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Will the Courts Invalidate Deferred Action?

24 Apr

KeepCalmStudio.com-[Crown]-Keep-Calm-And-Apply-For-Daca

There is much hue and cry over a federal district court judge possibly blocking the Deferred Action for Childhood Arrivals (DACA) program.

In a lawsuit filed by Kansas Secretary of State, Kris Kobach, on behalf of ICE Union head, Christopher Crane, challenging the DACA program, Judge Reed O’Connor (Northern District of Texas) has indicated that he is likely to find that the program violates federal law.

Previously, Judge O’ Connor had ruled that agents with the Immigration and Customs Enforcement had standing to bring suit as the prosecutorial discretion directive urged them to violate federal law, and the agents believed that by not following the directive, they would be subject to discipline and other adverse employment consequences.

Beneficiaries and recent applicants for the deferred action program should rest assured that even if the lawsuit is successful, it should not invalidate or affect their ability to legally work and reside in the country.

First, the judge has not yet issued a preliminary injunction against DACA. In fact, the case presents complicated issues of whether the federal judge even has jurisdiction to hear the case as it appears to be an employment dispute. Judge O’Connor has therefore asked the parties–the Department of Justice and lawyers for the ICE Union–to brief whether the  Collective Bargaining Agreement and the CSRA bars the federal district court from hearing the case.

Second, even if Judge O’ Connor grants a preliminary injunction, there are additional questions as to whether the injunction only affects applications filed in the Northern District of Texas. Regardless of the answer, the Department of Justice is likely to file an appeal to the Fifth Circuit, and seek a stay of the injunction, such that the operation of the deferred action program continues smoothly.

Third, upon appeal, the Fifth Circuit is likely to uphold deferred action. Prosecutorial discretion has a long history in U.S. immigration law and agency practice, so Judge O’ Connor is simply wrong in stating that immigration laws mandate the detention of non-citizens present in the U.S. without legal status. In fact, Judge O’ Connor erroneously finds that DHS has prosecutorial discretion in the latter stages through the cancelling of removal proceedings but not in the initial stages, which hardly makes any sense.

In the meantime, the DACA program continues to be available to eligible undocumented youth. Prosecutorial discretion is also unlikely to go away and a federal judge in Northern Texas does not have the ability to undo decades of U.S. immigration law.

We will continue to document the efforts of bureaucrats within ICE to stymie intelligent immigration enforcement through insubordination, lawsuits, leaks, and more generic tactics like refusal to complete trainings and sick-outs.

The lesson of the day is hence, keep calm and keep applying for DACA.

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Summary of the Newly-Introduced Senate Immigration Bill

17 Apr

Here is a short summary of the Senate immigration bill released to the general public late last night. Keep in mind that this is just proposed legislation, and no one can or should apply for anything yet. We’ve a long way to go before this legislation becomes reality.

Title I Border Security

This title provides for phased in border security measures that will achieve and maintain effective control in high risk border sectors of the Southern border.

  • Border Plan: Stage one requires the Secretary of DHS to develop a Comprehensive Border Security Strategy and Southern Border Fencing Strategy that must be submitted to Congress before the registration period for Registered Provisional Immigrants (RPI) begins. These strategies must be designed to achieve an ability to achieve persistent surveillance of the border using both technology and human resources and to achieve a 90% effectiveness rate for apprehensions and returns in high risk border sectors. This bill appropriates $3 billion for this plan. The Secretary’s plan must be operational before any RPIs may apply for adjustment of status.
  • Triggers: In addition, the Secretary must develop and implement a fencing plan (up to $1.5 billion); Everify must be mandatory and operational; and biographic entry-exit at air and seaports must be implemented before RPIs may adjust to permanent residence.
  • Southwest Governors Commission: After five years, if the specified goals of 90% effectiveness and persistent surveillance have not been met, a Southern Border Security Commission will be established to make further recommendations for achieving the targets. The Commission will recommend up to $2 billion in additional spending that would be available achieve the border security goals if they have not yet been met.
  • Additional Resources: To further ensure completion of these targets, Border Patrol personnel and resources will be increased, additional funding for border prosecutions in the Tucson sector are funded, and the authority of the National Guard to assist in border security operations is codified.
  • Civil Rights: To protect the integrity of the system, additional resources and training will be devoted to implementing a DHS-wide use of force policy and associated training in appropriate use of force, individual rights, and sensitivity to cultural and environmental impact of federal operations on border communities. A Border Oversight Taskforce is established to take testimony and conduct hearings in order to review and recommend changes to existing border policies. The current duties of the USCIS Ombudsman’s office will be expanded to encompass all DHS immigration functions.

Title II Legalization (Registered Provisional Immigrant program) and Legal Immigration

  • This title provides a path to citizenship for the 11.5 million undocumented workers in the United States. This title establishes a new framework for future legal immigration that maximizes the number of visas made available annually to persons in family, employment, and a new merits based visa category. In addition to the current family and employment based systems, two additional “merit-based systems” would be created.

