The day before the Senate Judiciary Committee advanced the most significant piece of immigration legislation since 1996, the “President of the National Citizenship and Immigration Services Council, the union representing 12,000 United States Citizenship & Immigration Services adjudications officers and staff” sent a letter to Members of the United States Senate in opposition to the immigration reform bill under review in the Senate.  Despite claiming to be the “backbone of our nation’s immigration system,” the Union leadership complains that they were not consulted over the proposed immigration reform.  Had they been consulted, the union continues, it would have exposed, they claim, the gross politicization and overbearing pressure to approve applications and petitions by individuals who present a danger to the public or a threat to national security.  The letter is so full of inaccuracies, half-truths, and overly dramatic claims that the best way to address it is to address each of their points in turn.

“USCIS adjudications officers are pressured to rubber-stamp applications instead of conducting diligent case review and investigation.  The culture at USCIS encourages all applications to be approved, discouraging proper investigation into red flags and discouraging the denial of any applications. USCIS has been trued into an “approval machine.”"

No one who spends any time dealing with immigration would recognize this statement.  The agency has been criticized repeatedly for encouraging a “culture of no.”  This criticism is not limited to the “immigration advocates,” but by businesses throughout the U.S.  But let’s not mess with anecdotes.  Numbers and facts matter here.  A look at CIS’ own statistics for January 2013, shows that approvals went up by 7% and denials went down by 8% from January 2012 to January 2013 for applications other than citizenship.  Well, that does seem to bear out an increased approval rate over the course of a year, but, perhaps, not enough to call it an “approval machine,” especially with 2.3 million non-citizenship cases in the pipeline.  But that pattern does not hold up in the citizenship context.  Between January 2012 and January 2013, approvals of applications for citizenship went up by 13% and denials went up by 54%!  Wow, that is a big increase in denials of a serious application.  Granted, this is just one month worth of statistics, but that is one month more than the CIS union leadership offered.  And whether this trend is sustained over several months, it seems reasonable to state, that CIS has become an approval machine in the last year or so.  In addition, the National Foundation for American Policy issued a report last year that concluded that “USCIS adjudicators have demonstrated a capacity to keep skilled foreign workers out of the United States by significantly increasing denials, along with often time-consuming Requests for Evidence, despite no change in law or relevant regulations between 2008 and 2011.”  The statistics and experiences of foreign nationals, their families and lawyers who regularly deal with the USCIS, know that the agency is far from rubber-stamping and is closer to a delay, doubt and deny machine than an approval machine.

“USCIS has created an almost insurmountable bureaucracy which often prevents USCIS adjudications officers from contacting and coordinating with ICE agents and officers in cases that should have their involvement.  USCIS officers are pressured to approve visa applications for many individuals that ICE has determined should be placed into removal proceedings.”

The union will get no argument that USCIS is an “almost insurmountable bureaucracy,” but coordination with ICE officers does not seem to be a problem.  Every immigration lawyer knows that if they take someone with an order of removal into CIS, for benefits that the law entitles them to, that they can expect that ICE will be waiting with handcuffs.  In addition, we know of lots of occasions where a person has been arrested and placed into removal proceedings because of information revealed in their applications to USCIS.  Many lawful permanent residents who are subject to removal are identified by CIS and ICE because of applications they file with the CIS and not due to excellent detective work by Homeland Security Investigations (HSI).  Finally, the visa applications that the CIS officers “are pressured to approve” for removable individuals are usually family based petitions, which they may use to apply for adjustment of status before the immigration court in removal proceedings.  Under the law, a CIS officer has no cause to determine an individual’s removability on an immigrant petition as it is not germane to the petition.  All that a CIS adjudicator is supposed to determine in such instances is whether the family relationship between the petitioner and the beneficiary exists.  What the union seems to be complaining about is that they are being told to follow the law and not bring extraneous matters into their adjudications.

“USCIS officers who identify illegal aliens that , in accordance with the law, should be placed into immigration removal proceedings before a federal judge, are prevented from exercising their authority and responsibility to issue Notices to Appear.  In the rare case that an officer attempts to issue an NTA, it must first be approved by a secretive panel created under DHS Secretary Janet Napolitano, which often denies the officer’s request.  Illegal aliens are then permitted to remain in the United States as USCIS officers are not able to take action or contact ICE agents for assistance.”

