalty.

If immigration reform provides a temporary status to 11 million qualifying people that does not preclude adjustment under employment or family based categories I could get behind it.  A renewable nonimmigrant status as a stop-gap measure is better than what the law currently provides. Couple it with a tweak in the law to include spouse, parents and unmarried children under the age of 21 of lawful permanent residents into the definition of immediate relative and most of those people will have a pathway to lawful permanent residency, and three or five years later they will be eligible to naturalize.

Even a simple policy change to provide parole in place in the exercise of discretion to immediate relatives of United States citizens that have already had a provisional waiver approved to enable them to adjust would be a quantum leap in the right direction.

Point being the problem can be solved without an immediate solution that will ultimately doom reform.
So the next question is: when will we see a Bill, and will it come from the White House?

Tuesday, January 29, 2013

Port Parole Granted

Our client is a Canadian citizen. He is a respected businessman in his community. Over 30 years ago, he was convicted of possessing one marijuana cigarette, and such conviction has rendered him inadmissible to the United States for life.

Three years ago, he retained us to apply for a nonimmigrant waiver of inadmissibility so that he could legally enter the United States for business and pleasure. We prepared an application for him, which included a legal brief showing why a favorable exercise of discretion should be granted under the law, as well as submitting appropriate documentation concerning his eligibility for a waiver. The application was granted for an initial period of three years.

 The three years expired, and our client elected to file an application for a renewal on his own. Unfortunately, the application was not adjudicated by the Department of Homeland Security by the time he was required to enter the United States for a previously arranged trip. He called us in a panic and we made an application for what is known as Port Parole to U.S. Customs and Border Protection.

We immediately put together a compelling application with appropriate supporting documentation. The application was made on a Friday afternoon and his parole was granted early Monday morning. The client was able to enter the United States for his trip as a result.

Tuesday, January 22, 2013

11-Year-Old Torn Away from His Father by ICE Agents

7 Immigration Numbers from President Obama's First Term

Univision's Ted Hesson just wrote an article entitled "7 Numbers That Tell the Story of Obama on Immigration." It is a nice snapshot of what has occurred over the last four years.

Here they are:
  1. 1.6 million people "deported" in the President's first term (32,886 people per month);
  2. $18 billion spent on immigration enforcement;
  3. 97% of the country is now under the immigration enforcement program known as Secure Communities;
  4. 68 representing the amount of beds located in the new deportation jail in Karnes County, Texas that is being billed as a more humane way to cage immigrants;
  5. 0 representing the net migration of immigrants from Mexico;
  6. 92 days are left on the deadline that evangelicals have given the President to tackle immigration reform; and
  7. 154,404 representing the number of Deferred Action approvals (407,899 submitted) as of January 22, 2013.
So there ya have it.

Four more years! Four more years!

Thursday, January 17, 2013

ICE Sued for Illegally Detaining United States Citizen

The ACLU of Pennsylvania has filed suit in the U.S. District Court for Western District of Pennsylvania on behalf of Angelica Davila, a United States citizen for what the executive director of the ACLU of Pennsylvania, Reggie Shuford, calls "a blatant example of ethnic profiling."

It has been alleged that after being stopped for a minor traffic violation, Ms. Davila was illegally arrested by ICE and held overnight in the Allegheny County Jail based on the erroneous belief that she had violated United States immigration laws, and was subject to deportation.

From the ACLU press release:
On the evening of January 22, 2011, Davila and a friend, Joel Garrete, were pulled over on Perry Highway in Wexford shortly after exiting the parking lot of a Mexican grocery store. Davila, a legally licensed driver in Pennsylvania, had forgotten to turn on her headlights. She provided her license, proof of registration, and insurance card to Patrolman Andrew Bienemann of the Northern Regional Police Department. The officer also demanded identification from her friend and asked if he was in the country legally. A native of Honduras, Garrete admitted he was not lawfully present. Bienemann then called the U.S. Bureau of Immigration and Customs Enforcement (ICE) to check on the status of both Davila and Garrete.  
Davila provided her name, country of origin, and date of birth to ICE Special Agent Brianna Tetrault over the phone and told Tetrault she was legally present in the United States. Davila, who speaks both English and Spanish fluently, agreed to translate while Tetrault spoke to Garrete. 
Nevertheless, after waiting by the side of the road for two hours, both Davila and Garrete were handcuffed and eventually transported to the Allegheny County Jail at the request of ICE. During her ordeal, Davila repeatedly explained to police officers and jail guards that she was legally present.  In fact, Davila was a U.S. citizen at the time of her arrest under a law granting automatic citizenship to children of U.S. citizen parents who were under 18 on February 27, 2001.
Click here to view the complaint.