    SubPart A. Creation of Registered Provisional Immigrant program

  • Registration Requirements: Immigrants who entered the United States before December 31, 2011 and have been physically present in the U.S. since that time will be eligible to apply for Registered Provisional Immigrant (RPI) status provided they pass background checks, have not been convicted of serious criminal activity, pay any assessed tax liability, pay appropriate fees and a $500 fine.
  • Initial registration will be valid for six years, provides for work and travel authorization, and includes spouses and children.
  • Renewal: RPIs applying for renewal will be subject to new background check, evidence of having been regularly employed while meeting public charge requirements or having income and resources at 125% of the poverty level evidence of learning English and payment of fees and a $500 fine.
  • Adjustment of status to Permanent Residency: At the end of ten years, RPIs may apply for adjustment of status, provided that they can continue to demonstrate eligibility per the renewal standards (with a heightened income requirement) with payment of an additional $1000 fine. Individuals present in the U.S. for 10 years in lawful status can adjust status. RPIs may not adjust status until the family and employment backlogs are cleared and the border security triggers are met. RPIs may apply for naturalization after a three year wait, making the total path to citizenship a 13 year wait.
  • Timeline: There is an initial 12 month period for regulations. Then there is a one year initial application period which can be extended for up to one year at the discretion of the Secretary.
  • DREAM Act: Individuals who entered the United States before the age of 16 and who have completed high school in the U.S. may register for RPI status through the DREAM Act. There is no age cap for the program. Five years after registration, DREAM RPIs may apply for adjustment of status; their time in RPI status will count towards eligibility for naturalization, allowing them to become citizens immediately after receiving their green card.
  • Agricultural Program: Undocumented farm workers who have made a substantial prior commitment to agricultural work in the United States would be eligible for an Agricultural Card. Agricultural workers who fulfill future Agricultural Card work requirements in U.S. agriculture, show that they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine are eligible to adjust to legal permanent resident status.
  • Grant Programs: Creates an Office of New Americans and additional integration initiatives. Provides funding for immigration legal services.SubPart B. Legal Immigration Reforms
  • A new “Track Two” merit-based system is created to adjust the status of individuals lawfully present in the U.S. for over ten years with work authorization and to eliminate all existing legal immigration backlogs within the next 8 years. The Secretary is permitted to clear the backlog of family and employment based petitions that have been pending for more than 5 years.
  • Lawful Permanent Residents’ spouses and children become “immediate relatives” and are uncapped: Current family based categories will be revised to permit the spouses and children of lawful permanent residents to immigrate immediately.
  • Additional changes to the current family system: The current sibling category will be eliminated 18 months after enactment, but the backlog reduction program will include processing of all sibling petitions submitted before expiration of the program and US citizens can petition for the sibling for up to 18 months after enactment. The third family preference category (adult married children of US citizens) has an age cap of 31.
  • New Family “V” Visa: Creates a new nonimmigrant visa for families with approved petitions to work and live in the U.S. while waiting for their green card. Allows other family members including siblings to visit the U.S. for up to 60 days per year
  • International adoption harmonization allows adoption of foreign-born children till age of 18, as opposed tp the current age of 16.
  • Equal treatment for all stepchildren, as in the age until which a step-child is considered a child is amended from 18 to 21.
  • Clarification of 203(h)(3) of the Child Status Protection Act – Children who age out after complex mathematical formula still retain the original priority date of any family-visa, employment-visa and diversity visa petition filed on behalf of their parents, and can apply the original priority date to a subsequent petition filed on their behalf by a parent.
  • Employment-Based Reforms: Spouses and children of employment based visa applicants, STEM graduates with doctoral degrees, certain other experts and professionals, and certain foreign doctors are exempt from the employment visa cap. The cap on low-skilled workers is raised.
  • New Merit-Based System: Creates a “Track One” merit based visa which will initially allocate 120,000 visas annually based on a points system. Equally weighted points will be awarded for factors such as education, employment, and length of residence in the US, with the possibility of increasing the allotment by 5% (capped at 250,000) in any year where unemployment is under 8.5%. A portion of these merit visas will be set aside for high skilled and low skilled workers.
  • Additional Backlog Reduction and Improvements: Additional provisions to streamline processing and reduce backlogs including elimination of employment based country caps, increase in family based country limits, and recapture of unused visa numbers are authorized. Permanently authorizes popular programs for foreign doctor (Conrad-30), religious worker recruitment; and EB-5 investors. Includes numerous other technical fixes to improve and streamline current visa programs, many of which were included in the Menendez/Honda Reuniting Families Act (additional protections for stepchildren, widows, and other family members.)
  • Judicial Discretion: Expands availability of waivers for unlawful presence, false claims to U.S. citizenship, misrepresentation and expands authority of immigration judges and DHS to waive removal on humanitarian grounds, lowering the bar from extreme hardship to hardship for parents, spouses and children of U.S. citizens and lawful permanent residents.

Title Three: Interior Enforcement

  • This title mandates E-Verify, provides additional worker protections, reforms the immigration court system and provides additional measures related to interior enforcement.
  • Five year phase-in of mandatory E-Verify: Establishes a phased-in expansion o current electronic employment verification system (E-verify) to cover all employers within a four year period, beginning with federal contractors and critical infrastructure employers. Requires identity verification through enhanced fraud-proof work authorization and green cards. Specifically prohibits creation of a national ID card.
  • Anti-fraud measures: Expands ability to protect against identity theft of Social Security numbers by allowing employees to block their social security number and gives employees access to personal E-verify history. It provides for photo identification mechanism as component of E-verify.
  • Due Process: Expands due process protections for employees to ensure that legal workers are not prevented from working due to errors in the system or because of employer negligence or misconduct. Provides for back-pay if an employee loses work unfairly due to system or employer error. Provides a stay of termination of employment to give the worker time to correct any errors in the system.
  • Worker Protections: Subparts B and C of this Title provide other miscellaneous protections for employers and employees, including pre-emption of state and local work authorization laws, expansion of U visas in employer abuse situations (POWER ACT), creation of mandatory exit verification system, program funding. The bill also cracks down on labor recruitment abuse.
  • Refugee/Asylum Issues: Streamlines processing in refugee and asylum cases by eliminating one year asylum filing deadline, allowing persons who were denied asylum as a result of the one-year filing bar to file a motion to reopen the case within 2 years of the enactment of the bill; eliminating family reunification barriers for asylees and refugees, authorizing streamlined processing of certain high risk refugee groups, authorizing asylum officers to grant asylum for eligible applicants during credible fear interviews, and permits qualified stateless individuals to apply for lawful permanent resident status.
  • Immigration Court Improvements: Authorizes increase in immigration court personnel, additional resources, and more training for judges and other staff, access to counsel for vulnerable populations to improve efficiency of courts, permanently and codifies Board of Immigration Appeals and legal orientation programs.
  • Interior Enforcement: Tightens certain grounds of inadmissibility relating to document and passport fraud, driving while intoxicated following two convictions, conviction for gang related activities, convictions related to domestic violence, child abuse, stalking, violation of protection orders and failing to register as a sex offender. Prohibits and or increases penalties for abusive smuggling, hindering or obstructing immigration investigations, illegal entry and re-entry.
  • Detention Reform: Increases oversight of detention facilities, expands discretion of immigration judges to conduct bond hearings, and requires establishment of alternative to detention programs in consultation with community groups.