It appears that the union is unhappy that some of its members do not have authority to place an individual into removal proceedings.  The ability to initiate removal proceedings is an awesome exercise of the state’s law enforcement authority.  Not all officers are given that power and that is the way it should be.  Many CIS-issued NTAs are often defective and waste the resources of the immigration court and the ICE trial attorneys, to say nothing of the immigrant.  It is reasonable for the CIS, whose mission is only secondarily law enforcement, to restrict that authority to the more senior personnel.

“The attitude of the USCIS management is not that the agency serves the American public or the laws of the United States or public safety and national security, but that the agency serves illegal aliens and the attorneys that represent them.  While we believe in treating all people with respect, we are concerned that this agency tasked with such a vital security mission is too greatly influenced by special interest groups- to the point that it no longer properly performs its mission.”

If we and our clients are being served, allow us to register some complaints.  To enter a CIS office, we have to remove our coats and belts.  However, before we even get in, we must line up outside regardless of how hot, wet or frigid it may be.  Once we have reassembled our attire, we are directed to another line to demonstrate that we have a legitimate purpose to be in the building.  After the individual sitting in the “triage” chair allows us to proceed to the interview room, we turn in the appointment notice and have a seat.  Waits of over an hour are not uncommon until an officer appears in the door and shouts out a name.  We enter the interview with the client and have been told on more than one occasion that we, the attorneys, are to sit behind the client and not to sit by the client’s side.  Sometimes, a supervisor’s intervention is required just to settle seating arrangements.  The officer will not have reviewed the file, may not have all the files that they are supposed to have, or not initiated certain background checks.  In light of those facts, despite the client’s qualification for the benefit or satisfactory resolution of any outstanding issues, that client may not be approved until the remaining steps, all internal to USCIS, are undertaken.  This hardly seems like the service we would expect if CIS viewed their job as serving us and our clients.  In fact, the union’s statement makes it fairly clear that the only constituency they have is the welfare and grandiose expectations of the bureaucrats.  It is also worth reminding the union that CIS is a fee-based agency, where the fees that immigrants pay, which have gone up significantly over the last five years, pay the salaries of CIS officials.  And CIS is a monopoly.  Although the CIS now calls our clients “customers,” CIS is a monopoly as clients have nowhere else to turn to obtain U.S. residence.  Again, the CIS union exists solely to protect the interests of the CIS employees.

“Currently USCIS reports a 99.5% approval rating for all illegal alien applications for legal status filed under the Obama Administration’s new deferred action for childhood arrivals (DACA) policies.  DHS and USCIS leadership have intentionally established an application process for DACA applicants that bypasses traditional in-person interviews with trained USCIS adjudications officers.  These practices were put in place to stop proper screening and enforcement, and guarantees that applications will be rubber-stamped for approval, a practice that virtually guarantees widespread fraud and places public safety at risk.”

This is a highly misleading statistic.  As of April 1, 2013, CIS had received 488,782 DACA applications.  Of those, about 55% have been decided, for a total of 269,738 decisions on DACA Applications.  It is true that of those 269,738, the vast majority, 268,361, have been approved and only 1,377 have been denied.  The approval rate of the decided applications is 99.5%  But the reality is that it is faster to approve a case than to deny it.  Where CIS intends to deny a case, it issues a request for evidence or a notice of intent to deny.  That takes time.  Cases in which there has been an RFE or NOID are much more likely to be denied as the evidence initially submitted did not demonstrate eligibility.  A significant portion of those unadjudicated will result in denials due to lack of eligibility.  The CIS union leadership knows this and is being completely disingenuous.  Moreover, if the CIS is indeed processing the applications without sufficient review, why do they take so long?  We are tempted to think that it is because the CIS officials handling them are not handling them as efficiently as possible.

“While illegal aliens applying for legal status under DACA policies are required to pay fees, DHS and USCIS are now exercising their discretion to waive those fees.  Undoubtedly, these practices will be replicated for millions of illegal aliens if S. 744 becomes law.”  “US taxpayers are currently tasked with absorbing the cost of over $200 million worth of fee waivers bestowed on applicants for naturalization during the last fiscal year.  This is in addition to the strain put on our social security system that has been depleted by an onslaught of refugees receiving SSI benefits as soon as their feet touch U.S. soil.”

