Archive | Benach Ragland RSS feed for this section

Feliz cumpleaños abuela

1 May

Today, May Day, would have been my grandmother, Marta Socarras y San Martin’s 94th birthday.  She was born in Havana in 1919 as the world witnessed the violent death of kingly empires and the birth of communism as a state philosophy.  How odd it seems that an ideology that gripped workers and soldiers in Europe would one day take hold on a non-industrial island in the Caribbean.  In many ways, communism was an accompaniment to my grandmother’s life.  Born less than two years after the ten days that shook the world, my grandmother saw the entire arc of communism’s influence from a nascent and vulnerable state to an ideology that gripped much of the world and eventually took over her homeland and to its death whimpers as Russia and China abandoned it.  I smile to think of what my grandmother would have thought of today’s heirs to communism- Chavez, Morales and Maduro. Payasos.

Fidel

My grandmother lived an extraordinary life.  Born to one of the great Latin American families– yes, that San Martin– with roots in the Americas with the first Spanish explorers, my grandmother had many advantages as a young woman in Cuba as many as a woman could have in early Twentieth Century Cuba.  She graduated from the University of Havana with a law degree in 1941, about thirty years before U.S. schools regularly admitted women.  Her diploma hangs on my office wall.  She served as a district attorney in the provinces and carried a revolver on her rounds.  Anyone who thought that they were messing with a defenseless female was in for a rude shock.  Nonetheless, she was always a lady, horrified about the idea of leaving the house without lipstick.  In 1959, she shared the jubilation of all Cubans when Batista was driven from power by these mysterious bearded men from the mountains.  In fact, during the early days of the Revolution, the new regime held a parade.  The column of tanks and soldiers moved down Calle 23, a major thoroughfare.  When the tank carrying Fidel Castro and his leadership passed the home of my grandmother’s uncle, where the whole family had gathered to watch the parade, they lowered the tank’s gun and saluted the home of Manuel Costales, my great grand uncle and a major anti-Batista politician.  Yet, when the nature of the revolution became clear, my family left Cuba one October, never again to stroll the Prado or the Malecon, or the beach at Varadero.

Malecon

Instead, they settled into New Jersey and this was where my grandmother showed what she was made of.  With an elderly mother, two young boys (my father and uncle), an infirm brother and a worthless husband (not my grandfather, her second husband.  After him, she was done with husbands), my grandmother went to work at rebuilding her family and her life in el norte in October 1959.  I always wonder how that first winter must have felt, although most Cuban women of her generation and station had mink coats for their shopping trips to New York.  But living in New Jersey was a whole new life and nothing in her life in Cuba could have prepared her for the new challenges exile would present.  Her education and pedigree meant little in the U.S., and all she had to rely upon was her own ganas, which she had in buckets.  During the early years in the U.S, my grand uncle was often traveling with the U.S. government throughout Latin America discussing the Cuban revolution with intellectuals.  My great grandmother was nearly eighty and my father and uncle were teenagers facing school in a new country and language.  My grandmother was forty, my age, and had to reinvent herself.  At that point, my family history turns from pedigree and privilege to struggle and striving.  Fluent in English, my grandmother found work as a Spanish teacher at Verona High School and also taught Berlitz after school (“they had one chair- for the student”).  White and educated, I can not say that my grandmother’s experience is the typical immigrant experience (as a friend says “Cubans get a green card and a parade in Miami when they come.”)  However, the need to reinvent oneself to support a family, the need to pursue opportunity where it may lie, and to find shelter from persecution are universal themes of the immigrant story.

Like most immigrants, my grandmother worked her hands to the bone while supporting her sons, brother and mother.  At one point, both my grand uncle and my great grandmother were simultaneously hospitalized with heart attacks and neither knew about the other.  Imagine the strain that put on my grandmother.  She put my father into the position to earn his Ph.D. and become an internationally celebrated scientist, which gave me the chance to do the work I do with immigrants.  In an irony on par with my grandmother’s birth on May Day, I was the first family member born in the U.S., and I was born on July 26, the symbolic starting date of the Cuban Revolution.  I don’t know whether that even registered at the time with my grandmother who was too busy flush with joy and excitement over her first grandchild.  Always, family and love were more important than politics to my grandmother.