Title IV Reforms to Non Immigrant Visa Programs

This Title reforms current non-immigrant visa programs and creates a new W worker visa that melds greater employer flexibility with more worker protections and ability to self-petition for permanent residence.

  • H-1B: Reforms to the H-1B high skilled visa program include expanding current cap from 65,000 to 110,000 with an option to ultimately increase the cap to 180,000 visas annually based on a High Skilled jobs Demand Index. Increases requirements for web-site advertising for U.S. workers prior to hiring foreign workers.
  • H-4: Allows dependents of H-1B workers work authorization if country of origin reciprocates with similar provisions for U.S. citizen dependents living abroad
  • Deterring Abuse: Establishes significant new authorities and penalties to prevent, detect, and deter fraud and abuse of the H-1B and L-1 visa systems by fraudulent employers. Increases wages for foreign workers to help protect Americans.
  • H-2B: Makes permanent the H-2B returning worker provision.
  • New Worker Program (W Visa): Establishes a new nonimmigrant W classification for lesser-skilled foreign workers performing services or labor for a registered employer in a registered position. Spouses and minor children are included and will receive work authorization. Three year visa with three year renewal periods. Initially, 20,000 W visas will be made available, rising to 75,000 visas in year four. After that time, a newly established Bureau of Immigration and Labor Market Research will be authorized to calculate and recommend appropriate W visa levels. Other safety valves will be built into the cap to ensure occupations or employers with genuine shortages can hire needed workers. W visa holders may switch from one registered employer or position to another without penalty and upon meeting other eligibility criteria apply for the merits based lawful permanent residence.
  • Agriculture: A new agricultural guest worker visa program would be established to ensure an adequate agricultural workforce. A portable, at-will employment based visa (W-3 visa) and a contract-based visa (W-2 visa) would replace the current H-2A program. The H-2A program would sunset after the new guest worker visa program is operational.

Here is the complete Senate bill and a longer outline of the bill.

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NIYA Organizers Infiltrate Michigan ICE to Reveal Racial Profiling and Due Process Abuses

15 Apr

On April 4th, 2013, an organizer with The National Immigrant Youth Alliance (NIYA), Claudia Munoz, infiltrated Immigration and Customs Enforcement (ICE) in Michigan. Claudia allowed herself to be detained by accidentally driving in to Canada. Claudia is still detained at the Calhoun County Jail in Battle Creek, Michigan.

In a video message that she shot before her arrest and detention, Claudio states that she is detained at a Michigan detention center because she allowed herself to be caught by Customs and Border Protection in an effort to expose the abuses that happen inside immigrant detention centers.  Since Claudia has been detained inside the Calhoun County Jail for the past 10 days, she has witnesses numerous due process violations and abuses conducted by ICE officials:

  • Due process violations: CBP agents intentionally misinterpreted detainees in order to incriminate them, which is a violation of their due process.
  • Forcing detainees to agree to voluntary departure: ICE Liaison, Officer J. Jolin, was seen forcing detainees to agree to voluntary departure. Office Jolin told a detainee that “I can bring in 3 deputies and make you sign it!” in order to compel signature. Additionally, a detainee was locked away in a room ‘until he changed his mind.’ Office Jolin also threatened one man with “20-years in prison if you don’t sign.” These reports corroborate past allegations that ICE officials have forced individuals to relinquish their legal rights.
  • Medical abuses. A detainee, Maria de la Luz, developed several health problems in the course of her detention. She has been coughing blood. Maria has also developed ovarian cysts, which are quite painful. Despite requesting medical help four times, she was merely given over-the-counter Advil. ICE agents have told her “why spend money on you when we plan on deporting you?” This is contrary to the Performance-Based National Detention Standards allegedly adopted by ICE in 2011.
  • Inaccessibility to filing complaints: Most of the detainees cannot complaint to officials as all grievance forms are in English. Additionally,  these grievance forms are not readily available and must be requested from an ICE agent.
  • Detention of low-priority detainees. Gustavo Corona was detained on April 1st, despite being eligible for the Deferred Action for Childhood Arrivals (DACA) program. His detention was also contrary to prosecutorial discretion guidelines, as he was pulled over for driving without a license, and detained despite having no criminal record and substantial family ties to the U.S. After protests from immigrant rights activists, Gustavo was finally released on April 11.

In addition to these abuses, Claudio also discovered out-of-date listings for pro-bono attorneys and non-profits. Other detainees have also allegedly complained of similar issues.

The National Immigrant Youth Alliance alleges that these cases are not an anomaly but that the Michigan ICE office has a track-record of abusing its power and not following national directives. In April 2011 and again in October 2012, Director Adducci ordered her agents to detain parents outside a local elementary school. In January 2012, Director Adducci refused to grant discretion in the case of Yanelli Hernandez, an undocumented youth from Ohio who had attempted suicide twice while in detention. In July of 2010, Officer J. Jolin, forced detainee, Ivan Nikolav to watch as his mother was stripped searched.