Wow.  CIS collects, on average about $2.6 billion in fees paid by immigrants, their employers and their families.  CIS receives about $100 million in appropriations from Congress.  One thing is very clear is that, if anyone is on the hook for the $200 million that the CIS chose not to collect, it is the other immigrants who bill that cost at a rate of 26 to 1.  Also, as regards Social Security, something well outside the expertise of the CIS union leadership, most credible studies show that immigrants provide a crucial source of income for the social security system.

“Large swaths of the Immigration & Nationality Act (INA) are not effectively enforced for legal immigrants and visaholders, including laws for public charges as well as many other provisions, as USCIS lacks the resources to adequately screen and scrutinize legal immigrants and non-immigrants seeking status adjustment.  There is also insufficient screening sand monitoring of student visas.”

It is hard to tell exactly what the union is talking about.  OK, let’s talk about public charge.  Every immigrant to the U.S. must demonstrate that they have the resources or have access to the financial resources so as not to become a public charge in the U.S.  All applications for residence must be accompanied by evidence demonstrating that.  That evidence is routinely submitted months in advance of adjudication.  It is all in CIS’ files for review.  we hope it is being reviewed.  The family based affidavit of support is about ten pages long- it is a lot of work to prepare one.  We hope that CIS takes the time to review something we have worked so hard on.  If CIS is not reviewing public charge information, it is a gross dereliction of duty on the part of individual officers and not indicative of any larger political purpose.

“A new USCIS computer system to screen application known as ‘transformation’ has proven to be a disaster as the agency has spent upwards of $2 billion for a system that would eventually allow an alien- now referred to as a “customer” under current USCIS policy- to upload their own information via the internet for adjudication purposes.  To date, only one form can be accepted into the program that has been in the making for close to ten years.”

Yep, “transformation” was a boondoggle.  Hopefully, heads will roll about such an egregious waste of money.  We can be sure, however, that the union will be there to defend those employees and keep them on the immigrant’s payroll.

It is very disappointing to see the USCIS union parrot the talking points of the rogue ICE union, the restrictions, and the retrograde Senators on the Judiciary committee.  However, it is perfectly consistent with CIS’ warped view of reality.  What this letter shows is that the union, like their ICE brethren, is willing to resort to half-truths, distortions and outright lies to protect the one constituency that they really care about- the bureaucrats they serve.

The union states that the CIS agents are pressured to “rubber stamp” approvals and that the CIS leadership views “aliens and the attorneys which represent them” as their true constituency.  The union also cites a statistic that 99.5% of DACA applications have been approved as evidence of the lax standard of review and the failure of CIS to ensure the integrity of the process.

Yesterday, by a vote of 13-5, the United States Senate Judiciary Committee passed S. 744, the immigration reform bill.  Three Republicans (Lindsey Graham (SC), Jeff Flake (AZ) and Orrin Hatch (UT)) joined all ten Democrats to vote the legislation out of committee. 

The five opponents were the five Republicans who had spent the several mark-ups attempting to torpedo the legislation with odious and unworkable amendments, most of which were defeated.  Yet, Senators Jeff Sessions (AL), Ted Cruz (TX), John Cornyn (TX), Mike Lee (UT), and Chuck Grassley (IA), have vowed to renew their efforts on the Senate floor, where the bill goes next.

The bill emerged after several mark-up sessions, largely intact. The bill still offers a provisional status and a path to citizenship, expedited residence and citizenship for undocumented youth, improvements in due process, increased use of E-Verify, tighter border controls, a new temporary worker visa, improved opportunities for employment-based immigration, enhanced H-1B provisions, and more liberal policy for asylum seekers.

