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From the American Immigration Council

Washington D.C. – During its nine-year history, issues have arisen with respect to restrictions on counsel by the Department of Homeland Security’s immigration agencies. Tuesday, in response to calls from the American Immigration Council and the American Immigration Lawyers Association, the U.S. Citizenship and Immigration Services (USCIS) issued immediate, comprehensive changes to their policies to ensure an appropriate role for attorneys in the immigration process.

Many noncitizens are forced to navigate the immigration process without representation because they cannot afford an attorney.  But even persons who can afford one, or are represented by a pro bono attorney, have at times faced severe restrictions on their representation.  This is particularly troublesome given the significant power USCIS officers wield.  For example, they decide whether a noncitizen is entitled to stay in the U.S. or not.  The assistance of an attorney well versed in the complexities of immigration law can help safeguard the rights of these noncitizens and ensure just outcomes.   

By revising its guidance, USCIS has responded to some of the most serious access concerns.  For example, the new guidance provides that an attorney generally may sit next to his or her client during an interview, may be permitted to submit relevant documents to the USCIS officer, and may raise objections to inappropriate lines of questioning. 

The American Immigration Council looks forward to commenting on the new guidance and working with the agency to make sure it is followed.  The other immigration agencies – Customs and Border Protection and Immigration and Customs Enforcement – should take note of USCIS’s commitment to improving access to counsel and take similar steps to recognize the meaningful role that attorneys play in protecting noncitizens’ rights.

To view the guidance see: 

• The Role of Private Attorneys and Other Representatives; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42

Categories: Blogroll,Employment Immigration,Family Immigration,General,Immigration Litigation and Removal,Legislation and Policy |

From the American Immigration Council

Last week  the Department of Justice (DOJ) announced that it was filing suit in South Carolina to block Act No. 69 (formerly SB 20), South Carolina’s new anti-immigrant law—modeled on Arizona’s SB1070. DOJ argues—like it did in Utah and Alabama—that the law is unconstitutional and interferes with the federal government’s ability to set and enforce immigration policy and is likely to result in civil rights violations. Following the legal challenge, the DOJ Civil Rights Division also sent a letter to Alabama’s public schools reminding them of their duty to provide public education to all children in the state regardless of immigration status. 

The DOJ is challenging state legislatures that pass immigration enforcement laws that interfere with the federal government’s role in enforcing immigration laws and setting priorities. The DOJ’s effort on this case reflects their commitment to protecting constitutional principles and individual rights, a commitment that should extend to pursing vigorous challenges in other states that have passed similar laws, including Utah, Georgia, and Indiana.

The Department of Homeland Security (DHS) also has a strong role to play and should respond to the civil rights crisis taking place in the states and make good on Secretary Napolitano’s assurance that her agency will not be complicit in enforcing Alabama’s new law through federal immigration enforcement actions. 

If one agency of the government is arguing that Alabama’s law is unconstitutional, another agency, DHS, should act consistently and closely review the cases of all immigrants brought to their attention as a result of Alabama’s new law and exercise appropriate discretion. Good government requires consistency across agencies. DHS, like DOJ, should treat implementation of Alabama’s new anti-immigrant law as the civil rights crisis that it is and respond swiftly.

Categories: Blogroll,General,Immigration Litigation and Removal,Legislation and Policy |

From the Immigration Policy Center, September 30, 2011

Washington D.C. – This week, portions of Alabama’s harsh new immigration law, HB 56, take effect in Alabama. While the governor of the state proclaimed that this is the toughest immigration law in the country, Alabama businesses, state agencies, and taxpayers will ultimately pay the price for this economically damaging legislation.

In order to provide the latest economic and demographic information on immigrants, Latinos, and Asians in Alabama, the Immigration Policy Center has updated its Alabama state fact sheet, New Americans in the Yellowhammer State.

Highlights of the data show that immigrants, Latinos, and Asians are a growing and important part of Alabama’s state economy as workers, taxpayers, and consumers.  For example:

Immigrants are important to Alabama’s economy as workers.

• Immigrants comprised 4.9% of the state’s workforce in 2010 (or 111,670 workers), according to the U.S. Census Bureau.

Unauthorized immigrants are important to Alabama’s economy as workers and taxpayers.

• Unauthorized immigrants comprised roughly 4.2% of the state’s workforce (or 95,000 workers) in 2010, according to a report by the Pew Hispanic Center.Unauthorized immigrants in Alabama paid $130.3 million in state and local taxes in 2010, according to data from the Institute for Taxation and Economic Policy.  This includes:
  • $25.8 million in state income taxes.
  • $5.8 million in property taxes.
  • $98.7 million in sales taxes.