According to TRAC data, since Adducci became Field Director, Michigan ICE has issued over 4,200 immigration detainers; nearly 80% have been against immigrants with no prior contact with law enforcement.

The NIYA alleges that nearly all of the detainees at the Calhoun Facility are low-priority, and a result of racial-profiling against Latinos. Most are detained for driving without a license, as collateral walking to pick their children up from school, or merely as passengers in a car. Out of nearly 150 detainees at Calhoun, NIYA organizers contend that over 70% are the parents of U.S. citizen children, and eligible for prosecutorial discretion.

This is not the first time that NIYA has infiltrated a detention facility. Last summer, NIYA organizers Marco Saavedra and Viridiana Martinez, infiltrated Broward Transitional Center in Florida, where they found hundreds of cases of low-priority detainees. They were eventually released but not before they drew Congressional attention to the polices and practices at Broward, and started a hunger-strike inside the facility, which led to the release of many more detainees.

Claudia Munoz is likely to be identified and released from detention soon. However, while the Senate gears up for comprehensive immigration reform, it should seriously reconsider the practice of immigration detention and mount a full investigation into the policies and practices of detention centers across the country.

H-1B Cap Reached for Fiscal Year 2014

5 Apr

As predicted by many in the profession, the H-1B filing cap was reached today.

On one hand, this is good news because reaching the H-1B cap this early into the season is an indicator that the economy is rebounding. This has been the shortest application period to date in the past five years.

However, this means that all applications filed through today will be subject to a lottery– a computer generated random selection process for all applications that were received through today, as in April 5, 2013. No H-1B applications will be accepted past April 5, 2013.

The H-1B cap is a major issue for employers looking to hire foreign workers. Due to the H-1 program’s popularity, the annual allotment of 65,000 slots is routinely filled just weeks (if not days) after USCIS begins accepting applications—leaving employers, and especially technology start-ups, unable to tap much of the pool of foreign labor on which they rely.

The I-Squared Act, a bipartisan bill that is pending in the Senate and would likely be attached to broader comprehensive immigration legislation, would create a floating cap for the H-1B as depicted by the Brookings Institute chart below:

Fluctuating the cap based on economic need would be a welcome change from the current fixed cap of 65,000 for regular H-1Bs, and 20,000 additional for H-1Bs filed on behalf of advanced degree holders. We can only hope that this legislation sees the light of day.

Premium processing for cap-subject H-1B petitions will begin on April 15, 2013. The USCIS has not yet announced the date of the lottery. Stay tuned for more information.

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Moving Beyond the “Illegal Immigrant” – The Associated Press Drops the Pejorative Term. Who’s Next?

3 Apr
Image representing Associated Press as depicte...

Image via CrunchBase

Yesterday, the Associated Press announced that it would stop using the phrase “illegal immigrant” to describe an individual present in the US illegally, or who entered the country without proper authorization. This is a great victory for the long history of organizing against the word “illegal” beginning with the transnational No Human Being Is Illegal campaign and more recently, the Drop the I-word campaign, in addition to the many undocumented immigrants across the country who have insisted on defining ourselves beyond the pejorative brush of “illegal” or “illegal immigrant.”

The AP dropping the I-word also has wide ramifications not just for the media, but also for the way we view and treat people. ”Illegal” or “illegal immigrant” is a dehumanizing pejorative imbued with violence and oppression. I have written at length about how “illegal immigration” and hence, “illegal immigrant” came to be part of our lexicon through the construction of true and false immigration. There is no coincidence that the legal history of deportations coincides with the use of more virulent language to separate desirable immigrants from undesirable immigrants, and castigate the latter as undeserving of any civic or political rights.

By painting certain people with the broad brush of illegality, the state apparatus makes it easier to deny rights to persons without papers, and conduct large-scale violent

Members of the South Central Farm attending th...

Members of the South Central Farm attending the immigrant rights march for amnesty in downtown Los Angeles California on May Day, 2006. The banner, in Spanish, reads “No human being is illegal”. (Photo credit: Wikipedia)

actions against them, actions that now take the form of workplace raids, detention and deportations. Changing such language then, does help to make it more difficult to castigate people as undesirable and unwanted.

However, this is not just about political correctness. It is also about accuracy. Beyond the sheer dehumanization and violence, the use of the phrase” illegal immigrant” has always been plain lazy journalism. It presupposes that someone is in violation of immigration law without affording the person due process, which is quite contrary to our laws. In my widely-read New America Media article, It’s More Complicated Than Legal vs. Illegal, written last summer,  I mention more accurate, legal and less dehumanizing ways to categorize people,:

Overstay: Someone who overstays her admission to the country. An overstay may or may not accrue unlawful presence, and may simply be out of status.

Entry Without Inspection (EWI): Someone who enters the country without inspection or proper admission. An EWI may still be eligible for admission without leaving the country.

Immigrant: A green-card holder whether through admission or adjustment of status.

Non-immigrant: Anyone who is in the U.S. temporarily with legal status but is not a green-card holder or U.S. citizen.

Asylee: Anyone granted asylum in the United States due to past persecution or well-founded fear of persecution in their home country.

These are merely suggestions. As always, I’d err on the side of people defining themselves. I also think it is quite possible to write a story about an immigrant or immigration reform without necessarily having to categorize the actions of people who may be here without proper authorization. Maybe now, news organizations beyond the Associated Press can focus on covering new stories and opinion pieces about the lives of actual people as opposed to painting us all with the brush of a lazy, inaccurate and dehumanizing pejorative.

There is something to be said about the continued raids, detention and deportation of undocumented immigrants, despite the change of language. While it is too soon to declare victory in terms of the treatment of irregular or unauthorized immigration, and the AP will continue using the phrase “illegal immigration” as a way to describe immigration outside the law, this is a step in the right direction.