The bill was improved by the passage of the following amendments:

• Coons 2- limits ICE’s authority to perform nighttime removals.
• Coons 5- provides immigrants with statutory right to see their “A-file” in removal proceedings
• Hirono 21- allows undocumented youth to obtain federal financial aid
• Blumenthal 2- prohibits solitary confinement of individuals in ICE detention
• Blumenthal 8- restricts ICE enforcement at schools and hospitals.
• Blumenthal 12- provides for expedited naturalization for undocumented youth in military

The bill was made worse by the following amendments:

• Grassley 44- made conviction of a third DUI an aggravated felony.
• Graham 1- allows DHS to terminate asylum of an individual who returns to country of nationality

The Committee fought off several “poison pill” amendments designed to gut the entire process or to make the immigration system more inhumane than it is today:

• Cruz 3- would have barred anyone who was ever out of status from obtaining citizenship
• Grassley 1- would have retained the one year filing deadline for asylum
• Cornyn 3- would have made people convicted of minor offenses ineligible for provisional status
• Grassley 18- would have required applicants for provisional status to disclose all previous social security numbers

• Sessions 1- would have imposed a $5000 minimum bond for release from custody
• Grassley 67- would have subjected businesses hiring H or L workers to increased audits and bureaucratic oversight
• Lee 15- would have required affirmative intent in employment discrimination based upon national origin
• Grassley 34- would have imposed 20 year sentence for document fraud convictions
• Grassley 45- would have expanded criminal penalties for illegal entry and re-entry

The strength of the bill was enhanced by the support of Republican Senator Orrin Hatch of Utah.  Senator Hatch has long been a champion of the H-1B program.  The Committee adopted Senator Hatch’s amendments to increase the availability of H-1B visas and earned the Senator’s support in the Committee.  Senator Hatch has not committed to his vote on the floor, but his support in committee, made the bill more strongly bipartisan and showed that the “Gang of 8″ can pull reasonable Republicans into the bipartisan consensus that our immigration system requires serious overhaul.  This compromise required some serious accommodation by both Democrats and Republicans on the Committee and it is a welcome sign for our democracy that this issue did not cause the wholesale breakdown that we have come to expect.  This suggests that immigration reform has become a categorical imperative for both parties.

Unfortunately, the bill that came out of committee is as defined by what it does not include by what it does include.  Under pressure from the White House, Senator Leahy pulled his amendment to ensure that LGBT individuals and couples are treated equally and fairly under the immigration bill.  Republicans, including members of the Gang of 8, had balked at LGBT inclusion and, as a result, the Committee gave into homophobia.  We are extremely disappointed that LGBT families were thrown aside in the passage of this bill.  We remain hopeful that the Supreme Court will make this a non-issue soon enough.

The bill will now head to the senate floor, where there will be more debates and amendments.  Immigration reform will likely dominate the Senate for the month of June.  In some good news, Senator Mitch McConnell of Kentucky, the Republican leader, has said that he has no plans to block consideration of the bill.  While any single Senator can filibuster a bill, that Senator needs the support of 40 of his/her colleagues to sustain the filibuster and it is hard to imagine that succeeding without the support of the Senate leadership.

We hope for a strong show of support from the United States Senate.  A bill that gathers 65+ votes will storm out of the Senate and place a lot of pressure on the House to support common sense immigration reform.

It has now been a couple of weeks since the Gang of Eight’s immigration bill was introduced.  We provided a brief rundown of its main points and we give it, overall, good grades.  It certainly is much better than the status quo, but less generous than we might have designed ourselves.  But they are in Congress and we are in court.  Now that it is out, what happens?

The bill has been assigned to the Senate Judiciary Committee.  The Judiciary Committee is chaired by Senator Patrick Leahy (D-VT).  Senator Leahy is a strong supporter of immigration reform and has acted quickly to move the legislation.  In the bill’s first weeks, he held hearings on the legislation.  Those hearings generated more heat than light and their contents have long been forgotten.  The bill moves ahead unscathed.  The bill also seems to have survived the terrorist bombings in Boston.  While immigration opponents seized on the foreign identities of the brothers Tsarnaev, the bill’s supporters were undaunted in arguing how the immigration bill would improve national security.  The ability of conservative members of the Gang of Eight to resist what must have been a strong impulse to jump ship gives us cause for optimism over the bill’s future.  Yesterday, the Heritage Foundation, a conservative think tank, released its most potent weapon against reform, a report in which they claim that reform will cost the American economy $6.3 trillion.  This salvo fell flat as Republicans, such as Paul Ryan, Grover Norquist, Haley Barbour and Jeff Flake  attacked the findings and methodologies of the Heritage report.  If the report was intended to weaken the resolve of Republicans pushing reform, it seems to have failed.  And, in a sign that the pro-immigrant crowd has gotten its political act together, the Immigration Policy Center was ready with its own report debunking the Heritage report.  In the 24 hour news cycle, speed is everything and IPC should be commended for its rapid response.