My grandmother outlived communism and has left a legacy of four grandchildren and three great grandchildren, who were lucky enough to share a little time on earth with her.  I thought about putting a photo of my grandmother up in this blog, but she hated photos of herself.  Like her immigrant life in America, she kept the focus off herself and gave her all to her family, who she carried on her back into this new world without Castros, Maos, Stalins and Ches.

Benach Ragland News

1 May

Raising the barIt has been a busy and exciting few weeks at Benach Ragland.  From immigration reform rallies to dramatic courtroom victories, BR has had a month to remember.

Starting off, courtroom victories are the reason we do what we do.  Three major courtroom victories this month have lifted everyone’s spirits.  First, Andres Benach presented seven hours of testimony and 747 pages of documentary evidence to the immigration court in Pennsylvania over two days in winning a 212(h) waiver for a permanent resident convicted of an aggravated felony.  Legally, this victory was only made possible as Circuit Courts around the country, including the one in Pennsylvania, have decided that the plain language of  INA 212(h) allows certain permanent residents convicted of aggravated felonies to seek the waiver.  This was an unheard of notion about five years ago when the U.S. Circuit Court of Appeals for the Fifth Circuit in Texas decided the case of Martinez v. Mukasey that opened this door.  At the time, we told our client that his only hope was that the logic of Martinez would also be accepted in the Third Circuit, where he was facing removal proceedings.  In September, a decision called Hanif v. Attorney General did just that and we were able to put on the case.  Overcoming the aggravated felony, showing the Judge that the family would suffer extreme hardship without the husband/ father and demonstrating that our client deserved this second chance took every bit of energy and evidence we could muster.  When the Judge finally ruled, the entire family broke down in tears relieved that the threat of deportation had been eliminated. Second, Dree Collopy wrapped up a long and emotional saga when her client was granted adjustment of status without a whisper of opposition from DHS.  After years of fighting DHS on the case, Dree overwhelmed the government with evidence and reason, such that DHS agreed to her client’s adjustment.  Dree’s client, Sophie, is BR’s May 2013 Client of the Month and you can read more about her here.  Finally, Thomas Ragland was hired on Thursday, worked all weekend, and destroyed the government’s case on Tuesday.  A case that had lasted for several years where the government insisted that the client had committed fraud, when she had not, was wrapped up with a burst of activity from Thomas and Senior Paralegal Cyndy Ramirez, who with bulldog tenacity unraveled the truth of the case and set up the victory in court.  These cases represent the best of why we do what we do.  People’s lives are changed for the better and the emotional release of knowing that the immigration Sword of Damocles has been removed is a feeling every lawyer should get to know.  But, be careful, that feeling is highly addictive.

It is no wonder, with cases like these, that Andres Benach, Thomas Ragland and Dree Collopy were all recognized as Super Lawyers for 2013.  Every year, Thompson Reuters produces its Super Lawyers list and BR lawyers have been a regular fixture on the Super Lawyers list.  Joining Andres and Thomas this year, Dree Collopy was named a “Rising Star.”  We think that Dree is already a star and that it just takes some longer to recognize it.

At the same time, BR served the community.  BR’s goodwill ambassadors Sandra Arboleda, Mariela Sanchez and Liana Montecinos supported the April 10 immigration rally and BR was the only law firm to attend the Maryland Council for American-Islamic Relations awards dinner on Sunday, April 28.  BR even received a shout-out from Imam Johari from the Dar-el-Hijra mosque for our work on a naturalization case for one of their congregants.  Also, last night (April 30), Benach Ragland was honored as a Platinum Member of the DC Bar’s Raising the Bar effort to support access to justice programs.  Jen Cook, who has spearheaded this effort at BR, was on hand to receive the award, which was bestowed by Georgetown Law School Dean Peter Edelman who noted that Jen was once a student of his.

Lastly, BR attorneys have criss-crossed the country educating lawyers on the challenges of immigration law.  Thomas Ragland addressed the Upper Midwest Chapter of the American Immigration Lawyers Association.  Andres Benach went to Chicago to discuss the obligations of defense counsel in advising their foreign born clients on the immigration consequences of conviction with lawyers from the American Bar Association Section of Litigation and will speak tomorrow on Provisional Waivers and also Prosecutorial Discretion at the National Immigration Project’s annual conference in Boston.