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Congress Reauthorizes VAWA But Falls Short On Immigration Provisions

6 Mar

After a long wait, Congress has reauthorized the Violence Against Women Act (VAWA), with several new protections that are of relevance to immigrant clients and practitioners. President Obama is expected to sign the bill this afternoon.

VAWA evil

VAWA evil (Photo credit: Wikipedia)

But first, what is VAWA? In 1994, Congress enacted the Violence Against Women Act (VAWA I), the first comprehensive federal legislation to address specifically the issue of violence against women. VAWA I improved greatly the availability of overall support and resources for domestic violence survivors through the creation of new criminal enforcement authority and enhanced penalties to combat domestic violence in federal courts, and provided grants to fund programs to fight violence against women.

Prior to VAWA I, immigrant spouses and children could only apply for legal residency if their United States citizen or legal permanent resident spouses filed legal residency applications on their behalf. VAWA I changed that by providing a way for battered immigrant spouses and children to gain legal immigration status by self-petitioning, so that they could escape abusive marriages with U.S. citizen or lawful permanent resident spouses. Additionally, VAWA I also provided a special form of suspension of deportation for battered spouses or children to apply to become lawful permanent residents if they could demonstrate extreme hardship to themselves or to immediate relatives. However, VAWA I proved to be ineffective and inaccessible for many due to subsequent changes and additions to immigration law, which unintentionally eliminated or rendered inaccessible many of the VAWA I protections for battered immigrant spouses and their children.

Despite its noble intentions, VAWA I fell short on several fronts. The battered immigrant had the burden to proof that the batterer was a U.S. citizen or lawful permanent resident, which was often difficult to establish. Additionally, under VAWA I, if a batterer lost U.S. citizenship or lawful permanent resident status prior to approval of the self-petition, the former INS could automatically deny the battered immigrant’s petition. Moreover, VAWA I prevented victims from divorcing their batterers prior to filing the petition. As such, battered immigrants with pending divorces could not request fee waivers for their VAWA petitions without the risk that such waiver requests would potentially delay the filing of the self-petitions until after their divorces had been finalized. Battered immigrants in removal proceedings had to prove “extreme hardship” to prevail, which often served as a bar to relief. VAWA I also had a “good moral character” requirement that served as a bar to abused immigrants who had been convicted of crimes against their perpetuators due to self-defense. In order to address these shortcomings, in 2000, Congress enacted the Violence Against Women Act of 2000 (VAWA II) to re-authorize grants and programs established under the original VAWA.

Title V of VAWA II, or the “Battered Immigrant Women Protection Act of 2000” (BIWPA), was enacted to improve access to immigration protections of VAWA for battered immigrant women, improve access to cancellation of removal and suspension of deportation, and create new VAWA II provisions, such as the “U” nonimmigrant visa, which allowed people without immigrant status to gain a visa for reporting serious crimes perpetrated against them. Under VAWA II, a battered immigrant retained the right to self-petition if the batterer was a United States citizen who died within the past two years or the batterer lost or renounced immigrant status within the past two years due to an incident “related” to the domestic violence. VAWA II also allowed the battered immigrant to self-petition even if the marriage had already been terminated if the battered immigrant could prove that the divorce was “connected” to battering or extreme cruelty by the United States citizen spouse or legal permanent resident. In addition, VAWA II permitted battered immigrant self-petitioners to remarry during the self-petition process, and allowed divorced victims to file for naturalization. It also created a good-faith exception for battered immigrants who married U.S. citizen or lawful permanent resident bigamists.

For battered immigrants in removal proceedings, VAWA II also removed the “extreme hardship” requirement for cancellation of removal. It also allowed a battered immigrant who had committed a crime to maintain “good moral character” if s/he could prove that the crime was connected to the abuse s/he had suffered and s/he not been the prime perpetrator of violence in the relationship.

Perhaps, most importantly, VAWA II created the U nonimmigrant visa to prosecute serious crimes, not limited to domestic violence, against abused non-citizens who are not in lawful immigration status as long as they cooperated with law enforcement. Such crimes include rape, torture, trafficking, incest, domestic violence, sexual assault, prostitution, kidnapping, or murder, among many others. This allowed non-citizen victims of violence not covered VAWA to gain lawful status and thus, filled an essential gap in VAWA. However, a central criticism of the U-Visa is that it is capped at 10,000 per year and easily reached within the first few months of the fiscal year.

As a response to the criticism of the U-Visa cap, in May 2012, the Senate passed a re-authorization of the Violence Against Women Act, where it raised the cap on U visas to 15,000. But the House of Representatives passed a separate bill, that omitted the cap increase, eliminated the ability of U-visa holders to apply for lawful permanent residency and presented a slew of new problems for victims. Congress never got around to reconciling the two different versions of VAWA, and hence it failed to issue a final bill to the President for reauthorization of VAWA.

In response to mounting public pressure, Congress reauthorized the VAWA last week. The relevant immigration provisions that made it into the final bill include:

  • Adding “stalking” to the list of crimes covered by the U visa.
  • “Widow penalty” extension – Allowing the surviving minor children of a VAWA self-petitioner to retain the ability to qualify for lawful permanent residence in the event that the qualifying relative passes away after the filing of the application.
  • Child Status Protection - When victims of a qualifying crime, who cooperate in the investigation or prosecution of that crime, file for a U visa that includes their children under 21 years old, the children will not age out during the process. The child will be able to receive a visa alongside the parent even if the child turns 21 before final adjudication.
  • Strengthening the International Marriage Broker Regulation Act (IMBRA) to provide vital disclosures regarding any violent criminal histories of the U.S. citizen spouse so that the foreign fiancé(e)s of U.S. citizens information they need to protect themselves from entering abusive marriages.
  • Public Charge Bar - Clarifying that a VAWA self-petitioner, a U visa petitioner or holder, or an immigrant who was battered and is deemed a “qualified alien” under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 is not subject to the public charge bar.
  • Clarifying the eligibility of crime and trafficking victims who are T or U Visa holders in the Commonwealth of the Northern Mariana Islands to adjust status after three years continuous presence