Senators were also given until 5PM today to file their amendments to the bill.  All amendments were posted online on the Senate Judiciary Committee page for all to see.  This transparency contrasts with the middle of the night passage of the Illegal Immigration Reform and Immigrant responsibility Act of 1996 (IIRIRA), the disastrous ’96 immigration bill that caused the vast majority of today’s immigration problems.  By showing the amendments, the Judiciary Committee has highlighted the differing opinions of Senators offering amendments to the bill.  For example, Senator Leahy seeks to add language that would require the recognition of same-sex marriages under the Immigration & Nationality Act.  His amendment has the virtue of simplicity.  It simply says that a marriage that is legal in any state shall be given full validity under U.S. immigration law.  To the contrary, Senator Grassley displays his intent to undermine reform.  Senator Grassley, who was one of the voices to suggest that the Boston bombing should put a halt to immigration reform, has submitted 77 amendments, as of 8PM Tuesday.   We chose one at random to get a sense of what Senator Grassley was up to.  We picked “Grassley39.”  This amendment would replace language in the bill that provides additional personnel to the immigration court system and replace it with a study to be conducted in the 18 months after passage of the law of the need for additional personnel.  The study would then be provided to the Judiciary Committee for consideration of additional legislation if necessary to relieve the understaffed immigration courts.  Of course, the overburdened immigration court system is well-documented and individuals routinely wait years for their hearing dates.  This backlog frustrates not only relief, Senator Grassley, but also removal.  If this amendment is representative of Senator Grassley’s contributions, it is clear for all that he is trying to undermine its needed reforms.  But we already knew that.

Senator Leahy has scheduled a “mark-up” of the legislation for this Thursday, May 9.  A mark-up is a meeting in which Senators debate, amend and re-write proposed legislation.  The Committee will address all of these amendments.  It is likely, given the Democratic advantage and the presence of two Gang of Eight Republicans, Jeff Flake (R-AZ) and Lindsey Graham (R-SC), that the legislation will emerge from the Judiciary Committee largely unscathed.  After the Judiciary Committee votes, after weeks in which they will have to consider the 300+ amendments, the bill will be brought to the Senate floor for a vote in the full Senate.  Expect major pyrotechnics there.

We will continue to update the progress of the bill as it moves through the Senate and the Congress.  Stay tuned.

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.

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.

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.

Every Saturday, Northwestern High School hosts a very popular Flea Market run by the International Studies Program. This Flea Market takes place in the main school parking lot – vendors sell everything from bananas to bandanas to barbecue. Several Saturdays in the spring, Northwestern High School also hosts track and field meets for schools in the Catholic Youth Organization of the Archdiocese of Washington. Several hundred students from dozens of schools in the area participate in these meets – well over a thousand athletes and their families attend the track and field events every Saturday. Parking is always a problem at these meets, and especially so at Northwestern, when the main lot is filled with vendors who have been there since dawn setting up their stands. Families arrive to the track meet and – finding no legitimate parking spots left – resort to parking along the curbs and on the hillside behind the bleachers.

Yesterday, the track meet organizers announced that cars parked on the hillside would be ticketed and towed. Grumbling parents and grandparents trudged out of the bleachers to move their cars, some loudly claiming that the school should cancel the flea market on weekends when track meets or other high attendance events are held – why ruin the goodwill gained by hosting the meets in the first place? A young gentleman with a hand-held electronic ticketing device was citing certain cars, vans, and trucks parked haphazardly along the curb. He was clearly employed by an agency authorized to issue parking tickets at the school, but his weekend-casual uniform also indicated he was not a member of the Prince George’s County police force. He spoke to the parents: “I am only ticketing those vehicles blocking the fire and emergency vehicle access lanes. I am not going to ticket those cars parked along the yellow curb that are not blocking access to the school or fields. I cannot guarantee the police will not come and ticket your cars, but it is a weekend and a big hassle for them to write out individual tickets by hand when I can do it faster and easier on my device here – and I am solving the emergency access problem. But I promise you I am only ticketing the most egregious offenders.” Pleased by this reasonable response, families made their way back to the meet. However, an hour later the meet organizers announced that the police were ticketing and towing any cars parked along the yellow curbs. Hundreds of parents who had been assured that only the most dangerously-parked vehicles would be cited left the bleachers to move their cars into the surrounding neighborhood. “But you promised!” and “Cancel the stupid flea market!” they cried. The consequences were financial and emotional – some were ticketed, some missed their kids placing in a photo-finish 400 meter dash. Some simply reparked their cars and purchased barbecue from the flea market vendors.