Spring certainly has been busy and gratifying at Benach Ragland.  May looks no different with challenging cases looming.  Benach Ragland law clerk Prerna Lal will graduate from law school, marking another step towards joining BR as a lawyer after the Bar exam.  It is all exciting and we are loving every minute of it.

The April 10 Immigrant Rights Rally by Liana Montecinos

23 Apr

 

Rally“¡Obama escucha, seguimos en la lucha!” This shouting was heard from downtown on 14th street as Sandra, Mariela, and I made posters to join thousands of people at the immigration rally held in front of the Capitol on Wednesday, April 10th Since my arrival to the United States in 1999, I have attended every immigration rally in Washington, D.C.  I find every experience of a rally to be very rewarding including being able to shout nonstop on the streets of DC without getting arrested.  I am inspired and ignited by the hard working people who are forced to live in the shadows of society, who cannot drive or work, pay in-state tuition where their parents have lived and paid taxes for years, who did not have the chance to say goodbye to a family member who died in their country of origin, and who-above all-never lose faith in justice.  Last Wednesday, thousands of undocumented brothers and sisters ventured out of the shadows of their homes, work, and communities, taking public transportation or carpooling, walking unafraid in Washington DC, to wave their colorful flags and say “presente.”  I saw people of all ages and colors lifting the American flag, being proud of being in this nation and wanting to desperately have an opportunity to achieve the American dream.  On last Wednesday, I saw the human face of the immigration issue. I hope and believe our President and our legislators saw it too.

Things are about to get really interesting

10 Apr

time is now

As Washington, DC has seemed to jump from winter to summer, the politics of immigration reform are heating up.  For the rest of this week, the Capital will be inundated with activists, lawyers, politicians and celebrities all advocating for immigration reform.  Among all this activity, the Senate “Gang of Eight” is prepared to release their proposed bill.  Rumored to be nearly 1500 pages, the Gang of Eight will provide the meat on the bone that all of us have been waiting to chew on.  Benach Ragland will provide you with the latest and most comprehensive information regarding the politics, the proposal, and discussions as to how the proposals will affect the lives of immigrants.

Today, April 10, 2013 at 3:30 PM on the West Lawn of the Capitol, tens of thousands of immigrants and their friends will hold a rally for commonsense immigration reform that includes a path to citizenship.  Over the past few days, buses of immigrant supporters have departed from cities all across the United States to attend the rally.  Along with the rally, immigrants are lobbying Congress, meeting with the media, and demonstrating the urgent need for immigration reform.

Tomorrow, on April 11, the American Immigration Lawyers Association (AILA) National Day of Action for Immigration Reform is being held.  Immigration lawyers and their clients will meet with their representatives to share their stories of the  hardships of the U.S. immigration laws.

If you can not make any of these events, we urge you to make your voice heard by contacting your representatives. 

Finally, we learned today that the Gang of Eight will release their bill as early as Thursday, April 11 and the House is not far behind.  As deportations continue, people organize, and the CIS runs out of H visas in a week, the urgency of immigration reform could not be more obvious.

An Open Letter to Rep. Spencer Bachus

21 Mar

 

Dear Congressman Bachus,

Thank you very much for speaking out about the overuse of detention by Immigration & Customs Enforcement (ICE) in civil proceedings to determine the removability of individuals in the U.S.  By stating and asking “it looks to me like there is an overuse of detention by this administration.  If these people are not safety risks . . . why are we detaining them?,” you have joined the growing chorus of Americans who wonder why the government, during a time of fiscal crisis, spends so much money locking people up during immigration proceedings when they present no danger to society.  You are welcome in our club and we are glad to have you.