Unfortunately, the 2013 version of VAWA reauthorization passed by Congress did not permit a modest increase of U-visa numbers. Additionally, implementation difficulties remain with VAWA. The battered self-petitioner still needs to provide proof that the abuser is or had been either a United States citizen or lawful permanent resident and that the abuser’s loss of citizenship status was somehow due to an incident “related” to the domestic violence. The battered immigrant who has been divorced also finds it difficult to prove that the divorce was connected to the violence or cruelty through the marriage. In many instances, a battered spouse may not possess documentation necessary to prove that the marriage was entered into with good faith. VAWA self-petitioners are also hampered by the stringent good moral character requirements. Additional changes to VAWA provisions are also necessary to assist battered immigrants and non-immigrants with obtaining the legal and economic help necessary to combat.

Despite its drawbacks, VAWA remains a vital tool for victims of violence to escape abusive relationships. Since it was enacted, more than 98,000 people have filed petitions under VAWA, and 75% of these petitions have been approved. It is our hope that Congress will act to address any and all shortcomings remaining with the VAWA and the U-Visa as it takes up comprehensive immigration reform.

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Live Video Chat of Andres Benach on the Unlawful Presence Provisional Waiver

11 Jan



Streaming by Ustream

In this video, Andres answers your questions on the unlawful presence waiver process.

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10 Facts About the New Provisional Waiver Process

2 Jan

Today, the USCIS  finally published the much-awaited rule on the unlawful presence waiver (I-601A), which will take effect on March 4, 2013.  We previewed this development in this blog in October 2012.

This is an enormous development.  The so-called stateside waiver process will allow thousands of immigrants to take the steps to regularize their immigration status.  The new waiver provisions do nothing to change the substantive requirement that an immigrant demonstrate that the denial of her permanent residence would cause extreme hardship to her U.S. citizen spouse or parent, but do eliminate the risk of long-term separation that has always been required to even seek the waiver.  By relocating decision-making of waivers to the United States and allowing immigrants to seek them in advance of their departure for their home country, this new regulation should reduce the numbers of immigrants without status in a humane way that honors family relationships.

The new waiver process will allow the immediate relatives of U.S. citizens to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. Under the old rule, applicants who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant visa and unlawful presence waiver abroad. The current process involved a long wait and a lot of uncertainty as the applicant had to prove extreme hardship to U.S. citizen parent or spouse in order to win a waiver for unlawful presence to get back to the United States. The new process is intended to reduce the reluctance of non-citizens who may wish to obtain a green card through their marriage to U.S. citizens or relationship to a U.S. citizen parent, because the applicant would no longer be deterred by lengthy separation and uncertainty of success imposed by the process.

Under the new rule, an applicant must meet all of these requirements to qualify for the waiver:

  • Applicant must be present in the U.S. at the time they file for the waiver;
  • Applicant must prove hardship to U.S. citizen spouse or parent;
  • Applicant must be barred from readmission based only on unlawful presence in the U.S. and have no other grounds of inadmissibility;
  • Applicant must be a beneficiary of an approved immediate relative petition;
  • Applicant must have a case pending with the Department of State based on the approved immediate relative petition and paid the immigrant visa processing fee;
  • Applicant must depart from the United States to obtain the immediate relative immigrant visa; and
  • Applicant must be able to prove extreme hardship to her or his U.S. citizen spouse or parent.

After reading through the 148-page rule, here are a few things you should know about the new process:

  • The provisional waiver is limited to immediate relatives of U.S. citizens who can prove extreme hardship to the U.S. citizen:

Applicants for the waiver must be able to prove extreme hardship to a U.S. citizen spouse of parent. The extreme hardship to a U.S. citizen spouse or parent is a discretionary determination based on a totality of circumstances.

Many commentators argued for the provisional unlawful presence waiver to apply to certain additional family and employment based visa preferences. After all, the I-601 waiver is not limited to immediate relatives of U.S. citizens. However, DHS justifies limiting the provisional waiver process to immediate relatives of U.S. citizens because immigrant visas are always available for this category as opposed to preference categories. The DHS also hopes that the new rule would also encourage long-term LPRs to naturalize, so that their spouses, parents and children under the age of 21 can become immediate relatives and also benefit from the process.

  • The waiver is limited to waiver for unlawful presence, and not other grounds of inadmissibility:

Non-citizens who have other grounds of inadmissibility besides unlawful presence are not eligible for this new process but may nonetheless be eligible for the waiver and ultimately, an immigrant visa, through the existing process.

  • The waiver is available to non-citizens in removal proceedings who have their proceedings administratively closed or terminated:

Non-citizens in removal proceedings should have their proceedings administratively closed or terminated and apply directly to the USCIS for the waiver. For cases that have been administratively closed, the non-citizen should seek termination AND receive termination before departure from the U.S. to avoid triggering other bars of inadmissibility. The waiver is unavailable to applicants who have received deferred action but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal should seek to have their proceedings reopened and then administratively closed, in order to apply for the waiver with USCIS.

  • Interviews still scheduled abroad:

Under the new process, immediate relatives who have already departed the United States must pursue their waiver from abroad. Also, immediate relatives who are still in the U.S. must still depart the U.S. for the consular immigrant visa process. However, the immediate relatives who are in the U.S. can apply for the provisional waiver from within the United States and wait until it has been approved to depart the country so that they do not face lengthy separation from their families.

Non-citizens who have already been scheduled for their immigrant visa interviews at consulates abroad are ineligible for the provisional unlawful waiver process. However, if the DOS scheduled the immigrant visa interview after the publication of the final rule, the non-citizen can apply for a provisional unlawful presence waiver. An individual can also qualify for the waiver process in the U.S. if she or he has a new immigrant visa cases because DOS terminated the immigrant visa registration associated with the previous interview and they have a new immediate relative petition filed by a different petitioner.