Northwestern should not have to cancel a long-standing and popular flea market because of a special event, nor should it discontinue hosting middle school sporting events because of lack of ample parking – both the ongoing commercial enterprise and the family events contribute to community goodwill and raise the profile of the school as long as law enforcement is clear on – and willing to cooperate with – the school’s priorities. Business and family can coexist. Lower-rung authorities are capable of quick and reasonable decisionmaking. Law enforcement authorities with overlapping jurisdiction should communicate to avoid giving conflicting information to the affected public. Enforcement zealotry eviscerates goodwill and secures nothing. Perhaps the legislators, policy makers, and attorneys who are shaping immigration reform will lift their heads from the minutiae of 844-page proposals and gain insight into the broader issues at play during a seemingly unrelated event. Northwestern is hosting three more Saturday track meets this season.

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.

The Supreme Court’s decision in Moncrieffe v. Holder represents a big win for those—like us—who believe lawfully present immigrants should not be deported for relatively minor drug offenses. The question now is: how big?

In a 7-2 decision written by Justice Sotomayor, the Court held that a marijuana distribution conviction should not be considered an “aggravated felony” under the immigration laws unless court records demonstrate that the offense involved payment or more than a small amount of marijuana. Yet in so doing, the court appears to suggest that immigrants should always receive the benefit of the doubt if court records fail to indicate whether they were convicted of an “aggravated felony,” even when they are applying for relief from removal. If so, the decision would effectively resolve a question that was distinct from, but related to, the one before the Justices.

Some background: For immigrants in removal proceedings, having an “aggravated felony” conviction carries two distinct consequences. First, it makes them removable from the United States (i.e. subject to deportation). Second, it makes them ineligible for most discretionary forms of relief—including asylum and cancellation—that would allow them to lawfully remain in the country notwithstanding the conviction. Under the Immigration and Nationality Act, the government carries the burden of demonstrating that an immigrant is removable, while immigrants carry the burden of demonstrating they are eligible for relief. Thus, in holding that Mr. Moncrieffe was not convicted of an aggravated felony for purposes of removability, the Supreme Court could have left open whether he would have to affirmatively show he was not convicted of such a crime to qualify for relief from removal.

Fortunately, Justice Sotomayor’s decision appears to kill two birds with one stone, suggesting that a conviction cannot be considered an aggravated felony for purposes of removability or relief unless clearly established by the record of conviction. How do we know? For one thing, the opinion repeatedly implies that the inquiry into whether an immigrant was convicted of an “aggravated felony” should be one in the same for purposes of removability and relief—even saying in footnote 4 that its analysis is “the same in both contexts.” For another, the majority specifically says (on page 19) that an immigrant like Mr. Moncrieffe “may seek relief from removal such as asylum or cancellation of removal”—and, as importantly, that Immigration Judges could deny relief as a matter of discretion if additional facts surfaced to suggest the immigrant was a legitimate drug trafficker.

If this interpretation of Moncrieffe is correct, it would mean that numerous federal circuit courts now wrongly require immigrants to affirmatively demonstrate they have not been convicted of an aggravated felony to obtain relief from removal. By making immigrants prove a negative, these decisions (such as Young v. Holder in the Ninth Circuit, and Salem v. Holder in the Fourth Circuit) have the same practical effect as the position the Supreme Court has now rejected: denying relief from removal to otherwise qualified immigrants simply because their conviction records do not specify the surrounding circumstances of their offense. We hope government attorneys will read Moncrieffe the same way. You can be sure, however, that Benach Ragland will raise this argument and continue to litigate the issue until the Supreme Court makes explicit what Moncrieffe makes implicit.

“¡Obama escucha, seguimos en la lucha!” This shouting was heard from downtown on 14^th 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 10^th.  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.

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.