Tuesday, January 15, 2013

"IT'S NOT OVER" Erika Andiola

ICE Reducing Immigration Court Deportations by Deporting People on their Own

Syracuse's TRAC Immigration reports that in December 2012 there were 14,898 new Immigration and Customs Enforcement (ICE) filings seeking deportation orders. This is a 25% reduction from the same three month period in FY 2012.  Fiscal Year 2013 began in October.  In December 2012 Immigration Courts issued 8,262 new deportation orders, which includes removal orders and grants of voluntary departure. 

TRAC states that we still do not know how many actual deportations there were because in a significant amount of cases ICE deported people on their own bypassing immigration courts altogether.  ICE does this by reinstating previous deportation orders, issuing expedited removal orders, and by forcing people to "voluntarily return" to their native country in lieu of deportation.  Last year nearly one-third of all deportations were issued without the indivdual ever appearing before an immigration judge.

So much for due prcoess.

Thursday, January 10, 2013

Deportation Reopened and Remanded: Court Closes Case to permit Client to Apply for Green Card

Our client is a male 36 year old citizen and native of Peru. He was admitted to the United States at Miami, Florida in 1994, as a nonimmigrant in transit without visa (TWOV) with authorization to remain in the United States for a temporary period not to exceed eight hours or until the next available transportation. He remained in the United States beyond that period without authorization from the legacy Immigration and Naturalization Service.

In 2006, the Department instituted removal proceedings under INA §237(a)(1)(B) for remaining in the United States for a time longer than permitted. This was the only charge of removal. Jurisdiction was vested with the Immigration Court at Buffalo, New York. The client decided to hire a lawyer in New York to represent him before the Court making multiple payments.

The Record of Deportable/Inadmissible Alien that was prepared by the Department specifically set forth that Government attorneys were contacted who advised that the client “might be eligible for cancellation of removal under INA Sec. 240(b)." The Form I-213 further indicated that the client may be eligible for asylum. The former lawyer had this evidence in his possession.

The lawyer in early 2007 filed a motion with the Immigration Court in Buffalo, New York requesting a change of venue and permission to appear telephonically. In making this motion the lawyer conceded the allegations contained in the Notice to Appear, admitted that the client was a nonimmigrant in transit without visa (TWOV) that last entered the United States in early 1994, and specifically indicated to the Court that the Respondent appeared eligible for cancellation of removal, withholding of removal, or alternatively, voluntary departure.

In mid 2007 the client married his United States citizen spouse in New York. At this point the Respondent had a qualifying relative that rendered him eligible for Cancellation of Removal as a non-lawful permanent resident, potentially eligible for adjustment of status under form INA 245(i). The former lawyer had actual knowledge of the existence of a qualifying relative for cancellation of removal.

In late 2007, the client appeared at the Immigration Court in Buffalo, New York without his lawyer who was permitted to appear telephonically by the Court. The lawyer’s associate telephonically appeared instead. The associate again conceded the client’s removability, and requested voluntary departure as the only form of affirmative relief from removal. He did not request asylum, withholding of removal, cancellation of removal, or adjustment of status.

An individual hearing was scheduled for early 2008 in Buffalo, New York. The lawyer then prepared and filed a Form I-130, Immigrant Petition for Alien Relative, together with a Form I-485, Application for adjustment of status on the client’s behalf. He did nothing to correct his associate’s error in court. The client is eligible to adjust status under form INA § 245(i) due to the filing and subsequent approval of a Form I-130, Immigrant Petition for Alien Relative filed by his United States citizen brother.

The client next appeared at the Immigration Court in 2008, and although the lawyer was permitted by the Court to appear telephonically he did not make himself available.  The Court admonished him through the lawyer’s associate who telephonically appeared on his behalf and who was completely unprepared for the case.

The Judge granted voluntary departure ordering that he depart the United States in early 2008. The Court further imposed a $10,000.00 voluntary departure bond with a posting date. The Court in the alternative ordered the Respondent’s removal. Nothing was done by the associate to request cancellation of removal, asylum, withholding of removal, or potentially adjustment of status as affirmative forms of relief from removal, and solely relied on voluntary departure as the only basis for relief from removal.

After the individual hearing the client called the lawyer who advised him that he would appeal the Court’s order. The client provided the lawyer with the $110.00 filing fee for the Notice of Appeal. In late 2008, the immediate relative immigrant petition filed on the client’s behalf was transferred to the Albany, New York office for further processing, but the lawyer never advised the client of the transfer.

The Board of Immigration Appeals dismissed the appeal in late 2010, stating that the client had failed to establish prima facie eligibility for adjustment of status. This failure was directly attributed to the ineffective assistance of the lawyer to provide sufficient proof of eligibility for adjustment under former INA §245(i). The Board’s decision didn't reference the Respondent’s eligibility for cancellation of removal, asylum or withholding of removal.

In late 2010 a second lawyer was hired who filed a Petition for Review with the United States Court of Appeals for the Second Circuit challenging the order of removal entered by the Board.