• Unauthorized immigrants comprised roughly 4.2% of the state’s workforce (or 95,000 workers) in 2010, according to a report by the Pew Hispanic Center.
•  If all unauthorized immigrants were removed from Alabama, the state would lose $2.6 billion in economic activity, $1.1 billion in gross state product, and approximately 17,819 jobs, even accounting for adequate market adjustment time, according to a report by the Perryman Group.

To view the fact sheet in its entirety see:

• New Americans in the Yellowhammer State (IPC Fact Check, September 30, 2011)

Categories: Blogroll,General,Immigration Litigation and Removal,Legislation and Policy |

From the Immigration Policy Center, American Immigration Council

September 29, 2011

Washington D.C. - Yesterday, Judge Sharon Blackburn failed to enjoin major portions of Alabama’s extreme anti-immigrant law, HB 56, leaving many dangerous sections open to implementation. Local police, for example, are required to act as federal immigration enforcement agents by demanding proof of legal status from anyone who appears to be foreign. Other provisions—that go further than Arizona’s law—insist public school administrators check the legal status of students and their parents and create confusing and burdensome new restrictions on contracts between the state government and immigrants and between private citizens and immigrants. It’s unclear how far the restrictions on contracts will go, but at a minimum they will limit access to housing and utilities for anyone who cannot produce the proper documentation.

Although supporters claim the law will solve the state’s economic problems and reduce crime, HB 56 will inflict greater economic damage to Alabama, costing the state millions to implement and defend. And the crime argument simply doesn’t hold water. Since 1990, Alabama’s unauthorized population has risen from five thousand to 120 thousand.  Yet the violent crime rate in the state has fallen by more than a third. Restrictive immigration laws have proven to reduce, not maximize, law enforcement effectiveness.

These kinds of laws also tend to have a chilling effect on state businesses that depend heavily on foreign talent and investments, such as Alabama’s automotive and emerging biotechnology and aerospace industries. The Korean automaker Hyundai, for example, has brought thousands of jobs to Montgomery. The German company ThyssenKrupp has built a $3.7 billion steel mill north of Mobile, Alabama, that will employ 2,700 workers when it is running at full capacity. HB 56 sends a clear and decidedly un-American message that many of these foreign workers who live and work in Alabama are illegal until proven legal; guilty until proven innocent.

Meanwhile, Alabama’s law enforcement agencies are struggling to fulfill current mandates in tough fiscal times. The additional burdens imposed by this law will hurt, not help, in fighting crime. Reports show the Jefferson County Sheriff’s Office has already cut 20 percent or more of its budget this year, eliminating 145 deputy positions in order to make up the $3 million missing in this quarter’s budget. According to Tuscaloosa (AL) Police Chief Steve Anderson, the new law will require officers to spend more time on basic traffic stops, not to mention potential court appearances, taking time away from solving real crimes and protecting communities.

Local schools and administrators will also have to bear the burden of enforcing Alabama’s draconian immigration law. The Principal of Crossville Elementary School in northeastern Alabama reportedly said, “We don’t have the personnel to do all the work that is needed to find out which parents are legal. That’s my biggest concern—putting it off on the schools to police illegal immigration. I don’t think school is the place to do that; we don’t have the resources.”

Alabama has just entered dangerous new territory and, in the process, dragged the rest of the country along for the ride. Those out-of-state politicians and organizations behind these state-level experiments with immigration policy will not lose anything more than a court battle. Sadly, it’s the people of Alabama—being used by anti-immigrant crusaders—who have the most to lose.

For a legal analysis of yeterday’s court ruling see:

• What You Should Know About Initital Rulings on Alabama’s Immigration Law (ImmigrationImpact.com, September 29, 2011)

Categories: Immigration Litigation and Removal,Legislation and Policy |

From the American Immigration Council

Washington, D.C. – Today, the U.S. Court of Appeals for the Third Circuit joined the growing list of courts to reject the government’s attempt to bar noncitizens from seeking reopening or reconsideration of their cases from outside the United States. The American Immigration Council’s Legal Action Center and the National Immigration Project of the National Lawyers Guild, which filed a joint amicus brief in the case and argued before the court, applaud the court’s ruling. “The court’s decision is yet another step in protecting the important safeguards that Congress put in place to help ensure that noncitizens are not unlawfully separated from their families,” said Beth Werlin of the Legal Action Center.

The Legal Action Center and the National Immigration Project have coordinated litigation on this issue nationwide and call on the Board of Immigration Appeals (BIA) to abandon its misguided regulation barring review of motions filed by noncitizens outside the United States.  To date, six courts of appeals have rejected the departure bar.  And just this week, the U.S. Court of Appeals for the Tenth Circuit, the only court with a decision at odds with the majority, granted rehearing en banc to address the validity of the departure bar.  “The writing is on the wall.  It’s past time for the government to stop cutting off access to the BIA and immigration courts by defending this clearly unlawful regulation,” said Trina Realmuto of the National Immigration Project.

