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Scenes from the Immigration Bar: “I hope this isn’t offensive…”

23 Jul

I hope this isn't offensive

California Drops a Day and Improves the Lives of Immigrants

22 Jul

jerrybrown

In a move that will help thousands of immigrants, California governor Jerry Brown signed SB 1310 into law today.  This law imposes a maximum sentence of 364 days in prison for those convicted of misdemeanors in California.  The law is set to take effect on January 1, 2015.  Under current California law, a person convicted of a misdemeanor may be sentenced up to one year, or 365 days, in prison.  The change of subtracting one day from the maximum sentence can help many people convicted of minor crimes avoid certain detention and removal from the U.S.

U.S. immigration law attaches consequences to many convictions based upon what the potential sentence is or what the sentence imposed is.  Immigration law treats a suspended sentence as the equivalent of a served sentence.  So, an individual convicted of petty larceny who gets a year in prison with a full year suspended is considered to be an aggravated felon because he has been convicted of a theft offense with a sentence of a year.   Even though the sentencing judge s1.reutersmedia.netdid not see fit to incarcerate, the Department of Homeland Security will jail and likely removal such an individual.  The new law goes a long way to preventing this inequitable result.  For example:

  • A noncitizen is deportable for a single conviction of a crime involving moral turpitude committed within five years of admission, if the offense has a potential sentence of one year or more. INA § 237(a)(2)(A), 8 USC § 1227(a)(2)(A).   As of the effective date, a single California misdemeanor conviction will not cause deportability under this ground, because it will carry a maximum possible sentence of 364 days.
  • Conviction of certain offenses becomes an aggravated felony only if a sentence of a year or more is imposed. For example, crimes defined as: crime of violence, theft offense, obstruction of justice, forgery, perjury, receipt of stolen property are only aggravated felonies if the sentence imposed is a year or more.  And, yes, misdemeanors can be aggravated felonies.  However, with the change in California law, misdemeanor versions of these categories of offenses can not be aggravated felonies.  Designation of an offense as an aggravated felony is often very prejudicial to a non-citizen as not only does it establish removability, it causes mandatory detention and serves as exclusion to nearly all forms of relief from removal.

There are myriad other ways that this simple change in the law will aid immigrants and their families.  As Congress remains stuck, inventive advocates are pursuing a variety of creative remedies in a variety of fora to slow down the deportation machine and improve lives for thousands of immigrants, their communities and their families.

 

FOBR Olsi Vrapi Tries to Represent a Child in Artesia, New Mexico

21 Jul

kob ice facility artessia

Olsi Vrapi is a Friend of Benach Ragland who practices in Albuquerque, New Mexico.  He recently found himself on the front line of the battle of how to handle the major influx of refugee children at the Southern Border.  In this chilling blogpost entitled “The Artesia Experience,” Olsi describes his experience visiting his client in the new facility in Artesia, New Mexico where the government is detaining Central American children and families.  His conclusion is brutally honest:

My impression of the Artesia makeshift detention center is that it is a due process travesty.  Is it really coincidence that a detention center was set up overnight in the middle of nowhere where the closest immigration lawyer or non-profit (which by the way can’t provide direct representation) is 3+ hours away?  In the few weeks it has been in operation, there have been no non-profits doing legal orientation programs, there are no non-profits that provide direct representation to those detained there and asylum interviews and hearings are happening so fast and are so short that even the most diligent detainees can’t get counsel fast enough to be advised before they are interviewed or are given any meaningful opportunity to tell their stories.  It appears the government is paying lip service to due process and just going through the statutory and regulatory requirements as fast as possible so they can give a semblance of compliance while the airplane to central America is warming its engines in nearby Roswell.  This is the same as a child being asked to clean his room, and he stuffs everything under the bed to “comply” with the command and ends up making it worse, except in our cases it’s not a matter of putting dirty laundry in the hamper, it’s women and children that can get killed if returned home.  As a father of three small children, I can’t help the kids’ analogies.