However, we do think it is important that you understand the role you played in building the gulag archipelago of immigration detention.  The explosion of immigration detention is a direct result of legislation you voted for, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  This law, more than any decision by the Obama administration, has resulted in the overuse of detention for individuals in removal proceedings.  While you are right to question the overuse of detention by the administration, please do not overlook Congress’, and your, responsibility in forcing the detention of tens of thousands of people, the vast majority of whom are not safety risks.  IIRIRA fueled the explosion of detention in several ways.  First, it expanded mandatory detention to cover lots of people convicted of minor offenses.   Mandatory detention has forced ICE (and INS before ICE) to detain people during the course of their removal proceedings.  These individuals had no right to individualized determinations of their risk to society or likelihood to appear for hearings.  By expanding the classes of people subject to mandatory detention, Congress created a base layer of detainees.  It is true that interpretations by this and previous administrations have increased the potential pool of mandatory detainees, but mandatory detention and its wide reach is a creation of Congress.  Second, IIRIRA labelled many minor offenses as “aggravated felonies,” requiring detention during removal proceedings.  For example, an individual convicted of shoplifting a pair of $100 sunglasses might be sentenced to one year imprisonment, with service of the sentence suspended.  In other words, the criminal court would determine that that individual should not serve jail time unless they do something bad during the year of the suspended sentence.  Under IIRIRA’s overinclusive language, such an offense would be an aggravated felony and subject that individual to mandatory detention.  And IIRIRA made it clear that it did not matter when the offense occurred.  It is hard to imagine that this hypothetical defendant is a safety risk, but the law gives ICE and the immigration courts no authority to release that individual.  Third, IIRIRA created 287(g) partnerships with state and local law enforcement to enforce immigration law.  The explosion of detention is also directly related to the numbers of people coming to ICE’s attention because a local police officer pulls an immigrant over for failing to use a turn signal.  IIRIRA is the impetus to Arizona-style laws, one of the worst of which was passed in your own Alabama, Congressman.  Fourth, by creating the ten year bar to return to the U.S., IIRIRA made it close to impossible for many immigrants to regularize their status.  Thus, individuals who would have been able to obtain residence under previous laws, remained in the U.S. in unlawful status.  When encountered by ICE, they have often been detained in the discretionary determinations of ICE.  It is true that here is an area where the administration’s overuse of detention is due to the refusal to exercise favorable discretion, but please note that many of these people would be legal residents if not for the 1996 Act.  In addition, please recognize the role that the fear of Congressional rebuke plays in ICE’s decisions.  Take a look at the outcry from your colleagues when ICE released 2200 detainees last month in anticipation of the sequester.  Moreover, Congressional intent has been a key building block of the judicial decisions that have legalized the massive detention edifice.  Decisions such as the Supreme Court’s Demore v. Kim, which upheld mandatory detention, and Matter of Rojas, where the Board of Immigration Appeals decided that mandatory detention applies to people released from custody years or decades ago, are underpinned by statements that Congress intended to impose an unyielding policy of detention in IIRIRA.

Finally, Congress has provided ICE with enormous sums of money to spend on detention.  As you know, nature abhors a vacuum.  As Congress states that it intends to tighten spending, the unnecessary detention of the thousands of people who present no real danger to society should be looked at skeptically.  ICE will spend the money Congress gives it on detention.  It is up to Congress to say “no.”

Congressman, thank you for taking a stand against the overuse of detention.  We are glad to have you as an ally and hope that you use your position in Congress to advocate for more sensible immigration policies.  Thanks again for speaking out and we hope that the words are matched with action.

Sincerely,

Benach Ragland LLP

 

Could Bar Rafaeli seek asylum for refusal to join the Israeli Defense Forces?

19 Mar

Bar Refaeli Host a 'Lexus' Party in Madrid

Yesterday, we had some fun noting that Israeli supermodel Bar Rafaeli had drawn the rhetorical fire of the Israeli Defense Forces (IDF) due to her failure to serve the two years of service in the IDF required of all Israeli citizensWe offered Ms. Rafaeli a free consultation so she could consider a claim to asylum on account of forced conscription into the Israeli Army.  As far as we know, she has not yet availed herself of our very generous offer.  So, we will share our thoughts here for her to review in the privacy of her home.

However, it did occur to us that many people are unaware of how conscription laws worldwide may impact eligibility for asylum.  Many individuals have obtained asylum in the U.S. due to their philosophical refusal to serve in their home country’s armed forces.  As a general rule, asylum law starts from the proposition that a nation has the right to conscript its citizens into the armed forces.  Conscription is the common practice in which a country forces its citizens to serve the armed forces.   Refusal to accept conscription into the armed forces is not ordinarily sufficient to establish that one is a refugee deserving of asylum.  However, asylum law recognizes two exceptions to this general rule.  First, conscription into the armed forces may constitute persecution if punishment for refusal to accept conscription is meted out exclusively to individuals based upon their race, religion, nationality, political opinion, or membership in a particular social group.  So, if only members of one religion in a religiously pluralistic society were punished for refusal to serve in the armed forces, that may constitute persecution.  The second exception is where service in the armed forces would require the individual to commit war crimes or crimes against humanity.  If the armed forces were routinely engaged in war crimes or crimes against humanity, the punishment of an individual’s refusal to serve may also constitute persecution worthy of protection under U.S. asylum law.