  • The waiver is not limited to first-time filers:

The filing of the provisional unlawful presence waiver is not limited to those filing for the first time as DHS agrees that the one-time filing limitation that was initially proposed was too restrictive. Rather, when an applicant’s waiver has been denied or withdrawn, the applicant can file a new waiver with the appropriate fees. This is especially pertinent to cases where circumstances have changed since the first filing or the first filing was done through notarios or ineffective assistance of counsel.

  • Who is not eligible?

USCIS  has specifically stated that the following non-citizens would be ineligible for a waiver:

  1. Applicants under the age of 17
  2. Applicants subject to other grounds of inadmissibility
  3. Applicants who have already scheduled an immigrant visa interview abroad before the publication of this rule
  4. Applicants who do not have an immigrant visa pending with the Department of State, based on the approved immediate relative petition and have not paid the immigrant visa processing fee
  5. Applicants in removal proceedings, unless the proceedings are administratively closed
  6. Applicants subject to final orders of removal
  7. Applicants with pending applications to USCIS for adjustment of status
  • No non-removability clause:

For individuals who are denied a waiver, DHS will follow the NTA issuance policy in effect at the time of adjudication  This means that individuals whose waiver request is denied or who withdraw before final adjudication will only be referred to ICE for removal proceedings if he or she is considered a removal priority by the agency, such as having a criminal history, engaging in fraud, misrepresentation, national security or public safety threat.

  • No appeal process:

There is no appeal for denial of an I-601A waiver. However, in the event of denial, there are several alternate avenues such as filing a new form I-601A with the required fees or filing a form I-601 after attending the immigrant visa interview abroad and after the department of State determines that the individual is inadmissible. The I-601 can be appealed to the Administrative Appeals Office of CIS.

  • No right to employment authorization or parole upon the filing of a waiver:

A pending or approved provisional waiver does not create lawful immigration status, extend an authorized period of stay or protect non citizens from removal or grant any other immigrant benefit such as employment authorization or advance parole.

  • Filing fees for the process will be $585, plus a biometrics fee of $85.

There are no fee waivers available for the process.

The new procedure does not take effect until March 4, 2013.  Before filing any waiver application, it is advisable that you consult with an immigration lawyer.

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One-Man DREAM Act Passes Congress

18 Dec

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A person is probably less likely to win private immigration relief than she is to win a lottery. But for Benach Ragland client, Sopuruchi Victor Chukwueke, the dream of permanent residency through a private immigration relief is just days away from becoming a reality.

Victor Chukwueke is used to battling against odds. Originally from Nigeria, he developed a benign tumor in his early childhood, caused by Neurofibromatosis, which grew on his frontal and right facial area, subsequently resulting in a very significant facial deformity. Growing up in Nigeria where he could not get medical treatment for his condition, Victor was the subject of much ridicule from his peers and faced a life-time of hardship as a result of his medical condition. Unable to care for him, his parents left him at an orphanage and would later give him up for adoption. Fortunately, Rev. Mother Paul Offiah who ran a handicap (orphanage) center for orphans, abandoned and neglected disabled children in Nigeria, took Victor under her wing and found a physician in the United States who was willing to conduct Victor’s surgery. Victor arrived in the United States in August 21, 2001, when he was 15 years old on a B-2 visa. He was left in the care of Sister Immaculata Osueke and other nuns in Lansing, Michigan.

Since then, he has had seven major surgeries. Unfortunately, Victor’s application to extend his stay was rejected twice because he could not afford the application fee and he fell out of status. This happened while Victor was preparing for a painful surgery and he was merely 16 years old at the time, with little to no resources to help him navigate the complicated immigration system.

Despite huge obstacles and a life-threatening medical condition which rendered him blind in one eye, Victor Chukwueke obtained his GED in 2004 and graduated from Wayne State University. He was the commencement speaker at his graduation and since then, he has gained acceptance into the University of Toledo, College of Medicine, conditioned on receiving lawful permanent residence in the United States. Refusing to give up, Victor sought the help of the National Center for Refugee and Immigrant Children and the U.S. Committee for Refugees and Immigrants, who referred his case to Benach Ragland. While we were preparing a deferred action application for Victor, the President announced the Deferred Action for Childhood Arrivals (DACA) program, which would have given Victor the right to temporarily live and work in the country but not necessarily admission the University of Toledo, College of Medicine. However, Victor was set on pursuing a private immigration relief bill, introduced on his behalf by Senator Carl Levin, as that would get Victor permanent residency, admission to medical school, and spell the end of his immigration troubles.

But passing private immigration relief bills is no easy feat. Many private immigration bills are introduced year after year, simply to stay the deportation of someone, but never make it through either the House or the Senate, let alone both chambers. We were lucky to have the support of Senator Levin’s staffers, who left no stone unturned in helping Victor’s bill navigate the complicated Senate and House procedures. We created a petition on Change.org that garnered the signatures of almost 3000 well-wishers who signed on in support of the private immigration relief bill. Along with the U.S. Committee for Refugees and Immigrants, we also wrote an organizational letter for Victor’s bill, and circulated it on our network, getting the support of organizations such as the Children’s Tumor Foundation, Kids in Need of Defense (KIND) and the National Immigrant Youth Alliance (NIYA). As Victor’s immigration counsel, Thomas Ragland successfully helped Victor answer probing questions from the Senate Judiciary Committee, Senator Levin’s office and Immigration and Customs Enforcement.

His private immigration bill got through the Senate Judiciary Committee and sailed through the Senate with bipartisan support on July 25, 2012.