To make matters worse, Congress is using the crisis as an attempt to roll back well-established asylum protections.  Yesterday, Dree Collopy wrote about the horrendous legislation being proposed by Congressman Bob Goodlatte (R-VA) that would undermine critical protections for refugees and asylum-seekers.  As bad as the current system is, Congress can make it worse.  The Capital Area Immigrants Rights Coalition has a good summary of the legislation and provides a quick link to contact Congress.

Thanks to Olsi for representing families in Artesia and sharing their story with the world.

We will keep you informed about pro bono opportunities and donation opportunities as this crisis continues to unfold.

 

America’s Leaders Are Failing the Children

19 Jul

Our country is facing one of its greatest moral challenges in years: how will we treat the migrant children fleeing violence in Central America and seeking refuge within our borders? I know how I want us to treat them. Fairly, humanely, and within the parameters of the anti-trafficking law passed by bipartisan consensus in 2008 and signed by then-President George W. Bush.

UACs

Under the TVPRA of 2008, a child apprehended by Customs and Border Protection (CBP) undergoes initial processing and screening to see if he or she is an unaccompanied child (UAC) from a non-contiguous country, such as El Salvador, Honduras, or Guatemala. CBP must notify Immigration and Customs Enforcement and the Office of Refugee Resettlement (ORR) and transfer the child within 72 hours of apprehension to ORR custody. ORR places the child in the least restrictive setting available that is in the best interest of the child, and then completes a screening to determine whether: (1) the child has been a victim of trafficking; (2) there is credible evidence that the child is at risk if returned; and (3) the child has a possible claim to asylum. The child is not automatically permitted to stay in the United States. Rather, he or she is placed in removal proceedings before an immigration judge pursuant to section 240 of the Immigration and Nationality Act. While proceedings are pending, the child is released to the custody of a family member or to an ORR shelter or foster home. If the child is not eligible for any relief, he or she is ordered removed from the United States and is repatriated.

But this process, which allows for proper screening for trafficking and persecution, as well as fair and full consideration of their legal claims available under U.S. law, and which takes the best interest of the child into consideration, is not what others are advocating. Instead, we have an administration that is prejudging these children’s eligibility for relief and proposing streamlined procedures that would prejudice real claims for protection. Instead, we have Congress focusing its efforts on undermining the legal protections already in existence under U.S. law for these children and curtailing due process. Recently, the Texas-duo of Senator Cornyn (R-TX) and Representative Cuellar (D-TX) have introduced their HUMANE Act, and even more troubling, Representatives Goodlatte (R-VA) and Chaffetz (R-UT) have introduced the Asylum Reform and Border Protection Act, a bill that shows zero understanding of how difficult it is under our current laws to seek and be granted asylum in the United States.

The Asylum Reform and Border Protection Act would eviscerate our already stringent asylum process, strip away the protections that do exist under current law to offer these children a fair chance at due process, and shut out bona fide refugees, returning them to situations of persecution and torture in violation of our domestic and international legal obligations. This legislation would place these children’s fate in the hands of CBP officers, a law enforcement branch with a terrible track record of unaccountability and no transparency, abuse with impunity of those apprehended, and coercion of bona fide refugees to accept removal with no process in lieu of protection. This legislation would subject these children to streamlined procedures, resulting in the removal of children after cursory screenings that have already proven entirely inadequate in identifying genuine refugee claims and the return of these children to dangerous and deadly situations.

Specifically:

  • All children caught at the border would be subject to expedited removal, a process allowing removal without a hearing before an immigration judge if a child has no credible fear of persecution or torture, and which triggers an automatic five-year bar on legal reentry.
  • The screening standard of review for children’s asylum claims would be raised, requiring a child to convince an asylum officer that his or her claim was “more probable than not” in order to even appear before a judge.
  • Under the proposed new definition of “unaccompanied,” all children would be detained until their asylum applications were adjudicated.
  • The arbitrary one-year deadline requiring adults to file their asylum applications within one year of their entry to the United States would be extended to children.
  • Children apprehended at the border could be immediately removed without any asylum screening to a “safe third party country,” such as Mexico, without any agreement from that third party country, as required under current law.