Federal law gives noncitizens the right to file motions to submit new evidence or arguments after their removal orders become final. But the BIA has long maintained that it cannot consider such motions if a foreign national is outside the United States. This policy gives the government a perverse incentive to remove noncitizens from the country before they have an opportunity to submit evidence or arguments that could change the outcome of their cases. Moreover, the policy is at odds with provisions of a 1996 immigration law which made it clear that noncitizens had the opportunity to seek review of unfavorable decisions from outside the United States.

Today, however, the Third Circuit recognized that the government’s position was at odds with Congress’ clear intent and would undermine its policy objectives.  It explained, “the plain text of the statute provides each alien with the right to file one motion to reopen and one motion to reconsider, provides time periods during which an alien is entitled to do so, and makes no exception for aliens who are no longer in this country.”

 For more information, see:

• Motions to Reopen from Outside the Country (LAC Litigation Page)

Categories: Blogroll,General,Immigration Litigation and Removal,Legislation and Policy |

From the American Immigration Council:

Washington, D.C. – On Monday, the Department of Justice filed suit against the state of Alabama to block the implementation of HB 56, which is set to take effect September 1. HB 56 is similar to but far more punitive than Arizona’s SB 1070. The law includes provisions that require local school districts to check and report on the immigration status of all children enrolling in public schools. It also transforms local police into federal immigration officers, and creates criminal consequences for anyone who provides housing, transportation, or employment to undocumented immigrants.

Alabama is the second state, after Arizona, that the Department of Justice has sued for overstepping its authority to regulate immigration. Lawsuits have also been filed in Utah, Indiana and Georgia by immigrant rights and civil liberties groups. So far, the courts have prevented each state from implementing the central provisions of their anti-immigrant laws. In truth, all these laws have done is inflict long-lasting damage to these states’ reputations, businesses, and budgets.

The Department of Justice has taken the right step to not only preserve the federal government’s exclusive authority to regulate immigration, but to take a stand against laws that will result in profiling, discrimination and the violation of fundamental constitutional rights. States must not continue down this dangerous and punitive path. The recent debate surrounding the enactment of HB 56 was reminiscent of a darker time in our nation’s history—one that we must not revisit. Furthermore, as noted by U.S. Immigration and Customs Enforcement, HB 56, like Arizona’s SB 1070, will overload the federal government with referrals and divert ICE’s scarce resources from the agency’s highest priorities—national security, public safety, and border control.  Alabama’s draconian law will also discourage immigrant parents from enrolling their children in public schools, according to a high-level official from the U.S. Department of Education.

“Other states considering copycat laws should be forewarned,” said Benjamin Johnson, Executive Director of the American Immigration Council. “The federal government and civil society will not stand by while states create a hostile environment for immigrants and their communities throughout our nation. The impact of these laws will not be endured by undocumented immigrants alone. They are a threat to the civil rights and civil liberties of all residents of Alabama. Abandoning the values and principles on which this country was built is not the answer to our ongoing immigration problems. We must demand that our federal government end its filibuster on immigration reform efforts and get to work fixing our immigration system.”

Categories: Blogroll,Employer Compliance,Employment Immigration,General,Immigration Litigation and Removal,Legislation and Policy |

As Congress continues its budgetary deadlock, the possibility of a government shutdown looms larger by the minute. If Congress is unable to reach accord on Friday, the government will close at midnight, Saturday April 9.

In general, if the government shuts for budgetary reasons, all but “essential” government are furloughed and not allowed to work. So what does this mean for immigration agencies?

USCIS: A couple of shutdown threats back, a USCIS official stated at a stakeholder engagement that USCIS (other than the human touches on E-Verify) would not need to shut down, since all of the agency, other than E-Verify, is funded by fees. However, it is not clear that this is the case, and at least one local office has indicated that it is working on its shutdown plan. We will update as we get more information.

DOS: If there is a shutdown, the result for DOS will likely be the same as it was in the 1996 government closing. Then, the only visa issuance being done was for some diplomats and for “life or death” situations. As DOS is wont to say “a really, really important business meeting is not life or death.”

CBP: Inspection and law enforcement are considered “essential personnel,” though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

EOIR: EOIR has been advised to “put its shutdown plans in place.” As with other agencies, personnel who are not considered “essential” will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

DOL: DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries. We do not know at this point whether iCERT/PERM would continue to function. However, because the systems require funding to run, practitioners should assume that they would not be available.