How do these factors effect the Bar Rafaeli case?  As an aside, we have no reason to believe that Ms. Rafaeli did not serve in the IDF for philosophical or political reasons.  We have no reason to believe that the Israeli government seeks to punish Ms. Rafaeli.  We just think that this is a fun intellectual exercise.  If Ms. Rafaeli were actually facing punishment for her refusal to join the IDF, could she obtain asylum in the U.S.?

As we said earlier, conscription, in and of itself, will not serve as a basis for a claim to asylum.  The first exception to this rule, if punishment for refusal to serve is forced only upon certain groups of individuals in a society, does not seem to apply as Israeli conscription is universal and there is no evidence that punishment for refusal to serve is forced only upon particular races, religions, nationalities, political groups, or members of particular social groups.  The second exception to the rule is if conscription into the IDF would force Ms. Rafaeli to engage in human rights abuses.  Certainly, there are many armed forces worldwide that commit war crimes and crimes against humanity.  Right now, the Syrian Army is engaged in war crimes and crimes against humanity on a daily basis.  Years ago, we won asylum for a Russian man who reserved to serve in the Russian Army due to the activities of the Russian Army in Chechnya.

Does the IDF fit this mold?  Can it be shown that the IDF engages in war crimes or crimes against humanity?  How does this work?  This exception implicates one of the epic immigration cases of all time: M.A. v. I.N.S., 899 F.2d 304 (4th Cir 1990).  This case was argued before the entire Fourth Circuit Court of Appeals in October 1989.  Arguing for the immigrant, a Salvadoran who refused to join the Salvadoran army during the peak of that country’s vicious civil war, was William van Wyke, a passionate defender of immigrant rights who went on to become an immigration judge.  Also involved was John Bolton, who went on to become a prominent figure in the George W. Bush administration.  Arthur Helton, one of the great human rights lawyers of all time and a victim of the attack on the UN compound in Iraq in 2003, also supported the immigrant.  M.A. was a Salvadoran man who refused to join his country’s military because of the Salvadoran military’s shameful record of gross human rights abuses.  He argued that if he did not resist conscription he would be forced to commit such atrocities or be killed for refusing to do so.  He submitted voluminous reports showing from Human Rights watch, Amnesty International and other highly credible human rights organizations to document the military’s role in these atrocities.  Yet, the Board of Immigration Appeals and the 4th Circuit rejected this evidence and demanded that there be international condemnation by other governments to establish the violations of the law of war or the commission of crimes against humanity.  Non-governmental organizations, even those with decades of expertise in human rights issues and researchers ion the ground, could not provide evidence that would satisfy this standard.  As the U.S., at the time, failed to condemn the Salvadoran military for these atrocities, M.A. lost.

So back to the question: Could Ms. Rafaeli prove that the IDF is engaged in violations of the law of war or the commission of crimes against humanity?  Certainly, there are many NGOs that would say that the IDF does.  But has there been governmental sanction of the IDF?  While the U.S. has condemned the building of settlements in the occupied territories, the U.S. has not condemned the IDF’s actions against civilians during military excursions in Gaza and Lebanon.  Moreover, the U.S. has used its power to stop the U.N. from condemning Israel.  We are not expressing an opinion on whether the IDF has committed crimes against humanity.  However, we do note that there is plenty of information that indicates that this is the case, while at the same time noting that the U.S. government has not accepted such criticism.  These facts seem strikingly similar to the situation in M.A. where the NGOs were vociferous in their condemnation fo El Salvador, but the governments were more restrained in their criticism.  The BIA and the 4th circuit deemed this insufficient to establish that an individual conscripted into the armed forces would face persecution and Ms. Rafaeli would likely fail to gain asylum as M.A. did.

Stateside Waivers Have Arrived

4 Mar

Sixty agonizingly long days after final regulations were published, U.S. Citizenship and Immigration Services (USCIS) this morning released Form I-601A, Application for Provisional Unlawful Presence Waiver, and its accompanying instructions. In previous posts, we discussed many aspects of the stateside waiver process (see here, here, and here). In this post, we’ll discuss some basic filing-related details.