Presenting these changes as “fair” and “humane” is simply offensive. These changes are anything but fair, anything but humane. Using children who have suffered horrific violence and abuse in their home countries, survived a dangerous journey of over 1,000 miles, and arrived in search of protection as political pawns to push partisan agendas is heartless and un-American. We need real leadership, not leaders who decide that treating migrant children from Central America humanely is too difficult, and not leaders who prefer politicking and political posturing to problem solving and standing up for our country’s values.

Our leaders should be working together to secure and implement the coordination and resources necessary to address this major regional humanitarian crisis and ensure due process for children who have braved a harrowing journey to seek safety and protection from violence, persecution, torture, and trafficking. I encourage all AILA members, stakeholders, and constituents to call their Senators and Representatives and implore them not to support the HUMANE Act or the Asylum Reform and Border Protection Act. If this legislation is passed, our country would be turning its back on these children and on our nation’s values.

[This blog post was originally written by Dree Collopy for the AILA Leadership Blog.]

FOBR Heidi Altman of the Capital Area Immigrants Rights Coalition Sets the Politicians Right on the Children

16 Jul

Kids

We have had lots to say about the children seeking refuge in the United States.  Yet, once again, our poor power to add or detract has become apparent in light of this brilliant piece by Friend of Benach Ragland (FOBR) Heidi Altman, Legal Director of the Capital Area Immigrant Rights Coalition.  The CAIR Coalition has been providing legal services to unaccompanied children in Virginia for several years and the fierce and lovely staff there knows all too well the motivations that drive children to leave their homes in Central America.  Heidi describes the experience of CAIR staff and what they have learned in years of getting to know these children:

CAIR Coalition staff meets regularly with the girls and boys who are today’s front page news, helping them to understand the complex detention and deportation system they face immediately upon their arrival. Our staff has heard hundreds of stories from these youth over the years that this crisis has been unfolding, and we see patterns. We know these boys and girls are fleeing brutal violence. Some have escaped ongoing sexual and physical domestic abuse, for which the police provide no recourse. Others were forced into child labor in dangerous conditions because of extreme poverty. Underlying is the threat of gang violence, so pervasive throughout Honduras, Guatemala, and El Salvador that there is no escape – not at school, not at home, not on the streets. And in the gang wars of Central America, children are the easiest targets for predators whose governments cannot or will not control them. Boys in early adolescence must choose between gang recruitment or brutal harm or death, and girls face kidnapping and sexual slavery at the hands of older men who consider them property.

Read the whole piece here: http://www.caircoalition.org/2014/07/16/taking-a-step-back-behind-headlines-children-need-protection/

Donate to the CAIR Coalition here: http://www.caircoalition.org/donate/

Apply for a job at CAIR defending child immigrants: http://www.caircoalition.org/who-we-are/jobs/

Full disclosure: I am on the Board of Directors of CAIR.  However, that should not dissuade you from supporting them.- ACB

Ten Things You Can Do To Assist Unaccompanied Children

10 Jul

1.  Educate yourself and others.  It is crucial to understand why so many unaccompanied children are making the treacherous journey to the US. Learn the facts first.

2.  Words mean nothing without actions. By all means keep talking and writing and educating others about legal issues, the sincerity of politicians and talk show hosts, and how bad things are and how they got this way. But take a minute to stop and do something concrete and constructive: take a case, visit your elected officials, send an email, open your wallet… fill a tractor trailer with teddy bears and soccer balls and drive it to a detention center. But do something other than just talking.