Alas, the House is run by Republicans, and no private bills had passed the House this session at that point in time. When Victor asked whether he should just apply for DACA right before the elections, we put our heads together to consider our options. A Romney Administration would certainly mean no DACA, but his Administration would not necessarily eliminate deferred action, which has existed as a policy since at least 1972. There seemed no harm in waiting until the lame-duck session, saving Victor $465, and trying to first get him a better form of relief. Besides, his medical school required him to have a green card, and despite letters from Senator Levin and several other Congressional members, the medical school refused to budge on allowing him admission without a green card.

We also found guidance on private immigration legislation suggesting that the House Subcommittee would be reluctant to consider private action for anyone in deferred action status. Given the circumstances, we advised Victor to stay the course and not give the House any reason to pass up consideration of his private immigration bill. He heeded our advice and decided to wait until the lame-duck session for the fate of his one-person DREAM Act.

At 12:29 pm today, the House passed a bill for the relief of Victor Chukwueke with a voice vote. It now heads to the President for signature.

When we called Victor with the good news, he was overjoyed, and stated that “this was the best Christmas present ever.” His goal is now to get his medical degree and “alleviate the pain and suffering of others, especially those in underserved communities and nations.” The champagne is on ice.

Well done, everyone.

Ninth Circuit Provides Hope to Young Immigrants

26 Sep

Great news out of the U.S. Court of Appeals for the 9th Circuit, which ruled today that a Board of Immigration Appeals interpretation of the Child Status Protection Act (CSPA), improperly excluded a large class of immigrants from being eligible for immediate residence.  Rosalina Cuellar de Osorio challeged the BIA’s interpretation of the CSPA in Matter of Wang before the 9th Circuit.  She initially lost before a three judge panel, but the court sitting en banc agreed to rehear the case.  A number of organizations submitted briefs in support of Cuellar de Osorio’s case, including DreamActivist, a nationwide action committee for undocumented youth.  DreamActvist was represented by Benach Ragland.

Today, September 26, 2012, the Ninth Circuit overturned Matter of Wang in Cuellar de Osorio v. Mayorkas:

“We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”

With a 6-5 en banc split, the Ninth Circuit now joins the Fifth Circuit in rejecting the position of the BIA. It will allow many young people who were the derivative beneficiaries of previous petitions to apply for a green card, if they were aged-out of the process when they turned 21. This is great news for many young people, including many Dreamers, who would no longer have to face lengthy separation from their families and deportation from their homes.

Congress passed the Child Status Protection Act (CSPA), Pub L. No. 107-208, 116 Stat. 927 (2002) to address the complex problem of aging out of family and employment based petitions. In short, due to massive visa backlogs and administrative delays, adult children were aging out of approved visa petitions upon turning 21. In many cases, these petitions were filed on behalf of their parents by employers or other family members when they were much younger. CSPA was supposed to fix this problem in a myriad of ways, first by a complex mathematical formula, which deducted the time it took to adjudicate the petition away from the age of the adult child and second, by allowing those who aged-out even after the application of the formula, to retain the original priority date from the original petition that was filed on behalf of them, and apply it to a new category. This is spelled out quite unambiguously in Section 203 (h)(3):

“If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

USCIS did not issue regulations on this matter at first, and issued a number of contrary decisions. In some cases, aged out adult children were approved. In other cases, they were denied a green card. The Board of Immigration Appeals also did not know what to make of the statute and issued a number of contrary rulings. Compare Matter of Maria T. Garcia in 2006 with Matter of Wang in 2009, where the BIA restricted the application of Section 203 (h)(3) to applicants in the F-2A category, finding no evidence that “Congress intended to create a mechanism to avoid the natural consequence of a child aging out of a visa category because of the length of the visa line.” This decision automatically doubles the number of years a derivative beneficiary has to wait in line for a green card, and in some cases, a derivative may never be able to get a green card.

On May 11, 2012, Benach Ragland filed an amicus curiae (“friend of the court”) brief on behalf of DreamActivist with the U.S. Courts of Appeals for the Ninth Circuit in Cuellar de Osorio v. Mayorkas asking the Court to reject the Board of Immigration Appeals decision in Matter of Wang, which unnecessarily limited the class of individuals who could gain the benefits of the Child Status Protection Act (CSPA).  This represented the first time that a Court heard directly from Dreamers on a question of statutory interpretation and public policy.

The impact of this case is felt personally in the Benach Ragland family.  Our law clerk, Prerna Lal, is one individual who suffered under the BIA’s intepretation under Matter of Wang.  In 2001, Prerna’s grandmother filed an immigrant petition on behalf of her daughter, Prerna’s mother.  As a child, Prerna was covered under this petition.  However, due to lengthy backlogs in this category, by the time Prerna’s mother was able to seek residence in 2009, Prerna had already turned 21 and had “aged-out” of eligibility as she was no longer a “child” under the immigration laws.  Prerna’s mother filed a petition for Prerna, but the CIS, pursuant to Matter of Wang, refused to acknowledge the 2001 filing date.  Thus, under her mother’s petition, Prerna would not be able to seek her residence until approximately 2017, despite the CSPA and the fact that Prerna was originally covered in 2001.  As Prerna’s case is in San Francisco, CA, the heart of the 9th Circuit, this decision makes her eligible to apply for residence using her 2001 date assuming that the decision stands.

It is unclear whether the Government will ask for cert. from the Supreme Court. It has 90 days to request cert. If asked for cert, the Supreme Court may or may not deny it. If it denies cert, the decision will still be law in the 9th and 5th circuit. Young people who have been aged out and thrust into removal proceedings may be able to adjust their status before an Immigration Judge under the jurisdiction of the Ninth and Fifth Circuits. In due time, the USCIS may also issue new regulations allowing every derivative beneficiary of a family-based or employment based to retain their original priority date and adjust their status to lawful permanent residents without much wait.

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