How much will it cost?

The filing fee for Form I-601A is $585 plus $85 for biometrics for applicants under age 79. No waivers are available for either fee. The check or money order should be made payable to “U.S. Department of Homeland Security” (not DHS).

Where should Form I-601A be filed?

According to USCIS’ website, Form I-601A should be filed with the Chicago Lockbox. Before filing their forms, applicants should double-check the website or call the National Customer Service Center at (800) 375-5283.

What must be filed with Form I-601A?

All applicants must submit a copy of the approval notice (Form I-797) for the immigrant visa petition showing they are the immediate relative of a U.S. citizen, as well as a copy of the fee receipt from the State Department for the immigrant visa processing fee. All applicants would also be wise to submit evidence in support of their claims of extreme hardship that would be suffered by a qualifying relative. (Examples of such documentation are listed in the instructions.)

What other materials must be filed with Form I-601A may vary based on applicants’ prior criminal and immigration histories. For example, applicants who are currently in removal proceedings must provide a copy of the Notice to Appear (NTA) along with an order demonstrating that their case has been administratively closed. Applicants who have ever been arrested or detained (for any reason other than a traffic violation) must provide information about the incident. Applicants who have been charged with a crime must provide certified court dispositions showing the outcome of proceedings, even if the relevant records are sealed or have been expunged. And applicants who were arrested but not charged must provide documents from the arresting or prosecuting authority demonstrating that charges were not filed.

Does the granting of a provisional waiver make me “legal”?

No. The approval of a Form I-601A will not affect an individual’s immigration status in any way. It does not provide employment authorization or any other interim benefits, and does not stop the accrual of unlawful presence. Nor does it eliminate the requirement that applicants depart the country to obtain an immigration visa at a U.S. embassy or consulate, nor guarantee that an immigrant visa will actually be issued.

What if my request for a provisional waiver is denied?

Applicants whose requests for a provisional waiver are denied have two options. First, they can re-file Form I-601A with the required filing and biometric fees. Second, they can seek a regular waiver of unlawful presence using the standard Form I-601, Application for Waiver of Grounds of Inadmissibility, after attending an immigrant visa interview at a U.S. embassy or consulate.

Do I need an attorney to file Form I-601A?

We think so. Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.

BR Eats Tacos and Thinks About Immigration

26 Feb

el sol

I had the best tacos I have ever had this weekend in Harrisonburg, Virginia.  The whole Benach Ragland attorney gang headed out to the country to meet in the quiet of the mountains.  And, of course, in the middle of rural America, we found tacos.  Delicious tacos.

I used to work with a colleague who used to discuss the virtues of America’s unique immigrant history by pointing out the benefits to American cuisine.  “Have you ever tried to get good Mexican food in Rome?” he would bellow.  And it was true.  In many cities in the U.S., you could go a month and not eat the same cuisine twice.  Many of us, especially those of us who live in coastal American cities, believe that this is the sole domain of the urban dweller.  However, the modern American reality is that immigrants are everywhere in America and bringing their cuisine and their vitality with them, restoring fading American towns.

Harrisonburg is in the middle of Virginia’s Shenandoah Valley.  The valley is a rural swath of land wedged between the Blue Ridge Mountains to the East and the Appalachian mountains to the West known for its fertile soil and large agricultural output.  The Shenandoah Valley has been a quiet place since it was a center of attention during the U.S. Civil War, when multiple armies chased each other and clashed over its rolling farmland.  The destruction of Virginia farmland caused by the intense campaigning was one consideration that persuaded Robert E. Lee to invade the North in 1862 before he was check by the Army of the Potomac at Antietam Creek.  Since the last troops pulled out of the valley in 1865, it has returned to peace and quiet.

It is still heavily agricultural.  A large chicken processing plant is in Harrisonburg.  The plant has attracted thousands of undocumented workers who have had to do the gruesome work of turning birds into poultry.  These immigrants have done the dirty work of America’s need for cheap food for decades.  Their children, often American citizens, are now finding their own success in America in ways that don’t involve plucking chickens.  The sacrifice of the parents and their own stunted dreams bear fruit in the lives of the children.