3.  But words matter.  Notwithstanding #2, find a better word than “surge” or “flood” to describe the numbers of children seeking refuge in the United States.  These kids are not a natural disaster or an attacking military enemy, and the population did not accumulate overnight – describing the situation in terms of warfare or disaster dehumanizes the individuals seeking aid, and encourages an inappropriate public response.  Anyone who has struggled with labeling and terminology knows that words matter – “surge” and “flood” are just as problematic as “illegal.”  The words “many thousands” are an appropriate alternative.

4.  Money talks…and then files suit.  Make a donation to the American Immigration Council, the ACLU, the Northwest Immigrant Rights Project, or Public Counsel, which – among other for-profit entities – brought a class action suit against the federal government on behalf of unaccompanied minors in an effort to ensure legal representation on their behalf.

5.  It’s an election year.  Contact your elected officials and let them know how you feel.  There are plenty of scripted letters – many allow you to just type in your ZIP code and hit send.  Better yet, contribute time to a campaign you support.

6. Remember the big picture.  Find an organization that works on cross-border initiatives and humanitarian relief – there are many, enough to suit sensibilities left, right, and neutral – and make a donation of time or money to that organization’s mission.

7.  Open your home. Become a foster parent for a child awaiting a court date.  It’s a big commitment, but may be the right choice for those who desire to have a very significant impact. Unaccompanied Refugee Minor foster care programs are available in 14 states and the District of Columbia.

8. Take a case (Texas version).

9. Take a case (the rest of the US).  Look around.  Unaccompanied minors are in your community too.

10. Feed the hungry, clothe the naked, shelter strangers. Find a local organization that works with refugee kids and families, and make a donation of food, clothing, or supplies.

 

You may not be able to abandon your work and your own families to provide goods or services at the US/Mexico border, but neither are you helpless to assist.  A few clicks is better than nothing.  Take a minute to consider the options above, and then do something.

 

Catholic University Law Students Develop Novel Legal Argument that is Gaining Traction in the Courts

8 Jul

This post was written by Adilene Nunez and Francisco Lopez, law students at the Catholic University of America Columbus School of Law.

 

Meeting our client and gaining his trust

In the fall of 2013, a man sat in an office at Catholic Charities awaiting our arrival. Neither of us had ever advocated on behalf of a client, so we were both nervous. Although our professors trained us in our clinic about how to interview a client and how to gather the facts and evidence to build a strong case, we were not sure what to expect from our client.

We walked into the office where our client, Joe[1], was waiting. We spoke with him about our Immigration Litigation Clinic, explained our roles, and began the process of getting to know our client. We listened to his story and asked him questions. He was concerned, however, with our abilities to represent him. He didn’t say it, but it was notable in his face. Joe was reserved and had few things to say at this initial meeting. He did not smile. When we asked him the reason for his visit to Catholic Charities, Joe responded that in his quest to become a lawful permanent resident, he had been defrauded by a notario. Immediately, we both understood why Joe was apprehensive, and we recognized that we would have to work to gain his trust.

stop notario fraud

            Over the next few months, we had extensive meetings with Joe, constantly called him with questions or requests for documents, and we made sure that he was always aware of what we were doing and what the next steps would be. Gathering facts and getting the client to open up and trust us was a difficult process because Joe fled his native Guatemala during the civil war and he had never told anyone such private, personal, and painful details. However, Joe fled his native country over thirty years ago, so at times it was difficult for Joe to remember details of the trip that placed him in deportation proceedings. It was our compassion and diligence that, in the end, led Joe to say to us, “Yo confió en el trabajo que están haciendo,I trust in the work you are doing, as he smiled at us.