Cite as “AILA InfoNet Doc. No. 11040730 (posted Apr. 7, 2011)”

Categories: Blogroll,Employer Compliance,Employment Immigration,Family Immigration,General,Immigration Litigation and Removal |

Today, a federal appellate court chastised the Board of Immigration Appeals (BIA) for preventing noncitizens from reopening their cases from outside the United States. This important ruling from the U.S. Court of Appeals for the Sixth Circuit repudiates the government’s view that immigration judges and the BIA lack “jurisdiction” over such cases. 

The American Immigration Council’s Legal Action Center and the National Immigration Project of the National Lawyers Guild, which filed a joint amicus brief in the case, applaud the Sixth Circuit’s ruling.  The Legal Action Center and National Immigration Project have coordinated litigation on this issue nationwide and call on the BIA to abandon its misguided regulation barring review of motions filed by noncitizens outside the United States. 

“The Sixth Circuit recognized that the regulation deprives noncitizens of their statutory right to present new evidence in their cases.  The decision corrects the government’s unlawful attempt to separate families and opens the door for them to return to the United States,” said attorney Trina Realmuto of the National Immigration Project. Beth Werlin of the Legal Action Center said, “A motion may be a person’s only chance to present his case to the immigration judge. The government should take immediate steps to withdraw this unfair and outdated regulation rather than proceed with continued, unnecessary and costly litigation.”

Federal law gives noncitizens the right to file motions to submit new evidence after their removal orders become final.  But the BIA has long maintained that it cannot consider such a motion if a foreign national is outside the United States. This policy gives the government a perverse incentive to remove noncitizens from the country before they have an opportunity to submit evidence that could change the outcome of their cases. Moreover, the policy is at odds with provisions of a harsh 1996 immigration law that resulted in a dramatic reduction in due process rights and expansion of expedited removal but that made it clear that noncitizens had the opportunity to seek review of unfavorable decisions from outside the United States.

Today’s ruling involved Vakhtang Pruidze, a green card holder from Russia removed from the country because of a minor offense in Michigan.  Less than two weeks after his removal, the criminal court vacated Mr. Pruidze’s conviction.  He then sought to reopen his immigration case, but the BIA refused to consider the motion because he was outside the country. 

As the Sixth Circuit declared in its ruling, the BIA’s interpretation “has no roots in any statutory source and misapprehends the authority delegated to the Board by Congress.”   
 

Categories: General,Immigration Litigation and Removal |

View this short video from the American Immigration Lawyers Association for real solutions to the immigration problem:

http://multivu.prnewswire.com/player/41787-comprehensive-immigration-reform/

Categories: Blogroll,Employer Compliance,Employment Immigration,Family Immigration,General,Immigration Litigation and Removal,Legislation and Policy,Medical Professionals |

From the Immigration Policy Center

Washington D.C. – Earlier this week, the American Immigration Council’s Legal Action Center (LAC), the American Immigration Lawyers Association, and the Pennsylvania Immigration Resource Center filed an amicus brief with the Board of Immigration Appeals (BIA) urging the government to protect the rights of immigrants whose mental disabilities prevent them from participating meaningfully in their own removal hearings. Nearly one in six individuals in immigration custody have some form of mental illness, and there have been reports of mistaken deportations of U.S. citizens with mental disabilities. “This is particularly disturbing given that these immigrants are not granted court-appointed counsel in immigration proceedings” said Melissa Crow, Director of the Legal Action Center.

The BIA is currently considering a case involving a noncitizen with mental disabilities and sought input from the LAC on a range of questions relating to procedures for adjudicating this and similar cases. The LAC urged that a single case, which does not raise fully all the issues that need to be resolved, is not the proper forum for deciding such complicated issues with far-reaching implications. Instead, the LAC argued that a rulemaking process, with outreach to a broad spectrum of stakeholders, including disability rights advocates, mental health professionals and social service providers, would be a more appropriate way to proceed.

While the U.S. Supreme Court has repeatedly addressed the rights of defendants with mental disabilities during criminal trials, no comparable guidance exists for immigrants with mental disabilities during removal proceedings. The Immigration and Nationality Act charges the Attorney General with prescribing safeguards in removal proceedings to protect the rights and privileges of certain immigrants with mental disabilities. At a minimum, such safeguards must include counsel. Additional safeguards, including the appointment of a guardian, friend or relative, may also be required for immigrants whose disabilities are so severe that they cannot communicate with their attorneys. If the requisite safeguards are unavailable, termination of proceedings is appropriate. The Board also received amicus briefs from the Capital Area Immigrants’ Rights Coalition, Human Rights Watch, Physicians for Human Rights, as well as Texas Appleseed and Advocacy, Inc.

Categories: Blogroll,Family Immigration,Immigration Litigation and Removal,Legislation and Policy |