What does this have to do with tacos??  Well, the children of one of these poultry factory workers have opened El Sol, a tiny little taqueria in Harrisonburg.  The menu is small.  They make tacos, quesadillas, and some fine Mexican stew.  But by keeping their menu small, they have adopted a leading principle of business- do one thing better than all others and you will be rewarded.  And, boy, do they.  El Sol’s tacos are the freshest and tastiest we have ever had.  Each of the tacos ($1.25 each!) is simple, as they are in Mexico.  A piping hot fresh corn tortilla filled with pork, steak or beans and cheese.  And, yes, they presumably have local chicken!  The fillings of shredded pork or chicharrones, fried pork skin, are delicious and topped with fresh cilantro and onions.  A Mexican coke washes it down nicely.  My partners also really enjoyed the carne asada, but I was too busy with the pork to notice.

The delightful Isabel Castillo works the front room, bringing hot plates of tacos to the Mexican families who pour in for a taste of home.  Her brother, Luis, does the cooking.  El Sol is a delightful, sunny café that brightens a street that would otherwise be a dreary monument to the better yesterday of Harrisonburg.

Benach Ragland Submits Brief in Mandatory Detention Case

21 Feb

Earlier this month, Benach Ragland authored a brief on behalf of the American Immigration Lawyers Association in the case of Michael Sylvain v. Attorney General before the U.S. Court of Appeals for the Third Circuit.  In Sylvain, the court must decide whether the Immigration & Nationality Act (INA) requires the detention of individuals convicted of certain offenses regardless of how long it has been since they were released from criminal custody. On behalf of AILA, Benach Ragland argued to the court that people released from custody prior to Immigration & Customs Enforcement’s (ICE) assumption of custody are entitled to a bond hearing where an immigration judge can make a determination as to whether they are flight risks or dangers to the community.  ICE argues that the INA gives immigration judges no authority to consider the release such individuals and that they must be detained for the duration of their removal proceedings regardless of how long it has been since they were convicted of an offense.

In Sylvain, the government defends a decision by the Board of Immigration Appeals (BIA) in Matter of Rojas.  In Rojas, the BIA decided that the mandatory detention provisions of the INA require detention without possibility of release on bond regardless of when that person was released from criminal custody.  However, the INA mandatory detention provision states that certain individuals shall be taken into custody “when the alien is released.”  The BIA decided in Rojas that that language did not limit ICE to apply mandatory detention to individuals regardless of when they were released.  Under Rojas, an individual would be subject to detention without any sort of review by a judge even if they had been released from prison a decade earlier.  As immigration judges around the country cited Rojas and explained that their hands were tied, advocates went to U.S. District Courts around the country and sought habeas corpus review.  Almost uniformly, the federal courts told the immigration service that Rojas was wrong and that the detained individual was entitled to a bond hearing.  The immigrant was then released.   ICE rarely appealed these decisions to the courts of appeals.

However, they did so in Hosh v. Lucero.  In that case, a district court judge found that Rojas was wrongly decided and ordered an immigration judge to hold a bond hearing.  However, this time, the government, sensing a possibly friendly court in the Court of Appeals for the 4th Circuit, a court known for giving the government wide berth to operate, appealed the judge’s decision.  The government’s gamble paid off and the Court of Appeals for the Fourth Circuit reversed the district court judge and deferred to the BIA’s decision in Rojas, foreclosing habeas relief in the states of the 4th Circuit (Maryland, Virginia, North Carolina, South Carolina and West Virginia).  Although district courts in the Fourth Circuit must follow Hosh, district courts outside of the Fourth Circuit have not found Hosh terribly persuasive.

Now this issue is before the Third Circuit Court of Appeals, which encompasses New Jersey, Pennsylvania and Delaware, in Sylvain.  A decision rejecting Rojas would create a split between the Third and the Fourth Circuits, possibly leading the way to Supreme Court review.  Oral argument is coming next month and we will report from the argument and when a decision comes down.