Keeping the case on the docket

On its face, Joe’s case appeared to be a straight forward adjustment of status case. He was a Temporary Protected Status (“TPS”) beneficiary,[2] a model resident, and hard working individual. However, as we continued to research the issues in our case, like advance parole and admission, we realized that our biggest struggle was going to be convincing the immigration judge to keep the case on her docket. That was because, statutorily, someone who returns to the United States on a grant of parole, generally, cannot adjust status in front of an immigration judge.[3] We wanted to keep the case in front of the immigration judge because Joe’s case had been pending in immigration court for almost thirty years, he had been deceived and defrauded by a notario, and if the judge chose to send the case to USCIS for adjudication, we would not be able to see the case through until the end as the representatives Joe trusted.

We spent about five months conducting extensive research and we had several meetings with our supervisors to work on strategy and to craft creative legal arguments. There were times when we felt extremely overwhelmed from our research because it seemed that we were dealing with a novel issue. Joe’s facts were complicated and involved two eras of immigration law: present day and pre-IIRAIRA immigration law.

We needed to prove that Joe had already been admitted, so he would not be designated an arriving noncitizen.[4] Being classified as an arriving noncitizen in immigration court leaves limited options for individuals in removal proceedings.[5] Therefore, an arriving noncitizen classification should not be conceded too easily. However, Joe was a TPS beneficiary, a status that we hoped we could use to our advantage in proving Joe’s statutory eligibility for adjustment of status. We wanted to argue that when Joe was granted TPS he was inspected and admitted into the United States, as this would allow Joe to adjust his status in front of the immigration judge. Admittedly, arguing that a grant of TPS is an admission was going to be a challenge as we had more negative than favorable case precedent on the matter.[6] The case that was most favorable, Flores v. USCIS,[7] was not binding; it was merely persuasive authority arising outside of our circuit. The plain language of the Immigration and Nationality Act, the Code of Federal Regulations, and case precedent formed our argument in Joe’s favor.

Additionally, with the help of our professors, and after several individual moot hearings, we composed two briefs, one was the brief in support of Joe’s adjustment application, and the second was a supplemental brief where we argued that Joe’s grant of TPS was an inspection and admission. We planned the supplemental brief as a last resort and developed persuasive oral arguments for our individual hearing before the immigration judge.

briefs

Joe was very cooperative and maintained a positive attitude throughout this process, even after we explained the possibility that the immigration judge might not be able to exercise jurisdiction over his case. He said that he had faith in us and in the work that we had done, and that he could only hope for the best. Joe was different from the person we met in the fall. He smiled and felt comfortable communicating with us. He went from stoic to wanting to make us laugh. We were glad to see him happy.

Finding justice for Joe

When Joe’s individual hearing date arrived in late April, we were confident that we had done everything possible to prepare for Joe’s case. Our goal was to convince the immigration judge that both the regulation and case law supported our position that she could exercise jurisdiction over Joe’s case. Joe appeared confident about offering his testimony and communicating his story to the immigration judge. However, things did not go as planned. The immigration judge couldn’t move beyond the charging document. Since Joe’s case had been pending for about thirty years, his charging document was an Order to Show Cause, and since Joe had most recently returned to the country on a grant of advance parole the immigration judge believed that an Order to Show Cause wasn’t the proper charging document.

After a lengthy discussion with Joe, our supervisors, and DHS counsel, we all agreed that termination of the proceedings was the best option. So while we were unable to tell Joe’s story that day and give the many reasons why he deserves to be granted permanent residency, he now seeks adjustment of status before USCIS without the procedural encumbrances of deportation proceedings. Despite the unfinished nature of Joe’s case that day, Joe received closure because, by terminating deportation proceedings, we removed the impediment that precluded him from adjusting his status before USCIS for all of those years. It was not justice denied for Joe; it is merely justice delayed for Joe and his family.

Balt Imm Ct

Setting our own precedent

While we did not achieve the result we wanted that day in court, we were very proud of our work. As student attorneys, we were novices when it came to complex immigration issues, but we did not allow this to discourage us. The challenges we encountered with finding positive binding precedent did not change our position that our client deserved to become a lawful permanent resident. We persisted in finding an answer for our client.