We were retained in November 2010.  Our first move was to thoroughly review the case to determine what if any errors existed.  After determining that our client's previous lawyer and his firm had provided ineffective assistance that resulted in our client's deportation, we immediately filed a complaint with the Department Discipline Committee (DDC), Supreme Court, Appellate Division, First Judicial Department, located in New York, New York.

A complete copy of the Respondent’s complaint was provided to the former lawyer to give him a fair opportunity to respond. Ultimately, nothing happened with this complaint.

We then filed a motion to reopen with the Board of Immigration Appeals, together with applications for relief from removal. The Board granted our motion, remanded the case back to the Immigration Court, and the Court disposed of the case via administrative closure to allow for our client’s priority date to become current, which it likely will upon the release of next month’s Visa Bulletin.

Once the priority date becomes current we will file a motion to re-calendar the case, together with a motion to dismiss proceedings to permit our client to apply for his Green Card with the Department.

Audit reveals that E-Verify deemed up to 3.5 million LEGAL workers ineligible to work

Forbes just reported that the nationwide E-verify mandate has resulted in a faulty preliminary determination that up to 3.5 million LEGAL workers were ineligible to accept employment.  The mandate employs a "guilty-until-proven-innocent approach" for workers that are flagged by the system. 

Forbes reports that there were 770,000 erroneous final non-confirmations, which resulted in the employer being required to fire the employee.  The article also cites a 2009 report that reveals that half of all of the employees that were NOT flagged by E-verify were working without authorization, and "slipped through" the system.

Click here to read the original article.

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Wednesday, January 9, 2013

Ideal Candidate for Prosecutorial Discretion Facing Imminent Deportation

The following was taken from
Alexander was stopped for speeding and arrested for driving without a license. He has never been arrested before nor had any contact with immigration.

Alexander is 31 years old and came to the U.S. from El Salvador 12 years ago. He has a U.S. citizen daughter who is about to turn four years old.

He was a TPS (Temporary Protected Status) recipient due to the ongoing violence in his country, but was unable to pay his renewal fee and did not receive any assistance from a lawyer his family hired.

Alexander fears going back to El Salvador because of the gang violence and where violence has reached an all-time high in the 20 years after the end of a civil war. 
Please sign the petition calling for the immediate release of Alexander Antonio Vaquerano (A# 095087074) from Broward Transitional Center and urging the administration to immediately stop his deportation.

You may also call John Morton @ 202-732-3000 or 202-732-3100


Sample Script: “Hi, I’m calling to ask that ICE release Alexander Antonio Vaquerano (A# 095087074) from Broward Transitional Center. Alexander is an ideal candidate for Prosecutorial Discretion according to the Morton Memo. I ask for his immediate release so he may be returned to his young daughter."

Tuesday, January 8, 2013

Immigration Enforcement costs more than all other federal criminal law enforcement agencies combined

Former INS Commissioner Doris Meissner along with Donald M. Kerwin, Muzaffar Chishti, and Claire Bergeron have issued a report entitled "Immigration Enforcement in the United States: The Rise of a Formidable Machinery" that reveals that in 2012 the Obama administration spent nearly $18 billion dollars on immigration enforcement. 
Here is the summary from the report:
The US government spends more on federal immigration enforcement than on all other principal federal criminal law enforcement agencies combined, and has allocated nearly $187 billion for immigration enforcement since 1986. Deportations have reached record highs, border apprehensions 40-year lows, and more noncitizens than ever before are in immigration detention. The report traces the evolution of the immigration enforcement system, particularly in the post-9/11 era, in terms of budgets, personnel, enforcement actions, and technology – analyzing how individual programs and policies have resulted in a complex, interconnected, cross-agency system.
Some key findings:
  • More than 4 million non-citizens, primarily unauthorized immigrants, have been deported from the United States since 1990, with removals rising from 30,039 in FY 1990 to 391,953 in FY 2011.
  • Fewer than half of the non-citizens deported from the United States are removed pursuant to a formal hearing before an immigration judge, with the majority removed by the Department of Homeland Security (DHS) via its administrative authority.
  • The nearly 430,000 non-citizens detained in the immigration detention system in FY 2011 exceeded the number serving sentences in federal Bureau of Prisons facilities for all other federal crimes.
  • Immigration enforcement spending has totaled nearly $187 billion in the 26 years since IRCA ($219 billion in 2012 dollars).
  • Spending on CBP, ICE and DHS’s primary immigration enforcement technology initiative, the US Visitor and Immigrant Status Indicator Technology (US-VISIT) program, reached $17.9 billion in FY 2012. In comparison, total spending for all other federal criminal law enforcement agencies (the FBI, Drug Enforcement Administration, Secret Service, U.S. Marshals Service and Bureau of Alcohol, Tobacco, Firearms and Explosives) stood at $14.4 billion in FY 2012.
Happy New Year!