The Leaked White House Immigration Bill: the Legalization Component

20 Feb

Drip

It took only three years longer than promised—and a leak that may or may not have been intentional—but the White House has finally produced a legislative proposal to fix the immigration system. Dubbed the Comprehensive Immigration Reform Act of 2013, the bill would create a pathway to citizenship for most of the 11 million removable noncitizens in the country, mandate the eventual use of E-Verify for most employers, and dull many of the draconian provisions enacted in the 1996 immigration bill. With the leaked portions of the bill totaling more than 200 pages, there’s a lot to chew on. Today, we’ll look at the part of the White House bill relating to legalizing the undocumented, and tomorrow we’ll review the enforcement-related sections.

Lawful Prospective Immigrant (LPI) status

As has by now been widely reported, the bill would allow qualified applicants to first obtain “Lawful Prospective Immigrant” status and later adjust to lawful permanent resident (a “green card” or LPR) status, a prerequisite for foreign nationals wanting to become U.S. citizens. To qualify for LPI status, noncitizens would have to be physically present in the United States on the day the bill was introduced and not have been convicted of a number of specified criminal offenses. Noncitizens could apply for LPI status if they were in removal proceedings, were under an outstanding order of removal, or had illegally re-entered the country after a prior removal. Applicants for LPI status could generally not be detained or removed, and would not be considered “unlawfully present,” while their applications were pending.

Qualified immigrants would initially be granted LPI status for a period of four years, during which time they would be authorized to work and travel abroad for up to six months, subject to renewal. Noncitizens with LPI status could also petition for their spouses and children to receive the same status, even if they are living overseas. Interestingly, the White House bill does not specifically state that LPI status could be accorded based on same-sex marriages. However, it incorporates the standing definition of “spouse” in Section 101(a)(35) of the INA, which is written in gender-neutral terms. As the bill is written, it is thus unclear (perhaps intentionally so) what, if any, protection same-sex couples would receive.

Adjustment to Lawful Permanent Resident (LPR) status

To qualify for adjustment, LPIs would have to satisfy any outstanding federal tax liability, be actively studying English and U.S. history, and not have left the country for more than six months while in LPI status. Applicants aged 21 or older when the bill was introduced would have to pay a $500 penalty to adjust status in addition to any processing fees. The government could not grant any adjustment applications until either eight years after the date of the law’s enactment, or 30 days after all immigrant visas became available for family- and employment-based petitions filed before the date of enactment, whichever came first (but no sooner than six years after LPI status was first granted). The only exception would be for noncitizens who were under 16 when they initially entered the country, were enrolled or had obtained a high school or college degree when they applied for LPI status, and had completed two years of college or the military when they applied for LPR status. (Or in other words, those who would qualify under the DREAM Act.)

Administrative and judicial review of denied applications

For noncitizens whose applications for LPI or LPR status were denied, the bill would require the creation of an administrative body housed within the Department of Homeland Security to hear appeals. Notices of appeal would have to be filed within 60 days of the denial, and stays of removal would generally be granted while appeals are pending. If their administrative appeals were denied, prospective LPIs and LPRs could file a challenge with a federal district court, which, in turn, could uphold or reverse DHS’ decision or remand the case back to executive officials for consideration of additional evidence. Importantly, federal judges would also have authority to issue stays of removal, and immigrants would not be considered “unlawfully present” while their appeals—administrative or judicial—were pending.

Protections for Employers of Prospective LPIs

Finally, the White House bill contains a number of protections for employers of workers seeking to legalize their status. For example, employers who learn of employees with pending LPI applications would not violate the law by continuing to employ them while their applications are pending. The bill would also prevent genuine employment records submitted in support of an application for LPI or LPR status from being used against the employer in a civil investigation or criminal prosecution. These provisions may well have been added due to the DACA program, which lead to concerns among some employers of liability or retaliation if their workers used employment records to demonstrate the extent of their presence in the country.

Comparison to “Gang of Eight” Framework

While the bipartisan group of Senators known as the “Gang of Eight” has yet to propose actual legislation, it’s almost certain that the path to citizenship in the White House bill is more realistic and immigrant-friendly. Unlike the Senate framework, for instance, the White House would not make the issuance of green cards contingent on satisfying an unknown set of security “triggers.” Based on statements from Marco Rubio, the Senate plan might also require the undocumented to rely on a third party (such as a qualified employer or family member) to sponsor them for a green card, which could potentially leave millions without a true path to citizenship. While we will wait to see an actual bill before expressing final judgment on the Senate plan, the White House has set a high bar.

Follow

Get every new post delivered to your Inbox.

Join 295 other followers