We wrote a persuasive supplemental brief using various legal authorities. Despite the fact that the immigration judge could not accept jurisdiction, she complimented us on our work. We wanted others to benefit from our hard work, so we shared a redacted copy of Joe’s brief with the American Immigration Council, an organization that was litigating the issue of whether TPS was an inspection admission. A few weeks after Joe’s individual hearing in April, we saw that the American Immigration Council had developed arguments similar to our innovative arguments that TPS may constitute an inspection and admission. In Ramirez v. Dougherty,[8] Ramirez a TPS beneficiary from El Salvador, was seeking to adjust his status. Ramirez argued that he should be granted LPR status based on his TPS status. It was reassuring for us to see that the very same arguments we made in our brief were compelling enough to succeed in a different circuit.

circuits

It showed us that with the guidance of our brilliant professors, we were capable of dissecting the complicated immigration statute to develop strong, persuasive analysis. It also was a valuable lesson learned that when the law doesn’t seem to be on your client’s side, you can develop creative legal arguments to change it.

The toughest part was saying goodbye

Although Joe’s case was riddled with complications and complexities, the toughest part wasn’t getting creative with the regulations and case law. The toughest part of this entire process was saying goodbye to our client after the individual hearing. We got to know Joe not just as a client, but as a person, as someone for whom we were confident we could get justice. Joe got to know us and wished us success in our future careers as attorneys. We got to know his wife and his children. We learned about his dedication to his family. We spent time with Joe and his family at their home during our witness preparation sessions. We grew to care about Joe as both a client and as a friend. And best of all, Joe was able to trust an attorney through this process. He had been so terribly hurt by the notario that we were both pleasantly surprised when Joe finally opened up and put his trust in us. On our last phone call with Joe as his student attorneys, he thanked us for working with him. We told our client, and friend, that the honor was ours. This was truly one of the most challenging and rewarding experiences in our professional careers.

[1]Name and other identifying information have been changed.

[2] Temporary Protected Status (TPS) is a humanitarian benefit found under Section 244 of the Act. The Department of Homeland Security may designate a foreign country for TPS because conditions temporarily prevent the country’s nationals from returning safely or if a country cannot handle the return of its nationals. The Attorney General may designate a country for TPS if the country has an ongoing armed conflict, an environmental disaster, or if there are other extraordinary conditions preventing a noncitizen from returning to the country. See INA § 244(b)(1).

[3] A parolee is considered an arriving noncitizen under 8 C.F.R. § 1001.1(q). An arriving noncitizen is an applicant for admission who is coming or attempts to come to the United States at a port-of-entry.

[4] There are three classifications in removal proceedings: (1) an arriving noncitizen, (2) a noncitizen present in the United States who has not been admitted or paroled, or (3) a noncitizen who has previously been admitted, but is now deportable. See generally INA § 240(c).

[5] Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009) (immigration judge has no jurisdiction to adjudicate an adjustment of status application for an arriving noncitizen unless the noncitizen has been placed in removal proceedings after returning to the United States on advance parole to pursue a previous filed application); Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1988) (arriving noncitizens are generally ineligible for bond);

[6] Matter of Sosa Ventura, 25 I&N Dec. (BIA 2010) (TPS does not create an admission); see also Bracamontes v. Holder, 675 F.3d 380, 386 (4th Cir. 2012) (recognizing that adjustment of status is not an admission for purposes of a waiver of a criminal ground of inadmissibility under Section 212(h) of the Act); but see Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013) (arguing plain language in the context of section 244 of the Act and the broader context of the statute as a whole show Congressional intent that TPS beneficiaries can adjust under section 245 of the Act).

[7] 718 F.3d 548 (6th Cir. 2013).

[8] C13-1236Z, 2014 WL 2439819 (W.D. Wash. May 30, 2014)

 

 

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